Continental Oil Co.

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Continental Oil Company and International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, Local No. 663. Case 15-CA-3554 November 10, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On July 7, 1970 Trial Examiner Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed cross-exceptions and a supporting brief. A brief was also filed by Respondent in answer to the General Counsel's and Charging Party's exceptions and briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order. We agree with the Trial Examiner that, basically, the alleged unilateral changes in the method used by Respondent to allocate overtime were effectuated more than 6 months prior to the date on which the charge was filed in this proceeding. To this extent the complaint is barred by Section 10(b) of the Act. To the extent that any of the actions taken by Respon- dent within 6 months of the filing of the charge could be construed as a new or independent act there has not been shown such a departure from the established method of allocating overtime as would constitute unilateral action which violates Section 8(a)(5). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its order the recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 194 NLRB No. 16 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: Upon a charge filed against Continental Oil Company, Respondent, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, Local 663, the Union, on May 19, 1969, a complaint was issued by the Regional Director on March 2, 1970.1 Pursuant to due notice, a hearing was conducted on the complaint 2 on April 28 and 29, 1970, in Lake Charles, Louisiana. All parties were represented by counsel and were given opportunity to present evidence and to examine and cross examine witnesses. The parties waived oral argument and thereafter briefs were filed by the General Counsel and Respondent. Upon the entire record, observation of the witnesses, and consideration of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, a Delaware corporation with its principal office and place of business in Houston, Texas, is engaged in the processing and distribution of petroleum products at various locations, including its petrochemical plant and marine docks at Westlake, Louisiana, the only facilities involved in this case. During the calendar year 1968, a representative period, Respondent purchased and received goods and materials valued in excess of $50,000 which were shipped directly to its Westlake facilities from points outside Louisiana. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.3 B. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that Respondent has violated Section 8(a)(5) of the Act by (1) unilaterally changing the method of distributing overtime work among the employees despite the terms of an existing collective bargaining agreement prescribing the method of allocating overtime work and (2) by questioning the employees individually concerning their preferences as to the method of allocating overtime work. As to the first allegation, Respondent maintains, substantively, that its methods of distributing overtime work are in conformity with the collective-bargaining agreement. Preliminarily, however, Respondent maintains r In its brief Respondent requests that the Examiner take official notice of - the fact that the Regional Director originally refused to issue a complaint pursuant to the charge but the Union's appeal to -the General Counsel eventuated in the issuance of the present complaint. 2 As amplified by a more definite statement filed pursuant to a Trial Examiner's Order granting in part Respondent's motion therefor. 3 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S C. Sec. 151 et seq) CONTINENTAL OIL CO. 127 that the allegation is time-barred under Section 10(b) of the Act and, additionally, that the Union should be left to resort to the grievance and arbitration provisions of the parties' collective-bargaining agreement. As to the second, Respondent denies that its poll of employee preference contravened the Act. B. The Alleged Changes in Allocation of Overtime 1. The facts Respondent's production employees are grouped in "progression units." Each progression unit is composed of the employees who operate specific equipment on a 24- hour-per-day, 7-day-per-week basis. In order to maintain this schedule with employees working the standard 8-hour- per-day, 5-day week, 4.2 employees are required for each specific job. Because of this need for "fractional" employees, some employees, referred to as "breakers," regularly divide their working time between two different jobs. Within most progression units there are several classifications of employees. The classifications within each group, with the hourly wage for each classification, are spelled out in the collective-bargaining agreement. Sometime in 1964,4 the present Union, having won an election, was certified as the collective-bargaining agent of Respondent's production employees, replacing an inde- pendent union which had previously represented the employees for a considerable time. In negotiating its initial contract with the Union in 1964, Respondent insisted on various provisions which would assure it "flexibility" in its operations. These demands were a major stumbling block in the negotiations, being the primary cause of a strike which lasted about 3 months. In the 3-year contract which eventually was signed in September 1964 the Company apparently prevailed on the major aspects of its "flexibility" provisions. Included in such provisions was section 8-1(e)(3), reading, in part: Operating and non-craft progression units, classifica- tions