Hess Oil Virgin Islands Corp.

HESS OIL VIRGIN ISLANDS CORP. 23 Hess Oil Virgin Islands Corporation and Virgin Islands Amalgamated Workers Union, ASIU, AFL-CIO. Case 24-CA-3149 July 24, 1973 DECISION AND ORDER On August 7, 1972, Administrative Law Judge' Ralph Winkler issued the attached Decision in this proceeding . Thereafter, General Counsel filed excep- tions and a supporting brief , Charging Party filed ex- ceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 as their use during a lockout is subject to a more stringent examination. Actions taken by an employer during a lockout cannot be justified by an assertion that these same measures were taken during a strike. In the instant case, there is nothing in the record to indicate any legitimate business interests which would justify a lockout with continuing operations. Respondent's vice president, Robert Wright, did testi- fy that he had been threatened several times with danger to his business. However, the threats were anonymous and cannot be attributed to the Union based on the evidence shown. Further, the Respon- dent has offered no evidence to prove that its opera- tion is seasonal or in any way subject to serious harm due to a cessation of operations. The allegations as to threats of reprisal and potential danger to Respondent's business are nebulous at best, and it is difficult to understand how these "limited business interests" could outweigh the detriment which would inure to the Union as a result of the lockout. For these reasons, we would find violations of Sec- tion 8(a)(1) and (3). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and hereby is, dismissed in its entirety. MEMBERS FANNING AND JENKINS, dissenting: For the reasons stated in the dissenting opinions in Ottawa Silica 3 and Inter-Collegiate,4 we dissent. In addition we cannot accept Chairman Miller's concurring opinion in which he correctly emphasizes the need to balance the Employer's legitimate busi- ness interests in the use of replacements against the possible discouragement of union membership which may result. We agree that, if the Employer's actions are not deemed inherently destructive of important em- ployee rights (thereby constituting a per se violation of Section 8(a)(1) and (3), then this balancing test should be applied. The Chairman, however, seems to aban- don his own test, choosing rather to resolve the con- flict in this manner : Since the possible discouragement of union membership is no greater during the lockout than that which could have result- ed during the strike, then no violation should be found. In our judgment this simply begs the issue. The use of temporary replacements during a strike is per- mitted under legal principles long since settled, where- 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 We affirm the conclusions reached by the Administrative Law Judge, but note that he did not deal specifically with the issue of the effect on the legality of Respondent's lockout of its utilization of supervisory and administrative personnel to perform production work during the lockout General Counsel and Charging Party contend , inter aha, that such a utilization of personnel constitutes an improper and illegal use of temporary replacements , citing Inland Trucking Co and Wesley Meilahn, Co-partners d/b/a Oshkosh Ready- Mix Co, et al, 179 NLRB 350 affd. sub nom Inland Trucking Co v N L R B, 440 F 2d 562 (C.A. 7, 1971), cert. denied 404 U S. 858 ( 1971). In Ottawa Silica Company, 197 NLRB 449, and in Inter Collegiate Press, Graphic Arts Divi- sion-Sargent Welch Scientific Co., 199 NLRB No 35, a majority of this Board made clear that the utilization of temporary replacements to continue operations during an otherwise lawful lockout does not, per se, constitute a violation of the Act. Members Kennedy and Penello, consistent with their positions in Ottawa Silica and Inter Collegiate Press, have examined the record here and, finding no evidence of antiunion motivation , find no violation of the Act ansing out of the use of temporary replacements Chairman Miller would adopt without change the decision of the Adminis- trative Law Judge . In his view, as in that of the Administrative Law Judge's (see In I of his Decision), the General Counsel has not placed in issue Respondent's use of temporary replacements dunng what has now been found by all Board Members to have constituted a lockout. The Inland Trucking theory was neither alleged in the complaint nor litigated at the hearing. Were he to reach that issue, however, Chairman Miller would still find no violation Chairman Miller indicated in Ottawa Silica, and in greater detail in Inter Collegiate Press, that he believes the law to require that in each case, even in the absence of specific proof of antiunion motivation , the Board carefully balances the employer's legitimate interests in the use of replacements against the possible discouragement of union membership which may result, before arriving at a determination as to whether the Act has been violated Here, during the lockout, the Employer merely utilized the same nonunit employees in the identical manner as had prevailed during the stoke. The Chariman would not find the possible discouragement of union membership ansing therefrom any greater or more significant than that which conceivably could have resulted from the concededly legitimate use of such personnel during the period when the curtailment of operations had been due to the strike. Accordingly, he joins his colleagues in dismissing the complaint herein. 