Texaco, Inc. Producing Department

TEXACO, INC. Texaco, Inc. Producing Department, Houston Divi- sion and Oil, Chemical & Atomic Workers International, Local Union 4-367, AFL-CIO. Case 23-CA-5077 November 10, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENELLO, AND MURPHY On September 5, 1974, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Respondent also filed an answering brief. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge that this case should not be deferred to arbitration. Chairman Fanning and Member Jenkins reject deferral not merely on the particular circumstances of the instant case but also because of their longstanding opposition to the policy established by Collyer, and other cases involving the Collyer doctrine.' Member Murphy finds that this case is not one to be deferred to arbitration for the reasons stated in her separate opinion on General American Transportation Corporation, 228 NLRB 808 (1977).2 On the merits, we agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) and (I) of the Act by unilaterally changing its employees' hours on January 7, 1974. Thus, it is undisputed that Respondent's decision to move the starting hour of the employees' 8-hour workday from 7 a.m. to 8 a.m. was made and implemented without prior discussion with the Union. This unilateral action was taken by Respondent even though the parties' collective-bargaining agreement specifically affirmed the statutory right of the Union and the statutory duty of Respondent to bargain about any changes in hours. I See Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971) (Members Fanning and Jenkins dissenting): National Radio Company, Inc,, 198 NLRB 527 (1972) (Members Fanning and Jenkins dissenting); Peerless Pressed Metal Corporation, 198 NLRB 561 (1972) (Members Fanning and Jenkins dissenting); Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972) (Members Fanning and Jenkins dissenting); McLean Trucking Companyt, 202 NLRB 710 (1973) (Members Fanning and Jenkins dissenting); on August 14, 1974. the United States Circuit Court of Appeals for the District of Columbia held that deferral was not appropriate in McLean and remanded to the Board for consideration of the merits of the unfair labor practice charges, James Banvard [McLean Trucking Company] v. N.L.R.B., 505 F.2d 342 (CA.D.C., 1974): Columbus and Southern Ohio Electric Compan}y, 205 NLRB 187 (1973) (Members Fanning and Jenkins 233 NLRB No. 43 Unlike the Administrative Law Judge, we also find that Respondent bypassed the Union by importuning the employees to withdraw the premium pay griev- ance arising from the unilateral change in the employees' starting hour. In this connection, the complaint alleges not only that Respondent violated Section 8(a)(5) of the Act by unilaterally changing the employees' starting and quitting time in direct violation of a contract provision, but also that Respondent independently violated Section 8(a)(l) and (5) by certain conduct and statements of its supervisors and managers. Thus, the complaint alleges that Respondent violated Section 8(a)(1) by telling employees variously that Respondent would not revert to the previously existing 7 a.m. starting time, or even discuss that issue with them, unless their pending premium pay grievance was dropped or resolved against the Union, and that resumption of the 7 a.m. starting time, or any discussion to that end, was conditioned on said premium pay grievance being dropped or resolved against the Union. The evidence in support of these allegations, as fully set forth in the Administrative Law Judge's Decision, was essentially undisputed and supports the com- plaint's allegations. Indeed, the only testimony which was in issue was whether Superintendent Quebedaux suggested to employees at a meeting that they could "get up a petition to drop the (premium pay) [sic] grievance and present it to (Union Vice President) [sic] Bobby Barnes, and if Barnes dropped the grievance, the men could go back to work at 7 a.m. the next day after he dropped the grievance." This was resolved against Respondent by the Administra- tive Law Judge's credibility resolution. Although the Administrative Law Judge found that the factual underpinnings of the complaint's 8(aX)(l) allegations were fully supported by the evidence, he declined to find that the conduct described indepen- dently violated Section 8(a)(1). Rather, he found that the "importuning of the employees," in the circum- stances, was not "an attempt to undermine or bypass the Union." The General Counsel has excepted to the Administrative Law Judge's failure to find that the foregoing conduct separately violated Section 8(a)(5) and (1) of the Act. We find merit in these exceptions. We reach this result on the ground that dissenting); and Electronic Reproduction Service Corporation; Madison Square Offset Company, Inc., and Xerographic Reproduction Center, Inc., 213 NLRB 758 (1974) (Members Fanning and Jenkins dissenting): RoV Robinson, Inc. d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977) (Members Fanning and Jenkins dissenting). See General A merican Transpor- tation Corporation, 228 NLRB 808 (1977). 2 As Member Murphy stated in her separate opinion in General Anerica Transportation Corporation, supra, where a complaint alleges both a violation of Sec. 8(aX5)-which she would defer-and a violation of any other section of the Act-which she would not defer-she will not fragmentize the complaint by deferring only the 8(aX5) allegation. See George Koch Sons, Inc., 199 NLRB 166, 168 (1972). 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where, as here, an employer has an obligation under Section 8(a)(5) of the Act and under its contract with the union to bargain about any changes in the employees' conditions of employment, the employer violates both Section 8(a)(l) and Section 8(a)(5) of the Act by conditioning sucn bargaining on the employees giving up their statutory and contractual right to file a grievance. By so conditioning its bargaining obligation, the employer interferes with and restrains the employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby violates Section 8(a)(1) of the Act. This is precisely what Respondent did here. In engaging in this misconduct in bypassing the Union, Respondent was, as our dissenting colleague asserts in justification of it, "attempting to settle two grievances by granting one if the other were dropped." But the statute prohibits Respondent from undermining collective bargaining through bypassing the Union to make deals with the employees individually. Unlike our colleague, we cannot see how ignoring such undermining of collective bar- gaining by our acceptance of an award which ignores it somehow becomes supportive of collective bar- gaining. The fact that the Union succeeded in pursuing the grievance-arbitration route successfully despite Respondent's unlawful efforts to prevent it from doing so hardly renders Respondent's unlawful conduct more acceptable under the statute. Moreover, we agree with the General Counsel's contention that this case is also inappropriate for deferral to arbitration because the Employer's conduct has demonstrated that it has no intention of complying with an arbitration award which favors the Union's position. 