Chevron Oil Co.

CHEYRON OIL COMPANY Chevron Oil Company, Standard Oil Company of Texas Division and Local 826 , International Union of Operat- ing Engineers , AFL-CIO. Cases 16-CA-2890 and 16-CA-3221 May 15, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On December 26, 1968, Trial Examiner Harold X. Summers issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trail Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal of such allegations. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the addi- tions and the modifications set forth below. 1. We agree with the Trial Examiner that Respondent violated Section 8(a)(1) of the Act through District Pro- duction Superintendent Kirkvold's statements to employ- ees on December 6, 1967. As found by the Trial Examin- er, Kirkvold told the employees they had not received certain benefits because of their representation by the Union and promised them the prompt receipt of benefits if they abandoned the Union.' 2. General Counsel excepts to the Trial Examiner's dating of the 8(a)(5) violation only from January 31, 1967. General Counsel claims that Respondent never engaged in good-faith bargaining with the Union and that the violation should therefore be found proved as of an earlier date. For reasons set out below, we find merit in this contention. The broad issue posed by the complaint's 8(a)(5) allegations is whether, in negotiating with the Union, Respondent performed the obligations Section 8(d) of the Act imposed upon it to "meet at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment, or the negotiation ' It is not without significance to the good-faith issues discussed below that these attempts to induce the Union's ouster occurred shortly after the end of the Union's certification year 445 of an agreement, or any question arising thereunder. . . ." Ultimate resolution of that issue, according to well-established concepts, requires consideration of the totality of Respondent's conduct both at and'away from the bargaining table.2 While not always easy to apply, the guidelines for assessing good faith, or the want of it, in situations where, as here, the parties have met across the bargaining table for the 'ostensible p'urposes'of bargaining, are well established. The concept contemplates more than "pure- ly formal meetings between management and labor while each maintains an attitude of `take it or leave it'; it presupposes a sincere desire td reach ultimate agreement N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477. To be sure, the Act's good-faith standard does not require the yielding of positions fairly maintained. But at the same time it does contemplate a willingness to "approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties." Majure Transport Co. v. N.L.R.B., 198 F.2d 735, 739 (C.A. 5). See also Kohler Co., 148 NLRB 14334, 1444, enfd. 345 F.2d 748 (C.A.D.C.), cert. denied 382 U.S. 836; N.L.R.B. v. Herman Sausage Co., Inc., 275 F.2d 229 (C.A. 5). In conformity with the principles above set out, we have taken into account all of Respondent's activities from the time the Union came on the scene at this plant.3 Viewed in unity, and not as separate and isolated fragments, Respondent's objective actions support an inference that Respondent never engaged in good-faith collective bargaining with the Union The considerations which impel us to that conclusion follow: First, the events immediately preceding the conduct of the Board's election held on October 20, 1966, estab- lish, as the Trial Examiner found, that Respondent then displayed to its employees an "unmistakable aversion" to its employees' interest in being represented by the Union.4 Respondent's effort to obtain the Union's defeat at the polls consisted of a series of communications to employees-oral and writtens-which, read as a Y As was stated by Mr Justice Frankfurter , in his separate opinion in N L R B v Insurance Agents' International Union , AFL-CIO (Pru- dential Ins Co ), 361 U S 477, 505-506 the significance of conduct , itself apparently innocent and evident- ly insufficient to sustain a finding of an unfair labor practice, "may be altered by imponderable subtleties at work " Activities in isolation may be wholly innocent , lawful and "protected " by the Act, but that ought not to bar the Board from finding , if the record justifies it, that the isolated parts "are bound together as the parts of a single plan [to frustrate agreement] The plan may make the parts unlawful Swift & Co v United States , 196 U S 375, 396 3 We have taken into account certain facts in addition to those set out in the Trial Examiner's Decision In so doing , we have relied either on documentary evidence or on testimony of Respondent 's witness- es concerning its bargaining position ' Although Respondent has a long history of bargaining with a number of unions , including the Charging Union and/or its sister locals at other locations , no employees in any plant of this Division of its widespread corporate enterprise had ever been successfully organized as of the date the Union began organizing at the plant here involved s The Trial Examiner's recital of facts describing Respondent's pre- election campaign is limited to Magee's October 3 speech In addition to the speech , however, there were other communications to employees not mentioned by the Trial Examiner 182 NLRB No. 64 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole, conveyed the following message to its employees: that at other plants of the Company where the Union was the established bargaining representative, it had brought "trouble and strikes"; that the employees should not be misled into believing that they would fare better with the Union than they would if they remained unrepresented; that the Company did not have to sign a contract and agree to union demands and "there is no law" which compelled it so to do; that if the Company did not agree to union demands, the "only thing" the Union could then do was to call a strike, in which event the company was perfectly free to hire permanent replacements"; that once a striker is replaced during a strike "his job is lost"; that while the Company "hoped not to have a strike or any trouble around here" it knew its "legal rights" and was deter- mined to use them; that it did not intend to have "any union representative" tell it how to run its plant or to interfere with its right to establish the number of basic jobs; that it intended to apply its current policies in making employee assignments and promotions to exist- ing jobs; and that "talk" concerning the Union's ability to negotiate changes in these policies should not be believed. Respondent pointed out in this latter connection that its most recent contract with this Union at another plant contained the Union's agreement to provisions (quoted by Respondent to the employees) which "vest- ed" in the Company the right to determine employee qualifications for jobs, to assign employees to jobs, and to assign duties to employees. , Unlike the Trial Examiner we are unable to ignore the Respondent's preelection statements in resolving the issue of Respondent's good-faith performance of its bargaining obligations., Respondent's objective con- duct in the period following the Union's certification, described below, contains numerous indicia of Respond- ent's continuing hostility to the Union and of its deter- mined intent, consistent with that suggested by Respond- ent's preelection letters, to restrict the Union in the performance of its representative functions. Second, a striking aspect of this case is the inordinately long delay of almost 3t months that intervened between the Board's certification of the Union on October 26, 1966, and the time when face-to-face negotiation of '' The Trial Examiner's unwillingness to give any weight to Respond- ent's preelection statements in resolving the good-faith issue seems to have been based, in part, upon an erroneous assumption that Johanes- sen, (whose "personal strategy," constituted as the Trial Examiner's notes, the "fount i of General Counsel's case") had played no part in the Respondent's conduct of its antiunion preelection campaign It is true that District Production Superintendent Magee's signature appears on most of the preelection literature, and that it was Magee who prepared and delivered the October 3 speech referred to by the Trial Examiner However, Johanessen's testimony reveals that Magee checked his campaign communications with Respondent's California labor relations staff (which included Johanessen) before distributing them According to Johanessen, the task of checking the "preelection literature" was assigned to his assistant, Charles Lantnp-one who also subsequently served as a member of Respondent 's negotiation committee Johanessen also testified that, while Lantrip was "pretty much on his own" with respect to approving the material, Lantrip did in fact "consult" with Johanessen from time to time" before approving the distribution of the various "literature items " contract terms actually began. A substantial part of the delay was attributable to Respondent's foot-dragging in responding to the Union's bargaining and information requests and to Respondent's lack of diligence in setting meeting dates. The relevant facts-all undisputed-are as follows: On November 8, 1966, the Union wrote, asking that a meeting be scheduled at the earliest date on or after November 20, "so that negotiations could be swiftly completed prior to the strike deadline in the oil industry," then set for December 31, 1966.7 In the same letter, the Union, also asked for extensive information about pensions and insurance benefits, classifications and pay rates, and paid vacation, holiday, and leave policies then in effect. Respondent failed to reply to the Union's letter until November 21, and then merely said: "We will be available for a meeting on ' either December 13, 14, or 15, 1966. At this time we can begin to discuss the information requested in your letter of November 8, 1966." Although Respondent thereafter, on December 4 and 6, 1966, did supply the Union with the wage, and certain of the other information the Union needed to prepare its contract proposals, it did so only after the Union had made a second request for the information (by letter dated November 25) and had threatened to file 8(a)(5) charges if its request was not honored promptly." Respondent did meet with the Union on December 14. But in doing so, it came prepared neither to engage in face-to-face negotiations nor to do more than "accept" the Union's bargaining proposals for future consideration and to announce the procedural conditions under which it would negotiate. Respondent then failed to schedule another meeting until January 17, more than 30 days later. At the conclusion of that session-the first at which active discussion of contract terms occurred-Respondent asserted it could not meet again until January 30.9 In noting the inordinate delay in the commencement of negotiations, we are mindful of the fact that in November and December 1966, and in the early part As of the date of that letter, industrywide negotiations were still in progress These negotiations covered a multiemployer unit including Chevron employees and looked to a contract to follow the one expiring on December 31, 1966 They were concluded sometime in January 1967, and resulted in a contract containing a larger package of wages and benefits than that in the prior contract 8 Even then Respondent did not furnish all the information the Union had asked for 8 It is well established that unreasonable employer delays in according unions the opportunity to engage in face-to-face negotiations, even though not deliberate, constitute impermissible impediments to the effec- tive operation of the bargaining process as contemplated by the Act The reason for this, as the relevant cases make clear, is that the postponement of collective bargaining tends to weaken and impair the unity and economic power of the represented group on the one hand; and, on the other, to secure for the employer a dominant position at the bargaining table See , for example , A H Belo Corp v N L R B., 411 F 2d 959 (C A 5), N L R B v Exchange Parts Co , 339 F 2d 829, 832-835 (C A 5), "M" System Inc , 129 NLRB 527, 548-549, J H Ritter Rev Mfg Co , Inc , 86 NLRB 479 The importance of prompt negotiations to a union's maintenance of its bargaining strength is even greater where, as here, the employees have never before been represented, and, in addition, they have in effect been told by their employer that their selection of the union would be a futile act CHEVRON OIL COMPANY of January 1967, Respondent was also a participant in the negotiations which ultimately settled the terms of the nationwide oil industry contract for a period effective January 1, 1967. But, on the record before us, we do not believe that Respondent's foot-dragging in the handling of its relations with the Union here was justified by its preoccupation with bargaining obliga- tions elsewhere. The testimony of Johanessen and Lan- trip plainly reveals that neither of them was charged with the responsibility of representing the. Respondent at the industrywide negotiations, and that, moreover, they are but two of a total of eight individuals who compose Respondent's permanent complement of labor relations experts. Nor does Respondent's bargaining else- where supply legitimate explanation for its failure to reply to union bargaining, and information requests with the same kind of promptness and courtesy which it is reasonable to assume it would display in the conduct of other of its important business affairs. Viewed in the context of Respondent's earlier antiunion campaign and of its later conduct at and away from the bargaining table, we find that Respondent's delaying tactics supply affirmative evidence that Respondent's hostility to the Union survived the election and that it was unwilling to accept and to deal with the Union in good faith. Third, Respondent's course of conduct in the negotia- tions, particularly when appraised with its other conduct, elsewhere considered, reflects that it approached the bargaining table with the attitude of an employer who is unreconciled to his employees' choice of union repre- sentation, who is determined not to surrender in any material respect the full freedom'he previously enjoyed to regulate his labor relations unilaterally, and who has no serious desire to reach agreement through the peaceful processes of collective bargaining, except, per- haps, upon a basis which would subvert the Union's bargaining status. The aspects of the Respondent's 'con- duct at the bargaining table which we deem particularly noteworthy are as follows: On January 17, 1967, the first day on which active bargaining commenced, Respondent, after ostensibly submitting the union proposals to give-and-take discus- sion, rejected virtually all of them.10 On January 18, it placed on thetable a draft of the bargaining contract terms it had previously formulated and, by the next session , held on January 30, made clear that it would stand firm on its proffered contract terms. Thereafter, throughout the course of the negotiations, it continued to insist on its contract terms without any modification of any major item they contained. As more fully described in the Trial Examiner's Deci- sion, Respondent unyieldingly demanded an absolute 1" Of the approximately 25 specific demands for changes in working conditions which the Union's initial draft proposed, Respondent acquiesced in only two- those covering shift wage differentials and paid holidays Both of these provided for the differentials and holidays to which it had agreed in the industry contract However, as noted by the Trial Examiner, practices at this plant with respect to holiday pay rights were in fact more liberal than those at other plants where employees were required to work 6 months before getting paid holiday rights The Union was not aware of this fact when it made its proposals 447 right of unilateral control over most of the important aspects of the employment relationship. As the ostensible quid pro quo, it offered only to guarantee that unit employees would be paid the same wage rates and receive the same fringe benefits as those its unrepresent- ed employees would receive under its established poli- cies. But even with respect to such wage and benefit rates, Respondent's contract proposal reserved to man- agement complete discretion to alter the terms of the fringe benefits and to decide that, because of "special" circumstances, Respondent could pay or compensate any employee at more than the contract's guaranteed rate. Furthermore, in line with its preelection statement to employees that if the Union was selected, Respondent would not agree to union demands contemplating any restrictions on its freedom to "run this plant" or "to establish basic jobs" as it saw fit, Respondent's proposed contract sought an unfettered right unilaterally to estab- lish new job classifications; to eliminate or to merge existing ones; to assign to employees in listed job classi- fications any duties described in other job classifications; to assign unit work to out-of-unit employees; to transfer unit employees to out-of-unit jobs, and out-of-unit employees to unit jobs; to promote, demote, or select employees for layoff on the basis of its own judgment of the qualifications and ability of its employees (using seniority as a factor only if, in its judgment, other factors were equal); to discharge or discipline employees for such "cause" as management might define it; and to follow or to change any existing practices or shop rules about which the contract was silent. At the same time, Respondent proposed a tight "zipper" clause to preclude bargaining on these and other subjects during the contract term. In addition, it insisted on a rigid no-strike clause, while refusing to submit any of its actions to any form of arbitration. The Union refused to contract on the basis of Respondent's terms for the expressed reason that it and the employees whom it represented would be better situated without any contract at all-and with reason. For without the contract demanded by Respondent the Union would have the statutory right to: (1) advance consultation and bargaining concerning the mandatory bargaining subjects as to which • Respondent insisted upon unilateral control; and (2) grieve and engage in strike action in the event that changes in conditions of employment made without union consent were deemed serious enough to warrant such economic action. The Union did, however, make numerous attempts to move closer to Respondent's position. As set out more fully in the Trial Examiner's Decision, the Union variously (but unsuccessfully) sought to compromise by offering to accept a no-strike clause if Respondent would agree to, arbitration; by proposing as a substitute for Respondent's management rights clauses the manage- ment rights provisions contained in the Union's contract at the El Paso, Texas, plant of a sister company;" " The El Paso contract's management rights clause was the one referred to by the Company in its preelection literature This vested in the Company the right of "supervision and control of all operations, and the direction of all working forces, such as the determination (Cont ) 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and finally by indicating that it might be willing to accept all of Respondent's proposals on these subjects as made on the one condition that Respondent agree to a voluntary arbitration procedure whereby if the Union requested arbitration of a disputed issue, Respond- ent was free to refuse, but the Union would then be free to strike over that issue. The reasons for Respondent's adamant insistence on its broad restrictive proposals, as expressed at the bar- gaining table, and by its negotiators at the hearing, were clearly not related to any present or then anticipated business needs of the Company. Nor did Respondent seek to justify its demands on that basis. Its position seemed to be, simply, that so long as the Union would not or could not strike its operations, Respondent risked nothing by insisting that the Union waive its rights to bargain in the broad areas above described as a condition of obtaining any contract at all.12 As legal justification for its bargaining attitude and conduct, Respondent relies heavily upon the Supreme Court's holding in American National Insurance Co. v. N.L.R.B., 343 U.S. 395, that "management rights" proposals are among the appropriate subjects of collec- tive bargaining. But the Court in that case also made clear that the right to negotiate for the inclusion of management rights proposals in a contract is not unqual- ified, but, as in the case of all other proposals covering bargainable matters, remains subject to the application of good-faith bargaining standards. See 343 U.S. at page 409. In the instant case, the extreme breadth of the management rights provisions demanded by Respond- ent, viewed in context with the other considerations of the size of the work force, the right to hire, suspend, discipline and discharge for just cause, the establishment of work rules, the assignment of employees to jobs and assignment of duties to employees," all subject to a provision that "the Company will not exercise these rights for the purpose of violating the terms of this agreement " In addition, although that contract contained a no-strike clause, it also provided for arbitration ii We note in this connection Johanessen's testimonial explanations of the reasons for Respondent's adamant stand on the clauses which would have stringently restricted the Union's exercise of its representa- tive functions As noted by the Trial Examiner, Johanessen testified, inter alia, that up to January 30, he would have considered offering th Union "some form of arbitration" and a "better contract" but then decided not to because of his certainty as of that date that the Union could not or would not take strike action Based in part upon his unsupported assumption that Johanessen played no part in the Respondent's preelection campaign , the Trial Examiner concluded from the above-described testimony that Johanessen was prepared at the outset of negotiations to discuss and to consider the bargainable issues in good faith We do not adopt this conclusion Indeed, and bearing in mind Respondent's announcements during the preelection period, we believe Johanessen's overall testimony plainly reveals that Respondent's proposals were not framed or advanced with any business objectives in mind, but that they were formulated, rather, with a view toward demonstrating to the unit employees the "truth" of Respondent's preelection statements as to Respondent's ability and intent to frustrate union attempts to obtain any effective voice in establishing or maintaining work and job conditions In any event, and to the extent that Johanessen's testimony might be viewed as an averment of his good-faith approach to the collective- bargaining process, we view that testimony at best as a self-serving declaration having no probative value sufficient to overcome Respond- ent's manifestations of bad faith as revealed by its objective conduct both before and after January 31 to which we have adverted, satisfies us that Respondent's insistence on such provisions was guided primarily by a purpose to bypass and undermine the status, authority, and prestige of the Union as an employee representa- tive-a purpose which we find antithetical to the concept of good-faith bargaining. 