The Standard Oil Co.

STANDARD OIL COMPANY 177 The Standard Oil Company (Ohio ) and Oil, Chemical and Atomic Workers International Union, Local 7-395 . Case 8-CA-4725 January 22, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 3, 1968, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to this allegation. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and supporting brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner with the following modifications. As set. forth more fully in the Trial Examiner's Decision, Respondent and the Union have been bargaining collectively for more than 25 years. In 1964, when the parties entered into a 2-year collective-bargaining agreement, Respondent informed the Union that it intended to close its refinery installation, leaving intact only the asphalt plant. By 1966 the refinery had been dismantled. Between 1964 and 1967 the parties negotiated supplemental agreements to reflect changed working conditions resulting from the curtailment of Respondent's operations. The fourth supplemental agreement executed January 1967, extended the principal agreement and supplements to December 31, 1968, and contained the following clause: 'The Board does not adopt that portion of the Trial Examiner's Recommended Order which requires Respondent to generally recognize and bargain with the Union. Since the parties have had a bargaining relationship for over 25 years and Respondent has not questioned its duty to recognize and bargain with the Union, a general bargaining order is not warranted in this case. The parties agree to meet and make the necessary revisions' by July 1, 1967 to the Agreement effective July 31, 1964 together with its Supplements by deletion of obsolete provisions and by making wording changes as may be required to make said Agreement conform to the changes in operation covered by Supplemental Agreement No. 3. The principal agreement itself, whose provisions were extended by this supplemental agreement, specifies in paragraph 2 that "no provision contained in this agreement or any amendment or supplement hereto shall be modified or altered without the mutual consent of the parties." At the same time, the Union and Respondent negotiated two separate agreements in the form of Letters of Stipulation concerning retention of rates of pay upon demotion and job security. The Letters were not incorporated into the principal agreement or supplements. Pursuant to the above-quoted reopening clauses, the parties held a series of meetings between March and July 1967. Respondent proposed modifications of the contract which the Union considered beyond the scope of the reopening clause. However, the Union indicated its willingness to discuss more extensive modifications, but conditioned final agreement on inclusion in the contract of the Letters of Stipulation. Respondent rejected this Union demand. The resulting stalemate continued until August 1, 1967, when Respondent announced that since an impasse had been reached, it was unilaterally placing in effect the terms of the modification proposals rejected by the Union. The Trial Examiner found that Respondent was not bound to incorporate the Letters of Stipulation into the principal agreement. However, he also found that Respondent's proposals exceeded the purview of the reopening clause. Although Section 8(d) of the Act permits modifications of an existing contract if certain requisites are met, the Section also provides that "the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period if such modification is to become effective before such terms and provisions can be reopened under the provisions of the contract." The Union's consent was required if management's proposed modifications were to take effect. When the Union lawfully withheld its assent, a stalemate did obtain. The Trial Examiner correctly found, however, that although an employer may unilaterally institute changes when an impasse occurs during the negotiations for an initial bargaining agreement or following the expiration date of an expiring contract, the employer may not do so where, as here, the contract has not yet' terminated. Accordingly, the Trial Examiner correctly ruled that Respondent was not free in the manner sought to modify the unexpired agreement 174 NLRB No. 33 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over the Union's objections, but was obligated to maintain in effect all preexisting contractual commitments for the contract term. We affirm, therefore, the Trial Examiner's finding that by unilaterally publishing and implementing terms and conditions of employment inconsistent with the extant collective-bargaining agreement, Respondent violated Section 8(a)(5) and (1) of the Act.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, The, Standard Oil Company (Ohio), Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraphs 1(a) and 2(b) of the Trial Examiner's Recommended Order and reletter paragraphs 1(b) and (c) and 2(c), (d), and (e) accordingly. 2. Delete the second indented paragraph of the notice attached to the Trial Examiner's Decision. 'See C & S Industries . Inc. 158 NLRB 454, 457 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Cleveland, Ohio, on May 7 and 8, 1968, on the complaint of General Counsel, as amended, and the answer, as amended, of The Standard Oil Company (Ohio),' herein referred to as Respondent.' The complaint alleges violations of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and the Respondent have been carefully considered. Upon the entire record,' and from my observation of the witnesses,' I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT It is undisputed that Respondent is an Ohio corporation, operating numerous plants, and is engaged in the manufacture, processing, selling, and distribution of 'Modified at the hearing to correctly reflect the identity of Respondent 'A charge was filed on August 16, 1967 A complaint was issued on January 10, 1968, and amended during the hearing herein 'On June 17, 1968, Respondent filed a motion to correct the record, setting forth 50 items, largely correction of words and dates On June 21, 1968, General Counsel advised there was no objection to the motion, however the error listed under item No 34 appears on page 169, not page 164. Accordingly, the motion, as corrected, is granted. In addition, other minor errors were noted and corrected. 'Only one witness appeared for General Counsel, and one witness for Respondent. As set forth infra, the chief negotiator for Respondent was ill and unable to attend the hearing petroleum and related products, such as asphalt. We are herein concerned only with what is identified as Respondent's Cleveland Asphalt Plant. Respondent annually, a representative period, receives at its Cleveland Asphalt Plant, directly from points outside the State of Ohio, and transported in interstate commerce, goods and products valued in excess of $50,000. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, Local 7-395, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Issues The issues raised by the pleadings and litigated at the hearing are whether Respondent failed and refused to bargain collectively in good faith, with the Union, on and after April 4, 1967, in contravention of the provisions of Section 8(a)(5) and (1) of the Act by: (a) refusing to incorporate, by reference or otherwise, the subject matter of so-called Letters of Stipulation, entered into on January 24, 1967, one treating with the subject of job security and the other with the subject of demotion of permanent full-time employees; or (b) by commencing on or about July 31, 1967, publishing, circulating among its employees in the unit represented by the Union, and unilaterally placing in full force and effect new terms and conditions of employment inconsistent with an existing collective-bargaining agreement, comprised of a Principal Agreement and Supplemental Agreements, or (c) by on or about August 1, 1967, and thereafter circulating among the employees in said unit and placing into effect a revised Seniority List and making other unilateral changes in the terms and conditions of employment of said employees which were inconsistent with the existing Principal Agreement and Supplemental Agreements. Respondent, by answer, admits that on and after April 4, 1967, it refused to incorporate the Letters of Stipulation within the Principal Agreement asserting that the negotiations' were confined to the deletion of obsolete provisions from the Principal Agreement and revisions required because of changes in operations and Respondent was not obligated to bargain on said inclusion at that time. Respondent, by answer, admits that on or about July 31, 1967, and thereafter, it unilaterally, without the Union' s agreement, published, circulated, and placed in effect new terms and conditions of employment, but denies they were inconsistent with the Principal Agreement or any supplement thereto Respondent asserts that it was free to act because the Union refused to bargain in good faith and created an impasse. Respondent, by answer, admits that it issued and placed in effect a revised Seniority List, but