3 Thus, Respondent's employee relations superintendent, Hillyer, made it clear to the Union that Respondent intended to retain the 8 a.m. starting time schedule until the premium grievance was settled to its satisfaction, and, if Respondent lost that grievance in arbitration, the employees would remain on the 8 a.m. starting schedule indefinitely. Respondent, therefore, was predisposed to adhere to its 8 a.m. starting time regardless of how an arbitrator might resolve that issue. Additionally, it is clear from the facts summarized above that Respon- dent, in refusing to rescind or discuss the rescission of the 8 a.m. starting time, did so in direct reprisal against the employees because they filed a grievance over premium pay. Such activity which retaliates against employees because they pursue their contrac- tual rights by filing grievances strikes at the very foundation of the grievance arbitration machinery 3As indicated above. Chairman Fanning's and Member Jenkins' rejection of deferral is predicated on longstanding opposition to ('oilyer and its progeny. They would add, moreover, that the Board has a special which Respondent would have us invoke. Joseph T. Ryerson & Sons, Inc., 199 NLRB 461, 462 (1972). In an award subsequent to the Administrative Law Judge's Decision and not part of the record here, though cited in extenso by our dissenting colleague, the Union apparently won the overtime pay griev- ance, with the arbitrator concluding that under the contract such changes in schedule could not be made unilaterally by Respondent, but must be discussed with the Union. But this does not amount to a finding that Section 8(a)(5) was violated, and the arbitrator expressly disclaimed such a finding, as our colleague concedes. It leaves unremedied Respon- dent's misconduct, with no restraint on such miscon- duct in the future in the face of Respondent's intransigent defiance of its bargaining obligation and its threats to disregard the arbitration award. Thus it appears affirmatively, even from our colleague's excursion outside the record, that the award does not meet the standards for deferral required by Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5), as described above, we shall order Respondent to cease and desist from engaging in such conduct and from any like or related conduct. Consistent with our rejection on deferral, we shall delete the Administrative Law Judge's remedy insofar as it retains jurisdiction over the underlying disputes. To remedy the unilateral change in the employees' starting hour, we shall order Respondent to reinstate the 7 a.m. starting hour in effect prior to January 7, 1974. Should Respondent still desire to have the employees start at a different hour, Respondent shall bargain in good faith with the Union concerning that subject. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Texaco, Inc. Producing Department, Houston Divi- sion, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally, without prior consultation or bargaining with the Union, changing scheduled timetables of work, or refusing to consider or to bargain with the Union concerning alteration of timetable changes so made. obligation to consider this case, and others like it, on their merits, because of the nature of the allegations and the particular circumstances under which this case came to the Board. 376 TEXACO, INC. (b) Importuning its employees to withdraw the premium pay grievance filed pursuant to Respon- dent's change of the starting hour from 7 a.m. to 8 a.m. (c) Bypassing the Union and dealing directly with employees concerning change of the starting hour. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Restore immediately to the 7 a.m.-3:30 p.m. daily work schedule all employees (or their replace- ments) who on or before January 7, 1974, were on such schedule and were thereafter moved to an 8 a.m.-4:30 p.m. daily schedule and have not yet been returned to the 7 a.m.-3:30 p.m. schedule. (b) Post at its division, district, and field offices in south Texas copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 23, after being signed by one of its authorized represen- tatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER PENELLO, dissenting: This case should never have come before the Board; it should have been deferred to the grievance and arbitration provisions of the parties' collective- bargaining agreement.5 Thirty-five years' experience in the Regional Offices of the Board convinces me that grievance arbitration is not only a prominent 4 In the event that this Order is enlorced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." I My views on deferral have recently been restated in Rov Robinson. Inc. d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977), and in Member Walther's and my dissent in General 4American Transportation Corporation, 228 NLRB 808 (1977). 6 The contract provides in pertinent part that: Ill. A. Any proposed changes in weekly or daily schedules shall be discussed with the Workmen's Committee before the change becomes effective and as far as practicable and consistent with good operating practice regular daily schedules will be arranged from time to time to best suit the wishes of the majority of the workmen in a crew. field or area ill. C. Regular work schedules ordinarily will be maintained but irregular hours ma' be required in order to maintain continuity goal of employees attempting to organize but is also a primary tool of collective bargaining. My years as a Board Member have only reinforced my belief that deferral serves to encourage the practice and proce- dure of collective bargaining. This case centers on Respondent's changing the starting time for most unit employees from 7 a.m. to 8 a.m. and making a corresponding change in the quitting time. The complaint alleges that Respondent unilaterally made the change in contravention of its collective-bargaining obligations. Respondent con- tends that the change was permitted by the collec- tive-bargaining agreement and that the matter should be deferred to arbitration. Grievances were filed contending that Respondent violated the contract by changing the established hours and by failing to pay time and one-half to the employees affected for the day the change took place.6 Thus, the underlying dispute involves a disagreement between the parties concerning the application of their contract. The parties have a long history of bargaining-since 1944. The disputed contractual provisions have been included, without change, in successive contracts for over 25 years. The grievance procedure, which culminates in arbitration, provides for the submission of "all grievances and disputes arising out of the application of this agreement [art. XXII]." This case is clearly one which was well suited to deferral. See, e.g., Jos. Schlitz Brewing Company, 175 NLRB 141 (1969), a case which predates Collyer. The complaint also alleges that Respondent, by telling employees that it would return to the old hours only if the employees dropped the premium pay grievance, unlawfully bypassed the Union by importuning and threatening employees to withdraw the premium pay grievance. However, these alleged instances of unlawful conduct stem from and are incidental to the central issue. The activity is not the type of interference with the grievance procedure which would make deferral inappropriate. 7 Respon- dent was attempting to settle the two grievances by of operations. provide for vacations and other relief, and handle rush and emergency work. Ill. E. When an employe's daily working schedule is temporarily changed, he shall receive one and one-half times the regular rate for the first day worked on the new schedule. However, time and one-half will not be paid for this reason when any one of the following changes are involved: (6) Changes to another established schedule which would not alter both the starting and quitting time of the employe's regular schedule more than three (3) consecutive hours. I Compare North Shore Publishing Co.. 206 NLRB 42 (1973). In that case an employee was fired because of his grievance activity. To defer in that (Continued) 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD granting one if the other were dropped. That Respondent did not inhibit access to the grievance procedure is demonstrated by the Union's having pursued the grievances to and through arbitration. After the close of the hearing but shortly before the Administrative Law Judge's Decision issued, an arbitration award on the grievances was issued by the three-member arbitration board of review on July 30, 1974.8 Thus, the appropriate tests for deferral are set out in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). In that case the Board said it would accept an arbitrator's award as dispositive of related unfair labor practice allegations if the procedures have been fair and regular and the award is not repugnant to the Act. The award herein is a model of arbitral craftsmanship and fully meets the Spielberg standards. In setting out the issue the award succinctly summarizes the facts: On the work day of January 8-9, 1974, the company unilaterally changed the normal starting time of its Houston Division producing depart- ment employees from 7:00 AM until 8:00 AM because of the institution, shortly prior to those dates, by Federal decree, of daylight savings time throughout the United States. The company realized that it was dark in East Texas at 7:00 AM CDT and made the change for this reason. The change was sensibly and rationally motivated. The award fully sets out the facts and the parties' positions, analyzes the issues, and finds that the Company failed to meet the contractual requirement of prior