Amoco Production Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amoco Production Company and Local Union No. 4- 14, Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO. Case 23-CA-5285 November 1, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 6, 1977, Administrative Law Judge Robert G. Romano issued the attached Supplemen- tal Decision in this proceeding.' Thereafter, Respon- dent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommended Order, except that it is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 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 Administrative Law Judge and hereby orders that the Respondent, Amoco Produc- tion Company, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein. The Board's onginal Decision and Order in this case was reported at 220 NLRB 861 (1975). Memlbel Jenkins dissented in that proceeding. However, he recognizes that the majority decision is controlling here, and thus finds in agreement with his colleagues that Respondent owes the Union the money as set forth in this supplemental proceeding. 2 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962). SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT G. ROMANO, Administrative Law Judge: This proceeding, with all parties represented, was heard on January 12, 1977, in Houston, Texas, on a backpay specification which issued on October 15, 1976 (as amended at the hearing) and on answer of Respondent filed October 30, 1976 (as amended at the hearing). The present proceeding is an outgrowth of an earlier remedial order initially recommended by Administrative Law Judge Bernard J. Seff and adopted by the Board in its Decision and Order of September 29, 1975.1 In the earlier proceeding, after full hearing, it was determined by the Administrative Law Judge that since on or about September 27, 1974, Amoco Production Company (Respondent Employer herein) had refused to recognize or meet and bargain with Local Union No. 4-14, Oil, Chemical and Atomic Workers International Union, AFL- CIO (Charging Party Local Union No. 4-14 herein). It was also found that Respondent Employer had unilaterally abrogated a contract applicable between Respondent Employer and Charging Party Local Union No. 4-14 by virtue of the latter being at the time successor to and alter ego of its predecessor, National Oil Workers Union, Local 14, which union was theretofore party to an existing contract with Respondent Employer. Respondent's afore- said conduct was found and concluded to be in violation of Section 8(a)(5) and (I) of the Act by decision of the Administrative Law Judge whose findings and conclusions have been affirmed by the Board. The Issues Presented Whether under the affirmative provisions of the Board's remedial Order Respondent Employer is obligated to remit to Charging Party the certain dues which for a period of time it failed to deduct and remit to the Union; and, if so, the subordinate question of the amount due, including interest. All parties were given full opportunity to participate, to produce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. General Counsel has filed a letter of memorandum in backpay proceedings and Respondent Employer has filed a brief and proposed findings. On the entire record of the case, including witness testimony, stipulations of the parties, memorandum, brief, and arguments contained therein, I make the following: FINDINGS OF FACT Statement of the Facts The Administrative Law Judge found that by letter of an official of Respondent dated September 27, 1974, inter alia, employees were individually notified that dues deductions were discontinued, that the contract was void, and that those parts of the contract that apply to the employees individually were to be continued as a matter of company policy. Specifically Judge Seff also found: In the same document Respondent repudiated the contract in all particulars that related to the rights of the Union. For example, the arbitration procedure and the checkoff provisions were "deemed inapplicable" and were discontinued. This letter of September 27, I Amoco Production Company', 220 NLRB 861 (1975). 233 NLRB No. 38 158 AMOCO PRODUCTION COMPANY 1974, was issued to all employees without consulting the Union. The termination of many provisions of the collective-bargaining agreement was accomplished by unilateral action on the part of Respondent. I so find. In sum, I conclude and find that Local 14 did in fact complete and perfect its affiliation with Oil, Chemical and Atomic Workers International Union under the name of Local 4-14. It is the successor and a continuation of Local 14. As such when Respondent unilaterally declared the agreement it has had with the predecessor, Local 14, to be void and refused to bargain with said Union it was guilty of violating Section 8(a)(5) and (1) of the Act. Judge Seff further reached the conclusion of law, now affirmed by the Board, that Charging Party Local Union 4-14 has been successor to and alter ego of its predecessor Local 14, succeeding to all certification rights of its predecessor; and that at all times relevant Charging Party Local Union 4-14 was and is the exclusive bargaining representative of the established unit of employees. In his recommended remedial Order, now adopted by the Board, Judge Seff has provided, inter alia, that affirmatively, in addition to Respondent being directed to recognize and upon request bargain collectively with Charging Party, upon request of Charging Party, Respon- dent shall: [R]einstate as of September 27, 1974, the collective- bargaining agreement originally entered into by said Local