13 American National Insurance therefore provides no sanctuary for Respondent. In light of its long experience in bargaining with unions in all parts of its extensive operations, to which Respondent proudly points, Respondent should be well aware that its mere willingness to meet with the Union and to proffer it a contract does not alone suffice as a fulfillment of its good-faith bargaining duty. Even in regard to meeting with the Union, Respondent seemed determined to control the number and the frequency of the meetings and to bring the bargaining to a state of deadlock soon after it commenced. And in regard to the specifics of its contract proposals , it is not without significance that of the many contracts between Respond- ent and other unions representing its employees, none contained provisions so restrictive of union representa- tive functions as the one which the Respondent adamant- ly here proposed. To summarize: The cumulative force of all the relevant circumstances supports an inference that Respondent never approached the bargaining table with a bona fide intent to strive for a mutually satisfactory agreement. On the contrary, and without giving conclusive weight to any separate element in this case, we are convinced and find that all times here relevant, Respondent was committed to, and utilized, a purposeful bargaining strat- egy designed to hamper the Union's performance of its representative functions and to undermine the Union in the eyes of its employees as an effective collective- bargaining agent. The factors to which we attach particu- lar significance include: (1) Respondent's display of hos- tility to the Union during the preelection period; (2) its delays immediately after the election in scheduling bargaining meetings and in furnishing relevant bargaining information to, and in otherwise conducting its business with, the Union; (3) its refusal to consider any contract which did not contain onerous restrictions on union rights as evidenced by its insistence upon the combined inclusion of "management rights" provisions, a rigid no-strike clause, and no resort to arbitration; (4) the lack of any demonstrated business justification for its insisting on such stringent contractual restrictions on the Union's exercise of its representative functions; (5) the fact that Respondent has no contract with any other union with such wide-ranging and onerous restric- tions on union rights; (6) Respondent's systematic oppo- sition in the course of more than 1 year of bargaining to practically every proposal of the Union looking to better noncost employee conditions and to the modifica- tion of the broad waivers of bargaining rights Respondent demanded as a condition of contract; and (7) its unlawful attempts to have employees abandon the Union. On the basis of the record evidence, we are persuaded " Cf Indiana Metal Products, A Textron, Inc , 180 NLRB No 96, Stuart Radiator Core Manufacturing Co , 173 NLRB 125 CHEVRON OIL COMPANY and find that, in its dealings with the Union at all times on and after December 14, 1966, Respondent failed and refused to negotiate in good faith and thereby violated Section 8(a)(5)'and (1) of the Act. 14 3. The General Counsel has, also excepted to the Trial Examiner's failure to find violative of the Act, and to provide an appropriate compensatory remedy for, Respondent's conduct in withholding from the unit employees here involved,'during the period from January 1, 1967, to May 16, 1967, and on and after January 1, 1968, wage increases and improved benefits that it granted other employees.'' We find merit in these excep- tions. As appears from the Trial Examiner's . Decision, Respondent as a matter of normal, policy follows the most recently negotiated industrywide contract in deter- mining the wage and benefit ,increases to be granted its unrepresented employees, and at plants not covered by that contract, to be offered to organized employees. The industrywide contract negotiated in late 1966 provid- ed for a 14-cent hourly wage increase plus certain fringe benefit increments to be effective January 1, 1968. Respondent placed these wage benefit increases into effect for its unrepresented employees as of the sched- uled dates, and at its organized facilities not covered by the industrywide agreement included them in its proposals to the affected unions when their contracts were opened for negotiation. This wage benefit package was offered the Union here involved at the first formal bargaining meeting held on January 17, 1967. In the subsequent negotiations, as the Trial Examiner found, both parties understood that the Union had no serious objection to the amount of the wage benefit package so offered. The bargaining impasse which occurred on January 31, 1967, and was never thereafter resolved, resulted, not from any basic disagreement over economic terms, but from Respondent's adamant insistence, found to have been in bad faith, upon the inclusion in the contract of broad "management rights" and related pro- visions which, if accepted, would have largely eviscerat- ed the Union's role as a statutory representative. To avoid prejudice to the unit employees on an item not in issue, the Union, following the impasse, sought to have Respondent put into effect retroactively for these employees, without a contract, the wage-benefit increases it had earlier granted its unrepresented employ- ees and offered the union. Respondent refused to do so. Its wage benefit offer, it explained, was conditioned on consummation of a full collective-bargaining agree- ment , and it wanted to hold, back, the, increases as a "club" or "leverage" to force the Union to yield to Respondent' s bargaining position. On May 16, 1967, Respondent relented partially from its earlier stand by " Although we are satisfied that Respondent's violation of its bargain' mg duty may properly be found as of the date of the Union"s certification, the General Counsel's exceptions ask only that the violation be dated as beginning on December 14, 1966, and that its earlier conduct be viewed only as background evidence of Respondent's failure to conduct its negotiations in good faith Our findings accord with this request The aforesaid conduct was alleged to be violative of Sec 8(a)(I) and (3), as well as part of the alleged 8(a)(5) violation 449 putting into effect for unit employees, without a contract, the first phase 14-cent hourly increase it had granted other employees at the beginning of that year. But it made that increase effective only from the May 16 date. The denial of retroactivity thus stood as a reminder to the unit employees that they would have fared better had they remained unrepresented. Respondent did not- at least up to the date of the close of the hearing in this case-place in effect for unit employees the second phase 4-0ercent wage increase called for by the industrywide" contract, although this increase was made effective for'all its other employees, both represent- ed and unrepresented, as of its January 1, 1968, sched- uled date.ts Respondent rejected the Union's request to have this increase extended to unit employees as well. The reason it gave the Union for this withholding was the same as for the earlier one. However, other evidence reveals that Respondent intended the withhold- ing to serve a broader purpose-to impose economic pressure on the unit employees to induce them to get rid of-the Union. 17 The Trial Examiner dismissed the complaint's 8(a)(1) and (3) allegations- predicated on Respondent's wage benefit withholdings. In his view, Respondent's conduct amounted to no more than an exertion of "economic pressure at the bargaining table" which had neither the purpose nor' the effect of coercing employees in the exercise of their bargaining rights or of discouraging their desire for membership in the Union. In arriving at that conclusion, the Trial Examiner-as his analysis of this issue shows-evaluated Respondent's withholding action in isolation,' without relating it to Respondent's unlawful course of bargaining and to the 8(a)(1) violation that he found. In this respect we believe the Trial Examiner erred, `and therefore erred, as well in the conclusion he reached. Were it -not for the unfair labor practice setting in which the withholding action occurred, we would have had no hesitancy in adopting the Trial Examiner's finding. It has long been an established Board principle that, in a context of good-faith bargaining, and absent other proof of unlawful motive, an employer is privileged to withhold from organized employees wage increases granted to unorganized employees or to condition their grant upon final contract settlement. Shell Oil Co., 77 NLRB 130. As-the Supreme Court made clear in Ameri- can Ship Building Co. v. N.L.R.B., 380 U.S. 300, the Act accords employees no right to insist upon their bargaining demands free from economic disadvantages, and an ' employer's use of economic pressures solely "' In the , case of represented employees this was in accordance with contracts earlier made, " Thus, as found by the Trial Examiner , Respondent , through District Superintendent Kirkvold , in a conversation with certain unit employees, attributed "the absence of benefits ' to the fact that the employees were represented by, Local 826, and [promised] that there would be additional benefits if the employees would forego such representation." This conversation occurred on December 6,,1967 A meeting had been scheduled for the following day to consider , inter, alia, the Union's request that the second phase increase be made effective for unit employees on its scheduled date 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in support of a bargaining position cannot be held unlaw- ful for that reason alone. In Shell Oil, however, the Board was careful to restrict the principle it there declared to situations where an employer was engaged in good-faith bargaining. And, similarly in American Ship Building, the Supreme Court, in upholding the legality of the lockout involved in that case, thought it important to stress the employer's "legitimate" bargaining position and to observe that in the case before it there was no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to his employees' banding together for collective bar- gaining or that the lockout was designed to discipline them for doing so." The Court also specifically distinguished cases "where the Board has concluded on the basis of substantial evidence that the employer has used a lockout as a means to injure a labor organization or to evade his duty to bargain collectively." 380 U.S. at 308. In a case subsequently decided, American Store Pack- ing Co., 158 NLRB 620, the Board pointed to this distinction in holding a lockout by an employer to be unlawful under Section 8(a)(1) and (3), where an impasse had resulted not from a good-faith disagreement over economic matters, but from the employer's refusal to negotiate in a lawful manner. The Board found that, as the lockout was in support of a bargaining position taken and maintained in bad faith, it was without "legiti- mate" economic justification. Although the economic pressure imposed on the unit employees in this case took the form of a wage benefit withholding rather than a lockout, we believe that, the distinction drawn in American Store Packing and the principle there applied are equally applicable here. It is apparent to us that the wage benefit withholding in the instant case, like the lockout in the last cited case, was used by Respondent "in the service of designs inimical to the process of collective bargaining." The foreseeable and clearly intended effect of the withholding was to confront the Union with a Hobson's choice: The Union could either capitulate to Respondent's bad- faith bargaining position, and thereby abdicate in large measure its statutory role as an employee representative, or it could remain without any contract at all while the unit employees continued to suffer the loss of benefits being enjoyed by other employees and which would have been theirs also had they not voted in the Union. Whichever path the Union chose, it could only lead to undermining it in the eyes of employees as an effectual employee representative. As the Respondent's withhold- ing action was thus an integral part of its unlawful course of conduct,'" it must also be viewed as repugnant to statutory policy, and therefore cannot be justified as conduct serving legitimate interests of Respondent. " See 380 U S at 308-309 " That course of conduct, as our findings elsewhere reflect, began before the start of the negotiations `^ In our judgment, the record in this case establishes all the elements necessary to support the complaint's 8(a)(l) and (3) allegations relating to the wage benefit withholdings. Clearly there were discrimination in the sense of economic injury, both because the unit employ- ees were being denied benefits granted others, and because they were being deprived of benefits they would have enjoyed had they remained unrepresented. As the injury thus imposed was a direct outgrowth of the employee's selection of the Union and the Union's frustrated effort to bargain on their behalf, the discrimi- nation had a natural tendency and foreseeable effect of reducing employee desires for continued union repre- sentation. We have already found that the withholding action may not in the circumstances of this case be viewed as a "legitimate" use of economic pressure to obtain a favorable contract. There remains, then, only the question of unlawful motivation. We believe that this element is adequately satisfied by the finding of Respondent's unlawful bargaining, which the with- holding served to implement and of which it was part and parcel. But if more specific proof of unlawful purpos- es in the withholding itself is deemed necessary, it is supplied by the findings based on Kirkvold's December 6, 1967, coercive statements to employees to which we made reference above. For the reasons expressed, we find that Respondent's withholding of the wage benefit package was, as alleged in the complaint, violative of Section 8(a)(1) and (3), as well as an integral part of its 8(a)(5) conduct. We shall therefore provide the usual remedy therefor, includ- ing a direction that the unit employees be made whole for the losses they thereby sustained.20 ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respond- ent, Chevron Oil Company, Standard Oil Company of Texas Division, Snyder, Texas, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following addition: 1. Insert the following as paragraph 2(b) of the Order, and renumber the remaining paragraphs now contained in the Trial Examiner's Decision accordingly: "Make whole the employees in the unit found appropriate herein for any monetary losses they have 2 We believe, moreover, that even in the absence of an 8(a)(l) and (3) finding, such a make whole remedy for the 8(a)(5) violation is warranted Respondent in its contract proposal conceded in effect that the unit employees were due the increased wages it offered. It is reasonable to conclude that but for Respondent's unlawful bargaining an agreement would have been reached prior to the January 31, 1967, impasse, and would have included the increases offered by Respondent as a very minimum. The amount in question is clear, definite, and certain, and not a matter for speculation In these circumstances, it appears to us that such a remedy is clearly justified in this case on the basis of existing Board precedent See Petrolane Gas Service Co. 174 NLRB No 88 CHEVRON OIL COMPANY suffered as a result of the Respondent's failure to make applicable to such employees the increased wages and benefits generally granted by Respondent to its unrepre- sented employees as of January 1, 1967, and again as of January 1, 1968, together with interest at the rate of 6 percent per annum." 2. Footnote 57 second sentence should be amended to read as follows: "In the event this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading `Posted by Order of the National Labor Relations Board' shall read 'Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board.' " 3. Add the following paragraph as the last indented paragraph on the notice which Respondent is required to post under the provisions of this Order: WE WILL reimburse the production and mainte- nance employees represented by the above-named Union at our North Snyder, Texas, gas plant, for any monetary losses they have suffered as a result of our failure to make applicable to such employees the increased wages and benefits we generally grant- ed to our unrepresented employees as of January 1, 1967, and as of January 1, 1968, together with interest at the rate of 6 percent per annum TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Examiner: This matter was first heard on the complaint' of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board, respectively), alleg- ing that "Standard Oil Company of Texas" had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act): The answer to the com- plaint admitted some of its allegations, denied some, disclaimed knowledge as to others, and pleaded affirma- tively; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing on the issues was held before me at Snyder, Texas, on 7 days between August 29 and September 14, 1967, inclu- sive. On the first day of hearing, the name of the party respondent was corrected to that which appears in the caption of this case (herein called Respondent); the complaint was amended by the addition of further allegations of violations of Section 8(a)(5) and (1) of the Act; and the answer to the complaint, as amended, again denied the commission of any unfair labor prac- tices. After the hearing on the original complaint had ended, but before any decision thereon was issued, a second complaint was issued,2 alleging that Respondent had, been and was engaging in unfair labor practices within ' The original complaint (Case 16-CA-2890) was issued April 24, 1967, the charge initiating the proceeding was filed on February 9, 1967 2 In Case 16-CA-3221, on March 29 , 1968 The charge initiating the new complaint was filed on February 7, 1968 451 the meaning of Section 8(a)(1), (3), and (5) of the Act. Respondent's answer admitted some of the allegations of the new complaint, denied others, and disclaimed knowledge as to others; in effect, it denied the commis- sion of any unfair labor practices. Prior to the opening of the hearing on the second complaint, the General Counsel, representing that the purposes of the Act would be effectuated and that unnecessary costs or delay would be avoided thereby, moved that the record based on the original complaint be reopened and that the two complaint proceedings be consolidated. The motion was granted and, pursuant to notice, a further hearing on the consolidated proceed- ings was held before me at Snyder, Texas, on May 21 and 22, 1968. At the resumed hearing, the new complaint was amended in certain respects; and Respondent's answer to the amended allegations, made at the hearing, still constituted, in effect, a denial of the commission of any unfair labor practices. During each of the series of hearing sessions, all parties were afforded full opportunity to call and examine and to cross-examine witnesses, to argue orally, and thereafter to submit briefs.3 The points at issue are (1) whether Respondent, through an agent, interfered with, restrained, or coerced employees in the exercise of their self-organizational rights (a) by promising benefits and threatening the loss of benefits to induce them to forego union representation and (b) by withholding from employees certain increased wage benefits