discussion but that it may establish new weekly work schedules. The decision finds that the Company's discussion with local employee represen- tatives or committees did not conform to the requirement of article III,A, that changes in hours herein involved be discussed with the "Workmen's Committee," which the decision finds to be the District or the Division Workmen's Committee. Thus, the decision finds that the Company violated article IIl,A, of the contract. The decision finds "that the company has not surrendered its right to set new established starting times, and that the word 'established' in Article E 6 means established by the company." It makes the following analysis of this issue: If the company does not retain the right to establish new work schedules, the exception granted to it from the time and one-half penalty circumstance would be fundamentally unfair because it would require the employee to rely on the very procedure that he was fired for using. That situation is simply not present here. I The arbitration decision and award, a copy of which has been sent to the Board, is not a part of the official record before us. In my opinion the (contract, Article III E 6) becomes totally meaningless. If I were to adopt the union's contention that the only established work sched- ules are those which commence at 7:00 AM, and 3:00 and 11:00 PM, there is no way in which the company could take advantage of the exception to the requirement that the overtime penalty be paid if there has been a change to "another established work schedule which would not alter both the starting and quitting time of the employee's regular schedule more than three consecutive hours." Since it will not be assumed that these two sensible and rational parties would have perpetuated a meaningless contractual clause for 25 years, I must find that the clause means what the company contends that it means-that assuming compliance with the other requirements of Article III, the company has retained the right unilaterally to change a work schedule by not more than three consecutive hours without incurring the time and one-half penalty. Finding a close relationship among the sections of article III, the decision, as a remedy, orders the Company to pay time and one-half for the first day worked by all bargaining unit employees affected by the change in hours. The arbitration award did not decide, as it of course could not, whether Respondent violated Section 8(a)(5) of the Act. It did, however, resolve the identical issue as a contractual matter. The arbitra- tors found that Respondent contractually retained the right to unilaterally change the work schedules, provided that it discuss the change with the appropri- ate committee before the change. The award fully remedied Respondent's contractual violation. In fact, the remedy demonstrates the desirability of deferral. The arbitration award gives the employees a more potent, and certainly a more valuable, remedy than the Board majority's decision gives to them. To order Respondent to rescind the change in hours (which, by the way, the arbitration decision found to be temporary) at this late date seems to me an exercise in futility, especially since the reason for the change-year-round daylight savings time-is all but a forgotten short-lived event. Had this case been deferred under Collyer, as it should have been when it first arose, the matter would have been fully resolved when the arbitration award issued on July 30, 1974, less than 7 months after the change in hours. Even where there was a proper procedure here would be for the Board to issue a notice to show cause why the Board should not reopen the record to admit the award into evidence, defer to the award, and dismiss the complaint herein in its entirety. 378 TEXACO, INC. quick decision by the Administrative Law Judge (just under 8 months from the change in hours), arbitra- tion proved to be the faster. And of course, this case was appealed to the Board causing further delay. Contrary to my colleagues' implications, the arbitration decision specifically finds that under the contract the Company can unilaterally change starting times, provided only that it discuss the change with the appropriate workmen's committee, a far different requirement from bargaining with the Union. Thus, the Company has effectively bargained with the Union about the issue for the more than 25 years article III has been in existence and has contractually retained the right to change starting times. Yet, despite this long bargaining history and the Union's contractual concessions, my colleagues find that Respondent has refused to bargain over the matter. Incredible. The keystone of the Act, the congressional man- date to the Board and the ultimate goal of the Board, is to encourage the practice and procedure of collective bargaining. By finding in this case that Respondent has refused to bargain, my colleagues have unfortunately lost sight of the Board's mission. Their decision not to defer has not only delayed final resolution of the problem, but has also put the Board squarely in the path of the parties' resolving their dispute through collective bargaining. They neglect the parties' history of successful bargaining since 1944, disregard the over 25 years of bargaining about the very heart of the complaint, and slight the resolution of the problem by the parties through their grievance and arbitration procedure. Thus, my colleagues' decision effectively serves to impede the practice and procedure of collective bargaining between the very parties involved in this case, including Respondent who is now ordered to cease and desist from refusing to bargain. Incredible. The Board is faced with a monumental and ever increasing caseload now standing at over 60,000 cases per year. Yet my colleagues remain adamant in finding a violation in this case which begs for deferral, thus diverting the Board's energies from the paramount task of encouraging bargaining and protecting employee rights to organize or refrain therefrom. My colleagues' priorities are misplaced. Their insistence in pursuing this case and not deferring wastes the Board's resources. No wonder the Board is fast becoming inundated with cases. Look at the facts of this case. Texaco is not a flagrant violator flouting the proscriptions of the Act and decisions of the Board; there is not even a hint of animosity toward the Union. To the contrary, the parties have bargained for over 30 years and the dispute herein centers on the interpretation of a 25- year-old-plus contract provision. Yet my colleagues refuse to trust resolution of the dispute to the arbitration panel, which the parties have agreed to use to settle such disputes and which has long ago decided the matter. Again, incredible. Accordingly, I would defer this case to the arbitration award. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL NOT change scheduled timetables of work without prior consultation or bargaining with the Union. WE WILL NOT refuse to consider or to bargain with the Union concerning alteration of timetable changes so made. WE WILL NOT seek to have employees withdraw the premium pay grievance filed pursuant to our change of the starting hour from 7 a.m. to 8 a.m. WE WILL NOT bypass the Union and deal directly with employees concerning the starting hour. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL immediately restore the 7 a.m.-3:30 p.m. daily work schedule to all employees (or their replacements) who on or before January 7, 1974, were on such schedule and were thereafter moved to an 8 a.m.-4:30 p.m. daily schedule and have not yet been returned to the 7 a.m.