asserts that said action was in conformance with the revised Principal Agreement, that the Union refused to negotiate with respect to such proposed revised Seniority List, unless Respondent agreed to the inclusion of the Letters of 'Pursuant to an agreement of January 24, 1967, identified as Supplemental Agreement No. 4, further set forth infra STANDARD OIL COMPANY Stipulation in the revised Principal Agreement, and that the unilateral institution of said revised Seniority List was occasioned by the impasse. Respondent denies that its conduct constituted an unfair labor practice. Supervisory Personnel and Agents The complaint alleges, the answer admits, and I find that Howard G. Briggs, plant manager of Cleveland Asphalt Plant, is a supervisor, within the meaning of Section 2(11) of the Act, and an agent of Respondent. The complaint alleges, the answer denies, and I find it unnecessary to resolve the assertion that Jack E. Rover, Staff Associate-Labor Relations, is a supervisor, within the meaning of Section 2(11) of the Act. It is undisputed that, at all times material herein, Rover was an agent of Respondent. Background The facts set forth under this subsection are undisputed. While of no consequence herein, the parties have maintained a collective-bargaining relationship, at the plant in question, for approximately 25 years. As the result of an election, held on March 5, 1964, the Board certified the Union as the collective-bargaining representative, of the employees in the unit described infra, on or about March 12, 1964.6 On August 10, 1964, the parties entered into a collective-bargaining agreement, herein referred to as Principal Agreement, initially effective from July 31, 1964, to June 30, 1966.' Article I, paragrah 2 provides: This agreement is in lieu of all other contracts or undertakings, either oral or written, heretofore or now existing between the parties and neither party shall be bound by anything not expressed by writing herein, except as amended, modified and/or supplemented as hereinafter provided and no provision contained in this agreement or any amendment or supplement hereto shall be modified or altered without the mutual consent of the parties. In view of the planned permanent shutdown of the major facilities covered under this agreement, the placement of employees affected by the shutdown, and the problems relating to the operation of the refinery during the term of this agreement, as the result thereof, the parties agree as follows: (a) Upon written notice given by one party to the other at any time and from time to time during the term of this agreement, the parties shall negotiate promptly upon any proposal to amend, modify or supplement this agreement. Supplemental Agreement No. 1 was signed by the parties on June 16, 1965, effective from June 16, 1965 to a date uncertain.' The supplement specifically provides that all provisions of the Principal Agreement remain in full force and effect, "except as modified and/or amended by this supplemental agreement. Article I, paragraph 2 is not referred to. 'Case 8-RC-5442 The reason underlying the need for an election is obscure ''The agreement contains 74 printed pages, 16 separate articles, 218 numbered paragraphs , with subdivisions, a wage-rate schedule, identified as Exhibit "B," and a provision relative to red circle rates for process employees who have been removed from a classification , and other matters, as Exhibit "D " A promotion chart , indicating 28 different promotional lines, with footnote references to various provisions of the agreement, is appended.' This particular supplement appears to have no impact on the problems 179 Supplemental Agreement No. 2 was signed on October 8, 1965, and was effective from that date to December 31, 1966, and specifically provided for extension of the Principal Agreement to December 31, 1966, an extension from its initial termination date of June 30, 1966. In addition, Supplemental Agreement No. 2 established new wage rates. Supplemental Agreement No. 3 while incorrectly reciting that it was executed on July 7, 1966, was actually entered into on July 22, 1966, effective from July 7, 1966, to December 31, 1967. Item 1 relates to wage rates and classifications, "made a part hereof," set forth in Exhibit B-1, an attachment. However, the new wage rates, established by this Supplemental Agreement, became effective, by its terms, on August 8, 1966. Item 2 of this supplement provides that the promotion chart [lines of promotion], attached as Exhibit "A-1" also became effective August 8, 1966,and was to remain in effect until December 31, 1967.' Paragraph 3 provides: "It is agreed that the provisions of the Principal Agreement are hereby modified to the extent required by items I and 2 above." Paragraph No. 4 provides that the parties accept the outline of duties for employees which was contained in a memo dated June 24, 1966, a copy of which is attached to the Supplement, Pargraph No. 6 provides that except as specifically set forth in items 1 and 2, covering wage rates and classifications as item 1 and the promotion chart as item 2, the Principal' Agreement remains subject to reopening for negotiations in accordance with the provisions of Article I thereof. On January 4, 1967, the parties agreed to the extension of the Principal Agreement, and all supplements from the termination date of December 31, 1966, to 12.01 a.m. January 9, 1967.11 On January 24, 1967, the parties entered into Supplemental Agreement No. 4 which provides, inter alia, for extension of the Principal Agreement and its supplements until midnight, December 31, 1968, "and if not terminated on that date by sixty (60) days' prior written notice given by one party to the other, shall continue thereafter until terminated by either party on sixty (60) days' written notice." The crux of the issues raised herein arise in part from the following language contained in paragraph 2 of Supplemental Agreement No. 4: The parties agree to meet and make the necessary revisions by July 1, 1967 to the Agreement effective July 31, 1964 together with its Supplements by deletion of obsolete provisions and by making wording changes as may be required to make said Agreement conform to the changes in operation covered by Supplemental presented herein However, since counsel were unable to agree as to the time of its termination, it is noted that the first paragraph provides, in part, that this supplement "is to cover a specific period of time from the present until the shutdown of the major refining facilities contemplated for 1966 " It is undisputed that the refinery phase of the operation was shut down in July 1966 'It appears reasonable to conclude that Supplemental Agreement No. 3 was addressed to conditions existing after a closedown of the refinery, with the following results A reduction in the personnel in the unit from approximately 400 to approximately 55 A reduction in the number of job classifications from approximately 50 to 7, listed in the appendix, and a reduction in promotional lines from 28 to 3 "While of no consequence to the issues presented herein, it appears that the parties were negotiating during December 1966 and early January 1967. Inferentially lack of agreement resulted in a lockout from approximately January 9 to approximately January 24, 1967 During this period proposed "Letters of Stipulation" were among the items presented for consideration. 180 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD Agreement No. 3. Supplemental Agreement No. 4 also made certain specific modifications in specified portions of the Principal Agreement and, as an attachment, provided a new wage-rate schedule effective January 1, 1968. Edward Jedinak, chairman of the union negotiating committee, credibly related that contract negotiations were resumed on January 23, 1967, and included discussion of two Letters of Stipulation. The letters are over the signature of Plant Manager Briggs. The following day, Supplemental Agreement No. 4, together with the two Letters of Stipulation were submitted to Jedinak for presentation to the union membership, at a meeting held the same evening, and were so approved. One letter is related to retention of rates upon demotion and contains the following, in toto: The Company agrees during the life of this agreement" that in the event it is necessary to demote present permanent full-time employees from job classifications to which they have been permanently assigned, the Company will maintain the present regular rates of its present employees for a period of eighteen (18) weeks following the demotion. In addition an employee with fifteen (15) years or more of continuous service will receive the higher rate for an additional week for each year of continuous service. It is understood that the foregoing does not apply where employees are demoted for lack of qualification, disciplinary reasons, or where an employee is displaced from a bid job by an employee who was absent during the time the job was originally posted for bid and who later bid and was awarded the job. This provision will not apply to an employee temporarily upgraded for seasonal or vacancy filling reasons. The other letter treats with job security and contains the following, in toto: The matter of job security for our present refinery employees was discussed during the current contract negotiations. We stated to the Union Committee our desire to provide job security for our present employees consistent with the needs of the business and the efficient operation of the refinery. In order to provide job security consistent with these principles during the term of the contract agreement. 