during each of two periods of time; (2) whether Respondent, by the withholding of benefits referred to in (1), (b), supra, discouraged membership in Local 826 by discrimination with respect to working conditions; and (3) whether Respondent, through agents, refused to bargain with Local 826 within the meaning of the Act (a) by making the promises and threats alluded to in (1), (a), supra, in that this conduct was designed to undermine the union and to destroy its majority status, (b) by withholding the benefits referred to in (1), (b), supra, in that this conduct was designed to undermine the union and to destroy its majority status, (c) by bargaining directly with employees over working conditions, thereby derogating from the exclu- sive bargaining representation status of Local 826, and (d) in view of the facts revealed by the evidence sur- rounding the above issues and under the circumstances of its overall negotiations with Local 826, by merely going through the pretense of bargaining, thereby failing to discharge its obligation to bargain in good faith. Upon the entire record4 in the case, including my ' At the close of the first series, pursuant to permission granted, Respondent filed a reply brief and the General Counsel filed a counterre- ply brief ' On or about October 12, 1967, the General Counsel filed a motion to correct the transcript of the hearing up to that date, and, on May 10, 1968, 1 issued an Order To Show Cause why the transcript should not be corrected in specified respects, some but not all of which corrections were contemplated by the General Counsel's motion No good cause to the contrary having been shown, the corrections indicated in the Order To Show Cause (which is received in the record as Tx Exh 1) are hereby ordered made The General Counsel's motion to correct the transcript is hereby granted to the extent it seeks correc- (Cont ) 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evaluation of the reliability of witnesses based upon the evidence and my observation of their demeanor I make the following FINDINGS OF FACT I COMMERCE Standard Oil Company of Texas is a division of Chevron Oil Company, a California corporation wholly owned by Standard Oil Company of California, also a California corporation,5 a division which with its 914 employees, is primarily engaged in the exploration and drilling for and the extraction and processing of gas and liquid hydrocarbons The division, at all times material herein, has maintained its principal office and place of business at Houston, Texas and, among other facilities, has operated a plant at Snyder, Texas (some times called the North Snyder gas plant), where it is engaged in the production of gasoline and related prod- ucts During the 12 months preceding April 24, 1967, Respondent sold, and transported and shipped directly from points within the State of Texas to points outside the State of Texas products valued at in excess of $50,000 Respondent is an employer engaged in commerce within the meaning of the Act II THE UNION The charging party, Local 826, International Union of Operating Engineers , AFL-CIO (herein , Local 826), is a labor organization within the meaning of the Act III THE ALI EGED UNFAIR LABOR PRACTICES A Background and Setting The North Snyder gas plant is engaged in the stripping of liquid petroleum from raw gas, the heavier compounds are drawn out and sold (at wholesale) in liquid form, while the gas is sent out in pipelines During the period relevant hereto 18 nonsupervisory employees worked at the North Snyder plant This group constituted all of Respondent's nonsupervisory produc- tion and maintenance employees at this plant, which group (specifically excluding guards, office clerical and professional employees, and supervisors as defined in the Act) I find to be a unit appropriate for purposes of collective bargaining Prior to the fall of 1966, no employees of Respondent had been organized for bargaining purposes'' On October 20, 1966, in a Board proceeding and pursuant to the agreement of all parties, a vote among the employees in the instant bargaining unit was conducted by the Lions which hive been mide by this order in other respects it is denied Not a p irty hereto Respondents p Trent Stand ird Oil Company of California itself or through other iffilvites de ilt with 28 different unions-including Loc,il 826- it 70 loc ttions Regional Director for Region 16 in which a majority designated Local 826 as their representative for bargain- ing purposes, and, on October 28, the Regional Director certified that local as the exclusive bargaining representa- tive of the employees in the unit I find that, on and after October 20, 1966, including all times pertinent hereto, Local 826 has been and is the exclusive represent ative of all employees in said unit for purposes of collective bargaining over working conditions I find further that, at least since November 8, 1966, and at all pertinent times thereafter, Local 826 has requested and is requesting that Respondent bargain with it over the working conditions of the employees in the unit B Chronology of Events I The preelection conduct As requested by the General Counsel, I find that, on or about October 3, 1966-shortly prior to the holding of the representation election alluded to in the subsection immediately preceding this one-Mr D T Magee, then Respondent's production superintendent for the District which included the North Snyder plant, delivered a speech to the employees who were eligible to vote purporting to express "the company's position," he displayed an unmistakable aversion to unions, presented strong arguments against the employees' voting for repre- sentation by Local 826, and, among other things, said, "There is no law that forces the company to agree with the views and demands of the union, even if the union should win an election here ' I find, on the other hand, that Edward Johannessen assistant man ager in the labor relations department of Respondent's parent corporation, Standard Oil of California-and the individual whose personal "strategy," the General Coun- sel here argues, established Respondent's "intransi gence" in its subsequent bargaining conduct-played no part in the preparation or in the delivery of the speech 2 The opening of negotiations-The first session (December 14 1966) As noted earlier, Local 826 won the election and was certified as the affected employees' bargaining agent on October 20, 1966 By letter dated November 8, from Frank Parker, business manager of the local, to Magee, Local 826 asked for certain information, gave the names of those on its plant "workmen's committee," noted its readiness to begin negotiations after November 20, and asked to be advised of dates available for meetings On November 21, Magee wrote Parker that company representatives would be available for a meet ing on December 13, 14, or 15, at which time, also, they would be ready to discuss the information requested in the letter of November 8 Parker by letter of Novem- ber 28, suggested that the first meeting be held on December 14, responding, Magee assented only noting CHEVRON OIL COMPANY that the meeting be held at the District offices instead of at the plant Before the date scheduled for the meeting, Parker protested the failure of Respondent to have submitted the information requested by him in his letter of Novem- ber 8 In a letter sent on December 2, he stated, In your letter of November 21, 1966, you said that we would discuss [the requested information ] at our negotia tions meeting on December 14th This is not satisfac- tory " He stated that Local 826 intended to submit a complete contract proposal on December 14, and that the information was necessary for its preparation "If I do not receive this information shortly," the letter continued , "I shall be obliged to file a refusal to bargain charge with the NLRB " In his letter , Parker also noted that Respondent had made certain "policy changes" since the election , which changes, he suggested, ought to be discussed with the union s employee representa- tives whose names had been furnished earlier He closed with the hope that negotiations could be swiftly complet- ed-"prior to the strike deadline in the oil industry," then set for December 31, 1966 Magee responded on December 6 His letter, with attachments , gave certain of the requested information and purported to explain why the rest of it would require discussion at the meeting set for December 14 As for the "policy changes" mentioned in Parker's letter , Magee disclaimed any knowledge The first negotiating meeting between Respondent and Local 826 was held at Respondent ' s District offices on December 14 Each was represented by a group of individuals, for whom Edward Johannessen and Frank Parker were the respective principal spokesmen The meeting started at 9 a in At the outset, Parker mentioned some matters which Local 826 regarded as `grievances ," and company representatives said these matters would be looked into Parker presented a comprehensive contract proposal on behalf of Local 826 He noted that progress was being made on industrywide wage negotiations then going on" and that a new wage pattern would undoubtedly emerge before the year ended, he hoped that the parties here would have as many meetings as possible in Decem- ber, so that there would be ` no problem" about the wage increase Johannessen agreed that time was of the essence , but said he did not believe that a contract could be consummated by the end of December, he called attention to the tightness of Respondent 's repre- sentatives schedules , pending negotiations with other unions, and the imminence of the holiday season Among other things, he alluded to the possibility that manage- ment might be faced with an industrywide strike, Parker's response `Well, you might have one here, too ' As a point of procedure , Johannessen said that Respondent would not finally agree on any changes of substance in contract language at the bargaining table With few changes-where relevant noted below-the same groups attended subsequent meetings and the same persons acted as spokesmen " These negotiations involved a number of labor organizations and a number of companies including Respondent 453 in each case, he said, a recess would be necessary "for full consideration ' Moreover he said , all company proposals or counterproposals would be in writing Local 826 objected to the delay involved, but Respondent said that it wanted no misunderstandings , and the union went along with the suggested procedure P In this and in the subsequent meetings, I find, it was understood by both parties that agreement on indi- vidual items was dependent upon eventual agreement on all items The parties went over Local 826's proposals, but not in depth They were read , and, occasionally, clarifica- tion was requested and given At the end of the meeting- which lasted about 2 hours-Johannessen said that the proposed contract was the best he had seen from a union standpoint and that Respondent intended to submit one equally as good from a company standpoint at the next session At meeting' s end , no date was fixed for a second meeting Company representatives remarked that they were engaged in many contract negotiations , perhaps, they said, they could meet between Christmas and New Year's Day-they would write or communicate by tele- phone On December 19, by notice posted on a company bulletin board at the North Snyder plant , Respondent informed its employees that the initial bargaining meeting had been held, that Local 826 had presented its demands, and that, after studying them , Respondent planned to advise the union of its position at the next meeting 3 Respondent installs the industrywide benefits-The second bargaining session (January 17 and 18, 1967) By letter dated December 27, Magee notified Parker of company representatives ' availibility for a 2-day meet ing commencing at 10 a in on January 10 "' These meeting dates were confirmed by Parker, who noted, however, that Local 826 hart hoped to meet sooner On or about January 4 Magee telephoned Parker He said that despite prior arrangements , company repre sentatives would not be available to meet on January 10 or 11 there were various conflicts in schedules, besides, he (Magee) was being replaced by one Charles F Kirkvold, who would be unable to be present at that time He suggested a 1-week postponement of the 2 day session Parker protested the delay-the industry- wide wage benefit pattern had already been arrived at, he had heard that it was in effect at the other company installations , and, therefore, he felt that any delay was costly to members of Local 826-but under " Rather loose language by witnesses for all parties could be interpreted as meaning that Respondent would not only not bind itself to specific language on any item agreed upon at a given bargaining session but also that it would not come to agreement in principle upon the item at that session The contextual use of the language as well as the occurrences at later bargaining meetings recited below have led me to make the findings I have just recited "' Unless the contrary is indicated all dates referred to hereinafter fall within the year 1967 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances, he said, he had no alternative except to agree On or about January 9, Respondent posted a notice to its classified employees (i e , those entitled to overtime pay under the Fair Labor Standards Act) to the effect that as of January 1 1967, those of them who were "unrepresented" were being given wage increases of 14 cents per hour ($24 50 per month for monthly paid employees) increased shift differentials, from 8 cents and 16 cents for the evening and night shifts, respec- tively, to 10 cents and 20 cents, and an increase of $3 50 per month to be contributed by Respondent toward the premium for hospital coverage for dependents of each such employee I find, as a fact, that these new working conditions, resulting from the industrywide wage bargaining referred to earlier herein," were put into effect on or about January 1, 1967, for all such employ- ees, and that they were not, at that time, put into effect, at any installation of Respondent (or of its parent corporation, Standard Oil Company of California, or of any other subsidiary of Standard of California) at which the employees were represented by a union Pursuant to their latest arrangements, Respondent and Local 826 resumed negotiations at 10 a in on January 17 The morning was occupied with a discussion of the proposals which had been made by the union Respond- ent accepted the shift wage differentials as proposed (they were the same as those which formed a part of the wage benefit package already reached in the industrywide bargaining) and the proposal for eight paid holidays It rejected other of Local 826's proposals for example, that there be no job changes except by mutual agreement, that all existing benefits not changed by the present contract were to remain unchanged for the life of the contract, that no hours be added to the workweek except by mutual agreement , that there be no work on Sundays, that there be 5 hours' advance notice of overtime, that transportation home be furnished to employees after overtime work, that no "unit work" be assigned to other than unit employees except in emergency situations, that there be no contracting out of routine maintenance work, and that construction work be contracted out, if possible, to AFL-CIO building trades, that double time be credited for the seventh consecutive day or for time beyond 16 consecutive hours of work, that, in the case of promotions, there be a pay increase as of the first day, that overtime be equally distributed, that the seniority area to be used be that of employees in the North Snyder plant only, that vacancies be posted, that there be severance pay, and that the grievance procedure terminate in arbi- tration Finally, Respondent agreed to look into and/ or submit counterproposals on a number of these or still other items At or about this point , Respondent orally offered the same wage benefit package which had been arrived at in industrywide bargaining and which had already " Herein'ifter for convenience sake this collection of benefits will be referred to is the wige benefit package or the 1967 increase been given to Respondent's unrepresented employees Although Local 826 had been asking for a greater hourly increase-23 cents-and although no final agreement was reached on the point at this time , it was understood (I find) that, from this point forward no one had serious objection to the size of the wage benefit package as thus offered Just before the luncheon recess on the 17th, Respond- ent presented a comprehensive set of written proposals for a contract, and it was arranged that the parties return at I p m for a discussion of these proposals The afternoon resumption was delayed somewhat by the tardy arrival of Kirkvold His assumption of the position of District production superintendent succeeding Magee had become effective on January 1, but he did not actually report for his regular duties until March 3 or 4 Meanwhile, he attended negotiation meetings starting with this afternoon of January 17 Still, as before, Johannessen acted as a principal spokesman for Respondent In its written proposals, Respondent offered the same wage benefit package which it had orally offered earlier In effect, as I have said, this package was acceptable to Local 826 at this time, but there was no instant agreement as to the date of effectuation I find that, insofar as both parties to the negotiations were con cerned, the date of implementation, and any retroactivi ty, would await further negotiations Early in the afternoon session, the parties began to compare and to discuss Local 826's and Respondent's proposals A few areas of agreement were found for example, the definition of the basic workday and the workweek (except that Respondent did not agree that changes were to be made only by mutual agreement), and the amounts of the shift differentials And Respond- ent, at this time, took a firm position on at least one issue it rejected Local 826's proposal that there be no layoffs in the event of a temporary shutdown Also, other items were discussed at this session Respondent had proposed that, at its option, it be permit- ted to pay individual employees more than the minimum rates listed in the contract Local 826 objected, asking for reconsideration of the proposal, and Johannessen said Respondent would "look into" it Likewise, with respect to Local 826 s proposal that overtime rates be paid for time worked over 8 hours in a 24-hour period and over 40 hours in a workweek, Johannessen said Respondent would study the problem, and he said the same about the union's demand that overtime rates apply for any employee working outside of his regularly scheduled hours And, at or about this point, Respondent agreed to give overtime pay for any work done on the sixth day worked in any workweek Respondent reiterated that it would not pay double time for the seventh consecutive day of work in a workweek or for time worked in excess of 16 consecutive hours With respect to Local 826's demand that an employee temporarily promoted immediately begin receiving the higher rate of pay for the first hour of work but that, on the other hand, there be no reduction in normal pay in the case of a temporary demotion, CHEVRON OIL COMPANY the parties agreed that , although the language of their respective proposals differed, they were in essential agreement that this be the case Respondent said that it would not agree to the proposal that overtime be equally distributed among employees As for the union's proposal that meals be furnished in connection with certain overtime , Johannessen repeat- ed his earlier statement that Respondent would come up with a counterproposal On seniority , the company at this time proposed com- panywide seniority (Johannessen said Respondent did not want to "build a fence" around the North Snyder plant He argued that , from the standpoint of flexibility, it would be unfair to the company and , from the stand- point of promotional possibilities , it would be unfair to employees ) Parker requested a list of all people Respondent considered to be covered by its seniority proposal with dates of hire, and Johannessen asked whether , if the list were furnished , Local 826 would accept the proposal When Parker refused to give him that assurance , Johannessen said that Respondent would consider whether it was legally required to furnish such a list-if so, it would do so The session resumed the next morning , the 18th Respondent submitted several revisions of its propos- als of the day before-either crystallizing agreements reached or making changes or additions in items upon which agreement had not been reached As for Local 826's proposal for severance pay, Respondent stated that it intended to continue to give or not to give severance pay on an individual basis- and that it did not propose to put anything into the contract on the subject Respondent objected that Local 826's definition of a grievance-which included violations of Federal and State law-was too broad Local 826, in turn , objected to Respondent 's proposal that individual employees or groups of employees should have the right to present grievances to management and that such grievances might be adjusted without Local 826's intervention, even though the proposal provided that such adjustment must not be inconsistent with the terms of the agreement and that a representative of the union be given an opportunity to