-3:30 p.m. schedule. TEXACO, INC. PRODUCING DEPARTMENT, HOUSTON DIVISION DECISION HERZEL H.E. PLAINE, Administrative Law Judge: The questions presented are whether Respondent failed or refused to consult or bargain, in January 1974, with the Charging Party (Union), the certified and contract repre- sentative of Respondent's production and maintenance employees of the Houston division of the producing department, in regard to a change that retarded the scheduled starting and quitting times of the division employees; whether Respondent has refused since the change to consult or bargain in regard to a return to the 379 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preexisting schedule; and whether Respondent has by- passed the Union and attempted to directly persuade or coerce the division employees to forego grievance and arbitration procedures invoked by them and the Union in connection with the time schedule change and refusal to revert to the preexisting schedule. The complaint, filed June 3, 1974 (on a charge by the Union filed April 29, 1974), alleges that Respondent engaged in the above conduct in violation of Section 8(a)(1) and (5) of the Act. Respondent denies any wrongdoing, claims that its change of schedule and refusal to reinstate the former schedule are contractually authorized, and that (under Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971)), the protest of the matter by Union and employees is subject to deferral to arbitration, which was about ready to proceed at the time of the hearing. On the deferral question, General Counsel takes the position that Respondent has been interfering, or attempting to interfere, with the grievance and arbitration process to an extent that inhibits employee access to the procedures, requiring a denial of deferral, and decision on the merits of the underlying dispute by the Board. The case was heard in Houston, Texas, on July 2 and 3, 1974. General Counsel and Respondent have filed briefs. Upon the entire record in the case, including my observation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Delaware corporation engaged in the production, refining, and marketing of petroleum products and natural gas. Only its facilities of the Houston division of the producing department, located in south Texas, are involved in this proceeding. In the calendar year preceding issuance of the complaint, Respondent's gross volume of sales exceeded $500,000 and products sold and shipped to customers in various States of the United States exceeded $50,000. Respondent is, as the parties admit, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as the parties also admit, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Respondent's Operations and Organization Respondent's producing department is concerned with the drilling for and production of oil and natural gas, and the Houston division is responsible for this operation in southern Texas from the Rio Grande, on the west and south, to the Red River, on the east. To perform the work, the Houston division has a complement of 320 production and maintenance employ- ees and also engages a number of independent contractors (and their employees) who do the drilling and who supplement, as needed, the production and maintenance work of the division employees. The division has a manager, Herbert Alexander, an assistant manager, John Drisdale, a general superintendent (not identified), and a superintendent for employee relations, Oscar Hillyer. Hillyer is assisted by a senior representative for employee relations, Ronnie Hartfield. The division is divided into two operating districts, east and west, called the Liberty district (east) and the Corpus Christi district (west). Carl Quebedaux is superintendent of the Liberty district, and Kenneth Renau is superintendent of the Corpus Christi district. The two districts are subdivided into areas, each of which contains one or more field locations. The production foremen are in charge of the field locations. The named members of the division management, the district superintendents, and the production foremen were conceded or proved to be supervisors within the meaning of the Act or spokesmen for management in dealings with employees under their respective divisional, district, or field jurisdictions. B. Union Representation and Contract The 320 production and maintenance employees of the division are scattered about in the various field locations. They comprise the bargaining unit that has been represent- ed by the Union since 1944 pursuant to Board certification, and all are members of the Union. Under the current collective-bargaining contract (G.C. Exh. 8, effective until January 7, 1975), the relationship between management and the employees represented by the Union are effectuated through workmen's committees established at the field, district, and division levels. (G.C. Exh. 8, arts. XVII and XVIII.) At the field locations either a local employee representa- tive or steward, or a field committee of not more than three employees, meets with the field foreman. For the district, a district workmen's committee of from three to five field representatives meets with the district superintendent or other representatives of management. At the division level, a division workmen's committee of six employee representatives meets with management representatives. At the division workmen's committee meetings, Superintendent Hillyer has been the spokesman for management and the employee or union spokesman has been the union local vice president, B. J. Barnes. C. The Time Change Prior to January 1974, the bulk of the unit employees who were on a daytime regular 8-hour work schedule worked from 7 a.m. to 3:30 p.m. The contract recognizes that, ordinarily, regular work schedules will be maintained. (G.C. Exh. 8, art. III, C.) In connection with the energy crisis that became acute in the fall of 1973, Congress had enacted a law accelerating the commencement of daylight saving time to Sunday, January 6, 1974. Manager Alexander testified that on the following day, January 7, he met with his division management team-the general superintendent, the assis- tant manager of operations (Drisdale), and the superinten- dent of employee relations (Hillyer)-and decided to move back the regular starting time of work from 7 a.m. to 8 380 TEXACO, INC. a.m., with a corresponding change in regular quitting time from 3:30 p.m. to 4:30 p.m., effective as soon as word could be gotten to the men in the field.' Manager Alexander admitted that the decision by his management team to move the starting hour of the 8-hour workday back an hour to 8 a.m. was made without consultation of the employee or union representatives. The change from 7 a.m. to 8 a.m. was made, said Superinten- dent Hillyer, under article III, paragraph A of the collective-bargaining contract. Paragraph A provides that, Any proposed changes in weekly or daily schedules shall be discussed with the Workmen's Committee before the changes become effective, and as far as practicable and consistent with good operating practice regular daily schedules will be arranged from time to time to best suit the wishes of the majority of the workmen in a crew, field or area. Notwithstanding the foregoing requirement for consulta- tion with the workmen's committee, according to Superin- tendent Hillyer, instructions went out from the division to the (2) district superintendents to notify the (25) produc- tion foremen in charge of the fields to carry the word to the local workmen's committees or stewards that the change to an 8 a.m. start was to go into effect at once, and that the production foremen had no authority to alter the change from a 7 a.m. to 8 a.m. start. Superintendent Quebedaux testified that he had had some advance intimation, about January 3, that the division was considering the change and had recommended against hurrying into it, indeed had counseled Foreman Maxwell of West Columbia to observe any effect on safety after daylight saving went into effect on January 6; nevertheless his (Quebedaux's) recommendation against haste was not accepted. On January 7, when he received the division order, said Quebedaux, he notified his foremen to move at once to an 8 a.m. starting time, and they carried his order out beginning the next day, January 8 (in some few cases it may have been January 9). According to Manager Alexander and Superintendents Quebedaux and Hillyer, the change to an 8 a.m. start applied to all employees in the bargaining unit who I Manager Alexander said the reasons were safety and production considerations. Most jobs, he said, were around the leaseholds, largely unimproved real estate on which the wells are located. While the Company maintained lights around the tank batteries (vessels into which the well product goes) and compressor stations, it did not maintain lights at or in the wells themselves, and it was not safe or efficient, said Alexander, to have men working part of their 8-hour day in the dark. However, there was some dispute and even self-contradiction concerning Manager Alexander's safety and efficiency assertions. Acknowledging that Respondent's contractors and their employees are subject to Respondent's safety rules, Manager Alexander admitted that he did not know if there was a change in the hours of those contractor