1. The Company will use emphasis in placing primary reliance on its present employees in the performance of work in the plant that they regularly and customarily perform. 2. The Company hereby assures you that it desires to accomplish future technological improvements and installation of new units and equipment without lay-off of present personnel of the bargaining units. The Union hereby agrees that in order to enable the company to make every effort to provide maximum employment consistent with the needs of the enterprise and within the meaning of this letter of understanding it will cooperate in eliminating inefficient work practices and further agrees that the Company may utilize the work force to the extent provided in Article VIII, "Rover corroborated Jedinak as to the time of execution of the Letters, and asserted they were effective "for the period of the Principal Agreement," expiring December 31, 1968. Rover, however, asserted that, during the negotiation of these Letters, the Union did not request that they be included in Supplemental Agreement No 4. Section 6 of the contract. The foregoing provisions will not apply to layoffs resulting from catastrophe or the occurrence of major unexpected events beyond the reasonable control of the Company. Should an unexpected condition occur, the Company shall notify the Union (90) ninety days in advance of the proposed layoff. During this (90) ninety day period, the Company and the Union shall meet and discuss means of preventing such layoff. If at the end of (30) thirty days of receipt of notice the matter is not resolved, the Union may terminate the contract by serving (60) sixty days written notice. Jedinak related that the Asphalt Plant continued the same as when the refinery was operating. The facilities related to the refinery were dismantled, and employees, previously employed in the refinery portion, were either transferred or separated. The name was changed to Cleveland Asphalt Plant in July 1966. Jedinak related that pursuant to the undertaking of the parties, contained in paragraph 2 of Supplemental Agreement No. 4, the parties met on March 16, March 23, March 30, April 4, April 11 and April 20, all 1967. There were also discussions, as set forth infra, during or after grievance committee meetings on May 25 and June 28. A special meeting, the detail of which is set forth infra, was held on July 10, 1967. Jedinak was the principal spokesman for the Union at each of these meetings. Plant Manager Briggs was the sole spokesman for the Company at all meetings prior to April 20. Briggs was accompanied by Rover at the meetings of April 20 and June 28. Jedinak, in testifying, relied largely on his own notes and those of the Union's recording secretary, James Deimert, made during the various meetings.' 2 The initial meeting, according to Jedinak, on March 16, began with a statement by Briggs that the purpose of the meeting was to incorporate the various supplements into an agreement. Jedinak responded that Jedinak had the impression that the purpose was to remove obsolete provisions. Briggs, during a lengthy discussion, indicated that it might be necessary to change the location of particular items in the agreement. Jedinak cautioned of the possibility of losing the intent of what was originally negotiated. With Briggs reading the language, paragraph by paragraph, from the Principal Agreement the parties commenced a word by word and sentence by sentence consideration. Briggs indicated that paragraph 10(b) to 15, all dealing with seniority, with particular reference to Promotional Line Seniority, contained in paragraph 11(c) were to be changed. Jedinak related that he responded that whether they were in an integrated refinery or an asphalt'plant a promotional line is just that and is not related to the specifications of paragraph 2 of Supplemental Agreement No. 4. The parties then passed over paragraphs 11 to 20. Jedinak related that when the parties considered paragraph 28(a), treating with the impact of seniority on promotions, Briggs indicated a change, resisted by Jedinak In summary, according to "Jedmak related that at the termination of each meeting, or shortly thereafter, it was the practice of Deimert to turn his notes over to Jedinak, who examined them for accuracy and retained possession of them, simultaneously distributing copies to the other union representatives Respondent explained that the hearing had been continued on one occasion by reason of the illness of Briggs, who remained unable to appear at the time of the hearing herein. STANDARD OIL COMPANY Jedinak, some deletions and modifications were agreed to, while others were passed over for later consideration. Jedinak asserted it became evident that Briggs was suggesting more than removal of obsolete provisions. For that reason, according to Jedinak, he advised Briggs that, before a contract became effective, complete agreement had to be reached and it had to be presented to the membership for ratification. Briggs did not take exception and acknowledged that the agreements reached were tentative. The meeting of March 23 was primarily a monthly grievance meeting, followed by a short discussion of paragraphs 107 and 108, with no conclusions reached. The meeting of March 30 covered consideration of additional paragraphs, with the same mixed results outlined in the prior meeting. Jedinak again advised Briggs that the Union was there solely for the purpose of removing non-applicable items, and would accept only those items on which agreement had been reached, after they had been reduced to writing. At the meeting of April 4, Jedinak, for the first time, inquired as to whether the Letters of Stipulation, of January 24, supra, were part of the agreement.,,Jedinak advised Briggs that the Union wanted the Letters of Stipulation, the job duties, attached to Supplemental Agreement No. 3, and the movement of an employee from a group 2 job, in the promotional chart, to a group 3 lower-paying job, reduced to writing and made part of the contract.13 Jedmak called Briggs' attention to his opening statement, of March 16, that the parties were to integrate the various supplements into an agreement for the asphalt operations. Briggs, according to Jedinak, responded that job duties were never part of an agreement. Briggs also asserted that the Letters of Stipulation were not part of the agreement. At the meeting of April 11, inter alia, Briggs indicated a desire to rotate the employees in the classification of assistant operators Jedinak explained that there are three functions in this particular job classification i.e. an immediate assistant to the operator, a truckloader, and a tank car loader and unloader. Briggs indicated a desire to have the operators familiar with all aspects of the particular job classification, and desired rotation for that purpose. Jedmak asserted this was a modification of the promotional chart, appended to Supplemental Agreement No. 3 Briggs then indicated a desire to insert a "breaker position" into the promotional chart, to entitle the occupant to a permanent job. Jedmak asserted this was in conflict with the existing supplemental agreement, which does not provide for a breaker position. Jedinak explained that the operation is a 24-hour operation, with rotation of shifts, and a boiler operator or assistant boiler operator is apparently a substitute, on days off, as the operation is a 7-day operation and the "breaker" is in the promotional line of boiler operator and assistant boiler operator, as distinguished from the asphalt operator and assistant asphalt operator line of promotion. Jedinak related that, while he called attention to the fact that this did not involve an obsolete provision, the Union was willing to discuss the problem. Briggs indicated a desire to remove paragraphs 45 to 52, inclusive, which relate to a rehabilitation procedure in the event a unit is shut down "It is undi!,puted that, after the events of August 1, in the fall of 1967, the parties adjusted, to their mutual satisfaction, the movement of employees from a group 2 to a group 3 job assignment. This item is not contained in the Company ' s letter of July 31, listing the points of disagreement I find it unnecessary to consider it further 181 or a classification permanently removed. Briggs indicated a desire to reduce it to a statement that the Union and management would work out the details Jedinak responded that they had been operating under these procedures for many years and it was immaterial whether it was an asphalt plant, or an integrated refinery, the rehabilitation procedures had application. The Union again raised the question