be present , Parker questioned the "lawful- ness" of the proposed provision There was some , but not extended , discussion of arbitration at this time (In its original proposals the union had asked for it , during the session of the previous morning, as I have noted, the company had rejected the request , and, in its own set of counterproposals, Respondent had offered a grievance procedure the sec- ond and last step of which was an appeal to Respondent's District production superintendent ) Johannessen, in effect , said that whether or not the company granted arbitration depended on ` the kind of contract" it got (On the credited testimony , I find that Johannessen was accurately describing the company's arbitration- position at the time, that, at the outset of the negotiations, company officials had determined and were prepared to give Local 826 "some form of arbitration ," dependent upon appropriate concessions by that organization ) 455 Local 826' s demand for clothing allowances was dis- cussed Respondent said it was already doing most of the things required by the clause and that "this did not appear to be any great problem " At one point in the session , Johannessen reminded everyone present of Respondent's policy of recessing and considering rather than attempting to formulate final language at the bargaining table The first subject of postluncheon discussion was the "management rights" provision in the company's pro- posal 12 Parker said that Local 826 had proposed no management rights clause because it felt that all problems arising during the term of the contract should be resolved by mutual agreement , he said , though , that the union would agree to a management rights clause but one not nearly so broad as that proposed by Respondent- that proposal , he said , took away any rights that Local 826 or the employees might gain under the contract Johannessen , in rejoinder , said that Respondent had had every right to run its business by itself until Local 826 came into the picture and that , by means of this clause , it intended to keep all rights except those which were actually bargained away Parker said, in effect, that the union would be better off without a contract than one containing the management rights clause pro posed Johannessen expressed disagreement he said that Local 826 by having this contract, might give up certain things but would gain others The problem was not resolved at this meeting Local 826 accepted the proposal by Respondent that an employee absent because of jury service must return to work immediately after completing such service or suffer a deduction in his pay, but it did not agree that employees who failed to return immediately should be subject to disciplinary action Local 826 objected to the "work jurisdiction" clause in Respondent's proposal on the ground that it gave Respondent authority to make whatever work assign ments it wished , in disregard of seniority , and to assign out unit work within its own discretion Johannessen said that Respondent wanted to assure itself that employ ees were not going to "quibble " about this or that 12 The provision stated in part Section 4 The company reserves and retains solely and exclusively all of the rights to manage the business as such rights existed prior to the execution of this Agreement It is expressly recognized that such rights powers authorities and functions include but are not limited to the full and exclusive control management and operation of the business the determination of the scope of its activities products to be manufactured or processed and methods pertaining thereto the determination of starting and quitting times schedules of work production schedules and standards the establishment or elimination of classifications the establishment change elimination or consolidation of jobs the fixing of wage rates of new jobs and classifications the introduction of new or improved procedures methods processes machinery or facilities the maintenance of order and efficiency the contracting or subcontracting of work the determma tion of the location size and number of its plants the closedown or sale of the plant or any part thereof the making and enforcement of plant rules the determination of the size of the work force and the assignment of duties to employees and employees to jobs and the hiring suspension layoff recall scheduling assignment discharge promotion retirement demotion or transfer of employees 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job assignment, and it was not going to agree to any contract prohibiting its assignment of work. Local 826 expressed agreement with Respondent's proposed provision with respect to plant access for union representatives. With respect to Respondent's pro- posal that there be one union representative, Local 826 asked that, there be two. This, the company said, would be taken under advisement. As for a proposal by the company that the recognition clause not be interpreted to limit its right to contract out work or to transfer it to nbnunit employees, Parker said that the implementation of this clause could com- pletely wipe out the bargaining unit without any recourse by the union. Johannessen conceded that this could happen but said that there .vas no intention of achieving this result. Local 826 suggested, at the most, that the company be permitted to contract out work for which it did not have the'men and equipment available. No agreement was reached. There was a discussion of future meeting dates. Respondent suggested a resumption on January 30 and 31, the earliest dates available for its representatives. Parker, deploring the fact that employees at the North Snyder plant were losing the industry pay increase, objected to the delay. He reminded the company that the same wage benefit package covering the El Paso plant-a plant of a sister-company whose employees were represented by Local 826-was to be effective immediately if accepted by the union before January 28,13 but, again, company representatives said they could not meet before January 30. This was the next date set as the meeting ended, at or about 2:50 plm. 4. The third session (January 30 and 31, 1967) The next meeting of the parties began at 9 a.m. on January 30. (I find that, meanwhile, at some point between the end of the second session and the beginning of this one, Respondent's general bargaining position took on a new dimension. Because, in his judgment, Local 826- due to "weakness" or for other reasons-would take no steps toward exerting economic pressure, Johannes- sen decided that the' company would "give less" than it might otherwise have done.) At an early point in the session, agreement was reached on the recognition clause as now presented.14 on access to the plant by union representatives; and on the number of in-plant representatives (two) Local 826 could have., Agreement was not reached on the company proposal that no union activity be conducted by employees on working time or that the recognition " I have noted that the wage benefit package had been installed as of January I, for those employees of Respondent and its affiliates who were not represented by unions Thereafter, as agreement was reached with their respective bargaining agents, the package was extend- ed to one or another union-represented bargaining unit, as of varying dates on or after January I " During the discussions of the respective issues during this day, Respondent presented, in writing and on a piecemeal basis, a number of new or revised proposals clause not be interpreted to limit Respondent's right to contract or transfer work to outsiders. Tentative agreement was reached on the company proposal that employees not suffer loss of pay while discussing griev- ances. Local 826 acceded to Respondent 's proposal as to the tenure of the contract- one year and from year to year'thereafter unless terminated on an anniversary- but sought the insertion of a wage reopener as of Decem- ber 31, 1967. Countering, Respondent asked if Local 826 would sign a 2-year contract. No agreement was reached on these points. The parties agreed on provisions with respect tot all aspects of overtime work except that Local 826 wanted, and Respondent refused to assure, equal overtime to employees., I The parties discussed and reaffirmed their prior tenta- tive agreement as to shift differentials, and, once again, the parties expressed their understanding that the ulti- mate wage benefit package presented no real problem. Local 826 (again) objected to the fact that the employer retained the right to pay individual employees more than the minimum wage rates, arguing that this presented an opportunity to discriminate between employees. Respondent insisted that this was not its purpose; it merely wanted to take into consideration "any extenuat- ing circumstances." At the same meeting, Respondent agreed to delete from its proposals the statement that the discipline or discharge of an employee for violation( of a no-strike agreement would not be subject to the grievance proce- dure. Again, however, Local 826 stated that it could not agree to a no-strike clause without arbitration. Also, it pointed out, the company's no-strike proposal would make the union liable' for any violation even though it had not authorized a strike. Going further, Parker stated that Respondent' s insistence upon a no,strike clause without arbitration "was a violation of the law," and he again said that Local 826 would agree to a no-strike clause only if Respondent would grant arbitra- tion. Respondent, leaving aside for the moment Local 826's argument that it would be liable for strike action even though unauthorized,'' defended its insistence on no-strike-yet-no-arbitration; Johannessen said he did not want to leave to a third party' decisions which should be made by the parties themselves. In partial response to the union's objections to Respondent's seniority proposal presented on January 17, Respondent presented a new one. The probationary period for a new employee was changed from 1 year to 6 months, and it was provided that a copy of a current seniority list be furnished to a union representa- tive upon request; but the proposed basis for seniority was still. companywide, The union objected to the provi- sion in the new proposal that a probationary employee might be terminated for any reason; it asked that the phrase, "except for union activity," be 'added, and this the company agreed to take under consideration. " Subsequently, Respondent dropped its demand that Local 826 be considered liable for unauthorized strike action CHEVRON OIL COMPANY 457 Then, once again, Local 826 asked for a list of the employees who comprised the seniority setup which Respondent was proposing; when Respondent-for the second time-questioned that it was obligated to furnish such a list, Parker cited authority in support of its position, and Johannessen said he would check into the matter further. Local 826 did agree,to Respondent's proposals as to the basis for a break in seniority and as to the continuing maintenance of a seniority list. Respondent now submitted a revised proposal with respect to its article VIII (Promotions, Demotions, Layoffs, Recall, and Transfers), but no agreement was reached on the matter. , As for the grievance machinery, Respondent did not, at this meeting, submit any revision of its prior proposal. Instead, Johannessen said that the proposal submitted on January 17-which provided that the final step of the grievance procedure would be a consultation with the District production superintendent-was the compa- ny's final position. The union offered to drop its demand for arbitration as the terminal step if the no-strike clause be eliminated; this suggestion was rejected by the compa- ny. (I find that, at or shortly before this point in time, Respondent made a new decision with respect to whether arbitration would or would not finally be granted to Local 826: Because he concluded that Union Business Manager Parker was a "nitpicker" who "acted legalisti- cally" and, therefore, might be expected to press an undue number of unfounded grievances to the terminal point of the grievance machinery, Johannessen, on behalf of the company, , , was now determined not to yield on the issue of arbitration.) The company submitted a new vacation proposal con- taining a number of concessions a proposal which was acceptable to the union. Also, the union accepted the proposal now made by the company (slightly altering its past proposal) with respect to eligibility for holiday pay. The company presented no new proposal with respect to employee leaves of absence; its position as of January 17 remained unchanged. Now, Local 826 argued that that position did not cover funeral leave, that the giving of civic leave was "not really pinned down;" and that there was no provision for leave on union business; in response, Johannessen said that Respondent's position of January 17 was its final position. The company's proposal on absences for jury duty, and on the necessity of reporting for work during the scheduled workday when not actually serving as a juror, remained unchanged; and Local 826 did not agree to this proposal at the January 30 meeting. Respondent presented a new provision on "work juris- diction." Whereas, originally,, it had sought to retain all rights to make job assignments, these rights were now limited to assignments other than those "expressly modified by a specific provision of this agreement." This was still considered not satisfactory by the union, although Parker said that "it helped the proposal, to some extent." Local 826 continued to object to the breath of the assignment power given to Respondent as well as the fact 'that outsiders could be called in to do unit work; it asked for a provision whereby outsiders could not be transferred in or, if they were, current bargaining unit employees would not be laid off or otherwise disadvantaged as a result. Johannessen denied any intention on the part of the company to bring in people for the purpose of laying off employees in the unit, but conceded that, under the company proposal, this could occur. Once again , Respondent 's proposal on management rights was discussed briefly: (It had brought in no revi- sion.) The parties adhered to their previous positions. There was a short discussion on the "safety" proposal offered by the company. No agreement was reached. The union requested the company to turn over a list of the existing safety and health rules now existing, and Johannessen said that the employee-representatives would be furnished with copies of the company's safety manuals. Among Respondent's "miscellaneous" January 17 proposals had been one to the effect that any employee violating company rules and regulations would be subject to discharge or such other discipline as the company considered advisable. The union, at this meeting, asked for a list of these rules. Johannessen said that "every- body knew the rules," but Parker persisted. Johannessen agreed that the company would produce a list. In its proposals of January 17, Respondent had stated that its disciplining of.employees for the violations of company rules would not be subject to the grievance procedure. Now, retreating from this position, it eliminat- ed the "non-grievability" language . Nevertheless, Parker charged (1) that, in the absence of more affirmative assurance, the right to grieve on the subject was unclear, and, (2) more important, under the wording of Respond- ent's proposal as to its authority in the event of rule violations-e.g , that Respondent could initiate action "for cause" and that rule violations would result in such action "[as] the company considers advisable"- and in view of the absence of arbitration as a terminal point, the right to grieve on the subject was "meaning- less."- Respondent, on'January 17, had submitted a proposal with respect to the "fringe" benefits enjoyed by the employees. The proposed provision had called for the continuation of the existing published "benefit plans"- e.g.; relating to stock participation , sickness-accident, and annuities-but gave the employer the right unilateral- ly to amend any such plan. Local 826 had objected; 'it wanted the right to bargain on changes. At this meeting there was a short discussion, but the positions of the parties remained unchanged. There was an adjournment from 11 a in. to 1 p.m. In the afternoon the arbitration/no-strike-clause ques- tion was again discussed. No agreement was reached. At this afternoon session, in response to Local 826's prior requests for a seniority list keyed to Respondent's seniority proposal, Respondent submitted a list of the 73 employees at Respondent's eight gasoline processing, cycling, and repressurization plants, including those at North Snyder. In effect, this amounted to a change 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in company position-from companywide seniority to that among the employees of the company's so-called gas plants. Parker said that the list did not give "much" information-it did not show work classifications or work locations. He argued also that it was impossible to check the accuracy of the list. Moreover-he contin- ued-Local 826 had no knowledge of the efficiency and ability of the non-North Snyder employees; in effect, it was being required to bargain for these employees although it could not legally represent them. In sum, the union did not feel that gas plantwide seniority would be workable without more information. Johannessen insisted that the list gave whatever information was necessary, and he offered to notify Local 826 of transfers or promotions after they were made. Local 826 objected to this as well; if a person had been transferred several hundred miles, it would be too late to persuade the company to change its mind Some time before the January 30 meeting closed, Johannessen said that if the parties could reach an agreement as proposed by the company, he would make a proposal as to a dues checkoff. (Prior to this, although it had appeared in Local 826's original proposal, the subject was not treated in Respondent's proposals, and there had been very little discussion of it.) The union stated it could not agree to the contract as offered by Respondent unless "some changes" were made; hence, no progress was made on dues checkoff. The parties met for 3 hours the morning of January 31. at the outset, Respondent presented a number of revisions of earlier proposals, which revisions were dis- cussed one by one. One of the subjects dealt with was Respondent's seniority proposal, as revised on the previous day. Repre- sentatives of Local 826, having gone over the employee list previously given them, said that they would agree to gas plant seniority providing that procedures could be set up giving the union some control and information with respect to transfers into and out of the North Snyder gas plant. Parker explained that if there was some way for the union to know of vacancies in this and in the other plants, something could be worked out; however, he did not feel that, the list furnished gave enough information. The company declined to give any more information on the ground, that it did not believe there was any necessity therefor. But-as of this meeting, at least-the real basis of disagreement as to seniority, I find, was not its scope. I am convinced that both parties were persuaded that, once further details were worked out, multi-gas-plant seniority, with reasonable safeguards, was feasible. But, at this time, the road to agreement was blocked by the parties' respective positions on the effect of seniority. Local 826's objection to Respondent's proposal in this respect had to do with the "sole discretion" given the company to make transfers. In effect, it believed, this eliminated seniority as a factor; also, it believed that the provision as it now stood enabled the company to transfer people into the bargaining unit and to create a surplus which in turn could bring about layoffs, and (Parker argued) even if layoffs were subject to the grievance procedure, there was nothing the union could do about a complete depletion of the unit. Johannessen conceded that this was a possibility but said that Local 826 could grieve if it happened and could bargain on the subject when the contract expired if it believed that Respondent was taking unfair advantage. A similar situation existed with respect to the "work assignment" aspect of the company's proposals, a sub- ject also discussed at this meeting. Parker argued that, for all practical purposes, it eliminated seniority as a factor in the assignment of jobs. Johannessen justified the proposal by saying that the company did not want employees arguing about who was going to work with a given set of tools or on a given work schedule. As for its proposal on "personnel actions" (promo- tions, demotions, layoffs, recalls, and transfers), Respondent stated that its latest revision constituted its final position. Among other things, it insisted that the company had the right to determine an employee's qualifications and ability, a provision which-Parker argued-took the matter out of the grievance procedure. Johannessen, contending that the company was in the best position to determine an employee's qualifications, again said that Local 826 could grieve and that it could reraise the subject at the expiration of the contract if it thought Respondent had acted unfairly in this respect. The parties turned to Respondent's "management rights" proposal. Parker said that the union would agree to a "normal" management rights clause but he did not feel that