therein, and/or duties of either, may be altered or combined as indicated in the interest of efficiency .... Typical examples are: (a) A detailed study of a progression unit might reveal that the work load could be handled by four (4) men per shift instead of five (5). The shifts would be reduced according- ly. (b) A study of the transfer group and the docks might show the work could be handled more efficiently by combining the duties of the two (2) units, maintaining only one (1) man per shift at the dock and using personnel from the pumping group when required to handle incoming or outgoing shipments. The collective-bargaining agreement between the inde- pendent union and Respondent contained a specific provision for the allocation of overtime. That same provision was then included in the 1964 agreement between Respondent and the Union and again, with a minor 4 The complaint alleges that the Union was certified on "August 24, 1967." Although this allegation was admitted in Respondent's answer, the evidence clearly establishes that the Union was originally certified in 1964, in or before June. 5 There was evidence that in some progression units and at some times each employee was required to know and be able to perform all jobs within grammatical correction, in the 4-year agreement executed in 1967. So far as here relevant, that provision reads: 5-7 (a) For operations only: The Company shall equalize overture among employees of the same job classification insofar as it may be practical. When overtime is anticipated in the Operating Divisions, the following procedure shall be followed: (1) First choice shall be to split the shift between the preceding and following shifts; (2) Second choice shall be the man on his day off; (3) Third choice shall be the bottom breaker; (4) Fourth choice shall be given to the top breaker. After this procedure has been followed, overtime may be covered by qualified employees outside of the classification... . Prior to the certification of the present Union in 1964, with certain exceptions not here involved, each progression unit included only one job in a particular classification, i.e., all the employees working at any one time in a progression unit were in different classifications. Shortly after the end of the strike and the execution of the collective-bargaining agreement in September 1964 Res- pondent commenced exercising its rights under section 8- 1(e)(3) by combining certain progression units. On April 27, 1966, in a memorandum to all employees, and with a copy to the Union, Respondent listed the combinations which had theretofore been made pursuant to section 8-l(e)(3) of the collective-bargaining agreement. In that memorandum, Respondent said: Within each refinery operating progression unit all jobs which receive the same base rate of pay have for some time now been combined into one classification. The Union does not contend, and has never contended, that Respondent acted improperly or beyond its contractu- al authority in effectuating any combinations or restructur- ing progression units. It is unnecessary for present purposes to detail the specific combinations and restructurings effectuated. Suffice it to say that, as a result, in several progression units there are more than one employee in a particular classification. In such cases, the employees within the same classification perform separate, different jobs .5 It is this situation which early gave rise to the major substantive dispute between the Union and Respondent which underlies the present proceeding. Summarized, the parties' major disagreement centers around whether, in combined progression units, the contractually provided steps should be based on specific jobs or upon job classifications. The Union's position is that the contractual provision should be construed as applying to specific jobs, whereas the Company construes it as referring the job classifications. The first step in the contractually prescribed procedure calls for splitting the shift. The parties agree that this means that if job X is to be filled the evening shift, the person performing job X on the day shift should be offered the first his classification in his progression unit and at least in some progression units employees were rotated among the jobs within their classifications. Because of the Examiner's ultimate recommended disposition of the present complaint, it is unnecessary to determine the extent of interchange or rotation of employees among different jobs within classifications, and no specific findings in this connection are being made. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 hours of the vacant shift and the person scheduled to do job X on the night (graveyard) shift should be offered the last 4 hours of the vacant shift. But it is after this that the disputants part company. The Union maintains that if either of the people specified above does not take the work, then the second step should be used, i.e., the work should be offered to the person assigned to job X who is then on a day off. Respondent, however, maintains that before a man on his day off is called, the work should be offered to persons on the preceding and following shifts who are assigned to other jobs in the same classification. Thus, under the Union's view, step 1 in the contractually prescribed procedure calls for offering the overtime first to only one person in the preceding shift and one person in the succeeding shift, whereas Respondent believes that the work may be offered to as many employees in the preceding and succeeding shifts as there are in the classification in which the overtime is to be performed. The same disagreement arises in applying the second step in the