of whether the Letters of Stipulation were to be made part of the agreement. Briggs responded they are in effect but are not part of the contract, and that it was not necessary to put them in the contract. At the meeting of April 20, with Rover as well as Briggs present for the Company, Briggs went over the contract and indicated the areas in which he felt the parties had reached tentative agreement. Jedinak voiced an objection that there was "no meeting of the minds" as to actual language, and also an absence of agreement on the removal of certain paragraphs, such as those treating with rehabilitation procedures. The Union contended that the removal of some paragraphs was not within the contemplation of the provisions of paragraph 2 of Supplemental Agreement No. 4. Rover indicated a desire to place a breaker position in the promotional chart, attached to Supplemental Agreement No. 3, between the boiler operator and assistant operator positions, and also between the asphalt operator and assistant operator, with another breaker below the assistant operator in each line of promotion, which would place the breaker next in line [for promotion], in case of a vacancy. Jedinak objected that this was contrary to the seniority provisions of the Principal Agreement and the promotional lines of Supplemental Agreement No. 3. Jedinak acknowledged that the, Union indicated a willingness to agree, nevertheless, subject to a complete agreement on all items. Jedinak asserted that Rover was to prepare and submit precise language, relative to all the modifications, for study. Jedinak explained that one problem, which he described as "major" was the fact that people at the boilerhouse who had rehabilitation rights in one department would now no longer have those rights, and before this could be formalized the Union had to ascertain the feelings of the employees. Jedinak asserted that at the conclusion of the meeting of April 20 there were areas of disagreement, with particular reference to paragraph 28(a), the unwillingness of Briggs to place the promotional lines in the Principal Agreement, the seniority provisions contained in paragraphs 11 to 17, inclusive, paragraph 175, which provides for four safety committeemen, which the Company wished to reduce to two, and provisions relative to placement of returned military personnel, which commence at paragraph 53. Rover acknowledged there was extensive discussion of Article III, titled Senior ity-Tran sfers-Promotions-Layoffs, covering paragraphs 9 to 82 of the Principal Agreement, on April 20. Rover's explanation was, ". . . I felt we had an understanding of a position of agreement on this. I don't mean to say by that that the Union agreed to everything we talked about. We had an understanding with respect to the application of seniority. We had no words to offer. [Emphasis supplied.] At that time these .had to be developed and I was to put in writing my understanding of what we had discussed on this day,, and that along with the other revisions of the contract, would be presented to the Union as a complete revised agreement in conformance with the charge to the parties by Point [paragraph] 2 of the No. 4 Supplemental Agreement." 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 27, Rover's draft of what is entitled "Articles of Agreement," ostensibly an agreement between the Company and the Union, containing 49 typewritten pages, with an attachment covering lines of promotion as Exhibit "A," but not containing the wage-rate schedule attached as Exhibit "B,"14 was submitted to Jedinak, without the covering letter dated July 31. A day or two thereafter, Briggs requested Jedinak to screen the draft and submit objections in writing, which Jedinak agreed to do. Jedinak, on the suggestion of Deimert that the draft should be considered word by word, then advised Briggs that he could not give written objections but was willing to meet and discuss the draft word by word. In the same conversation, Jedinak objected to the company failure to incorporate the Letters of Stipulation and the job duties. Briggs did not respond to this objection. On May 25, during the course of a grievance committee meeting, Briggs indicated that he wished to bring Rover into the meeting to discuss the Company's proposals. Jedinak responded that the Union would not consider the proposals because the Letters of Stipulation were not in the proposal. Jedinak, indicating that he was willing to compromise, inquired if the Letters of Stipulation were subject to the grievance procedure and arbitration provisions of the Principal Agreement. Briggs responded he did not know but would obtain an answer. Jedinak then indicated a desire for an answer to his request for the inclusion of the job duties in the agreement. Later, during the course of the meeting, Briggs indicated that the Company was obligated and bound by the Letters of Stipulation, as much as by the Principal Agreement, and that the matters were arbitrable. Briggs also indicated that the job duties would not be included in the Principal Agreement. Jedinak inquired if the Company would give the Union a letter stating that the Letters of Stipulation were subject to arbitration. Briggs indicated that he would advise Jedinak later. Later, the same day, Briggs called Jedinak, at the latter's home, and advised Jedinak that Briggs could not comply with Jedinak's request for a written statement. Jedinak responded that, in such event, the Letters of Stipulation were worthless. On June 28, during a grievance committee meeting, Briggs reviewed the status of the contract negotiations, pointed out the number of meetings that had been held and the fact that Rover had submitted a draft. Jedinak reiterated his position and insistence upon the inclusion of the Letters of Stipulation and the job descriptions.' S Jedinak acknowledged asserting that, in order for the Union to give consideration to the draft, these items would have to be included in the agreement. Briggs responded that they would not be included in the agreement. Rover related the Company's position was that the Letters of Stipulation were part of the January negotiations, not part of the deliberations, thus they would not agree to their inclusion in the written contract, absent such an agreement at the time they were negotiated.' 6 Rover asserted that, upon inquiry by Jedinak, Briggs advised Jedinak, in view of the position taken by the Union, there seemed to be no reason or profitable basis "The date of July 28, 1967, appearing on page 4, in item 20, the date of July 31, 1967, and the signature of Briggs thereon, after the page showing Exhibit "A," and the cover page entitled "Articles of Agreement," were not attached, or inserted at the time of submission of the draft "Rover corroborated Jedinak on the latter's assertion of insistence on inclusion of the Letters of Stipulation, but first did not recall and then denied reference was made to job descriptions . Rover's assertion that the Company did not refuse to incorporate job descriptions is not credited for further meetings. Thus the date of July 1, 1967, specified in paragraph 2 of Supplemental Agreement No. 4 as the target date for agreement, was reached without agreement. On July 10, a special meeting was held. Jedinak related that the purpose of the meeting was to discuss the rotation of assistant operator-mechanics, on a 3-week rotation, i.e. the first three men at the top of the list would go to the bottom of the list during the following 3-week period, and in this manner stay current with training requirements which the Company desired. At this meeting the Company also proposed a change in the promotional chart attached to Supplemental Agreement No. 3 which was at variance with the submission made at the meeting of May 4." Jedinak asserted that after that submission the Union presented that proposal to the membership, on May 12, and indicated its acceptability to the Company, on May 25. Jedinak asserted that Briggs explained the change from the original submission arose by reason of two people in the assistant operator-mechanic classification, whom the Union felt should have been filling vacancies in the asphalt department but were actually filling vacancies in the boilerhouse, purportedly by reason of the provision in the modified promotional chart to include the breakers. Jedinak; asserted that the Union had not approved either proposal, by ratification or signature, and had to reject the seniority list because it was not in conformity with the Principal Agreement. However, Jedinak related that he advised Briggs that the Union was willing to accept the list if the entire agreement was formalized. Jedinak again raised the matter of the Letters of Stipulation and Briggs responded that the Letters of Stipulation were not negotiated into the agreement. Briggs advised, however, that the Company would honor the Letters of Stipulation and abide by them as if they were part of the agreement, and asserted that he had never stated they were not part of the agreement.1e Refusal To Bargain The Appropriate Unit - the Union's Majority Status On March 5, 1964, the Board conducted an election, in