Union 4-14's predecessor and Respondent as extended and continued in effect by them and comply with the provisions thereof, including processing of any and all grievances through the arbitration stage which were being processed or which were attempted to be brought on and after September 27, 1974. The aforementioned contract bore the expiration date of February 29, 1976, and contained provision for checkoff as follows: Company agrees to deduct Local 14 dues from the pay of any employee covered by this agreement who gives written authorization to the company for such deduc- tion in the form agreed to by the parties. Deductions shall continue to be made until the employee is no longer covered by this agreement, or until the company is given written notice by the employee or by an executive officer of Local 14 to discontinue such deductions, whichever occurs first. On the basis of the parties' stipulations I find that as of August 31, 1974, Respondent Employer was deducting dues in the amount of either $8.50 or $4 from approximate- ly 398 employees.2 No evidence was introduced that any of these employees subsequently revoked their checkoff authorizations. Respondent's prior practice in regard to remittance of dues to the Union was that dues deducted 2 Respondent amended its answer to admit that as of September 27, 1974, it had received approximately 400 dues-checkoff authonzations. during a given month were remitted to the Union on or about the 10th day of the month following the deductions. Commencing September 27, 1974, Respondent Employer discontinued these checkoff deductions and returned all dues at that point withheld for the month of September 1974 directly to the 398 individual employees who had been under checkoff. Respondent did not reinstate the checkoff procedure and again withhold dues until Decem- ber 1975, at which time dues were withheld for the month of December 1975 and thereafter remitted to Charging Party Local Union No. 4-14 on or about January 10, 1976, in accordance with past practice. The parties agreed and I find that an acceptable formula for the period during which dues are potentially reimbursa- ble herein would cover the months of September 1974 through and including November 1975 (a total of 15 months); and that payments thereon would have in normal course been transmitted to the Union on or about the 10th day of the months of the last quarter of 1974 and all of 1975. The parties further stipulated that the Union did not receive any dues in this period from a total of 335 employees who had authorized deductions in an amount of $8.50 and from a total of 56 employees who had authorized dues in an amount of $4. Charging Party and General Counsel conceded that the former's executive board composed of seven officers paid dues directly to the Union during this period. From time to time various employees left the bargaining unit as a result of promotions, retirements and terminations. The parties agreed to appropriate setoffs to account for the above changes in the bargaining unit and for conceded payments made directly to the Union. Finally, and most significantly, all parties entered summary stipulation based on available records establishing the amount of dues due and payable per individual months (exclusive of interest) which amounts I now find as shown in Appendix A. The total amount found potentially due is $45,750, exclusive of interest. The parties also are in agreement that interest would be added thereto at the rate of 6 percent per annum by quarter which comports with Board practice in such matters, Meadow River Lumber Company, 181 NLRB 906, 908 (1970). However, Respondent has reserved certain legal conten- tions to the effect that no liability is present on the facts of this case; and alternatively in mitigation, that Charging Party has failed to make a showing that a reasonable effort was made to collect dues directly from its general membership and particularly from certain other union officers. In the latter respect, although Charging Party collected dues directly from members of its executive board, Respondent specifically contends Charging Party failed to do so from some 34 other identifiable officers. Charging Party presented the testimony of its president, Kennith L. McVay, who credibly testified as follows: The Employer's operations are spread from Brownsville, Texas, to Michigan. Although the Company conducts its opera- tions principally in Texas, it also conducts operations in Apparently for a certain period thereafter Respondent did not police the checkoff authorizations. 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several southern counties qf Arkansas, several parishes in Louisiana, and at Traverse, Michigan. 3 The Employer administratively breaks down its operations into four general areas in Texas, viz., Corpus Christi, Hastings, Old Ocean, and Tyler. Each of these areas covers several of Employer's fields, plants, or other sublocations. There are 31 such locations. At each location there may be anywhere from 4 to 18 employees whose work assignments are spread over wide areas. The Union has a steward at each location. These stewards are the union officers referred to by Employer from whom dues were not collected. Based on available union records, dues were received directly by the Union only from its executive board composed of president, secretary-treasurer, first vice president and four vice presidents in charge respectively of the four general areas. President McVay took office on July 1, 1975. He testified that the executive board did discuss possible ways to collect the dues from