employees who normally started work at 7 a.m. Liberty District Superintendent Quebedaux testified that the change to an 8 a.m. start did not apply to the well drilling contractors because they worked around the clock with no starting time, that it was supposed to apply to the contractor roustabout crews (general maintenance type labor), but that he did not know if the contractor roustabouts actually changed from 7 a.m. to 8 a.m. His foremen. said Quebedaux. could put the contract roustabouts on any. time the foremen needed them. The one foreman who testified, Holsapple of the Gladewater area, testified that he had some contract roustabouts in June 1974. who received no starting time previously had a 7 a.m. starting time. (Concerning contractor employees, see fn. 1, supra.) D. Protests, Grievances The change in starting time to 8 a.m. was unpopular with the employees, and groups of them, such as employees at West Columbia and Seguin, immediately filed grievances (G.C. Exh. 4, January 8; G.C. Exh. 3, January 9) stating their disagreement with the change. Several days later, on January 14, 1974, the division workmen's committee discussed the matter of these grievances with the division management including the two district superintendents, even though the grievances were not technically at the division level as yet. Superintendent Hillyer was the spokesman for management and the employee or union spokesman was the Union Local Vice President B. J. Barnes. According to Superintendent Hillyer and the minutes of the meeting (G.C. Exhs. 5 and 7), Union Vice President Barnes and several other committee members complained that the change in schedule was not discussed beforehand with the workmen's committees as called for in the contract, they were simply told their schedules were changed. Superintendent Hillyer claimed it was the company right to set the work schedule but explained that the time change was only temporary and as the days lengthened all of the men affected could return to the 7 a.m. start when it was light enough. There was some disagreement between the committeemen and management representatives as to whether it was not light enough then to begin work at 7 a.m. Following a company caucus, Hillyer announced that each foreman would be instructed to meet with his local workmen's committee to discuss immediate return of compressor operators and pumpers to a 7 a.m. start, but that the other employees (roustabout crews and mainte- nance workers) would temporarily stay at the 8 a.m. start until it became light earlier in the day, at which time management would meet locally with the workmen's committees for a return to the 7 a.m. start. Hillyer noted the Weather Bureau information that, whereas on January 14 sunrise was 7:57 a.m., on March 11 sunrise would be at 7:15 a.m. instructions from him and started at 7 a.m., but there was enough daylight then for them to perform their duties. He added that, in February and March, he had some well service contractors who started at 8 a.m. voluntarily, saying it was too dark at 7 a.m. On the other hand, it was the uncontradicted testimony of mechanic Lewis Huff (of the West Columbia field), who as a union vice president and district committeeman visited with frequency a number of the fields, that he observed since January 1974 roustabout crews that started at 7 a.m. at the Manville, Chocolate Bayou. West Columbia, and El Campo - Magnet Withers fields (the last is in the Corpus Christi district). Additionally, there was testimony by Superintendent Quebedaux that there was no problem with certain classifications of employees, such as pumpers and compressor operators, coming in an hour ahead of the employee roustabouts, indeed it was traditional for them to do so, since they would be looking for problems for roustabouts to correct, nevertheless the 8 a.m. start was applied to all of the unit classifications except a category of pumpers who had no set schedule of time. Manager Alexander said that the decision to change the starting hour of work was a decision of the division management, not companywide, and he was not aware whether other oil companies changed their starting hours. 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the course of the discussion at the January 14 meeting Union Vice President Barnes informed Superintendent Hillyer that the Union felt the company had installed a new schedule rather than changed an established schedule and that the employees were entitled under contract article III, paragraph E (G.C. Exh. 8) to receive one and one-half times the regular rate of pay for the first day worked on the new schedule. Barnes asked Hillyer if the company was going to pay time and a half for the first day worked under the schedule change. Hillyer replied, no, that the change was a temporary change in schedule and that, under article III, paragraph E,6 (G.C. Exh. 8), excepting from the time and a half rate for the first day a change that did not alter both starting and quitting time of the employees' regular schedule more than three consecutive hours, the employees were not entitled to the premium pay. On January 16, 2 days after the meeting, a group of employees filed a division grievance requesting on behalf of all bargaining unit employees one and one-half times regular pay for the first day worked under the new time schedule (G.C. Exh. 2), sometimes referred to as the premium pay grievance. E. Respondent's Actions on Protests and Grievances Immediately following the January 14, 1974, meeting of the division workmen's committee and management, Respondent notified its field foremen to revert to the 7 a.m. start for pumpers and compressor operators, and the change for them back to a 7 a.m. start became effective at once (testimony of Superintendent Quebedaux and field committeeman Johnny Chancellor). However, after the grievance claiming premium pay for all employees for the first day worked under the 8 a.m. - 4:30 p.m. schedule (G.C. Exh. 2) was filed on January 16, Respondent changed its mind, said Superintendent Hillyer, about doing anything further for the other employees remaining on the 8 a.m. starting time. The resolve by Respondent to do nothing further about reverting to the 7 a.m. start for these employees became firm, said Hillyer, when Respondent received the Union's notification of February 22, 1974, referring to arbitration Respondent's rejection of the January 16 time and a half or premium pay grievance. At the time of the hearing, July 2-3, the grievance was scheduled for arbitration by the contract board of review later in July, but had not been heard. The position that Respondent adopted and made known to the Union and to the employees after the filing of the premium pay grievance, according to Superintendent Hillyer, was first, that the 8 a.m. starting time would stay in effect (for all who had not been changed back to 7 a.m.) until the premium pay grievance was settled; and second, if Respondent lost the arbitration, thereby subjecting it to making the time and a half payment, the employees would remain on the 8 a.m. start. Respondent's reason, said Hillyer, was that an adverse decision would involve a payment to 295 of the 320 unit employees at a cost for the extra 4 hours' pay of about $6,000. If Respondent reverted to the 7 a.m. start2 and then changed to 8 a.m. in the 2 The Union had indicated to Respondent that reverting to the 7 a.m. 3:30 p.m. schedule would be a reversion to an "established" schedule that did not require Respondent to make the payment of premium pay (minutes following winter with such an interpretation of the contract established, said Hillyer, it would cost Respondent another $6,000 or thereabouts. Respondent's position, as described by Superintendent Hillyer, was made known to the district and field supervisors, and by them to the men in the several fields in various ways, as discussed infra. The position was dis- cussed at the division workmen's committee meeting with the division management on April 9, 1974, where the Union accused Respondent of bad faith in not returning the men to the 7 a.m. start. Hillyer said the company had no desire to make the men report at 8 a.m. now that it was daylight at 7 a.m., but that the starting time had to stay at 8 a.m. because the company would not risk an unfavorable ruling by the arbitration board of review that would result in the company paying time and a half for the January change and for future changes to an 8 a.m. start. He urged