Case 8-RC-5442, and thereafter, on March 12, 1964, certified the Union as the exclusive collective-bargaining representative, within the meaning of Section 9(a) of the Act, having found the following employees of Respondent constituted a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act: All production and maintenance employees at Employer's No. 1 Refinery, Cleveland, Ohio, including the storekeepers and assistant stock and purchase clerks in the storehouse, the pipe line gaugers, the control laboratory employees, but excluding all graduate chemists and engineers working as such, all office and plant clerical employees, technical employees, and all professional employees, guards and supervisors as defined in the Act." "Rover asserted the Company, on June 28, did not deny the Letters of Stipulation were binding contracts , had the same status as any contract agreement, and the Company intended to honor them "There is no other reference in the record to a meeting of May 4, as distinguished from April 4, however I have no means of knowing the accuracy or inaccuracy of the date "It appears that a rotation system was approved by the membership, subsequently, approximately November 24, 1967 "I find of no consequence the assertion of Respondent that the reduction STANDARD OIL COMPANY 183 There appears no contention that the Union did not, at all times material herein, represent a majority of the employees in the unit. On July 31, 1967, Briggs advised Jedinak that Briggs wished to have a short meeting with the Union Committee, the following day, to discuss a letter that Briggs ]lad formulated which was being forwarded to Jedinak. At the same time, Briggs indicated, to Jedinak, that it would not be necessary for him to change from his work clothes as the meeting would be of short duration. On August 1, 1967, Briggs, a Mr. Heath, of employee relations at No. 2 refinery, and Rover, represented the Company at the meeting. Briggs advised Jedmak, and the other union representatives present, that he was mailing a letter to the various Union officers in the local, that the purpose of the meeting was to notify the Union that Respondent was going to place in effect the new contract, in the form in which it had been submitted to Jedinak, and the union representatives, on April 27, 1967 .21 Briggs then read, in toto, the following letter, addressed to Jedinak and signed by Briggs, dated July 31, 1967 When agreement was not reached in January of this year to make the contract conform to the changes in operation covered by Supplemental Agreement No. 3, signed in July of 1966, the parties agreed at that time to continue negotiations on revisions to make the new contract conform to the changes in operation already agreed to. The revisions of the contract were to have been accomplished by July 1, 1967. Subsequent to the conclusion of these negotiations, a number of meetings were held to discuss the revisions to the old contract. At the sixth meeting on April 20, 1967, we reviewed our previous discussions confirming the tentative agreements reached. We then addressed ourselves to Article III and reached an understanding in principle on how this article would operate. At the conclusion of this meeting, we agreed to rewrite the total contract in line with the understandings reached in these negotiations meetings. Copies of this revised contract were given to you on or about April 27, 1967. When we heard nothing further from you on the subject, we inquired as to the status of the revised contract. You told us that you would give no consideration to the revised contract unless management included as a part of the printed contract, the letiters covering Main.enance of Rate and Job Security, and in addition, included the job descriptions of all positions covered by the agreement. [Emphasis supplied ] We advised you at that time that we felt that your iequest to include the letters in the written contract was contrary to the agreement of January 24, 1967. The duties of the classifications contained in Exhibits "A" and "B" of the revised contract as outlined in our memo to you dated June 24, 1966 remain unchanged. As we indicated to you in our last meeting, we feel that we have complied with the requirements of the agreement of January 24, 1967. The aforementioned letters remain in effect, but their inclusion in the written contract is not covered by any agreement or understanding between the parties and thus is an improper condition for agreement. We have bargained of the number of employees , by reason of the discontinuance of the refinery operation, has resulted in a substantial modification of the composition of the unit by classifications. "Rover corroborated Jedinak as to the assertions of Briggs in which he related the Respondent ' s contemplated action in good faith on all matters and have presented you with a revised contract containing the results of our discussions. In view of the above, it is apparent that an impasse in bargaining has been reached. We, therefore, see no reason why the provisions of the revised contract (copies executed by the Company attached) should not be placed in effect without delay. We plan to do so beginning August 1, 1967. Briggs then summarized the events which preceded the August 1 meeting asserting , inter alia: that the items in the agreement were the items which had been agreed to; that the Letters of Stipulation and job duties,21 which the Union requested be contained in the contract, Briggs felt was an improper request; that Briggs felt that an "impasse" had been reached. Jedinak asserted that he and his group took exceptions to Briggs' assertions 22 Jedinak, among other objections, asserted he advised the company representatives that the document should not have been entitled "Articles of Agreement" since there were items that were not covered and there were problems relative to seniority and bidding procedures which had not been resolved.23 Jedinak asserted that after glancing at copies, and being aware of the contents, he returned the copies to Briggs, advising him that his contemplated action was highly improper, and that Briggs should permit a meeting with the International representative, since Jedinak had not been forewarned as to the nature of the meeting. It is undisputed that the tentative meeting with the International representative, Phillips, scheduled for August 29, was later abandoned, by reason of Respondent's distribution of the "Articles of Agreement," and, on August 16, the Union filed the charge in this case. Jedinak asserted the following day, inferentially August 2, copies of the purported "Articles of Agreement" were distributed to each employee in the plant, by Respondent, with a covering letter, signed by Briggs, dated July 31, 1967, addressed "To: All Cleveland Asphalt Plant Employees," with the following content: The 'attached contract is being placed into effect as of August 1, 1967. This represents the old contract plus the supplements thereto, reflecting the change in operations from an integrated refinery to an Asphalt Plant. Jedinak related that a revised Seniority List, with a covering letter dated August 1, 1967, was published by Respondent, and posted on the plant bulletin board on August 2, 1967.24 Jedinak related past practice under the Principal Agreement was that, every 3 months, the Company "Rover, acknowledging the job descriptions were part of Supplemental Agreement No 3, [which was part of the revision undertaken in Supplemental Agreement No. 4], asserted "it is not our general practice to put the duties of a classification in our basic agreement." izI find it unnecessary, as I have indicated supra, to determine if, as Jedinak stated, he called to the attention of Briggs the failure to include the conditions under which a group 2 man could be assigned to a group 3 position . I have noted that this contention does not appear in the Company's letter of July 31 , and that the parties have subsequently amicably adjusted that particular bone of contention "While Jedinak outlined a substantial number of other areas in which he asserted there was no "meeting of the minds " relative to the content of the "Articles of Agreement," I find it unnecessary to set these items forth, particularly since there is no claim that each of these items were called to the attention of Briggs at the August 1 meeting "Jedinak acknowledged being uncertain if this list was, or was not, attached to the draft contract submitted at the August I meeting, and returned to Briggs 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD submitted a seniority list to the Union, usually at a Union-Management grievance meeting. Some of these were 30 to 40 pages in length. The Union would advise that it was, not accepting the list as a valid list until they had had an opportunity to ascertain its accuracy. The lists were then distributed, by the Union, to each department, and postedi on the bulletin board by the Union, requesting the employees to contact either Jedinak or their committeeman if there was any difference of opinion relative to placement. Such problems as arose were then resolved at a meeting between union and management representatives. Jedinak acknowledged refusing to follow this past practice, and he refused to circulate the list' on July 10, when, 'it was first submitted to him. Jedin,ak, acknowledged the accuracy of a portion of the company minutes of the July 10 ' meeting which reflect that the Union stated the list was not acceptable as it reflected certain conditions of the proposed new agreement. Jeditiak asserted one objection to the published list was that it reflected a change in the numbering system provided in the Principal Agreement and nullifies the bidding procedure of the Principal, Agreement. Jedinak first asserted the area of difference was the insertion of "breakers" into the promotional line, then acknowledged that the Union was willing to agree on this point tentatively, but subject to complete agreement. 