the membership but eventually concluded they could not cover the ground and that there simply was not any way that they could get around to collect dues. McVay testified that it was very difficult to just communicate with employees although there were bulletin boards at each location. In the past, because of the distances involved it was difficult to get employees to a meeting unless it was a drastic matter. Traditionally, the Union was forced to handle its cam- paigning and union elections by mail. After the Company failed to recognize the contract it made the people not want to pay dues. When the executive board would ask employees if they would pay dues some would reply it was not any use and some would adopt a wait and see attitude. McVay testified that prior to taking office, he himself did not pay dues during this period, though after he took office he did. McVay also testified that after issuance of the Board's Decision on September 29, 1975, the Union's executive board knew the Company would either comply or keep appealing. However, nothing had happened to change the employees' attitude and it remained the same, they were going to wait and see how the matter turned out. Contentions of the Parties General Counsel recounts that Administrative Law Judge Seff has already found that the Respondent Employer had "unilaterally declared the agreement" with the Union to be void and had discontinued the checkoff provisions; and that both the Administrative Law Judge and the Board have ordered Respondent to "reinstate as of September 27, 1974, the collective-bargaining agreement originally entered into by said Local Union 4-14's predecessor and Respondent as extended and continued in effect by them and comply with the provisions thereof." General Counsel would now have the Board order Respondent Employer to forward to the Charging Party the specific sums of dues that are due and payable, with interest to be added at the rate of 6 percent per annum. Contrary to contentions of Respondent Employer, General Counsel argues the Board has authority to issue a backpay specification and notice of hearing to reach issues as in the I At some point during the material time Employer commenced its operation at Traverse, Michigan. with employees from the bargaining unit: the work force at Traverse is approximately 12 employees. No contention instant case; that there is applicable legal precedent showing use of the type regulatory order such as pursued herein and for ordering reimbursement under terms of a collective-bargaining agreement in similar situations. Respondent Employer essentially denies the propriety of the present backpay specification's construction of the existing Board Order and thus denies any obligation on its part to pay the money sought. Additionally: 1. Respondent contends that a prerequisite of a backpay specification is a Board order directing the payment of backpay and that Respondent cannot foresee paying same in the absence of such language. 2. Respondent contends that there is no explicit direction to "reimburse the Union for all membership dues it has not received," or to "make the Union ... whole for any losses they may have suffered," as in Cruetz Plating Corporation, 172 NLRB 1, 2 (1968); Cheese Barn, Inc., d/b/a Hickory Farns of Ohio, 222 NLRB 418 (1976), and similar cases. Respondent argues this absence is the more significant herein since request for such an order was briefed to the Administrative Law Judge by Charging Party. In that regard Respondent would also note as significant that in the findings of unilateral abrogation of the contract relating to rights of the Union, specific mention of both arbitration and checkoff provisions occur. However, Respondent contends that the remedial provi- sions decided upon to effectuate the purposes of the Act, though specifically referring to arbitration, are wholly bereft of any language directing Respondent to make any payment of dues to the Union. 3. Respondent contends that the Board's decision not to articulate a backpay or reimbursement remedy was not inadvertent and is wholly appropriate. In support thereof Respondent raises many of the considerations it presented before Administrative Law Judge Seff, relating to its claimed lack of knowledge of details of the affiliation election and good faith in questioning the earlier affiliation procedure. Respondent recounts that there was a history of sharp splits in the predecessor union in earlier unsuccessful affiliation elections; that in the last affiliation election it was aware that some 97 employees (nonmembers) were not allowed to vote; and that only at the prior hearing did it become aware of the data found material and supportive of the conclusion that there was an effective affiliation election within Board standards. Respondent contends that there was no evidence that Respondent sought to under- mine the Union. Respondent also notes it had reinstituted the contract in late 1975; subsequently reached a new agreement on March 9; and presently is engaged in bargaining for a new agreement at the time of hearing. However, the parties simply have not been able to resolve the issue of dues reimbursement. 4. Finally, Respondent contends in its brief that during the 15-month period, Charging Party neither requested nor recorded receiving any dues from its general membership. Further it failed to collect dues from some 34 union officers. Respondent thus argues Charging Party failed to exercise reasonable effort to mitigate its losses. was made as to these employees nor apparently should be. The Baton Rouge Water Works Company. 