the committee to reconsider and withdraw the grievance (G.C. Exh. 2) claiming the premium pay for the January change in schedule. Following a caucus, Union Vice President Barnes responded for the committee that the grievance would be withdrawn only if Respondent agreed to pay the time and a half for the initial day to those men still on the 8 a.m. starting time and agreed to move their starting time back to 7 a.m. (minutes of April 9, 1974, meeting, G.C. Exh. 6). The Union's offer was not accepted. In the field, according to the testimony of some of the employees, there were direct efforts by supervisors to bring about elimination of the time and a half pay grievance. Employee Johnny Chancellor, a member of the field workmen's committee at West Columbia, testified that, very early in January 1974, Superintendent Quebedaux had intimated at a meeting with the committee on another matter the possibility of the change in starting time from 7 a.m. to 8 a.m. but not before some weeks in the future when it would be discussed. Nevertheless, a day or two later, Chancellor said he and his fellow committee members were informed that the men were to report at 8 a.m. next day, and, at the time of the hearing, he was still reporting at 8 a.m. In a meeting in January with West Columbia Foreman John Maxwell, after the time change, the committee was told, said employee Chancellor, that the pumpers could resume the 7 a.m. start at once (and did), but management would think about restoring the other employees to the 7 a.m. start later, maybe about March 11. Twice thereafter, in late February, the local committee asked Foreman Maxwell for meetings on a 7 a.m. start, according to employee Chancellor. Each time, said Chan- cellor, Maxwell called Superintendent Quebedaux and Quebedaux replied he could not meet to discuss the return to a 7 a.m. start for those still on the 8 a.m. start until the employees dropped their grievance for the time and a half pay. Employee Chancellor's testimony was not controvert- ed. Employee John Steger, a member of the field workmen's committee at Gladewater, testified that on January 7 he and others of the local work force were informed on radio by Foreman Chambers of the 8 a.m. start effective the next of April 9, 1974, division workmen's committee meeting, as amended May 10, 1974, G.C. Exh. 7). 382 TEXACO, -INC. day, and that the employees complied. Foreman Chambers told employee Steger on January 8 that he, Chambers, was simply following orders given him, in directing the 8 a.m. start. One week later, on January 15, Superintendent Quebedaux and the chief foreman of Gladewater, Franz, met with the Gladewater workmen's committee and employee Thornhill, also of Gladewater, who was a member of the division workmen's committee. Revision of the 8 a.m. starting time was discussed and the employees suggested an immediate 7:30 a.m. start for a temporary period and a return to the 7 a.m. start by February 18. Superintendent Quebedaux replied that the committee should put its proposal in writing to Foreman Franz, and if Franz agreed to it, the schedule would be fine with him, Quebedaux. That same day, January 15, the committee gave Foreman Franz the written proposal, Franz agreed to it and wrote a letter to the district superintendent indicating his approval, but nothing came of it. Superintendent Quebedaux testified that he received the letter after January 16, when the grievance for time and a half pay had been filed, and the company thinking on reverting to the 7 a.m. start had changed. Quebedaux testified that he called Superinten- dent Hillyer on the matter and was following his advice. As a result the Gladewater workmen's committee was not given a direct answer to its proposal, instead the foremen gave employees, individually, answers to their inquiries. Thus, Foreman Holsapple informed employee Steger, in March, that the time and a half grievance would have to be settled before the employees could go back to a 7 a.m. start; and in June, Foreman Cain told employee Steger that if the time and a half grievance had not been filed he and fellow employees could have gone back to a 7 a.m. start. At West Columbia, employee Lewis Huff, who was a district workmen's committeeman and a bargaining unit vice president, was told by his supervisor, Foreman Maxwell, in February 1974, that the men were crazy to continue the division grievance for the time and a half pay, that they were not going to win, and that they could not go back to a 7 a.m. starting time as long as the premium pay grievance was in. Later in February, employee Huff had a discussion with Superintendent Quebedaux on the warehouse platform at West Columbia. Quebedaux told Huff the employees would not go back to the 7 a.m. start as long as the time and a half grievance was in, that the employees should drop it, and if they dropped it they could resume the 7 a.m. start at once. Still later, in March, Manager Alexander engaged employee Huff in conversation on the subject in the mechanic shop at West Columbia. Alexander asked Huff why the employees were not getting along with (employee relations superintendent) Oscar Hillyer, and suggested that Huff get together with Hillyer and drop the division grievance for time and a half pay so that the men could go back to work at 7 a.m. Huff replied the division grievance was a membership matter, there wasn't anything he could do about it. Whereupon Alexander said that the employees 3 Supenntendent Quebedaux admitted responding that if the (premium pay) grievance were dropped and the proper local procedure were followed the men could go back to a 7 a.m. start. He claimed. however, that he did were not going to go back to a 7 a.m. start if they did not drop the grievance. None of employee Huffs testimony was disputed, indeed Manager Alexander confirmed Huff s description of their conversation as accurate. Moreover, Superintendent Hill- yer testified that he advised the foremen, who said they were getting employee questions about going back to a 7 a.m. start, to apprise the employees that they would not get it until the premium pay grievance was settled. Additionally, the question of resuming the 7 a.m. starting time kept coming up at "energy crisis" meetings that management conducted at the various field offices. According to Manager Alexander, at company suggestion, he conducted 13 or 14 meetings in various areas under his jurisdiction (apparently mostly in April 1974) to explain to the division employees (and through them, to their friends and neighbors) what the company was doing about the energy crisis and to answer allegations made against the oil industry and against Texaco specifically. Alexander testi- fied that he gave a prepared (canned) presentation at each meeting followed by a question and answer session. Alexander was accompanied at each meeting, he said, by either Superintendent Hillyer or Hillyer's assistant Hart- field, and by Superintendents Quebedaux or Renau, and these subordinates usually handled the answers to employ- ee questions with Alexander present. Manager Alexander testified that in the question periods the subject of reverting to the 7 a.m. start was brought up by employees at all of the meetings (at another point, he said at two-thirds of the meetings), and the answers provided by either Superintendents Quebedaux or Renau were similar to the answer given by Quebedaux at the West Columbia meeting of April 23, namely, that reversion to the 7 a.m. start could not be settled until the premium pay grievance was disposed of. Alexander also testified that the matter of an employee petition to the Union on this subject (to withdraw the premium pay grievance) was raised in at least one of the meetings, the West Columbia meeting. Employee Johnny Chancellor provided more detail on the West Columbia meeting of April 23 and the matter of the suggested petition. Chancellor said he asked, in the question period, about the 7 a.m. starting time, and Superintendent Quebedaux replied, if the company won the premium pay grievance the employees could go back to a 7 a.m. start, or if the employees dropped the premium pay grievance they could go back to the 7 a.m. start the next day, but if the company lost the grievance (in arbitration) the employees would stay at the 8 a.m. starting time. According to employee Chancellor, employee Russell then asked what would the men have to do to get back to a 7 a.m. start. Superintendent Quebedaux answered, said Chancellor, the men could get