15 Jedinak asserted that, under Article 184 of the Principal Agreement, the Union has the right to elect 14 committeemen to represent the membership, and that the Company had unilaterally reduced this to 8. The paragraph identified provides that not more than eight shall meet in negotiations with Company Management, a Workmen's Committee. Jedinak also asserted that the same article provides for a grievance committee of not more than 7, of the 14 designated. Since August 1, 1967, the Company has unilaterally reduced the number to be elected to eight, and the number on the Workmen's Committee and grievance committee to three each. Previously all committeemen attending a grievance meeting were paid. Since August 1, the Company has refused to pay, for the attendance of more than three committeemen. Jedinak related that when five committeemen attended the Company insisted that the Union designate which three were to be paid, otherwise it would not pay any. These events were related to the regularly scheduled August 1967, Union-Company grievance meeting. Jedinak acknowledged that the modification of paragraph 184 had been tentatively agreed to by the Union. Jedinak asserted that these tentative agreements were subject to complete agreement on all problems, and particularly on the precise language. It is undisputed that after Rover presented the language modifications, on April 27, the Union, for the reasons indicated, refused to state its position on the modifications Contentions of the Parties Concluding Findings Three questions are presented by the pleadings and litigation: (a) whether Respondent could modify an existing contract unilaterally, by reason of an asserted 21The company minutes of July 10 , and Jedinak' s testimony clearly reflect that it was the Union's insistence upon the inclusion of the Letters of Stipulation into the redraft of the Principal Agreement which precluded acceptance of the Seniority List by the Union impasse; (b) whether Respondent is required to incorporate, by reference or otherwise, into the Principal Agreement, the 'provisions of the Letters of Stipulation, relating to job security and retention of rate upon demotion; and (c) whether Respondent could unilaterally modify the Seniority List and make other unilateral changes in terms and conditions of employment. These matters are considered seriatim. a. Unilateral modification That Respondent's issuance,' publication, and distribution, of the Articles of Agreement was unilateral and modified the existing Principal Agreement and Supplements, which were still in full force and effect, is undisputed. By their terms, as modified by agreement, these agreements expire December 31, 1968, as provided in paragraph I of Supplemental Agreement No. 4, and then only upon appropriate 60-day notice. Respondent urges that an impasse resulted when the Union refused, at the meetings of May 25 and June 28 to even consider the contract draft, unless the Company was willing to incorporate the Letters of Stipulation in the basic contract. Respondent urges the Union had no right to so insist, asserting that these were signed lateral agreements "in the form negotiated" and not subject to further negotiation until their expiration. Respondent urges that the "Articles of Agreement" were in the language which Respondent understood was the basis of tentative agreements with the Union and its understanding of the principles governing seniority. "b It is undisputed that Respondent refused to bargain further after July 1, 1967. As stated by the Board, in Taft, supra at 478: An employer violates his duty to bargain if, when negotiations are sought or are in progress, he unilaterally institutes changes in existing terms and conditions of employment. [Citing: N.L R.B. v. Katz, 369 U.S. 736.] On the other hand, after bargaining to an impasse, that is, after good faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals. [Citing: N. L. R. B. v. Intracoastal Terminal, Inc., 286 F.2d 954 (C.A. 5).] [Emphasis supplied.] The important difference is that we are not here treating with negotiation or renegotiation of an expired collective-bargaining agreement. As I have found, supra, paragraph 1 of Supplemental Agreement No. 4 provides for the extension of the Principal Agreement and its Supplements to December 31, 1968. In paragraph 2, of that Supplement, the parties undertake no more than an effort to revise the Principal Agreement and Supplements "to conform to the changes in operation covered by Supplemental Agreement No. 3" by "making [such] wording changes as may be required" and "by deletion of obsolete provisions." Respondent correctly urges that since the contract was not reopened the Union could not insist upon the inclusion of the subject matter of the Letters of Stipulation, since the negotiations were confined to the specifics of paragraph 2 of Supplemental Agreement No. 4. "Respondent's reliance on N L.R B v. Crompton-Highland Mills, Inc, 337 U S 217, and Taft Broadcasting Company, 163 NLRB 475, is misplaced Both are inapposite . Crompton treats with the granting of a wage increase in excess of the amounts offered during negotiation Taft relates to extensive negotiations for a new agreement - STANDARD OIL COMPANY 185 General Counsel correctly asserts assuming an impasse - it was reached during the term of an existing contract and would operate simply to maintain in effect all preexisting contractual commitments. So used the term "impasse" is out of normal context.27 General Counsel urges that the distribution, by Respondent, to its employees, despite the express and specific objection of their certified collective-bargaining represental.ive, of a document purporting to abrogate, modify, and/or replace their unexpired collective-bargaining agreement, herein called the Principal Agreement, was conduct violative of Section 8(a)(5) and (1) of the Act. General Counsel asserts that the issuance of a modified contract, or any attempt to replace art unexpired contract with a new one, in the absence of specific permission from the other party to the contract to do so, goes to the very heart of the Act and cannot be condemned too strongly. [Underlining in brief.] I have round, supra, that paragraph 2 of the Principal Agreement provides, inter alia, "no provision contained in this agreement or any amendment or supplement hereto shall be modified or altered without the mutual consent of the parties." This is followed immediately by provision for negotiations "upon any proposal to amend, mgclify or supplement," in view of the planned permanent shutdown of the Refinery, as distinguished from the Asphalt Plant: It is patent that neither the Union nor the Respondent could indulge in a unilateral modification of an existing agreement. This is so well established as a basic precept of the law of contracts as not to require citation. The Congressional purpose, Section 1 of the Act, of protecting stated rights "for the purpose of negotiating the terms and conditions of - employment," becomes meaningless if unilateral abrogation of contracts is sanctioned. Accordingly, for the reasons stated, I find Respondent's action of railing and refusing to bargain on and after July 1, 1967, by on August 2, 1967, publishing and circulating among the employees, in the appropriate unit described, modified terms and conditions of employment, partially set forth infra subsection (c), without the consent of the Union, in each instance, discredited the Union, impaired the bargaining process, and tended to frustrate the aim of the statute to secure-industrial peace through collective bargaining,28 thus was conduct violative of the provisions of Section 8(a)(5) and (1) of the Act. b. Letters of stipulation General Counsel urges that the refusal of Respondent to incorporate the Letters of Stipulation into the Principal Agreement or Supplements is an unfair labor practice. The premise undoubtedly is that the content relates to working conditions; i.e. retention of rate upon demotion and job security. I am unable to agree. Section 8(d), by its express terms, does not require either party to agree to a proposal or require the making of a concession. In conformity with the requirements of Section 81(d), it is undisputed that the parties reduced to writing and signed the modifications of job security and pay