contractual procedure, i.e., whether the work is to be offered only to the off-duty man assigned to the particular job or is to be offered to all off-duty employees in the same classification before proceeding to the third and fourth steps, which call for offering the work to "breakers." From the beginning, the overtime provision of the contract was the source of frequent disagreements between Respondent and Union, with numerous grievances being filed, some as early as 1964. On May 10, 1966, L. E. Adee, Process Superintendent, issued a memorandum to all employees concerning "Equalization of Overtime." The prefatory paragraph read: Since the refinery has a number of classifications in which more than one man is on shift at a time it becomes necessary to clarify the application of paragraph 5-7(a) of the union contract to these classifications. Since specific job assignments within these classifications will be exchanged from time to time, perhaps in some cases for periods of less than a full shift, job assignment does not appear to be a satisfactory basis for overtime assignment. In the interest of fairness and impartiality shift schedule number assignment will be the basis for overtime assignment; that is, the shift schedule will be used to determine who precedes and follows the shift requiring overtime... . Attached to the memorandum was a description of the precise procedure to be followed. As spelled out, the procedure had eight numbered "steps", as distinguished from the four numbered "steps" in the contract. The additional four "steps" specified in the memorandum arose from listing a first, second, and third choice in splitting the shift (No. 1 in the contract) and in calling off-duty employees (No. 2 in the contract). 6 For example, it was set forth in a general memorandum issued June 13, 1967. On December 8, 1967, the procedure for allocating overtime in the Ethylene progression unit was published Although the procedure there set forth took the form of six numbered "steps," it was essentially the same as the general "eight-step" procedure previously set forth for the operating divisions of plant as a whole. 7 The grievance stated that - "Mr. Broussard is not requesting pay for this violation, but he does feel that he should have worked this extra time rather than Mr. Sandrock," who had been given the work because he was It appears that, except for the Treaters' progression unit, which is discussed below, so far as is here relevant, overtime has been consistently distributed according to Respon- dent's construction of the agreement . From time to time the procedure has been reissued in writing and orally.6 The Treaters' unit is not a "combined" unit. It has only one man per shift. It thus does not, and could not, present the specific question of contract interpretation primarily presented by this case. On or about October 17, 1967, a standing order was issued that overtime within that unit was to be equalized, i.e., that first choice should be given to the member of the 4.2-man unit having the least overtime to his credit. A complete running record of overtime work was to be kept for the purpose of assigning overtime. There is no dispute that this procedure was thereafter followed in that unit and that it did not conform to the terms of the collective-bargaining agreement. However, no objection was raised until March 1969, when employee Simeon Rex Broussard objected to having been deprived of overtime due him under the contract. A grievance was filed on his behalf.? In response to the grievance, Foreman E. E. Maddox replied, in part: I was aware that the first choice of the procedure for working overtime was being passed over; but, I was not aware that anyone would object; certainly not when it was at the treating operators request that this method was being used to equalize their overtime. If you object to this method of equalizing overtime among employees of the same job classification, then we could certainly discontinue using it and could follow the procedure exactly as specified in Section 5-7(a)... . I understand that the Operator Overtime Procedures and Section 5-7(a) are a subject currently being discussed between yourself and top refinery manage- ment. Therefore, I have suggested that the treater overtime procedure be included in those talks; and, until such time as those discussions result in something conclusive, I believe that we should continue with the procedure that the treaters themselves requested several years ago and has been operating to their satisfaction up to now... . Charles W. Clower, Director of Personnel at the Westlake facility, and Harold L. Hereford, Treater and Loader foreman, credibly testified that when George Baukman, union president, refused to accept Maddox's suggestion, the method of allocating overtime within the progression unit was changed and they now start with splitting the shift.8 2. Respondent's preliminary defenses a. Section 10(b) There is no dispute that Respondent originally adopted its interpretation of the overtime provision shortly after the lowest in overtime. B In answer to a second grievance filed on behalf of Broussard on July to, 1969, Respondent stated that specific instructions had been given and placed in the unit's order book to the effect that the vacancy involved was to be filled by splitting the shift. According to Respondent , Broussard's failure to get the work was caused by the employees' disregard of Company orders. The Union has not appealed for arbitration of the denial of that grievance. The Examiner makes no finding as to the merits of that grievance. CONTINENTAL OIL CO. 1964 contract was signed. Employee William L. Forsythe, who is a Union officer, steward, and member