this should include the elimination and consolidation of jobs and classifications, the fixing of wage rates for new jobs and classifications, or the sub- contracting and contracting of work; or, likewise, the suspension, layoff, recall, scheduling, discharging, pro- motion, demotion, or transfer of 'employees. These, Parker said, were normally handled bilaterally-in fact there were "numerous places" in Respondent's complete proposal at which it was provided that they be handled bilaterally. Indeed, he charged, the article was in conflict with other provisions of the company-proposed contract giving the employees or the union "positive" rights. , Respondent said that the management rights proposal was its final word on the subject; it might be willing to change a word here and there or to alter the punctua- tion, but otherwise the offer was final. Before the parties went on to other issues, Local 826 offered to accept a management rights clause such as that which was contained in the current contract between Local 826 and the El Paso refinery of Respondent's sister-compa- ny."' The proposal was considered by Johannessen for less than one-half minute, then was rejected. The last part of the meeting was devoted to a bit- by-bit discussion of Respondent's proposals as revised. In essence, the parties compared notes on major items to confirm agreement or disagreement. They came to Respondent's latest no-strike/no-lockout clause. Parker, for Local 826, said that there was no "' California Oil Company, Western Division, d/b/a Standard Oil Company of Texas (Not a party hereto ) CHEVRON OIL COMPANY objection to the specific language , provided there could be arbitration or "some method [by which grievances] could be properly settled ." Johannessen said the compa- ny was insisting upon a no-strike clause without arbitra- tion ; it had decided , that this was a lawful position and was going to stick to it. The Texas Coca-Cola Bottling case , cited by Parker , was discussed; Johannes- sen said he would "check it out " with counsel . (Subse- quently, he said that he had done so-and that, in his opinion , the case was completely distinguishable from the instant situation .) In the ensuing conversation- consuming 15 to 20 minutes-the Supreme Court decision in American National (infra) also came in for discussion. Finally (and once again) Parker said that if Respondent agreed to eliminate the no-strike clause , Local 826 would be agreeable to dropping its demand for arbitration. This suggestion was rejected by Johannessen ; he said that the one thing that an employer could get out of a collective bargaining agreement was a commitment from a union that there would be no strikes during the term of the contract and Respondent certainly would not sign a contract which did not contain this commit- ment. I have mentioned a remark about the possibility of a strike voiced by Parker at an earlier meeting. Now, toward this meeting's end , he reraised the subject of economic pressure . Specifically , he referred to a "possi- ble boycott" of Respondent 's products. The January 31 meeting drew to a close . Before it ended , Johannessen said that the parties had agreed in December to try to reach a contract as quickly as possible and that the Respondent had now put its final positions on the table ; it might be willing to change some words here or there, but "nothing substantial." He concluded that since no agreement had been reached, the parties had reached an impasse , a conclusion with which Parker agreed." No arrangements were made for a future session. Johannessen said that if the union wanted another meet- ing, its representatives should communicate with Mr. E. W. McCants, Kirkvold's standin for the next month- plus. On February 2, by posted notice , Respondent told its employees of the January 30-31 bargaining session: it said that no agreement had been reached, the "main areas of disagreement [being] Rates of Pay, Prohibition of Strikes and Lockouts, Grievance Procedure, [and] Management Rights"; it noted that "negotiations ended in a stalemate with both the Company and the Union indicating they had no further proposals to offer"; and it stated that "the Union has threatened the possibility of strike action and other economic activity, such as boycotts. " (On February 9, Local 826 filed the unfair labor practice charge initiating the instant proceeding.) 17 I make this finding despite irrelevant dispute as to whether the words "impasse" or "stalemate" were used in the discussion 5. The fourth session (March 23, 1967) 459 For some time , there was no further communication between Respondent and Local 826. In mid-February, Local 826 reactivated the matter through the Federal Mediation and Conciliation Service, and a meeting was set up for March 14. Subsequently, pursuant to contacts between Commissioner Walter White of the Mediation Service and representatives of the parties , the date of the meeting was changed to March 23. Meanwhile , on March 13, Parker sent Johannessen the remnants of 100 "Chevron" credit cards , each cut into many pieces . The accompanying letter "promised" that the writer would bring about the issuance of 200 new cards "if we are able to reach an honorable agree- ment" or would submit 1 ,000 more destroyed cards within 90 days should agreement not be reached. The March 23 session took place at Respondent's offices in Snyder. Although it was scheduled to start at 9 a.m ., Local 826 representatives were kept waiting in the outer office at that time . At 9:30, Kirkvold came out and said that Commissioner White had not yet arrived. Parker told him that White had anticipated being delayed and had left word with him (Parker) that the parties should go ahead without him. Checking with Johannessen and the other company negotiators, Kirkvold reported that, while Respondent's representa- tives did not refuse to meet without Mr. White, they would prefer to wait until he arrived since he had called the meeting . The parties did wait. White arrived at 10:45 a.m. and the meeting started. For the first 70 minutes, the parties were separated, with White going back and forth between them. At 11:55, they were brought face to face. White briefly summarized the situation . He said that Respondent had told him that it had given its last propos- als and final positions to the union and was not ready to make changes ; also, that it had declined to put into effect the wage benefit package at this time . Johannessen confirmed that this was a correct statement of Respond- ent's position . White then said that Local 826 was willing to give in on such items as management rights and other items , but only if Respondent would make conces- sions. Parker verified this . Johannessen then stated that when negotiations began , the parties had agreed not to play games; therefore , the company had put its final proposals on the table as soon as possible-by January 31. Further, he stated that , no matter what the union did, Respondent would make no further concessions; it was unwilling to give away rights it had possessed prior to the advent of the union ; finally-he continued- one could not "put everything into a contract ." White asked Johannessen if he would agree to put language into the contract agreeing to maintain conditions which were existing practices , to which Johannessen answered, "No, we will continue them but we will change, them if we want to . . . . We do not propose to change our proposal." When one of the employee -negotiators pointed out that employees in the plant now had certain rights which, under the company's proposals , could be taken away 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Respondent 's option , Johannessen repeated that "You just [can 't] put everything in a contract." Parker pointed out that the company had offered even less than was already in effect . For example, he said , he had learned that , prior to these negotiations, employees would receive holiday pay immediately upon being hired ; now, since the negotiations had begun, an employee had to be on the company 's payroll for 6 months. He accused the company of taking advantage of this recently: i.e., using a new man to work on the holiday to save premium pay for an older employee.' Respondent ' s answer (given after a luncheon break) was that it would give an extra Saturday's employment to the employee who had been deprived of holiday work . Also, from this point forward , I find, Respondent no longer insisted on a 6-month period of employment as a condition for the receipt of holiday pay. The question of wages was next discussed . (It has been noted that the wage benefit package had been in effect for all other employees of Respondent"as well as the nonunion-represented employees of sister- companies since January 1, 1967, and , . in accordance with agreements reached with various unions, for certain represented employees of these companies since dates on and after January 1 .) Parker asked Respondent's representatives why, in view of the fact that an impasse in their bargaining had been reached on, January 31,. the company did not put into effect the package at North Snyder . Johannessen said, that this was the "lever- age" or "club" with which Respondent hoped to force Local 826 to sign a contract-it did not intend to put the wage benefit package into effect otherwise. When Parker suggested that the union might drop the wage issue if the wage benefit package were effectuated, leav- ing all other matters to subsequent negotiations , Johan- nessen said he did not have authority to agree to this; he said , however , that Respondent would put the package into effect immediately if all elements of a contract were agreed upon by the parties . In passing , someone mentioned the possibility that , agreement or no, Respondent might install the package ; Johannessen asked what Local 826's position would be if Respondent should so proceed to install it ; and he was told that a unilateral installation might be considered an unfair labor practice by Local 826. At the same time, Parker accused Respondent of "discriminatory conduct" in withholding the 1967 increase from the North Snyder plant employees, and he threatened to file unfair labor practice charges about this with the Board . Johannessen , unimpressed, said " Just under 900 in number " My findings in this respect do hot completely accord with the mutually contradictory testimony of either Parker or Johannessen, I believe that each was distorting to a degree , and I find that which most comports with the plausible Johannessen , in his testimony , charac- terized the exchange as a firm offer by Respondent , and a refusal by Local 826 , that the wage benefit package be put into effect in full settlement of the wage issue In context I find that it was not a firm offer , on the other hand , I find that Respondent did make the offer at least by April 13, by letter-see infra that the institution of increased wage benefits must await the full agreement of the parties. During the March 23 meeting-and at other times- Johannessen conceded that Respondent 's contract pro- posal was definitely management -oriented-it would be the best contract that Standard Oil, had . Parker said that Local 826 would be better off with no contract at all than with the contract proposed by Respondent; he said that the union would be giving away some of the employees ' rights now enjoyed , and he asked Johannessen how Local 826 would benefit from the signing of the contract . Johannessen pointed to the fact that a contract might contain a dues checkoff clause and also to the fact that, at the very least , the union would be party to an enforceable contract . Finally, however , he did say that he "could understand" Parker's predicament .211 Another reference was made at this time to Local 826's efforts to develop a boycott of Respondent's prod- ucts. (The subject was not raised thereafter during the negotiations.) The meeting ended with Commissioner White ' s state- ment that he would be in touch with the parties; mean- while, he invited either of them to take the initiative with respect to setting up a bargaining session without waiting for him to act. On March 27 , Respondent (once again) made a report to the North Snyder employees: The [parties] met . . . on March 23, with the Federal Mediation and Conciliation Service Representative in attendance . . . . No progress was made . . . the parties-agreed they are at an impasse. . . . 6. The fifth session (May 16, 1967) By letter dated April 5, 1967, Parker, for Local 826, requested that Respondent put into effect the 1967 wage benefit package , and he expressed the opinion that the company's failure thus far to do so and to make it retroactive to January 1 constituted discrimination. McCants, temporarily acting in place of' Kirkvold, answered on April 13 : After reviewing the wage negotia- tions as he saw them , he said that the company felt that the employees should not "continue to lose their pay increase ' because of the failure of the parties to arrive at a complete contract ; therefore , for Respond- ent, he was ready to agree that the wage benefit package become effective as of the date of the receipt of written agreement to this effect by Local 826, the agreement to constitute an end to bargaining on wage benefits for one year thereafter; other contract items, McCants said, would not be affected. In response, on April 17, Parker expresses opposition to the proposed effective date ; he `pointed out that other employees of Respondent had received the wage benefit package as of January "" I do not credit Parker 's testimony that on this and other occasions, Johannessen openly conceded that Local 826 would be better off with no contract at all I find-infra-that Johannessen felt this way, but- being the experienced negotiator he was-I credit his testimony that, at most , he expressed an "understanding " of the union's position CHEVRON OIL COMPANY 1, 1967, that unions other than Local 826 dealing with sister-companies had been given until the end of January to accept the offer of the wage benefit package effective January 1, 1967, and that the employees represented by some unions who did not accept the offer until late in March' were given the wage benefit package as of February 1, 1967; and he termed the proposal and the action of Respondent in this matter to be in retaliation for their voting for a union. Concluding, he expressed the "agreement" of Local 826 to the installation of the wage benefit package, provided only that it be made effective as of January 1, 1967. This is where the matter rested until May 16, 1967.21 A meeting for that day was set up as a result of efforts of Local 826, again acting through the Mediation and Conciliation Service. As the first item of business, the union again proposed that the wage benefit package be put into effect as of January 1, 1967. Respondent declined; instead, it renewed its proposal made in McCants' letter of April 13-again, the effectuation date'to be the date of accept- ance'by Local 826. Parker pointed out that the package had already been put into effect elsewhere and that he knew of no installation of Respondent or its affiliates at which it had not gone into effect by February 1 at the latest. Once again, he charged "discrimination," and insisted that any implementation of the package be effective January 1 or, at least, not later than February 1. Respondent confirmed that the package had gone into effect in other locations of Respondent but, absent Local 826's acquiescence to the latest proposal, did not then agree that it should go into effect retroactively at North Snyder. The subject was dropped-until later in the meeting. The conversation turned to arbitration. Local 826 proposed that there be voluntary arbitration: In the event that the company declined to arbitrate an issue in dispute, then the union would be free to strike over that issue. Johannessen, considering the proposal no more than 15 seconds, rejected it; under no circum- stances, he said, would Respondent agree to any type of arbitration although it would continue to insist upon a no-strike clause. Local 826 brought up a problem alleged to be a change of a past practice in the plant. Previously, Respondent had posted work schedules 3 weeks in advance; however, since the March 23 meeting, the schedules had been posted but one week in advance. Johannessen, checking into the matter, agreed to rein- state the policy of posting schedules for 3 weeks. Next, the parties discussed seniority. Respondent pre- sented in writing its latest position-affording seniority rights to those employed in Respondent's gas processing, cycling, or repressurization plants, including North Sny- der. Acceptance of this proposal, Johannessen argued, 21 Meanwhile , on April 24, an amended unfair labor practice charge (repeating the allegations of the original charge, in more technical language) was filed by Local 826, and the instant original complaint was issued by an Acting Regional Director for the Board A formal hearing on the allegations of the complaint was set for July I I 461 would be of advantage to the unit employees,' since it would keep open to them a broad field'for promotion. Local 826 objected ( again) because outside people with greater seniority could be transferred into the North Snyder plant, creating a surplus and causing unit employ-' ees with 25 - or 30 years' seniority to be laid ' off. It was noted that the January seniority list previously presented would have to be augmented from time to time, and Parker suggested that no future hires at other plants be included in the seniority group. No agreement was reached: The union asked that the probationary period for new employees be 3 rather than the proposed 6 months and that if an employee were laid off during his probation- ary period for lack of work he would be considered for reemployment when work was available. No agree- ment was reached on this. The parties now turned to Respondent's proposals with respect to its authority to effectuate personnel actions. Up to this date, Respondent, in its proposals, had reserved to itself the exclusive right to determine the employees's qualifications, and Local 826 had contin- ued to voice objections to this feature. Now, after a discussion, Respondent presented a new proposal, limiting its right by requiring that it not 'act "unreason- ably." Parker's comment on this "restriction" was that, in effect, it meant nothing; the requirement upon the company-to act reasonably-was "useless" in a con- tractual situation containing a no-strike clause but no arbitration clause. Johannessen, in words or substance, conceded that this was so, but he would not eliminate the proposal. He said that if the union felt that the company acted unfairly it could take up the matter again on the renegotiation of the contract. He did not say that discharges were not subject to the grievance procedure;22 but he conceded that recourse to the griev- ance procedure would not be very effective in the absence of arbitration as the terminal point. Local 826 had previously objected to the requirement that a recalled employee report within 72 hours, citing the delay in Texas mail deliveries; it suggested that the period be extended to 10 days. Respondent submitted a revised proposal, lengthening the period to 5 days. Once again, there was a discussion of the company's proposed seniority provision. Local 826 desired to limit transfers from outside plants to jobs for which the proposed transferee was qualified and for which he had "plant" seniority; Parker pointed out that, under its proposal, Respondent could completely deplete the bargaining unit. Johannessen rejected Local 826's coun- terproposal, and he did not offer any revision of Respond- ent's proposal as it now stood. As has been noted, Respondent, in its proposed griev- ance procedure, had provided that an individual employ- ee have the right to grieve without the intervention of the union, as long as any adjustment of the grievance was not inconsistent with the collective bargaining agree- ment and as long as a representative, of Local 826 22 In so finding, I credit Johannessen's testimony, as against several contrary implications in Parker's 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was given an opportunity to be present at the adjustment. Now, Parker urged that a Local 826 representative should have "something to say" about the settlement of any such grievance, because, otherwise, "bad precedents" might be set. Respondent agreed to reexamine its propos- al in this respect. The union said that it accepted the company's proposal that the processing of grievances or complaints should not interfere with operations. In its original proposal, Respondent had described a grievance as a complaint filed by an individual employ- ee. Local 826 had objected to this limited definition, and Johannessen had said that the company would look into the matter. Now, on May 16, Respondent broadened the definition to include any complaint filed by Local 826 as well as by an employee, thereby removing one of Local 826's objections. (On my reading of the credible testimony, I find that none of the items to which Local 826 raised objec- tions in connection with the company's proposed griev- ance procedure would have been real hurdles if the company had been willing to "give" arbitration. I find further that Parker, in effect, communicated this to Johannessen at this meeting and at subsequent meetings.) As for holiday pay-an item which was already a subject of agreement between the parties-Respondent assured Local 826 that they had not intended to take away any of the existing employees' rights and that their current offer was meant to be at least equivalent to past practices in the plant .13 At this point, Kirkvold reraised the subject of the wage benefit package. He said that Respondent was willing to put the wage benefit package into effect imme- diately with no strings attached-i.e., without prejudice to Local 826's right to bargain on retroactivity or any other provision of the contract. After a brief recess for consideration of the offer, the committee representing Local 826 voiced acceptance. (The installation of the package which shortly followed was the last such installation at any of Respondent's installations.) Someone raised the subject of a future wage increase. Taking note of the fact that one of the points of agree- ment reached in the recent industrywide bargaining called for a further 4-percent increase on January 1, 1968, Johannessen remarked that, if other of Respondent's employees got this increase, the North Snyder employees would "probably" get it as well. However, the state of these negotiations on other matters-for example, the current wage increase-was such that (I find) there was no substantial discussion on this point between the parties at this meeting. 