170 NLRB 1183 (1968). 160 AMOCO PRODUCTION COMPANY Discussion and Final Conclusions Respondent's several contentions that the specified claim for reimbursement of dues must fail because the Board's order fails to articulate a reimbursement order are in my view simply not persuasive. The specific unfair labor practices found committed herein involved abrogation of a contract, including the wrongful cessation of checkoff. The Board's remedial Order directs that upon request Respon- dent is to reinstitute the contract as of September 27, 1974, and comply with its provisions. The Board's authority to remedy an adjudicated unfair labor practice by ordering payment of the benefits encompassed within the terms of an unacknowledged but duly negotiated contract is clear, N.LR.B. v. Joseph T. Strong, d/b/a Strong Roofing and Insulating Co., 393 U.S. 357, 362 (1969). Matters properly charged, litigated and adjudicated may be appropriately remedied within the Board's discretion, N. L. RB. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139 (C.A. 1, 1953), 346 U.S. 887 (1953); General Teamsters and Allied Workers Local Union No. 992 v. N.LR.B., 427 F.2d 582 (C.A.D.C. (1970)), on remand sub nom. Pennsylvania Glass Sand Corp. 184 NLRB 907 (1970) enfd. 75 LRRM 2911 (C.A.D.C.). More pointedly the Board has heretofore held that a wrongful repudiation of checkoff obligation under a contract is of significant effect and one having continuing impact on the relationship of a respondent employer, union, and employ- ees. The Board has remedied the same by ordering the employer to reimburse the union for all membership dues the employer has failed to transmit to the union, I. P. Ihrie & Sons, Division of Sunshine Biscuits, Inc., 165 NLRB 167 (1967). Compliance with the provisions of the contract herein as of September 27, 1974, would necessarily entail, inter alia, reinstitution of checkoff (previously accom- plished) and remittance of the membership dues not remitted to the Union from that date (until resumed). Anything less it readily appears would be but a partial compliance with the terms of the contract. Consequently I believe that it is clearly within the contemplation of the Board's existing order and warranted that Respondent shall reimburse the Union for the dues Respondent totally failed to withhold as provided in the contract, Ogle Protection Service, Inc. and James L Ogle, 183 NLRB 682, 683, 689 (1970); 4 Creutz Plating Corporation, 172 NLRB I (1968). On the issue of liability there remains to consider Respondent's procedural contention that a backpay order is required for proper issuance of a backpay specification. It has been earlier noted that although the contract was totally voided by Respondent, the provisions of the contract applicable to the employees were continued as a matter of company policy. Consequently, in the somewhat unusual circumstances of the case, although the contract was unilaterally voided, nonetheless there was no occasion for issuance of a backpay order to employees as no contractual wages or benefits were withheld from the I See Ogle Protection Service. Inc. and James L Ogle, 149 NLRB 545, 549, 569 (1964). Compare Harold W Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596, 603 (1969). 5 Due process requirements are not an issue. Indeed Sec. 10(d) of the Act employees. Dues as well were simultaneously immediately returned to employees and subsequently not withheld. It seems that it may be fairly stated that the thrust of Sections 102.52 and 102.53 of the Board's Rules and Regulations governing backpay specification issuance and content are directed at providing a formal hearing to resolve controversy in compliance situations involving recovery and recoupment generally in backpay and related matters. The rules provide that the procedure is available in those circumstances where "a controversy exists between the Board and a respondent concerning the amount of backpay due which can not be resolved without a formal proceeding." Previously the Board has not limited compli- ance proceedings to backpay for employees. Rather, as seen in the remedy provided for an adjudicated violation of 8(b)(6) the Board has heretofore left for subsequent compliance proceedings issues relating to reimbursement of an employer for all reasonable expenditures directly incurred in the employer's employment of an individual at the insistence of a union in violation of that section of the Act. Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (J. R. Stevenson Corp.), 212 NLRB 968, 971 (1974). Further, in the view I have expressed earlier the Board Order does contemplate, inter alia, reimbursement by virtue of having ordered compliance with the contract which provided for such payments. I am thus of the view that the backpay specification proceeding herein is an available formal hearing mecha- nism for the Board to utilize in determining reimbursement issues such as remain in controversy herein essentially relating to compliance with a Board order and that such is not defeated by the circumstance no other backpay claims of employees or related matters may also be involved.5 I also am not persuaded by Respondent's claim that there is no evidence that it sought to undermine the Union. As once stated cogently by (then) Trial Examiner Heming- way: "Nothing more seriously injures the prestige of a union in the eyes of its members or is more effectively designed to undermine a union than depriving it of the earned reward of bargaining." Ogle Protective Service, Inc. and James L Ogle, 149 NLRB 545, 568 (1964). This of course is not the forum for Respondent to