of the negotiating and grievance committees, testified unequivo- cally that, so far as his progression unit was concerned, Respondent "changed the method of handling overtime assignments" in "Plate 1964 or early 1965," after classifica- tions were combined.9 He proceeded to state that the method of allocating overtime had been "[f ]airly close to the same operation since then." As previously noted, Respondent's method of allocating overtime was generally announced in writing at least as early as April of 1966 and again on June 13, 1967. It thus appears that any "change" in the method of distributing overtime work was made in 1964 or 1965 and that the method then adopted has been followed, where applicable,10 ever since, under both the 1964 and 1967 agreements. The General Counsel contends that the complaint does not fall under Section 10(b) because Respondent applied its interpretation of the contract during the 6 months prior to the filing of the charge. But the application of the Company's view is not in itself a "change". In order to establish a "change", the General Counsel would have to go back to 1964, long before the period permissible under Section 10(b). Whether or not Respondent's method of allocating overtime violates the terms of the contract, it is clear that Respondent has not changed its method of doing so since November 20, 1968, the beginning of the Section 10(b) period." The only recent "change" involves the Treaters' unit, in which Respondent, in response to a grievance filed in March 1969, abandoned a method of allocation to which the Union objected as being in conflict with the collective- bargaining agreement. But neither the General Counsel nor the Union objects to any change made with respect to the Treaters' unit in 1969. Indeed, the General Counsel denies that any such change was made. That the General Counsel is objecting to a "change" made, or modus operandi adopted, long before the Section 10(b) period is shown in his brief, where he says: On or about October 17, 1967, Respondent unilater- 9 At one point Forsythe volunteered: "The classifications were combined and it was obvious that you would need a different procedure, so the nine-step procedure was introduced by the company for overtime opportunity " (The ninth step was going outside the classification, a matter beyond the terms of Section 5-7(a).) He thereafter stated that he personally did not believe a new procedure was necessary. "If the language that is in the present contract which specifies job classifications still meant and was interpreted as one job consisting of [4.2] men, and overtime opportunities were awarded on that basis, we would have no problems." 10 The Examiner makes no finding, and expresses no opinion, as to whether there actually ever has been a "change" in the method of allocating overtime. Before the 1964 contract , the overtime provision was apparently never applied to "combined" progression units, i.e., progression units in which there were more than one employee in the same "classification." In units where several employees performed smular functions (such as the Alfol laboratory and the Dock unit), the Union agreed to, or at least acquiesced in, methods of allocating overtime not in conformity with the contractual procedure. 11 The complaint does not allege and the General Counsel does not contend that the "unilateral" application of its principle in individual instances constituted a refusal to bargain. Certainly it could not be seriously suggested that Respondent was required to bargain with the Union each time it assigned overtime work. Although the General Counsel emphasizes the fact that Respondent did not bargain with the Union before originally adopting its construction of the contract provision, the 129 ally changed the procedure for allocating overtime in the Treaters' progression unit by unilaterally adopting a procedure that administered all overtime opportunities in the unit on the basis of equalization of overtime notwithstanding the specific provisions of 5-7(a) of the then newly executed labor agreement .. . Simeon Rex Broussard testified credibly that the equalization procedure for allocating overtime was followed at all times after October 17, 1967, up to the filing of his first grievance during March 1969... and further that the same procedure was followed after the first grievance and precipitated the filing of a second grievance during July 1969... . The General Counsel also makes specific reference to the Ethylene progression unit. Basically, overtime covered by Section 5-7(a) of the collective-bargaining agreement has always been distributed according to Respondent's con- struction of the agreement as set forth above. See fn. 6, supra. The General Counsel maintains, however, that in 1969, within the Section 10(b) period, Respondent unilater- ally instituted two new methods of allocating overtime within the Ethylene progression unit. One such action was in the form of a memorandum by the foreman dated June 30, 1969,12 which sets forth the method to be used in "unusual circumstances . . . when insufficient preference men are available to fill all progression unit vacancies." It provides, generally, that if the needs for overtime workers are not met by pursuing the four contractually provided steps within the classification (`job group") in which the vacancy appears, the work will be offered to employees in other classifications in the order stated in the memoran- dum. The memorandum specifically states that within each classification the work shall be offered according to the preference order set forth in the contract. While this memorandum may have set up a "new" procedure, there is no evidence that it constituted a "change". Nor does it appear to represent a possible deviation from Section 5- 7(a) of the contract, the only matter in issue. 