23 But I find, as a fact, that, in this respect, at least, Respondent's original proposal-that employees' holiday pay rights be subject to a requirement of 6 months' employment- wns a step "backward" for this plant I find that, in making the proposal, Respondent was seeking to bring the practice in line with that at its other plants And I find that Local 826, in accepting Respondent's original proposal, had been unaware of the existing practice at North Snyder Next, Respondent presented a revised management rights clause, and, at or about the same time, it presented a new recognition clause. To the extent that there were changes (from prior proposals) in the former clause, Parker argued that company prerogatives given up were merely moved to the latter clause: Respondent still retained exclusive jurisdiction to assign work to anyone, including outsiders. The new management rights clause did obligate Respondent to bargain over the wage rates for any newly created job classification and, it did limit the powers of management to effectuate personnel actions to those "for cause," but these changes did not satisfy the union. Also, several items to which Local 826 had objected in the original management rights proposal were, in its May 16 proposal, altered somewhat; however, Parker argued, the alterations were in form rather than in substance. The proposal was still objectionable to the union. The latest company proposal on seniority was dis- cussed. I have noted that agreement in principle had been reached but that formal details had not been worked out. There was no progress at this meeting. Respondent's proposal on "personnel actions" was discussed. (Since it referred to seniority, the "agree- ment" on seniority-previously noted- was in fact subject to agreement on this provision.) Local 826 agreed to write up some language on this item. Respondent submitted in writing the language of the holiday provision which had been agreed upon that morning-in effect, an adoption of the plant's existing practices in this regard. The union agreed that the lan- guage submitted accurately recorded the agreement reached. Respondent presented new language with respect to its provision as to individual deviations from established pay scales. There had been dispute as to whether Respondent could, at its option, pay any employee more than the minimum rates. Now, it was proposing that it might pay additional compensation "in special situa- tions." While this did not completely satisfy the union's objections, the parties went on to the next subject after a short discussion. It was at this meeting that Respondent offered a checkoff of union dues upon employee authorizations. Also, Respondent submitted a revised set of "miscella- neous" provisions. The revision omitted the provision that an employee who violated a company rule or regula- tion would be subject to discharge or other discipline "as considered advisable" by the company, a feature to which Local 826 had objected. With this omission, Local 826 was agreeable to the "miscellaneous" provi- sions. I find that, as the meeting moved toward adjournment, the parties agreed that some progress had been made. The meeting ended with Local 826's agreement to bring back certain counterproposals and the agreement of Respondent again to consider the points of disagreement. It was tentatively decided that the parties would meet again on June 6. CHEVRON OIL COMPANY 7. The sixth session (June 7, 1967) Subsequently, at the request of company representa- tives, the next meeting was rescheduled from June 6 to June 7. The entire morning of June 7 was spent in individual meetings between Federal mediators and the respective parties, so that the two mediators present, new to the situation, could fully acquaint themselves with the state of bargaining. During this period, Respondent presented a complete contract proposal, as most recently revised, in writing. When the parties came together, Kirkvold, speaking for Respondent, said that the company had presented a final proposal on January 31, had made changes since then, and had no intention of making any more changes. At this time, Local 826 submitted another written propos- al with respect to seniority and the effectuation of person- nel actions, a proposal which was rejected by the employ- er as amounting to no real change from the union's original unacceptable proposal. Johannessen said that, bargaining unit people would be considered for any promotions outside the plant (within the seniority group) and that Local 826 would be notified of any promotions which were made; but he rejected Parker's request that Local 826 be notified in advance of vacancies. In connection with a discussion of the term of the contract, Local 826 proposed that the January 1, 1968, 4-percent wage increase negotiated on an industrywide basis be written into the present contract, to be effective on the same date. Respondent declined. As a substitute, Parker asked for a wage reopening clause, to which Johannessen queried, "Do you mean a strikeable or a non-strikeable wage reopener?" Parker said that he was talking about a strikeable wage reopener "because otherwise the right to reopen would be meaningless." Johannessen rejected the request. After a mid-day recess, Respondent presented a newly revised grievance procedure. Added were two levels of grievance handling: appeal to the Division production superintendent and appeal to the vice president in charge of production. Although the union conceded that these were additions to the previous proposal of the company, it did not regard them as changes; Parker expressed the opinion that the two new. levels added nothing to the grievance procedure. He suggested that Respondent consider some type of arbitration, even if the arbitrator be someone within the company complex who was famil- iar with labor relations. Among other things, he men- tioned the name of Johannessen himself as one who might fit the description. Johannesen rejected the sugges- tion. He said that Respondent would not take the final decision away from itself-officials of the type Local 826 was suggesting as arbitrators were "outside the corporate setup." With respect to the retroactivity of the wage benefit package-which had been installed as of May 16-Johan- nessen offered to make it retroactive to May 1 if full agreement could be reached, and there was discussion about a lump sum to be paid in lieu of retroactivity. 463 It was Local 826's position, expressed by Parker, that the wage benefit package should go back to February I at least. No agreement was reached. In the course of the afternoon, Parker expressed the opinion that no legitimate union would sign a proposal such as that which had been presented by Respondent; he said he knew of no contracts anywhere involving Respondent or any of its affiliates "as bad" from a union's point of view as this one would be; and he asked if Johannessen did not agree. Johannessen, careful- ly weighing his words, said that he "could understand" Parker's position. He said that, if it would help arrive at a contract, he would make "another approach to the company" on the retroactivity of the wage benefit package. Parker said that this was not the sole remaining issue, but that, if Johannessen could get "something more," it might help settle the problem; however, he pointed out, his union members were more concerned with the management rights clause than with money. Other dates for retroactivity prior to May 1, were men- tioned. Johannessen mentioned the "possibility" of an April 15 date, if agreement could be reached on the total contract. Again, Parker said that the employees were not as concerned with money as they were with job rights and job security. The meeting of June 7 closed with no arrangement made for a future bargaining session. 8. The seventh session (June 21, 1967) On June 14, there was a telephone conversation between Kirkvold and Parker. Kirkvold asked if an April 1 retroactivity date on the wage package benefit would' persuade Local 826 to accept the company's "last offer." Parker said that it would not, that the issues of management rights and the lack of arbitration were more important; he did suggest that February I was a more appropriate date, but, he repeated, this was not the sole issue. During the conversation, a further bargaining meeting was scheduled for June 21. At the opening of the June 21 meeting, Johannessen asked whether Local 826 was ready to sign the company's last proposal. An employee member of the negotiating committee announced that a secret ballot had been taken among Local 826's members on the company's last proposed package, and that the package had been turned down 14-0;24 he explained that, while money was impor- tant, it was not the most important thing-the employees felt that they should have some rights under the contract and also should have arbitration. Parker asked whether Respondent was willing to accept the union's last set of proposals. Johannessen said it was not. Parker then reviewed the items in dispute: seniority and its effect on personnel actions, a wage reopener, overtime meals, the retroactivity of the wage benefit package, manage- ment rights, and arbitration. Johannessen said that Respondent would stand on its last set of proposals but was willing to make the wage benefit package retroac- tive to March 16 "if that would help." 21 Apparently , only the employees who belonged to Local 826 voted 464 DECISIONS OF NATIONAL LABOR REI ATIONS BOARD Parker made clear Local 826's dissatisfaction with the contract as last proposed by Respondent He was particularly resentful of the management rights clause, and he said that no amount of retroactivity on the wage benefit package would "buy" this contract Local 826 he said would be better off without a contract since it would be free to strike and, if necessary, to file unfair labor practice charges if Respondent acted unilaterally Toward the end of the meeting, Johannessen intimated that he could understand Local 826's reluctance to accept the company's proposal, he could understand, he said, that, in accepting Respondent's management rights pro- posal Local 826 might be giving up the right to bargain over certain items He suggested, however that the local ought to take it to its members for their consider- ation, and he said that the offer of retroactivity to March 16 would be held open for 5 days Upon this note, the June 21 meeting ended with no arrangements for a later session 9 The eighth session (August 22, 1967) On July 6, the Board' s Regional Director issued an order rescheduling the hearing on the outstanding com- plaint from July 11 to August 29 On August 14, 1967, Local 826, by letter, requested a negotiating session to take place at anytime between August 18 and 23 Kirkvold, upon receipt of the letter, called Parker and asked the purpose of the meeting, he ' wondered" if Local 826 was ready to sign Respond- ent s last proposal Parker said that a meeting was called for because Local 826 wished to discuss some reported changes in practices, some safety problems, and other "plant items " Kirkvold said he would check with Johannessen as to a satisfactory date, and, next day, by letter, he notified Parker that Respondent would meet with Local 826 on August 22 The August 22 meeting, which consumed 2 hours, began at 9 a in Basically, it was confined to a discussion of the number of current problems rather than to contract negotiations, since it became clear at an early point that neither party had changed any of its bargaining positions One of the items discussed was a recent change by Respondent in the time allowed for one operator to turn over the shift to another Kirkvold explained that the change was made to avoid problems under the Fair Labor Standards Act Local 826 then raised a question of safety, in view of the fact that this was the snake season, it asked that the company cut the weeds in certain areas of the plant Respondent agreed Next, the union raised the question of the inabili ty of some employees to attend company safety meet- ings, and Kirkvold said that something would be done to remedy this Finally, Parker asked Johannessen to put into effect an overtime meal provision in view of the fact that, at other installations, meals were fur nished to employees working overtime, Local 826 wanted them for employees at the North Snyder plant After some consideration, Johannessen rejected the proposal, he said that, if this were an obstacle to a contract he was sure he could "do something about it"-mean- while, Respondent would continue its practice of furnish- ing meals on some occasions but not on others Upon this note, the meeting-and, for some time all contract negotiations-terminated 2' 10 Respondent bargains with its "employees" At or about this period , Respondent , through its Dis trict Production Superintendent Kirkvold, engaged in a series of contacts with employees which have become an issue herein At all times pertinent , the North Snyder gas plant was operating 24 hours a day, 7 days a week During the midnight tours, or shifts, every day and during one additional tour on Sundays , the plant has been manned by a single employee , a so-called plant operator During the first of the negotiating meetings between Respondent and Local 826-in December 1966-there had been a passing reference by union representatives to the need of assistance for plant operators-presuma- bly, those on the one-man tours-but nothing further on the subject developed at that time The matter again arose at a company safety awards dinner held on July 27, 1967 Among those in attendance were Kirkvold and 10 or 12 employees , including Hous- ton Buchanan , employee chairman of Local 826's "work men's committee " and a member of the union negotiating committee who had been present at all contract negotiat ing sessions In the course of a general discussion of safety items, note was taken25 of the undue responsibili ties imposed on the plant operator on the one-man tour After the general discussion was terminated, Kirkvold and Buchanan , in a private conversation, agreed that the subject should be reraised at a future safety meeting-i e , one of a series of meetings between management and employees concerned with maintaining safe conditions A safety meeting was held on August 10 27 Buchanan and Sims, secretary of the workmen 's committee (and the other employee-member of the union negotiating committee), were among those present After a number of items were discussed , Kirkvold expressed concern that there be periods in which one man was responsible for the plant and its operation , a sentiment echoed, in relevant respect ,28 by the employees , speaking through two of their number who had been selected to organize 2 Between the date of this meeting and the opening of the instant hearing one week later certain conversations took place between the parties Details however are lacking Respondent counsel s objec lions to the receipt of testimony thereon based on the argument that these events constituted settlement attempts were sustained and the testimony was rejected " There is immaterial dispute as to who raised the subject ' There is confusion rather than contradiction as to the precise dates of this and the following related events My findings are greatly guided in this respect by the plausibility inherent in the chronology '" There is some indication that in this matter the objectives of management and of the employees differed In the context of the proposals and counterproposals which followed I find that the company s real concern was that the capacity for production be increased (a concern fed by the current Suez Canal crisis) while the involved employees were thinking in terms of expanding areas for promotion CHEVRON OIL COMPANY the arguments on the occasion . No agreements were consummated and no action was taken on what became known as, and will here be referred to as, the "manpower shortage." During the third week in August, Kirkvold summoned Buchanan to the plant office . (Also called was one Newman , the only plant operator on duty at the time.) Kirkvold broached the subject of increasing the total plant complement by two men . Except for noting that a reorganization would insure that at least two employees would be on duty at all times, he did not go into detail ; he said he would like Buchanan to get the reaction of the employees29 and, thereafter, to discuss a more detailed proposal at a meeting . Buchanan agreed. During the next few days , Buchanan and Newman transmitted Kirkvold's ideas to "the employees"-not' further identified-who attended a meeting held in the West Texas Bank community room in Snyder, where Local 826's membership had met in the past. At that meeting , the pros and cons of Kirkvold' s plan were discussed; but, in the absence of formal details, those in attendance felt under no compulsion to take a firm position on the plan. Buchanan , accompanied by Sims, next met with Kirkvold on September 7.30 At that time, Kirkvold pre- sented a written proposal for the reorganization of the production personnel , a reorganization which would elim- inate the jobs of the three loaders in the plant , establish four jobs in a new classification to be known as loader- operator , and increase the number of roustabouts from five to six. The net effect would be to increase the staff by two, provide a loader-operator along with the plant operator on the one -man tours, and increase the plant 's production capacity ; the wage rate for the new classification of loader-operator, it was proposed, would be "open to bargaining ." The only reaction expressed was Sims' tentative observation that the unpredictability of the workload would render difficult the two-man tour being proposed in its present form. At this meeting , I find , Kirkvold referred to Buchanan as the "union steward " and, in words or substance, suggested that Buchanan and Sims feel free to consult with Local 826 Business Manager Parker. Next day, a "union meeting"-Buchanan 's term- was held at the West Texas Bank. Buchanan presided and Sims took notes ; present were 12 to 14 employees and Frank Parker. A number of matters were discussed, including Kirkvold ' s manpower-shortage proposal. Dis- approval of the proposal was unanimous , and the details of a counterproposal were established. The counterpro- posal , like Kirkvold' s plan , increased the staff by two, 2V Thus, I do not credit Kirkvold ' s testimony , denied by Buchanan, that he said he would like to discuss the subject with the "union committee " (As will be seen , I find that Kirkvold regarded Buchanan as the employees ' "union representative ", under the circumstances, for him to have considered it necessary pointedly to assert that he was speaking to, or wished to speak to, the union committee strikes me as implausible ) On the other hand, I do not credit Buchanan's testimony , denied by Kirkvold , that Kirkvold said "the union had nothing to do with this " "' Meanwhile , the instant hearing had begun , on August 29 465 but it differed in details; and , most importantly , it con- templated filling all new vacancies above those in the roustabout classification from within the North Snyder plant. The counterproposal having been reduced to writing, it was presented to Kirkvold by Buchanan on September 11. Within the next 10 days,31 Kirkvold conveyed the company's rejection of the employees ' counterproposal. The reasons, as given by him: (1) the employees' pro- posed reorganization was "topheavy " at the "operation- al" end and unduly light in the roustabout (labor) area, and (2) the company ' s acceptance of the principal of in-plant seniority in this area would undercut Respond- ent's general position on seniority which was being maintained in the current contract negotiations. There the matter lay, except that on a number of occasions up to and including February 6, 1968, Kirkvold asked Buchanan if the employees still felt the same about the company's proposal. On each such occasion, Buchanan answered in the affirmative . No organizational changes have been made. 11. The service awards dinner of December 6, 1967 The last contract bargaining meeting had taken place on August 22 , 1967, and the latest session of this hearing had been held on September 14. Except to the extent that it might be found in the conversations on the manpower shortage