U. S. Oil and Refining Co.

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. Oil and Refining Company and Oil, Chemical, and Atomic Workers International Union, AFL-CIO. Case 19-CA-5015 qualifications Accordingly, it is unnecessary for us to reach, and we decline to pass upon , any alternative grounds that might support dismissal of allegations covering the aforementioned strikers. October 8, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 21, 1971, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in certain alleged unfair labor practices and recom- mending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief; and the Respondent filed a reply brief thereto. 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 brief, and the entire record in this case, and hereby adopts the findings,( conclusions,2 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i We note that the Trial Examiner inadvertently referred to the period when vacancies for employment became available for the strikers as between February 20 and October 15, 1970, rather than between February 20, 1970, and February 6, 1971, as amended at the hearing The Trial Examiner's Decision is accordingly corrected 2 We agree with the Trial Examiner that Respondent did not violate Sec 8(a)(3) by refusing to offer reinstatement to strikers Baumgartner, Decker, Dodge, Dufresne, Edwards, Hiatt, Ben J Howard, Randy Howard, Jenkins, and McKenzie However, in doing so, we rely solely on the Trial Examiner's finding, with which we agree, that, under the total circumstances, the named strikers were offering to return to work only on condition that Respondent waive its lawfully imposed requirement that employment be conditioned upon satisfaction of certain educational TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: Upon a charge filed on October 29, 1970, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein the Union, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint, dated January 7, 1971, alleging that U.S. Oil and Refining Company, herein Respondent, violated Section 8(a)(3) and (1) of the National Labor Relations Act, herein the Act. Respondent has duly answered, claiming it committed no unfair labor practices. Pursuant to due notice, a hearing in this matter was held before me on March 23 and 24, 1971, at Seattle, Washington. General Counsel, Respondent, and Charging Party fully participated and General Counsel's and Respondent's briefs have been received and considered. Upon the entire record,' including my close observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT' S BUSINESS Respondent is a Delaware corporation engaged in the refining of crude oil at Tacoma, Washington. During the past year, Respondent purchased goods, etc., valued in excess of $50,000 directly from points outside the State of Washington. At all material times it has been an employer engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION At all times material, the Union has been a labor organization within the meaning of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue In issue is whether about February 20, 1970,2 the employees named in so-called annex A to the complaint, who had been on an economic strike, made an "unconditional offer through the Union to return to their former or substantially equivalent positions of employ- ment", between the above date and October 15, did certain vacancies for employment become available for the strikers; between February 20 and October 15, did Respondent fail to offer jobs to applicant strikers as i Respondent's unopposed motion to correct transcript is granted 2 Hereinafter all dates refer to 1970, unless otherwise stated Various dates were amended at the trial 193 NLRB No. 94 U.S. OIL AND REFINING CO. 655 positions became available; by such conduct, if true, did Respondent violate Section 8(a)(3) and (1) of the Act? B. The Facts On July 24, the Board, no exceptions having been filed, adopted the findings and conclusions of Trial Examiner Allen Sinsheimer, issued on June 24. It involved Cases 19-CA-4542 and -4580. The Board in that case dismissed the complaint against this Respondent, in its entirety. The Trial Examiner's Decision was 33 pages long. I do not intend to summarize it, simplify it, or condense it. It speaks for itself. The Board having adopted it, it is the law insofar as it applies to relevant issues in this case. It should suffice to say that Respondent had a regular college or scholarship program of which the Union was well aware, and that Respondent very much wanted it continued. There had been for a while a degree of flexibility in the plan but with a union in the picture flexibility was 110ut"3 excepting by mutual agreement. I find no need to refer to "grandfather" clauses, as in the prior Decision.4 Respondent had, as an employment policy and condition of employment in the "lab," that employees be enrolled in a scientific course, engineering, pre-med biology, et. al. This policy, long before initiated for good and noble reasons, became relaxed for a period of time, but for the times here in issue, there is no doubt that an employee in the lab was to be in a college program, details of which may be read in Sinsheimer's Decision; but as to strikers, was to be more relaxed, e.g., educational major, etc Clearly Respondent had no union animus. For many years the Union had represented the production and maintenance employees and there is no evidence in the prior or this case that Respondent committed overt unfair labor practices. As found in Sinsheimer's case, Respondent had properly bargained as to the "College and/or Scholarship" program. Respondent's