up a petition to drop the (premium pay) grievance and present it to (union vice president) Bobby Barnes, and if Barnes dropped the grievance, the men could go back to work at 7 a.m. the next day after he dropped the grievance.3 While these various actions of Respondent, after January 16, to discourage the bringing to arbitration of the not suggest that a petition be drawn to drop the grievance, but that a third employee, Castleberry, commented it looked like we need a petition to drop the grievance, and that he (Quebedaux) said, that is for you to decide, and (Continued) 383 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premium pay grievance were in progress, some of the pre- January 16 grievances, such as General Counsel's Exhibits 3 and 4, supra, which had protested the change from the 7 a.m. to 8 a.m. start, had lapsed for lack of timely processing. As Respondent's change of mind on reverting to the 7 a.m. start became clear, new grievances were filed in several of the fields, such as General Counsel's Exhibits 9 (February 20), 10 (March 4), 11 (March 6), and 12 (March 14), variously complaining of Respondent's origi- nal failure to negotiate the time change, to comply with promises to return to the original starting time, to respond to proposals for reverting to it, or the lack of a safety reason for continuing the late start as the daylight lengthened. These grievances were processed and were rejected by Respondent, and at the time of the hearing, according to Superintendent Hillyer, the Union had invoked arbitration and requested Respondent to agree to submission of them as a group to a single board of review. F. Conclusions Section 8(d) of the Act, which defines the employer's duty to bargain imposed by Section 8(a)(5), requires the employer "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." Correlatively, it is the obligation of the employer to refrain from unilaterally changing established conditions of employment without first consulting and bargaining with the bargaining representative of the employees. Such unilateral action constitutes a statutory violation of Section 8(a)(5) and (1) of the Act, regardless of the employer's motivation and without any necessity to find the employer guilty of overall subjective bad faith. N.L.R.B. v. Benne Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 739, 747 (1962); N.L.R.B. v. C & C Plywood Corporation, 385 U.S. 421, 425-430 (1967); N.L.R.B. v. Scam Instrument Corp., 394 F.2d 884, 887 (C.A. 7, 1968), cert. denied 393 U.S. 980. The statutory right of the representative union, to be consulted and to bargain about changes in conditions of employment, may be relinquished under the provisions of the collective-bargaining agreement, but such relinquish- ment must be in clear and unmistakable language, compare The Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746, 751 (C.A. 6, 1963), cert. denied 376 U.S. 971 (1964); N.L.R.B. v. The Item Company, 220 F.2d 956, 958-959 (C.A. 5, 1955), cert. denied 350 U.S. 905. Here the collective-bargaining contract, rather than eliminating, affirmed the statutory right of the Union and the statutory duty of Respondent, specifically providing in the matter of changing weekly or daily schedules, that proposed changes gave the above-admitted additional response. Superintendent Hillyer's assistant, Hartfield. purported to corroborate Quebedaux's testimony on the matter of the petition, but overzealously, in my view, undercut Quebedaux's testimony by suggesting there was no response to the comment about a petition; and again. overzealously, characterized as inaccurate Manager Alexander's testimony that the subject of reverting to the 7 a.m. starting time came up at almost every meeting, conceding that he (Hartfield) attended only 4 of the 13 or 14 energy cnsis meetings that Alexander conducted. I therefore am inclined to disregard Hartfield's testimony on the matter of the petition. As between crediting employee Chancellor or Superintendent Quebedaux, the substance of must be discussed with the workmen's committee (whether field, district, or division committee is not specified) and, as far as practicable and consistent with good operating practice, arranged to best suit a majority of the workmen in the crew, field, or area affected (art. Ill,A, see heading C, supra). The evidence, provided by both management and employees (summarized under headings C and D, supra), established that on January 7, 1974, Respondent ordered the divisionwide change in the daily starting and quitting time from 7 a.m. - 3:30 p.m. to 8 a.m. - 4:30 p.m., to be effective forthwith, without consultation with the Union or workmen's committee or committees or opportunity for bargaining let alone agreement by them. The field workmen's committees were simply notified of the change by the field foremen on a pass-through by them of the order for change received from the division and district supervisors. Such unilateral change by Respondent was an unfair labor practice violative of Section 8(a)(5) and (1) of the Act. As the Court pointed out in N.LR.B. v. Scam Instrument Corp., supra, 394 F.2d at 887, on authority of Carey, President of the International Union of Electrical, Radio & Machine Workers, AFL-CIO v. Westinghouse Electric Corp., 375 U.S. 261 (1964) and N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967), the Board's power to entertain the charges and afford a remedy for the unfair labor practice was not precluded by the availability or invocation of the contract's grievance and arbitration provisions. Nevertheless, the underlying dispute between Respon- dent and its employees, represented by their union, concerning, as it does, the alteration of scheduled times of work or the setting of new schedules and possible payment of premium pay when changes or new schedules are made, involves interpretation of the contract between the parties and is well suited to determination by the contract method of arbitration adopted by the parties, Collyer Insulated Wire, supra, 842. At the time of the hearing, two sets of grievances were about ready for disposition by arbitration. One set would appear to involve the question, and might therefore result in decision, of whether Respondent has the ultimate right under the contract to determine, and to change or refuse to change, the starting and quitting times of the scheduled workday without approval of the workmen's committee.4 The other requires a decision of whether the change from the 7 a.m. to 8 a.m. starting time and from the 3:30 p.m. to 4:30 p.m. quitting time, in January 1974, made Respondent liable for the payment of premium pay for the first day worked by employees under the changed or new schedule. General Counsel contends that the Board should not defer to the impending arbitration of the grievances but Quebedaux's testimony largely supports employee Chancellor. and since Chancellor was in the vulnerable position of a current employee testifying adversely to his employer, his credibility was entitled to added support, Davis Food City, Inc., 198 NLRB 94 (1972). and cases cited. Accordingly, on the one item in disagreement between them I credit Chancellor's testimony that the suggestion of an employee petition emanated from Superintendent Quebedaux. 4 It does not appear that Respondent is contending that it can avoid the contract obligation to consult on the proposed change and discuss it with the workmen's committee. 