the details of which are contained in the last preceding subsection hereof , contact between Respondent and Local 826 had been broken . And now, the end of the year was approaching. The significance of the yearend, it will be remembered, was that this would be the occasion for a reraising of the question of the additional 4-percent wage increase which had been agreed upon in the industrywide bargaining which took place a year earlier.32 On November 15, Parker, for Local 826, wrote to Kirkvold, asking for a negotiating session with the com- pany "in an attempt to reach an agreement and also to propose another wage increase , as will be due in the industry January 1, 1968." By letter dated November 20, Kirkvold informed Parker that company representa- tives would be available for a meeting on December 7, one of the dates suggested by Parker. On the evening before the scheduled meeting, the company sponsored a dinner at the Snyder Country Club. The occasion was the presentation of several service award pins ; in attendance were several members of management , including Kirkvold , and 12 or 13 employ- ees, of whom 5 were from the North Snyder plant. Predinner drinks were served to those who wished them and, after dinner, there was a "happy hour." During the postprandial period , Kirkvold and employ- ee union representative Sims had a conversation. John " Meanwhile , the instant hearing went on At the hearing sessions of September 12, 13, and 14, there was no mention by any of the parties of the item now being discussed 12 It will be remembered that Local 826 had raised the subject of a January I, 1968, wage increase at the bargaining meetings of May 16 and June 7 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grinslade, also a North Snyder plant employee, was not a participant, but he was nearby, in a position to hear most, if not all, the pertinent remarks Kirkvold said that the company "was compelled to take" a `hard-nosed" or "tough" attitude during the bargaining period and that, if the union were not in the picture, some changes would be made Sims, taking this to be a suggestion to "vote the union out," said that the employees' voting to get rid of the union was tantamount to their voting to lose their jobs Kirkvold denied this, he said he would provide a written guarantee that no jobs would be lost if the union were ousted Sims, in apparent reference to the requirements of the Act, said that Kirkvold could not make such a statement in writing, an observation with which Kirkvold on reflec tion, agreed " The ninth negotiating session (December 7, 1967) Pursuant to arrangements previously made, represent- atives of Respondent and of Local 826 met at 9 a m on December 7, 1967 Johannessen was not present, in his place was his assistant, Charles Lantrip, who had attended all but two of the previous sessions but had not taken on active speaking part At this meeting, Lantrip and Kirkvold spoke for the company Parker, for the union, opened by suggesting that the 4-percent wage increase scheduled to go into effect in the industry on January 1, 1968, be given to the employees in the unit on that date without prejudice to the current bargaining on any issue At the same time, he raised the matter of an employee's not having received "funeral pay" which was coming to him, and he requested data as to the overtime hours and the `relief" persons' hours worked in the recent past Respondent said that the requested information would be made available, but it rejected the proposal as to the 4-percent increase At this time, Lantrip asked if the union had any additional proposals or complaints it wished to place on the table Parker's answer was in the negative, he said, in effect, that Local 826 was "not unhappy with" the existing situation-"Maybe we are better off without a contract " (I find that he was referring to the contract offered by the company, which, in his opinion, constitut- ed a surrender by Local 826 of certain rights secured by the Act, and I find further that Respondent's repre- sentatives were aware of the meaning of his statement ) Lantrip's response "Well, the company would like to a have a contract " (I find, it should go without saying, that the reference was to a contract in terms of the proposal last placed on the bargaining table by Respon- dent ) " In these findings I have generally credited the testimony of Sims as corroborated in substance by Grinslade Kirkvold in testifying did not violently disagree his slant differed to some extent-I credit his explanation that by his allusion to a tough policy he meant that Respondent could not afford to establish new working practices which would undercut its birgammg positions-and he was more vague (Both he Ind Grinslade hid been drinking at the dinner Sims had not ) After a short recess Kirkvold made a wage offer on behalf of the company He offered not only the 4-percent increase, but, in addition, upward "wage adjustments" in several job classifications which were being given at other of Respondent's locations, the whole "to become effective January 1, 1968 provided agreement is reached on the contract by January 1, 1968 If no agreement is reached by January 1, 1968, the above wage rates will become effective on the date agreement is reached on a contract " Parker said that the proposal, tied as it was to the company's last contract proposal, was unacceptable 34 He pointed out that, as for the differences between the parties '31 Local 826 was willing to make changes in its various positions if Respondent assumed a like attitude Lantrip said that the company was not ready to retreat, in any substantial sense, from its latest position Lantrip urged that Parker not act precipitously on the company's wage offer-that the offer be taken to the employees for their consideration He was told that the committee would present the matter to the employees but would recommend against its acceptance, if Respond- ent was given no word to the contrary within 5 days, Parker said, it could assume that the employees had rejected the offer The meeting ended well before noon Before it was concluded, the parties discussed the matter of whether (unlike the past) the employee-members of the union committee might not report for work following a bargain- ing session lasting less than a half day, and it was agreed that, henceforth, they could go to work 13 Respondent installs the industrywide 1968 benefits- The tenth session (January 10, 1968) On November 30, 1967, in a notice posted at the North Snyder plant, Respondent's president had announced that the company's unrepresented classified employees would be given a 4-percent general wage increase effective January 1, 1968 At the parties' bar- gaining session of December 7, as noted earlier, company representatives had agreed to make the package (plus several wage adjustments) applicable to North Snyder employees if the union agreed to all other aspects of Respondent's proposed contract Now, by letter of December 26, Local 826 formally rejected Respondent's offer In the letter, Parker stated that the 15 union members in the unit had unanimously turned down the offer (1) because the wage-adjustment aspect of the offer was "discriminatory" since its benefits would basi cally inure to employees of the unit who were not members of Local 826 and (2) because the conditioning of the offer on the union's acquiescence in the company's last proposed contract was considered to be "illegal " 14 Among other things he counterproposed that additional ciassifica tions be given adjustments The company turned down the counterpro posal ' Once again it was agreed that the major items still in dispute were seniority arbitration and the strike prohibition management rights and the extent of managements right to transfer into and out of the unit CHEVRON OIL COMPANY Continuing, he asked for information as to any other wage-adjustments made outside the unit; he proposed that the 1968 increase, including the adjustments offered by Respondent, be put into effect without prejudice to further bargaining on the contract; and he suggested that the parties again meet on the subject if this sugges- tion was not satisfactory As of January 1, 1968, the 4-percent, including adjust- ments,31 was put into effect for classified employees of Respondent who were not represented by unions.37 The employees in the instant bargaining unit did not receive-and at least by the close of this hearing on May 22, 1968, had not received-the 1968 increase; they were the only group of the company's classified employees who did not. The reason for Respondent's withholding of the increase from this unit-I find on the basis of Lantrip's credited testimony-was that it sought to "use" the holdback of benefits given elsewhere as "leverage" to force Local 826 to sign a contract as favorable as possible from the company's standpoint. On January 3, Kirkvold answered Parker's letter of December 26. He gave the requested information as to wage adjustments and he rejected the union's wage proposal contained in the letter; he "again" asked wheth- er Local 826 had any counterproposals; and he noted that company representatives would be available on January 9, 10, or 11 "if you feel that a further meeting would be beneficial." Pursuant to arrangements thereupon made, the parties came together at 9 a.m. on January 10. At the outset, the union presented a set of nine changes in the items listed in the company's written whole contract proposal put on the table 7 months earlier. Particularity here would not add to the cogency of this discussion. Suffice it to say that the parties, in an effort to provide a measure of the company's reaction of these counterproposals, offered extensive testimony on and devoted extended argument to the question of whether the union's counterproposals consti- tuted any real deviations/concessions from positions taken by Local 826 in the past; and, suffice it to say on this point that (I find) the union, in presenting the counterproposals, (1) offered nothing which had not already, in the same or similar form, been offered for consideration by Respondent, but (2) in a situation which, in my opinion, had deteriorated due to a lack of the tangible crystallization of respective positions, was at least putting forth concepts in writing which, although brought out before, had been treated only orally and in fleeting detail. After the union's proposal had been discussed point by point, Respondent requested a recess. The recess began between 10:30 and 11 a.m., and, including a luncheon break of I hour, lasted until 1:15. "' The whole sometimes referred to here as the 1968 package 37 Also among those who received the increase were the Local 826- represented employees of Respondent's affiliate at El Paso, Texas (provi- sion for which had been included in the 1967-68 contract covering them), as well as other union-represented employees (where agreement between company and union was reached on the increase) 467 After lunch, Lantrip stated that Respondent had seri- ously considered each of the union's proposals and was ready to accept several of them: it was agreeable to a change in the effective tenure of the contract from that proposed by Respondent 7 months earlier, and to the increase of the period in which an employee recalled from layoff might report, from 5 days to 10 days; parts of the union's proposals on seniority and on personnel actions were acceptable (full agreement, however, being conditioned on mutual agreement on related provisions); and "something could be worked out" as to the union's proposals for an advance posting of work schedules and the equalization of overtime assignments. In all other respects, Lantrip said, the company adhered to its previous positions, and he make no new proposals on behalf of Respondent. As the meeting came to a close, Parker once again asked Respondent to consider installing the 4-percent increase, this time without prejudice to further bargaining on the wage "adjustments" as well as on all other issues of the contract being negotiated. Lantrip said the company would consider this and would convery its response in writing. This was the last meeting between the parties. By letter dated January 15, 1968, Respondent, through Kirkvold, rejected Parker's latest proposal that the 4- percent increase be installed as of January 1 and that the parties thereafter continue to bargain on any individ- ual classification wage adjustments and all other aspects of a contract. The letter stated, however, that the compa- ny's proposal of December 7-the installation of the 1968 increase, including adjustments-still stood. In reply, Parker asked whether this meant that the compa- ny's offer in this respect was no longer contingent upon union agreement to Respondent's last proposed contract. Kirkvold, clarifying by letter on February 6, noted that its offer was contingent upon arrival at a contract. (Upon receipt of this last letter, Local 826 filed the charge in Case 16-CA-3221.) IV. DISCUSSION-CONCLUSIONS The General Counsel contends, first, that the evidence in this record supports the finding that Respondent, through an agent, made promises and threats to induce employees to forego union representation, thereby inter- fering with, restraining, or coercing them in the exercise of their self-organizational rights. The reference is to the statements made by Respondent's District Production Superintendent Charles Kirkvold to employee Robert Sims, in the presence of employee John Grinslade, at the service awards dinner on December 6, 1967. My findings with respect to this incident appear at section III, B, 11, supra, and they will not be repeated in detail here. With respect to Kirkvold's statement that the company "was compelled to take" a "hard-nosed" or "tough" attitude during the bargaining period, it might be argued that he was saying merely that Respond- ent, in its best economic interests, was engaged in "hard" but not "illegal" bargaining. His statement takes on additional meaning, however, in view of the facts 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that (1) (as found hereinbelow) Respondent was indeed engaged in an unlawful course of bargaining conduct and (2) more importantly, Kirkvold simultaneously asserted that "if the union were not in the picture, some changes would be made." And what he was saying was made crystal clear when he added that he would provide a written guarantee that no jobs would be lost if Local 826 were ousted as bargaining representative. On the basis of the preponderance of the evidence, I find that Respondent, through Kirkvold; did indeed attribute the absence of benefits to the fact that the employees were represented by Local 826 and did indeed promise that there would be additional benefits if the employees would forego such representation. Next, the General Counsel takes the position that the failure of Respondent to give its, North Snyder plant employees the 1967 wage benefit package between January 1 and May 16, 1967, and the additional 4- percent increase on and after January 1, 1968, constituted both an interference with, and restraint and coercion of employees in the exercise of their self-organizational rights, and a discouragement of membership in Local 826 by discrimination with respect to working conditions. Respondent, through its testimony and its arguments, candidly concedes-and I have found-that the company held back the benefits in question as "leverage" to force Local 826 to sign as favorable as possible a contract from the company's standpoint; in other words, it was exerting economic pressure at the bargaining table. But I cannot find, on this record'38 that Respondent's conduct in this respect either was designed, to coerce or had the necessary effect of coercing employees in the exer- cise of their self-organizational rights or with respect to their desire to belong to Local 826. The remainder of the General Counsel's attack is concerned with what he conceives to the Respondent's failure to discharge its bargaining obligation as required by the Act. - First, he argues that the promises/threats-of-loss of benefits and the withholding of wage increases discussed above, whatever else they may have amounted to, consti- tuted per se violations of Respondent's obligation to bargain collectively with Local 826.3" I have already found that the Kirkvold's statements of December 6, attributable to Respondent, did interfere with, coerce, and restrain employees in'the exercise of their self-organization rights. In context, however, 38 I note particularly that the company or one or another pf its affiliates took like action with respect to all union-represented employees,, and that' it ceased withholding these benefits from any unit of such employees upon reaching an appropriate agreement with their bargaining representative 31 In argument, counsel for the General Counsel eschews any per se approach to his refusal-to-bargain allegations He only urges me to look at the "total picture"-including the incidents here under discus- sion-to measure Respondent's course-of-bargaining conduct But a careful reading of the complaint, as amended, reveals that, in these several respects at least, the General Counsel does believe that Respond- ent separately violated Sec 8(a)(5) of the Act At any rate, leaving for later treatment their effect upon` any finding as to Respondent's general good faith in bargaining, I here pass upon the lawfulness of these aspects of Respondent's conduct, standing alone I would not find his statements, themselves, to constitute direct dealing with employees or any other form of bargaining in derogation of Local 826's exclusive bargain- ing status. Kirkvold was acting coercively but (I find) he was not "bargaining" or "failing to bargain" in any meaningful sense .411 As for the withholding of benefits on two occasions, I have already found that the incidents constituted neither interference-with/restraint-of/coercion-re the self-organi- zational rights of Respondent's employees nor discour- agement of their union membership. Although the ration- ale for the per se violation of the bargaining obligation is nowhere articulated, I gather that the General Counsel seeks to persuade me that Respondent was unilaterally setting a working 'condition when it withheld from the Local 826-represented employees a benefit given other employees. The argument is unconvincing. Since I believe that Respondent correctly construed the matter to be a subject of the pending negotiations, and since it did engage in bargaining over this along with other subjects, it follows that I find no independent refusal to bargain in its refusal to install the benefits absent agreement between the bargaining parties. Next, the General Counsel contends that, in derogation of its obligation to deal exclusively with Local 826, their bargaining agent, Respondent, through its agent, Kirkvold, bargained directly with employees of the affected bargaining unit over the "manpower shortage." (For details, see the subsection herein entitled "Respond- ent.bargains with its `employees,' " supra.) The short answer is that, Kirkvold was speaking to the employees through Buchanan and Sims, spokesmen for Local 826.41 There is no substantial evidence of an attempt to avoid dealing with the employees' bargaining representative. Finally, the General Counsel impugns Respondent's overall motivation at the bargaining table, denominating its "bargaining" as a sham and a delusion and charging that it had no intention of arriving at a contract with Local 826. It is in connection with the determination of the validity of this contention that I have set forth in extended detail the occurrences from November 1966 to date. I find the General Counsel's contention well taken. At the outset of these negotiations, I am convinced, Respondent was prepared to bargain in good faith with "' But I do consider these statements as bearing upon the good faith of Respondent in bargaining, discussed infra See the Trial Examin- er's Decision in the B F Diamond Constriction Company case, as affirmed by the Board in 163 NLRB 161 " On the evidence in this record, it is clear and I find that Local 826-by letter from Frank Parker dated December 2, 1966-informed Respondent that a "workmen's committee" was specifically authorized "to meet with management in an effort to settle any problem that may arise in the plant from now until our contract is complete", that Kirkvold was dealing with members of the workmen's committee, that, in addition', Kirkvold gratuitously suggested that the committeemen should feel free to discuss the matter with Local 826 Business Manager Parker, and that, in fact, Parker was aware of the discussions going on and voiced no disapproval Indeed, I regard it as passing strange that in view of Parker's awareness of the situation at that time, details were not aired 'at the sessions of this hearing occurring on September 12, 13, and 14, 1966 CHEVRON OIL COMPANY Local 826.42 Its early positions and proposals were no more extreme than were Local 826's, and there was no indication that it was not prepared to enter into the give-and-take discussions which would lead to a contract.43 But, sometime between January 18 and 31, Respond- ent's bargaining attitude took on a new look. On the 18th, in a discussion of the issue of management rights, Johannessen, for Respondent, said that his principal, under its proposal, sought to retain the freedom to act which it enjoyed before Local 826 entered the picture; and, his attention called to the possibility that the compa- ny could "wipe out" the bargaining unit under its con- tracting-out-work proposal, he