position was found to be "tenable." Respondent's position as to requiring lab employees to take one of various scientific majors and do comparatively well in them, particularly in light of all the facts found in the prior case, was entirely reasonable, since it was obviously trying to finance young men of some ability through scientific courses.5 The Union was certified by the Board as collective- bargaining representative of Respondent's laboratory employees on March 19, 1969. Bargaining began shortly thereafter and continued through September 1970. The unit employees went on strike in furtherance of the Union's position on August 28, 1969.6 On February 20, almost 6 months later, the Union wrote Respondent, saying the strike had been terminated and that on behalf of the laboratory employees it represented, the Union was making an unconditional request that the employees be reinstated. It noted it was enclosing a "Request for unconditional reinstatement" signed by 11 individual employees. Eleven employees, presumably strikers, did not make an "unconditional request" for reinstatement, but rather applied "for unconditional reinstatement" to their former jobs.? I do not know what the Board's position will be, and recognizing that such requests are sometimes "inartful," I do not consider an application for "unconditional reinstatement" at all equivalent to an "unconditional request for reinstatement." 8 This may be hair splitting, but in light of the entire record I find that is what these economic strikers sought-"unconditional reinstatement."9 Respondent was under no obligation to grant "unconditional reinstatement" to these strikers, not merely because they had been replaced, but also because Respondent had a right to impose lawful conditions concomitant with their reinstate- ment to employment. Respondent did not long delay in replying to the February 20 applications. On February 27, it requested the applicants, "before acting on your request" for reinstate- ment, that they return an enclosed questionnaire. 10 The questionnaire, in light of Respondent's established labor relations policies with respect to lab employees, addressed to men who had been striking, and out of touch with Respondent not for a week but for about 6 months, was as innocuous as I can conceive. Respondent wanted to know whether these applicants for unconditional reinstate- ment met the basic requirements for employment in the lab, before Respondent granted, or perhaps considered, their offer. Within due and not unreasonable time, Respondent sent to the applicants a questionnaire before it determined whether to offer reinstatement to some or all of them. The questions were simple-not confusing-not asking for anything but facts which might disclose eligibility for employment as spelled out in this case but more so in the prior Sinsheimer case. So, Respondent asked the applicant if he'd been working at a substantially equivalent job; if so where, etc., and if still employed; if applicant were presently enrolled in an accredited college, et.al., and if so, to name the school, date of current enrollment, courses, number of semester credits in each course and degree sought. Further, Respondent sought from the applicants the name of the school and the date they enrolled and courses and credits, as well as degree sought. They were asked to state if they were not currently enrolled in school, whether they intended to enroll, when and where, and what courses they intended to take. In view especially of the prior Decision in this matter, it is obvious to me that it was reasonable and fair and sensible for Respondent to inquire of economic strikers who applied "for unconditional reinstatement to our jobs in the Laboratory" of Respondent whether they continued to 3 For Respondent 4 1 find no need to discuss Baumgartner and/or Dennis Paul S Respondent's officers had had some difficulty in financing their own college education 6 It was an economic strike 4 I find a distinct if manful difference 8 Respondent could not condition their hours of employment, wages, etc. 9 They were then claiming to be unfair labor strikers. 10 Note Respondent wanted, with some unimportant exceptions, lab employees who needed money to complete scientific studies See Sinsheimer's Decision, supra. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meet Respondent's reasonable requirements for such employment.ti If not, there was no point in offering "unconditional" or any other type of reinstatement. 12 A lab job and employment and "education" were a unity and were indistinguishable one from another. The Union, their representative, advised the strikers not to reply to this reasonable, and in Respondent's eyes necessary, questionnaire. All excepting Don Petersen followed the Union's advice or directions. It is conceded by General Counsel that as of February 20, all strikers had been permanently replaced. Between September 30 and February 6, 1971, five new employees were hired and between these dates, jobs were not offered to the "employees" or ex-strikers named in "Annex A" of the complaint. General Counsel, in his excellent brief, concedes the strikers were economic in nature or law. I am not now going to discuss the unique case of Don Petersen whose demeanor and testimony viewed as a whole impressed me most unfavorably. More of him later on. Speaking generally as to the applicants for reinstatement, and not Petersen, General Counsel insists that Laidlaw Corporation, 171 NLRB No. 175, is controlling. Certainly, as Board law, that decision is the law so far as I am concerned excepting that the U.S. Supreme Court might