13 If there was any possible conflict with that provision of the agreement, gravamen of the complaint is that Respondent "modified" the contract in contravention of Section 8(d) of the Act. But, as said by Trial Examiner Boyls in Jos. Schlitz Brewing Company, 175 NLRB No. 23, TXD. "If, as the Union then contended and still contends, Respondent's conduct constituted a modification of the contract, without the Union's consent, within the meaning of Section 8(d) of the Act, Respondent violated Section 8(a)(5) regardless of whether it sought to bargain about the matter with the Union prior to effectuating the change" The Board's reversal of the Examiner's ultimate conclusion in Schhtz was unrelated to the statement here quoted. 12 This was after the present charge had been filed. 13 In his more definite statement, filed pursuant to a Trial Examiner's preheanng order, the General Counsel had specifically limited the relevant allegation to procedures claimed to be violative of Section 5-7(a). When he offered into evidence the Ethylene unit memorandum of June 30, 1969, Respondent objected on the ground that it went beyond the scope of the complaint as limited by the more definite statement . The memorandum was admitted on the General Counsel's statement that he contended the memorandum did reflect a violation of that contractual provision and his reference to a portion of his more definite statement in which he had listed June 30, 1969, as one of the specific dates on which Respondent had allegedly "implemented" its allegedly unlawful "changes" in overtime allocation procedures. The Examiner here reaffirms the prior ruling admitting the document, but finds that it does not support the General Counsel's contention. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it would have been in the method of offering work to employees within each classification,14 and that procedure, as heretofore stated, had been adopted before November 20, 1968, and consistently followed. Finally, General Counsel refers to testimony concerning a procedure orally announced sometime during the summer of 1969 for allocating overtime in emergency situations within the Ethylene unit. It is to be observed that Section 5-7(a) of the agreement provides for equalizing overtime among employ- ees within the same classification "insofar as it may be practical" and limits the specific four-step procedure to times "[w]hen overtime is anticipated." Presumptively, therefore, the detailed procedure would not apply to "emergency" situations, particularly when more employees are needed than could be supplied from within one classification, which appears to the type of situation to which the oral procedure appears to be primarily directed. In any event, the General Counsel's evidence in this connection was so sketchy that it totally failed to establish any "change" in overtime allocation apparently inconsis- tent with Section 5-7(a) of the contract.15 On all the evidence, the Examiner recommends that the portion of the complaint alleging unlawful "changes" in the method of allocating overtime be dismissed as barred under Section 10(b) of the Act. b. Grievance-arbitration procedure The collective-bargaining agreement contains grievance and arbitration provisions. Over the years, since execution of the 1964 contract, the Union has filed numerous grievances concerning Respondent's administration of the overtime provision and a related provision governing the filling of vacancies. Several such grievances are still pending and some have been appealed to arbitration. Respondent maintains that the substantive issue involved in the present complaint is essentially one of contract interpretation and administration, which properly should be resolved through the contractually provided machinery.16 In opposition, the General Counsel contends that arbitration is inadequate because it "deals with claims of right which have already accrued" and is not "equipped to deal with the acquisition of future rights or the resolution of future problems." At the hearing, Union counsel stated his position on the question as follows: ... the union felt there was really no answer to be gained from an arbitration hearing, on a particular grievance. It was the union's decision to file the subject charge so that the matter could be, one of the reasons being so that the matter could be handled in its entirety, rather than piecemeal, as would have been the case by handling these arbitration cases singly. 14 Section 5-7(a), it is recalled, provides basically for equalizing overtime "among employees of the same job classification" and specifies the four- step procedure only for allocation within a job classification. 15 It is perhaps ironical that the General Counsel appears to object to this oral procedure because it does not adopt the basic principles which he finds objectionable in other situations. In his brief, referring to this oral procedure, he says. "Overtime is allocated on a rotating basis by work schedule unit number [i.e., specific job] as contrasted to the job classifications basis required by Section 5-7(a). This assignment of overtime is made notwithstanding the relative `equality' or unequality' [sic] of the But it is not the purpose of the National Labor Relations Act to provide a forum for consolidation of individual grievances concerning contract interpretation or for collective bargaining. The issue of contract interpretation underlying the present proceeding appears clearly to fall within the terms of the arbitration provision of the agreement and there has been no suggestion that