retention upon demotion, to the extent agreement was reached. It is patent from the inquiry Jedinak made to Briggs on April 4, that there had been no discussion, much less than "Webster's New Collegiate Dictionary defines impasse as a predicament affording no escape "H. J. Heinz Co v. N L R B., 311 U.S 514, 526 a meeting of the minds, on the inclusion of the substance of these letters in the existing agreements, on January 24, when entered into. Otherwise, the application of the grievance and arbitration provisions of the Principal Agreement would not have been in question. There may be many arguable reasons why Respondent's position, of refusal, could be described as untenable, but the Board properly has no concern, and no mandate, beyond determining that an agreement was entered into and signed in, the form agreed upon. Clearly the Board is not vested with power to require the action requested in the complete absence of evidence of agreement to such an undertaking by the parties. Accordingly, for the reasons stated, I will recommend dismissal of the allegations of paragraph 14(A) of the complaint. c. Unilateral changes in working conditions On January 24, 1967, by Supplemental Agreement No. 4 the Principal Agreement, together with its supplements, were specifically extended to December 31, 1968, except as therein - specifically amended, modified and/or supplemented, with the customary provision for 60 days' notice of termination, at that time, by either party. In the same Supplement, paragraph 2, the parties agreed to meet and make necessary revisions, by July 1, 1967, "by deletion of obsolete provisions and by making wording changes as may be required to make said agreement conform to the changes in operation covered by Supplemental Agreement No. 3. Supplemental Agreement No. 3, entered into on July 22, 1966, provides: as item 1, wage rates and classifications for the Asphalt Plant, as set forth in an attached exhibit; as -item 2 a promotion chart set forth in an attached exhibit; as item 3, "It is agreed that the provisions of the Principal Agreement are hereby modified to the extent required by items I and 2 above"; as item 4, that the parties accept an attached outline of job duties; as item 5, an amendment to paragraph 105 of the Principal Agreement; as item 6, "Except as specifically set forth in items 1 and 2 above, the provisions of the Principal Agreement shall remain subject to reopening for negotiations in accordance with the provisions of Article I thereof." It is thus patent that, in the words of the Supplement, except as the wage rates, classifications, and promotion chart were modified by this Supplement, the provisions of Article I, paragraph 2, of the Principal Agreement, supra, applied to any modifications undertaken under paragraph 2 of Supplemental Agreement No. 4. I have set forth supra the requirement for mutual consent requisite for any modification or alteration. Respondent, relying solely on the language of Supplemental' Agreement No. 4, urges, in its brief, that "the basic provisions were no longer legally in effect as written " Inconsistently Respondent urges that the Letters of Stipulation were not open for negotiation until the termination of the contract, on December 31, 1968, by reason of the same document. Thus, Respondent would limit modification of the terms and conditions of employment to its proposals, on the basis of admittedly "tentative" agreements. These "tentative" agreements were conditioned upon final complete agreement on language and agreement on other conditions. The Union never accepted the language and Respondent never accepted inclusion of the other conditions; i.e. job classifications and Letters of Stipulation. Thus no 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement to modify existed.29 Respondent unilaterally modified: seniority, lines of promotion, by insertion of breakers; reduction of the number of grievance committeemen, from 7 to 3, and refused to make payments to committeemen in excess of 3, in violation of the agreement, paragraph 184; reduced the number of elected representatives from 14 to 8, and the Workmen's Committee, also in paragraph 184, from 7 to 3; and posted a Seniority List without obtaining customary screening and comments from the Union. Numerous other language changes and deletions were made in the Principal Agreement, without the Union's concurrence. Respondent urges, alternatively: (a) Paragraph 2 of the Principal Agreement, requiring "mutual consent" for modifications during the contract term is inapplicable, because it was superseded by Section 2 of Supplemental Agreement No. 4. Respondent's argument is that, while the first paragraph "reinstated and amended" the Principal Agreement, Section 2 expressly left open for further negotiation the provisions of the basic contract requiring modification because of the changes in operation; (b) the parties could hardly have intended that the Union could frustrate indefinitely "a workable agreement for the asphalt operations" by withholding its "consent"; (c) the parties had already agreed that the provisions of the Principal Agreement were "modified to the,extent required" by their negotiation of the new wage rates, job classifications and promotion lines, under the Supplemental Agreement No. 3; (d) the Articles [of Agreement] . . . incorporated the tentative agreements reached by [the parties] . . . and the principles governing seniority that they worked out in the negotiations . . . (Quotes and emphasis in brief.) The short answer is, as Respondent urged relative to the Letters of Stipulation, the Principal Agreement, in toto, was extended to December 31, 1968, except as amended by the Supplementary Agreements. All paragraph 2 of Supplemental Agreement No. 4 left for negotiation was, (1) deletion of obsolete provisions, and '(2) such wording changes as may be required to conform the Principal Agreement provisions to the changes in operation covered by Supplemental Agreement No. 3. It is patent that Respondent's unilateral modifications of the terms of the agreements and working conditions were not within the area described, for further negotiation, under the "Respondent's inconsistency is further illustrated by the following, in its brief, at pages indicated . "The negotiations were limited to making the necessary revisions to the basic contract to conform the contract to the changes in operation ..."[ 15]; "The negotiations in March and April were for the purpose of formalizing the modifications by deleting obsolete provisions and by making wording changes . " [ 16]; "It is firmly established law that an employer is under no duty to negotiate on modifications of written contract terms, [Letters of Stipulation] if the modifications are to become effective before the terms are subject to reopening under the provisions of the contract "[ 16], "The right [of Respondent] to institute new terms and conditions [after impasse] includes the right to implement the terms in practice .... The seniority list was the same list rejected by the Union at the July 10 meeting, on the ground that the list reflected contract modifications in the contract draft The Union was unwilling to consider the list unless the Letters of Stipulation were included in the contract draft. Thus, the impasse extended to the seniority list and the Respondent had the right to unilaterally institute the list ... "[21] Ergo, the Union was bound by the terms of the agreement, until December 31, 1968, unless Respondent agreed to modification, while Respondent, on the assertion of "impasse," was free to disregard the same terms and conditions , and to invoke unilateral modifications. I fail to comprehend such legal gymnastics. provisions of paragraph 2 of Supplemental Agreement No. 4. The Board has held that unilateral action with respect to wages, hours, and working conditions, in derogation of Respondent's obligation to bargain with the Union, as the exclusive collective-bargaining representative is so well settled as to require no citation of authority. Fleming Manufacturing Company, Inc., 119 NLRB 452, 464. The Board has also held: The existence of the bargaining impasse does not destroy . . . the authority of the representative to act within the sphere of its representation . . Accordingly, as we have frequently held, a bargaining impasse does not relieve an employer from the continuing duty to take no action which the employees may interpret as a "disparagement of the collective bargaining process" or which amounts in fact to a withdrawal of recognition of the union's representative status or to an undermining of its authority . Intracoastal Terminal, Inc., 125 NLRB 359, 367; Central Metallic Casket Co., 91 NLRB 572. General Counsel urges the bad faith of Respondent is reflected by the extremely short period of time between its announcement, on August 1, that it considered its draft as being in effect, and its distribution to employees, on August 2 General Counsel also urges the draft, purporting on its face to be the result of a mutual agreement between the parties, must necessarily have seemed`" to the members of the Union to be a disparagement