in some relevant or material manner differ. As did the Board in writing the above decision, I must be guided by the Supreme Court's Decision in N L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375. General Counsel urges that under Laidlaw, supra, economic strikers who have been permanently replaced and who have "unconditionally applied for reinstatement" when their positions are filled by permanent replacements, unless they have acquired regular and substantially equivalent employment,13 retain their status as employees and are entitled to reemployment upon the departure of their replacements unless the employer can establish that failure to offer reinstatement was for legitimate and substantial business reasons. Unfortunately for General Counsel, he begs the question. The Union had been recognized as bargaining agent for perhaps 14 years in another unit. Union animus is absent.14 As found by Sinsheimer, the Respondent properly bar- gained on the "college scholarship program." As Sinsheim- er found, having observed Adams, Adams intended "to limit the college program to either undergraduates or chemistry graduates." See the last of the preceding paragraph beginning on page 2 and being the top of page 3 of General Counsel's brief. He does not completely set forth Board law as amplified by the Supreme Court's Fleetwood Decision, supra. This Respon- dent has shown "legitimate and substantial business justification for not offering full reinstatement to these strikers." They would not advise it, under orders of the Union, whether they had, were, or would comply with Respondent's requirements for a free will offering by Respondent of assistance in getting an education. Had any 11 The requirements were at least benevolent 12 If they did not meet the reasonable requirements for reemployment an offer was pointless 13 The record is probatively silent as to this 14 No substantial evidence thereof of these strikers obtained "other and substantially equiva- lent employment?" 15 This Respondent has unmistakably shown in the record before me and in the so-called Sinsheimer case, legitimate and substantial reason not to hire the replaced strikers. This is so especially true when it is recognized that by the time the vacancies occurred, the strikers for months, pursuant to the Union's directions, had failed to provide, as politely requested, Respondent with simple information as to their past doings, current conditions, and future plans. Such information was vital to Respondent's long established program of employment for lab employees. This Respondent had legitimate and substantial reasons for its actions. With assured respect for General Counsel's arguments, I think and find that Respondent, having sent the innocuous questionnaires to the strikers who had made their own requests, was under no obligation whatsoever to seek the same information through the Union. The Union knew the information sought, advised the strikers not to furnish it, and though it thereafter from time to time met with Respondent, never volunteered the information or volun- teered to cooperate in getting it. It told the employees not to answer and did not, itself, answer them again. I don't at all buy General Counsel's argument that Respondent should again and again have sought simple nonincriminating information from the strikers. Certainly the experienced union representative, Mr. Coragliotti, didn't have to be told what to do by Respondent's representative. He mistakenly did what he thought was right. Irving Helbling was Respondent's advisor in labor relations. He met often with the Union. He was active in the so-called Sinsheimer case. He was an honest witness. His demeanor impressed me favorably. I credit his testimony before me here. I find Coragliotti proposed in April or later that they settle the whole matter by reinstating all strikers and entering into a so-called proper contract. I find no necessity for Respondent, through Helbling or any one else, to repetitively seek information which might qualify an employee, striker, for reinstatement. The request for filling out and returning the questionnaires was, I find, proper and at least reasonable. This case is not only devoid of union animus-it demonstrates every good faith effort by Respondent to deal in good faith with its employees 16 and the Union. Respondent requested the employees to fill out and return the proper questionnaires "as soon as possible." 17 The union agent made it clear at the hearing why the strikers were instructed not to reply to Respondent. A hearing was pending and the Union did not want to prejudice itself.18 General Counsel improperly, in my view, contended it was improper for Respondent to ask these questions in connection with a college or scholarship program that went back to 1958. He refused, politely, to state whether an ex-striker or striker could have abandoned any idea of going to college, etc., and could still be entitled to reinstatement in the circumstances of this peculiar case. 15 Great Dane Trailers, 388 U S 26 16 Strikers 17 Only Donald Petersen returned it 18 How could the offer to return be "unconditional7" US OIL AND REFINING CO. He took the position that while an unfair labor practice proceeding 19 was pending, an economic striker did not have to answer a simple questionnaire even though the striker had applied for "unconditional reinstatement." He took the position that in spite of the requests for "unconditional reinstatement," the simple questionnaires either expressly sanctioned by Fleetwood, supra, or obvious- ly properly related to their eligibility status, were improper and not innocuous, because