merely said that this was "not Respondent's intention," moreover-as I have already found-on or prior to the 30th, Respondent, (1) having concluded that Local 826 would not take overt steps to force the issue of the contents of the contract, decided to be more forceful on its own part, and (2) having concluded that the union's spokesman would make undue use of the arbitration process because he was a "nitpicker" who acted "legalistically,"44 decid- ed, contrary to its original (upublicized) position, not to give in on the issue of arbitration in any respect. Also on the 30th, in connection with discussions of certain company proposals Johannessen said that, while Respondent had no intention of using the powers it reserved to itself under these proposals to the disadvan- tage of the employees or to jeopardize the bargaining unit, he would give no written assurances thereof; also, he said that if the union felt the company was taking undue advantage in any of these areas, it could grieve (under a grievance procedure the terminal point of which was a decision by a company official) or it could take up the matter again come next contract negotiation time. By the close of the January 30-31 negotiating session, the discussions were confined to the acceptability or non-acceptability of the company's offers on the various issues, for, although the union had expressed a willing- ness to yield on certain of its own proposals if it were given concessions, Respondent took the position that its latest proposals, to all intents and purposes, were its final ones. And, since Local 826 would not acquiesce in these proposals, the parties agreed-and I find- that an impasse had been reached. Among Respondent's proposals in impasse were the following: The company could, without restriction, pay 12 I make this finding in the face of the General Counsel's insinuations to the contrary Granted that Respondent, to a degree, displayed a preelection attitude favoring rejection of Local 826 as its employees' bargaining agent, the available evidence does not indicate that, the election results announced, it was not prepared to accept and to deal with Local 826 as the employees' agent 4' I have found, for example, that despite its stated position on the point, Respondent was originally prepared to grant some form of arbitration as the final determinant of employee grievances 44 I have carefully considered the company's basis for this evaluation of Frank Parker, as revealed by Johannessen's testimony at the instant hearing I can only conclude that it believed that Parker too militantly pursued the union's objectives-in negotiations, "bargained hard," and, in any arbitration machinery which might be available, would press any grievance which had a 50-50 chance of victory 469 employees compensation in addition to the wage rates fixed; for purposes of deciding upon personnel actions, Respondent would be the one to decide upon employees' qualifications and abilities; the right to make job-assign- ments was to be reserved to the company, and out- of-unit employees could be assigned to perform unit work; employee violations of plant rules would be cause for discharge or such other disciplinary action as the company deemed advisable; existing employee benefit plans would be subject to change by the company; and-under Respondent's management rights clause- all rights "to manage the business" as they previously existed were reserved exclusively to Respondent-rights which included the establishment of starting and quitting times and work schedules, the establishment or elimina- tion of work classifications and the establishment, change, elimination, or consolidation of jobs, the fixing of wage rates of new jobs and classifications, the con- tracting or subcontracting of work, the making and enforcement of plant rules, the determination of the size of the work force, the assignment of duties to employees and of employees to jobs, and the hire, suspension, layoff, recall, scheduling, assignment, dis- charge, promotion, retirement, demotion, or transfer of employees. Over the next 11-plus months, seven more bargaining sessions were held. During this period-as during the period covered by the first three sessions-Respondent made concessions with respect to a number of its propos- als but, on the points in dispute above noted, it remained basically firmed. In essence, it still insisted on the right to assign unit work to outsiders; on the right to pay employees additional compensation "in special situa- tions"; on the right of transfer-in and transfer-out-of the unit at the company's "sole discretion"; on the exclusive right to determine an employee's qualifications and ability for purposes of deciding upon personnel actions provided the right be not "unreasonably" exer- cised;4i and on the right unilaterally to exercise the "management rights" functions previously listed46-all subject to grievance under a procedure the terminal step of which was the decision of an official of Respond- ent and in the context of a no-strike commitment by Local 826. Moreover, its insistence on the right unilater- ally to amend any of the existing employee benefit plans was unaltered. On a number of occasions during the period in ques- tion, Parker, for the union, indicated a willingness to move closer to the company's positions if the company would be more flexible; and, on a number of occasions, Johannessen or his successor-negotiator, Lantrip, for the company, indicated that Respondent had gone as far as it would. Respondent's position is epitomized by Johannessen's statements (made on March 23) to the effect that, no matter what Local 826 did, the compa- ny would make no further concessions; it was unwilling 31 The proviso was offered by Respondent subsequent to January In this respect, a notable concession by Respondent subsequent to January 31 was its abandonment of insistence on unilaterally setting pay rates for new operations 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to give away rights 'it had possessed prior to the advent of the union; and, with respect to existing working conditions not otherwise treated in its proposals, it reserved the right to alter them during the life of the contract. I I have already noted that, at the January 30-31 session, Johannessen took the position, with respect to Local 826's objections, that it would have no real recourse if Respondent misused the powers which it had reserved to itself with respect to certain working conditions, that if Respondent so acted, the questions could be again raised at renegotiation time. And he said essentially the same thing again on May 16. In the absence of any evidence indicating a change in attitude, I find that one of Respondent's continuing objectives was to postpone to another day the yielding to Local 826 of the rights of full participation in the determination of working conditions at the North Snyder,plant I have found that, on January 30, Johannessen- in connection with a discussion of the company's job assignment privileges under his proposal-had stated that unit-erosion was not within Respondent's intention but had refused to give any written assurance to this effect. Subsequently, on March 23-in the midst of his summary of Respondent's current position-he said that one could not "put everything into a contract"; asked if he would include in a contract a commitment to maintain existing working conditions, he refused; and-in answer to an employee-negotiator's suggestion that Respondent's proposed contract made it possible for the company, at its option, to wipe out certain employee rights now enjoyed without a contract-Johan- nessen merely repeated, "You just [can't] put everything in a contract." I find and conclude that part of Respond- ent's objective in this series of negotiating sessions was to avoid, to the extent it could avoid, the inclusion of written' assurances in any contract which might be executed. On January 31, as noted, Respondent had determined upon and was insisting upon a two-step grievance proce- dure without arbitration and in connection with a no- strike commitment by Local 826. On May 16, Johannes- sen, after a 15-second consideration, rejected a union proposal that, with respect to any particular grievance, at the company's option, ,either arbitration be made available or the no-strike commitment be inapplicable. On June 7, Johannessen added two levels to its proposed grievance procedure; the terminal point was now Respondent's vice president in charge of production. Regarding, this as no true change, Parker placed on the table a variation: what would Johannessen's reaction be-he asked-to the final decision on a grievance resting in a company official familiar with labor relations, in Johannessen himself, for example? Johannessen rejected the idea, insisting that company officials of the sort suggested were "outside the corporate setup." I find that Respondent's negotiators believed that the grievance procedure offered by the company was, under the cir- cumstances, an ineffective one from the union's stand- point;47' and, on this record, I find and conclude that they were determined not to offer an effective one. Finally, I find, on this record, that (1) Local 826 believed that its becoming party to a contract containing the provisions last proposed by Respondent would place it in a position more disadvantageous than having no contract at all '41 (2) Respondent was aware of this belief'49 and (3) Respondent shared the belief."" Nor was the belief ill-founded. Acceptance of Respondent's latest proposed contract would involve a substantial surrender by Local 826 of the right, to participate in decisions as to the fixing and installation, the continued maintenance, and the alteration of the working conditions of the employees it represented,-"' as well as an abandon- ment of the right to take strike action which it might lawfully take in the absence of a contract. In sum, we have here an employer who, as of a critical moment in its negotiations with the bargaining representative of its employees-at or about January 31, 1967-had decided, because of its evaluation of the relative strength of the parties to the negotiations, to take a "hard line"; who, because it believed that the spokesman for the bargaining representative was prone himself to take strong positions, had decided to abandon its former willingness to give some form of arbitration as the terminal point of a grievance machin- ery; who had been proposing that the bargaining repre- sentative surrender the right to participate in determina- tions as to the content and/or the continued maintenance of a substantial number of important working conditions; who, its attention called to the potential for the destruc- tion of employee bargaining rights inherent in certain of its proposals, had conceded the prospect but, denying any such intentions, (1) nevertheless had refused to give written assurances thereof and (2) had insisted that-if what was feared should occur-the bargaining representative (a) could resort to the grievance machinery which should eventually be adopted or (b) could reraise the subject at the next period for negotiating a contract; and who had proposed that employees' grievances be settled by means of machinery which-it was aware- was ineffective. And we have here an employer who,, thereafter, refused to budge to any substantial degree, from the positions just noted despite the willingness of the bargaining representative to engage in give-and- take discussions; and who continued adamantly to insist upon terms and conditions of a collective bargaining contract which, if adopted by the parties, would arrogate to the employer the unilateral determination of a substan- " To all intents and purposes, Johannessen verified this at the bargain- ing table-on May 16-and in testifying at the instant hearing °N Parker made this clear at meetings held on March 23, June 7 and 21, and December 7 "' Each time the matter came up, company spokesmen expressed an understanding of the union's position '" Johannessen regarded the last contract proposed by Respondent as management-oriented and the best of those to which Respondent or any of its affiliates was a party '' But I am not persuaded, as argued by the General Counsel, that the working conditions prescribed by the proposed contract constituted a "step backward" from practices currently existing at the North Snyder plant CHEVRON OIL COMPANY tial number of working conditions in which-under the Act and absent any contract whatsoever-the bargaining representative would have had a voice. In N.L.R.B. v. Herman Sausage Company, Inc.,52 the United States Court of Appeals for the Fifth Circuit, after taking note of the fact that the Board may not compel bargaining concessions or otherwise sit in judg- ment upon the substantive terms of collective bargaining agreements,"' went on to say: On the other hand while the employer is insured these valuable rights, he may not use them as a cloak. In approaching it from this vantage, one must recognize as well that bad faith is prohibited though done with sophistication and finesse. Conse- quently, to sit at a bargaining table, or to sit almost forever or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence, we have said in more colorful language it takes more than mere "surface bargaining," or "shadow boxing to a draw," or "giving the union a runaround while purporting to be meeting with the union for the purpose of collective bargain- ing. "54 1 I have neither the desire nor the authority to compel Respondent here to make concessions or to sit in judg- ment upon the contractual provisions which it insists upon including in this contract. But I am convinced that, in its adamant insistence upon terms and conditions the acceptance of which, in effect, would serve to relieve itself of a substantial part of its bargaining obligations under the Act, in the context which I have described above, Respondent was not truly bargaining collectively, as the term is defined in Section 8(d) of the Act. In my opinion, the nature of the proposals to which Respondent so vigorously adhered and the bargaining conduct of its negotiators denoted something more than "hard bargaining"; the preponderating evidence warrants the conclusion that Respondent was "surface bargain- ing"-that is, it did not approach the bargaining table with an open mind and purpose to reach an agreement consistent with the respective rights of the parties 55 on the contrary, it was going through the motions with no real intention of arriving at a mutually acceptable contract. On the latter point, a recent Board'decision is particu- larly pertinent. In Stuart Radiator Core Manufacturing Co., Inc., 173 NLRB No. 27, the Board, agreeing with the Trial Examiner that the employer there had engaged in surface bargaining to avoid reaching a meaningful agreement with its employees' bargaining agent, said: This effort to undermine the Union was clearly mainifested by the nature of the contract proposals offered by Respondent at the bargaining table. Thus, Respondent insisted on a broad and extremely 275 F 2d 229, rehearing denied 277 F 2d,793 Citing N L R B v American National Insurance Co , 343 U S 395, 402, 404-a case also cited by Respondent herein N L R B v Herman Sausage Co , supra, 232 Citations omitted See Mature Transport Compans v N L R B , 198 F 2d 735, 739 (C A 5) 471 detailed management rights clause which reserved to Respondent absolute unilateral control over virtu- ally every significant term and condition of employ- ment.. . . While it is well established that an employer's insistence upon a management rights clause does not itself violate Section 8(a)(5), the nature of an employer's proposals on management, rights and other subjects are material factors in assessing its motivation in approaching negotiations. Thus, rigid adherence to proposals which are predictably unac- ceptable to the Union may indicate a predetermina- tion not to reach agreement, or a desire to produce a stalemate, in order to frustrate bargaining and undermine the statutory representative. An evaluation of all Respondent's proposals here- in indicates that Respondent was determined to force the Union to abandon its right to be consulted regarding practically all disputes that might arise during the term of the contract relating to terms and conditions of employment; i.e., to waive its statutory right to bargain collectively. Such propos- als indicate more than hard bargaining. Since the Respondent could not have offered them with any reasonable expectation that they would be accepta- ble to the Union, we can only conclude that Respondent did not approach negotiations in good faith and with the intent of reaching an agreement. We thus find that Respondent's approach to negotia- tions was superficial and completely inconsistent with the principle of good-faith bargaining. [Foot- notes omitted.] Having compared the facts in the Stuart Radiator case with those in the instant situation, I am of the opinion that the quotation applies even more strongly here.`,` For the reasons given above, on what I believe to be a fair preponderance of the evidence, I find and conclude that Respondent failed and refused to bargain collectively with the bargaining representative of its employees in an appropriate bargaining unit on and after January 31, 1967. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 826 is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees in Respondent's North Synder (Texas) gasoline plant, excluding guards, office clerical, professional employees and supervisors as defined in the Act, constitute and at all times material herein constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Also, see N L R B v Reed & Prince Mfg Co , 205 F 2d 131, 139-140 (C A 1), cert denied 346 U S 887 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Local 826, on and since October 20, 1966, has been and is the exclusive representative of all employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. At least on and since November 6, 1966, Local 826 has requested Respondent to bargain with it `over the working conditions of the employees in the aforesaid bargaining unit. 6. On and since January 31, 1967, Respondent has refused to bargain with 'Local 826 as the exclusive representative of the employees in the afbresaid bargain- ing unit, thereby engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the foregoing conduct, by telling employees that the absence of benefits was attributable' to their being representated by Local 826 and by promising them additional benefits should they forego such repre- sentation, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof. 8. The aforesaid unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9. Except for the foregoing, Respondent has commit- ted no unfair labor practices under the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it be ordered to cease and desist there- from and to take certain affirmative action in order to effectuate the policies of the Act. As the unfair labor practices committed by Respondent are of a character striking at the roots of employee rights safeguarded by the Act, I shall also recommend that Respondent cease and desist from infringing in any manner on the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Chevron Oil Company, Standard Oil Company of Texas Division , of Snyder , Texas, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 826, International Union of Operating Engineers , AFL-CIO, as the exclusive representative of its employees in a bargaining unit consisting of the production and mainte- nance employees at its North Synder (Texas) gasoline plant , exluding office clerical , professional employees and supervisors as defined in the Act. (b) Attributing the lack of employee benefits to their representation by Local 826 and promising additional benefits if employees are no longer represented by Local 826. (c) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2.' Take the following affirmative' action which I find will effectuate the purposes of the Act'' (a) Upon request, bargain collectively with said labor organization as the exclusive bargaining representative of the employees in the above-described unit. (b) Post at its North Synder (Texas) gas plant copies of the attached notice marked "Appendix."57 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to Respond- ent's employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.'" IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Exam- iner 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, upon request, bargain collectively with Local 826, International Union of Operating Engi- neers, AFL-CIO, as the exclusive bargaining repre- sentative of the nonsupervisory production and CHEVRON OIL COMPANY maintenance employees in our North Snyder, Tex- as, gas plant WE WILL NOT attribute the lack of employee benefits to their representation by Local 826, and WE WILL NOT promise additional benefits if employ- ees are no longer represented by Local 826 WE WILL NOT, in any manner, interfere with, restrain, or coerce our employees in the exercise of their rights to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining representative chosen by themselves, to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any such activities Dated By 473 CHEVRON OIL COMPANY, STANDARD OIL COMPANY OF TEXAS DIVISION (Employer) (Representative) (Title) 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 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building , 819 Taylor Street, Forth Worth, Texas 76102, Telephone 817-334-2921