Respon- dent has ever maintained or will contend that the issue is not arbitrable. Nor is there any reason to predict that Respondent would in future cases refuse to accept as a precedent and abide by a final arbitrational decision of the issue in one case. The record discloses that the overtime provision has been the subject of bargaining between the parties. As previously noted, it appeared in substantially its present form both in the prior contract between Respondent and the independ- ent union and in the 1964 contract with the present Union. In negotiating for the 1967 contract, the Union sought a change in Section 5-7(a) but eventually dropped that demand. Union president Baukman's recollection of the precise negotiations on this question in 1967 was somewhat vague. But he did indicate that he sought a change "for the sole purpose of expressing and strengthening [the Union's ] position and intent" and that "it was reiterated and expressed by the union that that job classification meant the same in the present contract, that it meant in the 1962 contract when it was negotiated." 17 The Examiner refrains from deciding what relevance, if any, this bit of bargaining history may have to the contract interpretation. However, it does tend to show that even the Union has treated the question as one to be resolved by arbitration/or collective bargaining, rather than in a proceeding before the Board. Respondent has in the past indicated its willingness to try to bargain a solution. In December 1968, Respondent proposed to the Union a new overtime procedure for the mechanical division (not involved in the instant case). The Union agreed to consider that proposal and thereafter, on or about March 4, 1969, a meeting was held to discuss it. At that meeting the Union stated its desire for a change in the existing methods of administering Section 5-7(a), governing the operations division. The parties agreed to give consideration to each other's proposals. In July 1969 a bipartite committee was set up to consider procedures for filling vacancies. It was agreed that that joint committee would also study the overtime problem. No solutions to the various problems seem to have been worked out as yet, but there is no reason to believe that any bad faith or other misconduct on the part of Respondent has been responsible for the absence of any agreement to date. While Respondent's willingness to bargain about the issue does not as a matter of law satisfy the requirement Section 8(d) (C & S Industries, Inc., 158 NLRB 454, 457), it is a material factor, along with other considerations, in determining overtime status of the individual on any work schedule numbers called out to work overtime." " This description sounds like a fairly accurate summary of what the Union apparently claims is the proper construction of the contractual provision for allocating overtime. 16 The contract provides for arbitration of grievances "based upon differences between the parties as to meaning, application, interpretation or performance of the provisions of [the] contract." 17 Baukman had previously been associated with the independent union which preceded the Teamsters as representative of the employees here involved. CONTINENTAL OIL CO. 131 whether it would effectuate the policies of the Act for the Board to assume jurisdiction to decide a dispute as to contract interpretation. The General Counsel contends that Respondent's conduct with respect to allocation of overtime has had the (presumably intended) effect of undermining the Union. He says: On or about October 17, 1967, Respondent unilater- ally changed the procedure for allocating overtime in the treaters' progression unit ... (The degree to which Respondent had, with respect to the allocation of overtime in the operations division, aS of that time impaired the Union's status as a collective-bargaining representative is demonstrated by the fact that no employee saw fit to inform the Union of this change until March 1969... . This argument is repeated, in differing words, several times in the General Counsel's brief. But it is totally without factual support. There is no evidence that the employees generally had become reticent about making their com- plaints known and the substantial number of grievances filed by the Union indicates the contrary. The evidence as a whole tends to establish that the absence of earlier complaints and specific grievances stems from the fact that many employees apparently preferred Respondent's me- thod over that sought by the Union. Indeed, Baukman inferentially acknowledged this possibility when he testified as follows: ... Mr. Conrad [supervisor of the Treaters' unit] in particular stated that they were following the procedure that was satisfactory to the men, the employees in the unit... . And I reminded him that he did have a contract, and that they should live up to it regardless of whether the men were satisfied with it or not... . There is no evidenced union animus on Respondent's part. Even if the alleged "changes" in overtime distribution had been made within the period permitted under Section 10(b) of the Act, on the record in this case the Examiner would recommend that the Board decline jurisdiction, as it recently did in Jos. Schlitz Brewing Company, 175 NLRB No. 23, involving a complaint alleging that an employer had unlawfully modified a collective bargaining agreement by changing certain working conditions without meeting the conditions specified in Section 8(d). The Board there stated the presently controlling principle as follows: [w]here, as here, the contract clearly provides for grievance and arbitration machinery, where the unilat- eral action taken is not designed to undermine the Union and is not patently erroneous but rather is based on a substantial claim of contractual privilege, and it appears that the arbitral interpretation of the contract 18 The complaint did not allege that the poll was coercive or otherwise independently violative of Section 8(a)(1). Indeed, the General Counsel objected, on the basis of relevancy, to any evidence concerning the absence of coercion or intimidation. 