made "in the heat of an unfair labor practice proceedings," generated by the Union.20 This is a non sequitur. If the strikers were still contesting the often claimed and maintained right of Respondent to make proper college enrollment a condition of employment,21 how could their offer to return to work be unconditional? I have not as yet considered the case of Petersen, the only one of the alleged 8(a)(3)s to testify. I soon will. I here find, that in light of the absence of returned questionnaires, as above found, that with respect to all the named 8(a)(3)s in the complaint, excepting for the moment, Petersen, Respondent has firmly and plainly established "legitimate and substantial business justification for not offering full reinstatement, to these strikers."22 Respondent committed no unfair labor practice of any kind with respect to them.2r; Petersen is the only alleged 8(a)(3) who appeared to testify. His demeanor impressed me very unfavorably. He failed in any way to convince or persuade me that R2, R3, and R4 were not signed by the same person, him. There are some differences in each signature, but unless calculatingly determined to sign three signatures identically, such would be true of most of us. I do not for a moment believe that he told Adams he would not apply for college enrollment in September 1970 but instead said he was getting married and would go to college in the fall of 1971. Such would be completely contrary to Respondent's proven and estab- lished college and scholarship program.24 I do not believe, in light of Sinsheimer's case and this record, that Respondent would have offered Petersen a job, when there was only a possibility he would attend college a year and a half later In other words, I believe he was offered reinstatement with an understanding that he would return to college in September 1970, and rejected it, or otherwise he blatantly lied in saying the date was September 1971. Petersen wrote to Washington University early in the latter part of April.25 He had college transcripts by May 1. He had been told by Adams to obtain "College transcripts, as soon as possible." The job was not to be offered to him until after Adams saw the transcripts. He did not speak to his then employer about returning to Respondent to be 19 Sinsheimer's case, supra 20 No unfair labor practices 21 One of the reasons they were striking 22 Fleetwood Trailer Co, supra 23 So much time having elapsed between the time the strike began and the dates when vacancies occurred , and indeed so much time having passed until the requests for "unconditional reinstatement," Respondent could not have known in light of the strikers' and Union's continued silence whether the strikers were any longer qualified for the special type of employment available in Respondent's lab They may have secured permanent and better employment elsewhere They may have abandoned the pursuit of further education They might have died Having made their applications, in improper form, they ignored Respondent even after the Board affirmed Sinsheimer It, to me, is absurd to expect Respondent, day after day, or 657 employed. According to Petersen, Adams had to see the transcripts "as soon as possible" and then work out an agreement for going to school and working hours. Adams told him he had a receipt for the job offering in writing as of April 23.26 He admitted he was mistaken in saying he had the letter delivered to him on May 1. He earned no credits at Tacoma Community College in 1969, though according to him he attended the college.27 He hastily sought transcripts from his attendance at Washington University and "reinstatement." He sought "reentry." The college replied on April 24, requesting that he fill in an application for reenrollment. He couldn't recall whether he reapplied. He admitted that as of the time of the trial he had attended no college, at least since he went on strike. He didn't believe Washington College in early 1970 would send him an application for reenrollment in 1971. Although he got one, he was sure he never asked for an application. I do not credit his testimony that when he left Adams office he was not intending to enroll in college in the fall of 1970, and that the fall of 1971 was an afterthought. The transcript from University of Washington established he had not declared a major and that the subjects he took were not related to engineering or chemistry. Petersen did not comply with Adams' obvious require- ment that he enroll in college for the fall of 1970. It is clear from Sinsheimer's Decision that the Employer was entitled to require compliance with its college scholarship program-and not expect such to happen a year and a half later. Although required by Adams to do so, Petersen never presented to Adams his college transcripts.28 I see no need to spell out Petersen's version of his dealings with his father and Adams on May 1.29 Petersen's testimony, assuming, arguendo, it to be true in any respect, shows a complete neglect with respect to reasonable requirements for reinstatement as posed by Adams. Again assuming arguendo, Petersen had not directly received Adams' April 23 letter when he spoke to Adams on May 1, he could have expressed more of a spirit of cooperation and perhaps made other arrangements. He impressed me, under close observation, as an unreliable witness. He admitted that in filling out the original questionnaire, he made statements he thought Adams would like to hear rather than stating the truth. He was at least "confused" as to whether he would have to give his employer I or 2 weeks notice and what he told Adams in this regard. He admitted