raise again issues relating to the basic unfair labor practice findings. In regard to present compliance, irrespective of the Employ- er's motivation, the circumstance is that the Board has already concluded Employer wrongfully and in violation of 8(aX5) and (1) withheld recognition from and refused to meet and bargain with Charging Party for a certain substantial period. Moreover, in the act of abrogating the contract it on the one hand unilaterally notified individual employees that it was retaining as company policy the benefits of the contract for them and on the other hand it simultaneously withheld all contractual rights of the Union in contravention of the statute, e.g., not only checkoff but recognition and arbitration procedures as well. In those circumstances the real effect of its action was necessarily to itself provides that until the record in the case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any findings or order made or issued by it. 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undermine the position of the Union and at a critical time of the latter's successorship evolution. Accordingly, I conclude that Respondent's contention that there is no evidence that it sought to undermine the Union is without merit. Nor does Respondent's subsequent entrance into an agreement warrants foregoing a full compliance. Cf. International Union of Electrical, Radio and Machine Workers Local 613, AFL-CIO v. N.L.R.B., 328 F.2d 723 (C.A. 3, 1964). I further conclude that when the nature of the unfair labor practice is realistically viewed a full compliance with the terms of the Board's existing Order as well as effectuation of the policies of the Act necessitates that Respondent reimburse the Union for dues which Respondent unlawfully failed to withhold. Accordingly, it will be ordered that Respondent transmit to the Union in accordance with checkoff provisions of the contract the specified dues, limited, however, for those whom it appears had signed dues deductions authorizations and not revoked them. Ogle Protection Service, Inc. and James L. Ogle, 183 NLRB 682 (1970). It only remains to consider Respondent's contentions in mitigation that Charging Party failed to show reasonable effort was undertaken to obtain dues from its general membership and stewards. The evidence herein is convinc- ing that the Union traditionally has had difficulty in communicating with employees; in campaigning and conducting elections, and in arranging meetings with good attendance. These difficulties are in large measure due to the dispersal of small groups of employees in the bargain- ing unit over vast areas in multiple state locations. Uncontradicted evidence shows that it was the voiding of the contract that caused employees not to want to pay dues. Uncontradicted also was testimony that efforts were made to ask employees to pay dues though they proved unsuccessful. The executive board itself met, discussed, and explored methods to collect dues but could not devise any program that it believed would be successful. It is well established that: "The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Bigelow v. R.K.O. Radio Pictures, Inc., 327 U.S. 251, 265 (1946). I find under the circumstances plainly apparent herein, namely, the substantial dispersal of bargaining unit employees, the unquestionable traditional difficulties in contacting employees, the nature of the unfair labor practice and its reasonable and practical effects, and the efforts actually undertaken (though unsuccessfully) by Charging Party, that it cannot be concluded that Charging Party has waived any entitlement to dues reimbursement. Any uncertainty with regard to the failure of union stewards to pay dues at a time when arbitration procedures were also voided and in hiatus, in my view, should also be borne by the wrongdoer. Accordingly, I shall order Respondent Employer to pay to Charging Party Local Union 4-14 the determined sum of $45,750 as shown in Appendix A. This sum shall bear interest at the rate of 6 percent to be added per quarter, Meadow River Lumber Company, 181 NLRB 906, 908 (1970); Paramount Plastic Fabricators, Inc., 190 NLRB 170 (1971). ORDER Having resolved the various issues litigated I find that the sum of $45,750 as set forth in Appendix A is presently due and owing to Charging Party Local Union No. 4-14. It is hereby ordered that the Respondent Amoco Production Company, Houston, Texas, its officers, agents, successors, and assigns shall remit to Charging Party the sum of $45,750, the same being a full reimbursement for the dues it failed to withhold and remit under the terms of the contract and as is required for compliance with the Board's earlier Order and in accord with established Board practice in such matters. It is further directed that interest at the rate of 6 percent be added, the same to accrue commencing with the last day of each calendar quarter and on the respective amounts due and owing for each quarterly period as shown in Appendix A; and continuing until compliance with the Order is achieved. APPENDIX A Year Total dues 1 (due as of 10th) 1974 October November December 1974--4 1975 January February March 1975--1 April May June $3,075.50 3,067.00 3.067.00 9,209.50 $3,067.00 3,050.00 3,050.00 9,167.00 $3,050.00 3,050.00 1975--2 3, 041. 50 9,141. 50 i To each quarter interest at the rate of 6 percent per annum is to be added until reimbursement is made. 162 July August September 1975--3 October November December 1975--4 Total Dues AMOCO PRODUCTION COMPANY $3,041.50 3,041.50 3,041.50 9,124.50 $3,041.50 3,041.50 3.024.50 9,107.50 $45,750.00 163