of the representative status of their Union, and of the collective-bargaining process I agree, and so find. Accordingly, for the reasons stated, I find Respondent's unilateral revision, publication, and circulation among the employees in the unit described supra, of the Seniority List, lines of promotion, a revised provision relative to the number of grievance and Workmen's Committee members, and other revisions of the Principal Agreement and Supplements, was, in each instance, unilateral action, thus a failure and refusal to bargain in good faith and violative of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent revoke and rescind the Articles of Agreement unilaterally published by it, and distributed to its employees on August 2, 1967, including, but not confined to, the purported Seniority List, lines of promotion, reduction of grievance and Workmen' s Committee members. It is also recommended that Respondent reinstate, in full force and effect, the Principal Agreement and the Supplemental Agreements, STANDARD OIL COMPANY 187 as they existed on August 1, 1967. It is also recommended that Respondent, upon request, bargain collectively with Oil, Chemical and Atomic Workers International Union, Local 7-395, as the exclusive representative of all employees in the unit herein found to be appropriate for the purposes of collective bargaining. It is recommended that Respondent make whole members of the grievance committee, the Workmen's Commitlee, and any employee deprived of a seniority promotion, if any, for any loss of pay such employees have suffered by reason of the Respondent's unilateral action, by the payment to each of the sum they would have received for such meetings as have been held on and after August 1, 1967, until the time of Respondent's restoration of the full committee membership, as provided in the Principal Agreement, or until modification of such provisions by mutual agreement of the parties, or the payment to any employee denied a seniority promotion such sums as he would have earned, and of which he was deprived in the interim. It is further recommended that Respondent be ordered to cease and desist from in any like or related manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, Local 7-395, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at Employer's No. I Refinery, Cleveland, Ohio, including the storekeepers and assistant stock and purchase clerks in the storehouse, the pipe line gaugers, the control laboratory employees, but excluding all graduate chemists and engineers working as such, all office and plant clerical employees, technical employees, and all professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since March 12, 1964, Oil, Chemical, and Atomic Workers International Union, Local 7-395, has been the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By failing and refusing to bargain in good faith with the aforesaid labor organization, on and after July 1, 1967, and by unilaterally publishing and circulating among employees, in the appropriate unit described, modified terms and conditions of employment, on or about August 2, 1967, and by unilaterally modifying the Seniority List, lines of promotion, numbers of grievance and Workmen's Commiltee membership, and by making other wording changes, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By refusing to incorporate the Letters of Stipuation within the Principal Agreement or a Supplemental Agreement Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case, I recommend that the Respondent, The Standard Oil Company (Ohio), its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Failing and refusing to recognize and bargain collectively, in good faith, concerning wages, hours and other terms and conditions of employment, with Oil, Chemical and Atomic Workers International Union, Local 7-395, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees at Employer's No. 1 Refinery, Cleveland, Ohio, including the storekeepers and assistant stock and purchase clerks in the storehouse, the pipe line gaugers, the control laboratory employees, but excluding all graduate chemists and engineers working as such, all office and plant clerical employees, technical employees, and all professional employees, guards and supervisors as defined in the Act. (b) Unilaterally, without agreement with the Union, publishing or circulating unilaterally adopted terms and conditions of employment inconsistent with the existing Principal Agreement and Supplemental Agreements, or modifying the Seniority List, lines of promotion, membership of grievance and Workmen's Committees, or other language of said agreements. (c) In any like or related 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 Oil, Chemical and Atomic Workers International Union, Local 7-395, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Revoke and rescind the Articles of Agreement published and circulated on August 2, 1967, and the Seniority List, lines of promotion, and modifications of the membership of the grievance committee and Workmen's Committee, and other language modifications issued at the same time, and restore the terms and conditions of employment existing prior thereto under the terms of the previously existing Principal Agreement and Supplemental Agreements. (b) Upon request, recognize and bargain collectively with Oil, Chemical and Atomic Workers International Union, Local 7-395, as the exclusive representative of all the employees in the aforesaid appropriate unit, and, if an understanding is reached to modify the existing Principal Agreement and Supplemental Agreements, within the meaning of paragraph 2 of Supplemental Agreement No. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4, or otherwise, embody such understanding in a signed agreement. (c) Make whole members of the grievance committee, Workmen's Committee, and any employee deprived of a seniority promotion, if any, for any loss of pay such employees have suffered by reason of Respondent's unilateral action (d) Post at its Asphalt Plant, in Cleveland, Ohio, copies of the attached notice marked "Appendix "30 Copies of said notice to be furnished by the Regional Director for Region 8, after being signed by Respondent's representative, shall be posted by the Respondent and maintained by it for 60 consecutive days thereafter, in conspicuous places, including each of Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Trial Examiner's Decision what steps it has taken to comply therewith.31 It is further recommended that unless the Respondent shall within 20 days from the receipt of this Trial Examiner's Decision notify said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an Order requiring the Respondent to take the action aforesaid. IT IS FURTHER RECOMMENDED that the allegations of paragraph 14(A) of the complaint be dismissed. In the event that this Recommended Order be 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 be 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 be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply therewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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, and do hereby, revoke and rescind the Articles of Agreement unilaterally published by us, on August 1, 1967, and distributed to our employees, on August 2, 1967, and particularly the Seniority List, lines of promotion, reduction of grievance and Workmen's Committee members and reinstate, in full force and effect, the Principal Agreement and the Supplemental Agreements, as they existed on August 1, 1967. WE WILL, upon request, recognize and bargain collectively with Oil, Chemical and Atomic Workers International Union, Local 7-395, as the exclusive representative of the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed contract. The bargaining unit is- All production and maintenance employees at No. 1 Refinery, Cleveland, Ohio, including the storekeepers and assistant stock and purchase clerks in the storehouse, the pipe line gaugers, the control laboratory employees, but exchtding all graduate chemists and engineers working as such, all office and plant clerical employees, technical employees, and all professional employees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally, without agreement with the Union, publish or circulate unilaterally adopted terms and conditions of employment inconsistent with the existing Principal Agreement and Supplemental Agreements, or modify the Seniority List, lines of promotion, membership of grievance and Workmen's Committees, or other language of said agreements. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Oil, Chemical and Atomic Workers International Union, Local 7-395, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make whole members of the grievance committee, Workmen's Committee, and any employee deprived of a seniority promotion for any loss of pay such employees have suffered by reason of our unilateral action. Dated By THE STANDARD OIL COMPANY (OHIO) (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, 1695 Federal Office Building, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 522-3738.