19 The only possible suggestion in this regard was the following testimony by employee Thomas A. Cain: [Foreman Charles Stolhand] asked me which way I would prefer the overtone, according to job, or according to classification. And I asked him wasn't he doing a little negotiating with the men on the side; he said no, he had orders from Bob Gibson to do this, and he will resolve both the unfair labor practice issue and the contract interpretation issue in a manner compatible with the purposes of the Act, then the Board should defer to the arbitration clause conceived by the parties. C. Alleged Direct Dealing There is no dispute that sometime in March 1969 Respondent, through its foremen, informally polled all employees in the operations division as to their preference concerning the method of allocating overtime work. The evidence is clear that the employees were simply asked, orally, whether they were satisfied with the existing method of overtime allocation or would prefer some other method. It is equally clear that, in asking the questions, the foremen did not expressly or impliedly suggest either that the employees' answers would have any effect on their status 18 or that Respondent's future conduct would be governed by such replies. One of the foremen, George R. Stoddard, testified, without contradiction, that when he questioned them he expressly told them that he was not bargaining about the matter. He credibly explained this conduct as follows: I put myself in their position. If my boss come up to me and asked me if I liked it or didn't, I'd think maybe he would do something about it if I told him I didn't Referring to foreman Stoddard, employee Lewis C. Rougeot, Jr., testified: "I didn't get the impression he was trying to reach an agreement, he was just trying to get my opinion to see if I was satisfied." Employee P. A. Griffin testified that foreman Stohlman had "said he was running a little survey." Griffin, who personally prefers not to work overtime, could not recall how he had answered Stohlman's question. No employee witness for the General Counsel indicated that he had been given the impression that his foreman was attempting to "bargain" with him concerning the issue.19 The poll was conducted on instructions by Robert Seagraves, then Respondent's Process Superintendent, right after the March 4, 1969, meeting at which representatives of both sides had agreed to consider both the Company's proposal for a new overtime procedure in the mechanical division and the Union's demand for a change in the methods then being followed for allocating overtime in the operations division. Robert L. Gibson, who was at the time Operations Superintendent at the Westlake facility, credi- bly testified that Seagraves had wanted information concerning employee sentiment on the issue as one of several factors to be taken into account in formulating Respondent's position with respect to the Union's demand. The poll thus was conducted in furtherance of bargaining with the Union rather than as a means of bypassing or said George Stoddard and Paul Nabors had the same orders. Q. Was there any further conversation Did you tell him how you felt about the procedure? A. Right, I told him I thought he ought to go through the union, and that I thought to go according to the contract would be best Q. How did the conversation end, sir? A. Well, he asked me which way I'd rather have it, and I told him according to the contract , and that's all there was to it. Clearly this testimony does not establish any attempt by Stohlman to "bargain" with Cain. 132 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD undermining the Union. The Examiner certainly "cannot assert that the questioning of the employees was anymore consonant with a desire to undermine the Union than it was to respect the interests of the employees themselves." F. W. Woolworth Co., 109 NLRB 196, 198. The Act as a whole and Section 8(a)(5) in particular have never been construed as prohibiting any and all communi- cation between employer and employee concerning wages and working conditions. See Hoffman Beverage Co., 163 NLRB 981 , 982, where, in dismissing an allegation of unlawful "direct dealing," the Board said: Respondent was not trying to bargain individual- ly with employees about substituting an incentive pay plan for the existing pay system, but was seeking to enlist the aid of employees in bunging Local 282 to the bargaining table so that the Union might consider and accept Respondent's proposal... . In the present case Respondent was not even "seeking to enlist the aid of employees"; it made no attempt to influence the employees' views, but simply sought informa- tion as to their general feeling on a matter which it hoped to resolve with the Union. On all the evidence, the Examiner concludes that the General Counsel has failed to establish that Respondent attempted to bargain directly with employees in derogation of the Union's status as certified collective bargaining agent. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. It has not been shown that Respondent has engaged in any unfair labor practices within the meaning of Section 8(a)(5) of the Act since November 20, 1968. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the complaint herein be dismissed in its entirety.