384 TEXACO, INC. should itself decide the merits of the issues they embrace because, says General Counsel, Respondent has engaged in, and threatens further, reprisal against the employees for pursuing to arbitration the premium pay grievance and because Respondent has in bad faith bypassed the Union in an attempt to directly dissuade the employees from processing the premium pay grievance. General Counsel compares the conduct of Respondent to that in Joseph T. Ryerson and Sons, Inc., 199 NLRB 461 (1972), and North Shore Publishing Co., 206 NLRB 42 (1973), where the employers were found to have engaged in reprisals or threats of reprisal against employees for invoking or participating in the grievance procedure, and the Board declined to follow the Collyer doctrine of deferral to the grievance-arbitration procedure on the ground that in such circumstances there was no assurance that the grievance- arbitration procedure was fair and regular and in fact open for use of disputants, 206 NLRB 42, supra. Respondent claims its conduct, since the filing of the premium pay grievance, has been directed at achieving a settlement and that it has done nothing more than communicate offers of settlement to the Union and employees simultaneously. In my view Respondent has done something more than make pure offers of settlement, but has not necessarily destroyed the use of the grievance-arbitration procedure in this case if the pressures built upon Respondent's unfair labor practice are relieved. In this connection, it should be noted that Respondent, while appearing less than anxious to go to arbitration, has not hindered the processing of the grievances to arbitration. Respondent ordered the change from the 7 a.m. to 8 a.m. daily start in January 1974, in violation of its statutory and contract duty to consult and bargain with the Union and employees, but nevertheless did so for alleged safety reasons. In face of the storm of protest, Respondent directed immediate return of compressor operators and pumpers to the 7 a.m. start, and openly conceded to the Union and employees that the safety reason (absence of early morning daylight) would no longer exist by at least March 11, 1974, and indicated its willingness and intention to arrange for return of the remainder of the employees to the 7 a.m. starting time by then. These decisions and announcements were made at the meeting of management with the division workmen's committee on January 14, in the course of which meeting the committee indicated its belief that Respondent owed the employees premium pay for the first day worked under the new timetable. As a result of the decisions and announcements at the January 14 meeting, grievances filed by employees before then, protesting the change from the 7 a.m. to 8 a.m. start, were permitted to lapse. However, following the filing of the division grievance for premium pay on January 16, Respondent's management repudiated its previously ex- pressed intention to return all of the employees to a 7 a.m. start, notwithstanding the fact that the alleged safety reason was gradually disappearing, as the daylight length- ened, and disappeared beyond doubt in March 1974. Through its supervisors, Respondent passed the word to the employees and union that it would not consider or negotiate return to the 7 a.m. start for the bulk of the employees, still on the 8 a.m. start, unless the premium pay grievance was withdrawn, or, if not withdrawn, unless Respondent won an arbitration decision on the grievance (which became ripe for decision in July 1974 by an arbitration board of review) holding no premium pay was owed. As a result of Respondent's repudiation of the expressed intention to revert to the 7 a.m. start, new grievances were filed variously protesting the original change and failure to negotiate it, the refusal to negotiate or bargain a return to the 7 a.m. start, and the lack of a safety reason for continuing the 8 a.m. start. These grievances, as a group, were also about ripe for an arbitration board of review decision at the time of the hearing of this case in July 1974. Meantime, Respondent's supervisors at workmen's com- mittee meetings, energy crisis meetings, and meetings with employees individually, adopted and repeated the refrain that the employees could have back their 7 a.m. starting time at once if the Union withdrew the division grievance for premium pay. On the one hand, I do not regard such importuning of the employees, in the circumstances of this case, as an attempt to undermine or bypass the Union, as General Counsel contends. Respondent's position was openly communicated to the Union and to the individual employees as its solution for the dilemma Respondent appeared to be in when the time change and premium pay issues were joined. Indeed, the private conversations, such as the one by the division manager and the other by the district superintendent with employee Huff, were conversa- tions with an employee who was a union vice president as well. On the other hand, the communications by Respondent's supervisors cannot be characterized as legitimate settle- ment offers, because they were grounded on Respondent's initial violation of its statutory and contract duty (to consult and bargain) that gave rise to the dilemma, and its continued violation of the duty by refusing to consider or bargain about reversion to the original timetable unless the employees and union either gave up their right to obtain an arbitration decision on premium pay for the initial change of timetable, or lost such a decision. Thus by continued violation of Section 8(a)(5) and (1) Respondent was placing pressure on the employees and union to relinquish their right to an arbitration decision by perpetuating the unpopular and no longer needed time- table created in connection with Respondent's unfair labor practice or breach of contract, that also gave rise to the derivative premium pay question the employees and union wanted decided by arbitration. By clinging to a timetable admittedly no longer needed for the purpose it was allegedly promulgated, and a timetable that has obviously been irksome to the employees as a whole, Respondent has been pressuring the employees and union to forego a determination of a possible derivative right, and has added to the pressure by announcing it will not alter the unwanted timetable if the employees win the premium pay. Unless relieved, that pressure might also infect the objectivity and fairness of the arbitrators in deciding the premium pay grievance and possibly the grievances affecting control of timetables, since the arbitrators 385 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undoubtedly will be aware of the employees' burning interest in getting back quickly to a 7 a.m. start and of Respondent's determination not to voluntarily revert to the 7 a.m. start unless it wins a decision that relieves it from the payment of premium pay for the January 1974 change and future such changes in timetables. It would therefore appear to me that an order restoring the status quo ante January 7, 1974, putting back on the 7 a.m. - 3:30 p.m. schedule all employees who before January 7 enjoyed that schedule and have not yet been taken off the 8 a.m. - 4:30 p.m. schedule, would relieve the invalid pressure on the employees, and on the arbitrators in connection with the impending arbitration of grievances now or about to come before them, and would provide an appropriate remedy for Respondent's unfair labor practice that is needed if the arbitration is to proceed fairly and justly. CONCLUSIONS OF LAW 1. By unilaterally changing its employees' timetable of working hours on January 7, 1974, without prior consulta- tion or bargaining with the Union, as bargaining represen- tative of the unit of Respondent's employees, and refusing to consider or bargain about a return to the original timetable, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. Such unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 2. Such unfair labor practice also appears to be a violation of Respondent's collective-bargaining contract, and there are ripe for arbitration under the contract various grievances relating to interpretation of the time scheduling clauses of the contract, which arbitration should proceed and can proceed fairly if the employees' timetable existing prior to the unilateral change of January 7, 1974, is restored. THE REMEDY It will be recommended that Respondent cease and desist from its unfair labor practice, and restore the employees' timetable existing prior to January 7, 1974, so that the arbitration of the pending grievances, relating to unilateral rescheduling of time and payment of premium pay in connection therewith, may proceed fairly without pressure by Respondent on the employees or arbitrators for a preconceived result. It will be further recommended, in order to eliminate risk of prejudice to any party, that jurisdiction be retained over the underlying disputes, which are to be arbitrated, solely for the purpose of entertaining an appropriate and timely motion for further consideration upon a showing that either (a) the disputes have not, with reasonable promptness after issuance of this Decision, either been resolved by amicable settlement in the grievance-arbitra- tion procedures or submitted promptly to arbitration, or (b) the grievance-arbitration procedures have not been fair and regular or have reached a result repugnant to the Act. See Collyer, supra, 192 NLRB at 843. [Recommended Order omitted from publication.] 386