that at least, in part, he did not tell the truth when he filled out Respondent's questionnaire. He wrote the untruth because he believed it would be more pleasing or convincing to Adams and week after week, to ask applicants for employment if they have what Respondent believes are the requisite qualifications which in the circumstances of the case might readily vary so far as the applicant is concerned, especially since the strikers named in the complaint, with the exception of Petersen, never answered the questionnaire , and the Union told them not so to do 24 Adams was dead at the time of this hearing 25 Obviously for 1970 credits 26 As previously noted I am not at all persuaded he did not sign for receipt of that letter 27 He withdrew from all classes 28 For, to me, obvious reasons 29 Petersen's father was never called as a corroborating witness, and there was no evidence he was not readily available 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was "complying with my parent's suggestion." He may well have been so motivated in testifying before me, although he denied such. There were other contradictions in his testimony I find it unnecessary to spell out. It must be borne in mind that at almost all times the union representatives were seeking reinstatement of all strikers and discharge of all replacements.30 It also sought a contract. I have not ignored the fact that the Union filed a charge against Respondent on March 23, claiming Respondent was committing an unfair labor practice by not discharging permanent replacements and hiring the strikers in their stead. I find, based on the entire record and believing Helbling as I do, he never indicated he would reinstate the strikers if charges were withdrawn Before concluding this overlong Decision, it should be noted that I have not in any way disregarded the ruling of Laidlaw, supra, but, of course, I have given considerable attention to the Decision of the Supreme Court in Fleetwood, supra. When the stnkers here applied for reinstatement, vacancies were nil. At that time the College Scholarship program, of long standing, was out of kilter. Management had a natural and substantial and business interest whether any, if not all, the stnkers were ready to comply with the program, even without regard to its scientific specifics. The obvious purpose of the question- naire was not to weed out strikers, but to find among them those who most closely complied with Respondent's legitimate requirements, financial need, college plans, etc. The Union admittedly deliberately frustrated Respondent in obtaining this information necessary for a full compli- ance with Fleetwood, supra. Since the time the strike began, Respondent has strictly complied with all the requirements of its own legitimate program. Respondent was willing, for the sake of harmony, to relax its rigid standards for returning strikers. The record does not reveal to me whether any striker has substantially equivalent employment or in any manner qualifies under the college-scholarship requirements of Respondent. I am not satisfied, in light of the entire record, that the strikers ever sought or intended to make an unconditional request for reinstatement. Such has not been proved by probative and substantial evidence to my satisfaction. If they had so intended, they would have filled out and returned the innocuous questionnaire. The fact is, they still sought a contract, discharge of all replacements, and return of all strikers on their own terms. I recognize that evidence of specific union animus is nonessential in a case like this. Careful study of the record reveals none, though General Counsel urges it exists. Having sent out the legitimate questionnaire there was no requirement that Respondent, as urged by General Counsel, repeatedly tell the Union that the information was important to it. I do not presume the Union or its representatives were ignorant of the law or were otherwise ignorant. With no evidence to support the statement, General Counsel states, "Obviously, Respondent was delighted that all, except one employee, refused to return the question- naire." This, as noted, is an unsupported baseless conclusion. Also General Counsel attempts to equate employees employed under a college-scholarship program such as this Employer had, with truck drivers. I find only a non sequitur. Things might have been much different if the strikers had "unconditionally sought reemployment" a week, rather than months, after the strike began. But they did not.31 CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record, I make the following conclusions of law: 1. At all material times, Respondent has been an employer engaged in commerce within the meaning of the Act. 2. At all material times the Union has been a labor organization within the meaning of the Act. 3. The record does not establish by a preponderance of the substantial evidence that Respondent engaged in unfair labor practices within the meaning of the Actor as alleged in the Complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 32 ORDER The complaint is dismissed in its entirety. 30 See the truthful testimony of Helbhng findings, conclusions, and recommended Order herein shall, as provided in 31 In the course of months, qualifications might well change and Section 102 48 of the Rules and Regulations , be adopted by the Board and probably did become its findings, conclusions, and Order, and all objections thereto 32 In the event no exceptions are filed as provided by Section 102 46 of shall be deemed waived for all purposes the Rules and Regulations of the National Labor Relations Board, the