3 197 NLRB 449 4 199 NLRB No. 35. 205 NLRB No. 3 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RALPH WINKLER, Trial Examiner: Upon charges filed by the aforenamed Union, the General Counsel of the Nation- al Labor Relations Board issued a complaint on April 12, 1972, alleging violations of Section 8(a)(1) and (3) of the Act. Respondent's answer denies the alleged violation and a hearing was held on June 19-20, 1972. Upon the entire record in the case, including my observa- tion of the demeanor of witnesses and upon consideration of briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is a Virgin Islands corporation engaged in the refinery of oil, with its principal office and place of business in St. Croix, U.S. Virgin Islands. During the past year Respondent made purchases and sales outside the Vir- gin Islands exceeding $50,000, respectively. Respondent ad- mits, and I find, that it is engaged in commerce within Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Virgin Islands Amalgamated Workers Union, ASIU, AFL-CIO, herein called the Union , is a labor organization within Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The Union represents a bargaining unit of some 400 em- ployees at Respondent's St. Croix refinery, and on Decem- ber 1, 1971, Respondent and the Union opened negotiations for a renewal contract. At least 16 bargaining sessions were held, in addition to numerous informal communications between the parties. Further meetings were held under the auspices of the Honorable Melville Stevens, Commissioner of Labor for the Virgin Islands; and the Governor of the Virgin Islands also appointed a factfinding panel which conducted three meetings with the parties. The parties signed a collective-bargaining agreement on April 12, 1972. On or about January 16, 1972, all unit employees concert- edly ceased work and went out on strike, with an imple- menting picket line, in support of the Union's contract demands. Negotiations were at an impasse at the time. By letters dated March 9 and 11, 1972, the Union advised Respondent that the employees desired to return to work. Respondent refused such request; its position was that the employees would not be allowed to return until an agree- ment was reached and a contract signed. The parties did reach agreement on April 12, 1972, as indicated above, and on April 14 Respondent informed all employees to report for work on Monday, April 17. The impasse had continued throughout the strike and lockout period, and it is also stipulated that Respondent did not hire any replacements during that time. Without claiming that Respondent otherwise violated the Act or that it was motivated unlawfully, the General Coun- sel contends that Respondent nevertheless violated Section 8(a)(1) and (3) of the Act by declining the Union's March 1972 request for reinstatement. Respondent asserts that its refusal to take back the strik- ers until contract negotiations were concluded was a bar- gaining lockout privileged under American Ship Building Co. v N.L.R.B., 380 U.S. 300 (1965). In addition to other con- tentions Respondent further asserts that the physical plant would have been exposed to damage and a possibility of employee takeover had Respondent permitted the strikers to return to work before the parties resolved their contract differences. A lockout "is not an unfair labor practice simply because it is used by an employer to bring pressure to bear in support of his bargaining position after an impasse in bargaining negotiations has been reached." Ottawa Silica Company, 197 NLRB 449. Even the absence of an impasse is not crucial "in determining the legality of a lockout." Newspaper Driv- ers & Handlers' Local No 372 [Detroit Newspaper Publishers Association] v. N. L.R.B , 404 F.2d 1159, 1161 (C.A. 6, 1968), cert. denied 395 U.S. 923. Here, as in Darling & Co., 171 NLRB 801, 803, there is "no specific evidence" or even a claim by the General Counsel, "of any intent by the Re- spondent to discourage union activity or to avoid its bar- gaining obligation." The General Counsel contends that the case at bar does not involve a lockout but a refusal to take back strikers.' With all respect for the General Counsel and the Charging Party, I, nevertheless, have no question in applying estab- lished principles to the facts of this case. Simply stated, there is a bargaining lockout admittedly untainted by union ani- mus or refusal to bargain or by any other Respondent con- duct bearing adversely on the lawfulness of the lockout. The aforementioned authorities are controlling in this context, and I see no reason to consider Respondent's additional defenses or otherwise to prolong this Decision. I conclude that Respondent has not violated the Act in the respects alleged, and I accordingly issue the following recommend- ed: ORDER2 It is hereby ordered that the complaint herein be dis- missed. 1 The hearing in this matter was conducted by the General Counsel solely on the theory that "once the employees go out on strike which they have a right to do and they make an unconditional offer to return to work they are entitled to come back to work With or without a contract" 2 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes