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-306 November 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 4, 1977, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Union and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On April 12 and 13, 1977, I conducted a hearing at Houston, Texas, to hear issues raised by a complaint issued on January 26, 1977, based on a charge filed by Local Union No. 4-14, Oil, Chemical and Atomic Workers Internation- al Union, AFL-CIO,' on November 26, 1976.2 The complaint alleges that Amoco Production Company 3 violated Section 8(a)(l) and (5) of the National Labor Relations Act, as amended,4 by: (1) failing or refusing to bargain in good faith with Local 4-14 over the transfer outside the bargaining unit of employees covered by a contract between the Company and Local 4-14; (2) failing or refusing to process a grievance filed by an employee affected by such transfer; and (3) conditioning its agree- ment to a new contract with Local 4-14 on Local 4-14's abandonment of claims for back dues under the dues- checkoff provision of a prior contract between the Company and a predecessor labor organization. The I The Local Union shall hereafter be called Local 4 14: the International Union shall be called OCAW: when the two are referred to jointly, they shall be called the Unions. 233 NLRB No. 49 Company denied it committed any violation of the Act, contending the contract permitted it to transfer contract- covered employees outside the bargaining unit after affording Local 4-14 notice and an opportunity to bargain concerning same, which bargaining went to impasse; that it did not fail or refuse to process a grievance filed by an employee affected by the transfer and, if it had, such failure or refusal was not violative of the Act; and that its proposal that Local 4-14 drop its claim for back dues in contract negotiations was not violative of the Act since the Company did not insist on its proposal to impasse, the proposal was not conditional, and the proposal was dropped in the course of negotiating a new contract. The issues created by the foregoing are whether: (1) the Company's transfer of certain employees outside the bargaining unit covered by the contract following Local 4- 14's receipt of company notice and offer to discuss the effects of the proposed transfer pursuant to a contract provision contemplating same and discussion to impasse thereon constituted a failure or refusal to bargain in good faith in violation of Section 8(aX)(I) and (5) of the Act; (2) the Company failed or refused to process a grievance filed by an employee affected by the transfer and, if so, whether such failure or refusal violated Section 8(a)(l) and (5) of the Act; (3) the Company's proposal in negotiations for a new contract that Local 4-14 abandon its back dues claims violated Section 8(a)(1) and (5) of the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based on my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and I find at all times pertinent that the Company is an employer engaged in commerce and Local 4-14 is a labor organiza- tion within the meaning of Section 2(2), (5), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Company is engaged in the business of exploring for and producing oil and gas. Its general offices are located in Chicago, Illinois. Its operations are conducted through divisions (and subdivisions called areas within each division) organized along geographical lines. From time to time the boundaries of the various divisions (and areas) are shifted to accord with changes in the Company's opera- tions. 2 Read 1976 after all further date references omitting the year. 3 Hereafter called the Company. Hereafter called the Act. 290 AMOCO PRODUCTION COMPANY The Board has directed elections both in areawide s and divisionwide 6 units of the Company's production and maintenance employees. While bargaining units have been created among the Company's production and maintenance employees by other than Board election and certification (i.e., by voluntary recognition), all such units have been limited to employees within either a division or area or several areas. None have been certified or recognized covering part of an area. In 1963 the Board certified Local 14 of the Independent Oil Workers Union 7 as the exclusive collective-bargaining representative of a unit of the Company's employees consisting of: All employees employed by the Company in its Houston Division Producing Department in its Corpus Christi, Old Ocean, Hastings and Tyler (Texas) areas who are assigned to the following hourly rated classifications: Area unit-carpenter, electrician, electrician helper, facility plant operator, field automation technician, gang foreman, relief; grader operator, instrument control man, maintenance man, meterman, operations technician, painter, paraffin unit operator, pumper, repairman, separator station operator, special pumper- isolated, sulfur station operator I, sulfur station opera- tor II, sulfer station operator III, truckdriver, heavy; truckdriver, light; welder, first class; welder, second class (any employee who holds the title classification roustabout in combination with any title classifica- tion(s) in the area unit on a regular basis shall be included in the area unit); plant operating unit - engineer, first class; engineer, second class; engineer, helper, foreman, relief shift; loader-gasoline plant, plant laboratory tester, power plant operator, power plant operator first class (any employee who holds the title classification roustabout in combination with any title classification(s) in the plant operating unit on a regular basis shall be included in the plant operating unit); area base unit - roustabout, tractor driver, light; other - camp tender; excluding office clerical employ- ees, professional employees, guards and supervisors as defined in the Act. On September 1, 1965, the Company and NOW Local 14 entered into a contract wherein Local 14 was recognized by the Company as the exclusive collective-bargaining repre- sentative of the employees in the unit just set forth. The Company under its various names and NOW Local 14 entered into a succession of contracts thereafter continuing such recognition through a contract expiring February 29. In 1974 the employees within the unit voted to affiliate with OCAW rather than NOW and became members of Local 4-14. By a decision issued September 29, 1975, the Board I Pan American Petroleum Corporation. 179 NLRB 180 (1969) (an earlier name of this same Company). 6 Amoco Production Company, 15-RC-5471. I That Union subsequently changed its name to Local 14 of the National Oil Workers Union (NOW). 8 Amoco Production Company, 220 NLRB 861 (1975). 0 As well as contracts between the Company and other labor organiza- tions. entered findings that Local 4-14 succeeded to rights held by NOW Local 14 and directed the Company to recognize Local 4-14 as the successor of NOW Local 14 and to honor its commitments under the Company-NOW Local 14 contract for the balance of its term.8 On March 9 the Company and Local 4-14 entered into a contract wherein the Company recognized Local 4-14 by name as the exclusive collective-bargaining representative of the unit of employees set out heretofore. Both the current Company-Local 4-14 contract and the preceding contracts between the Company and NOW Local 149 contained the following provision: The geographical boundaries of the Division and operating areas are established by and may be altered by the Company. However, if during the life of this agreement the Company changes the geographical boundaries of the Division or the operating areas, as set out in Exhibit "B" ... made a part hereof, which were in existence on the effective date of this agreement, the Company agrees to notify Local 4-14 at least forty (40) days prior to the effective date of such change. Within thirty (30) days following the date of such notice, Local 4-14 shall have the right to request that the change be made the subject of collective bargaining, with bargain- ing being limited solely to the question as to whether the changes effected by the Company shall apply for the purpose of making personnel changes. In the event no request is received by the Company from Local 4-14 during such thirty-day period, the change shall be deemed acceptable for all purposes to Local 4-14. As its operations increased in some areas and diminished or ceased in others, the Company has altered its divisional and area boundaries, in each case including the affected personnel within the newly established boundaries (after due notice and opportunity to bargain were proffered to any labor organization representing affected employees concerning the treatment of personnel affected by the change). Between 1965 and 1976 such changes resulted in the transfer of 188 employees from represented to unrepre- sented status and the transfer of 379 employees from representation by one labor organization under one contract to representation by a different labor organization under a different contract. 10 In the latter part of 1976, the Company formulated plans for an expansion of the New Orleans division at the expense of the Houston division due to imbalance in the workload of the two divisions; i.e., an over-heavy workload in the latter and underutilization of personnel in the former. The contemplated change consisted of transferring jurisdiction over anticipated Company operations on leased Federal ocean floor lands off the Texas and Louisiana shorelines and operations located in northern Louisiana and southern Arkansas from the Houston io The president of Local 4-14 (a past president of NOW Local 14) testified dunng the time he has worked at his present location and classification, company changes in divisional boundaries has resulted in his being placed within three different divisions (Central, Houston. and, with the latest change - to be developed hereafter - New Orleans). 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD division to the New Orleans division. The Company also changed the boundaries between the Hastings, Old Ocean, and Corpus Christi Areas within the Houston division. The area changes did not change the representational status of affected employees. The transfer of the northern Louisiana and Arkansas territory meant 38 employees working therein would be placed in a division wherein the employees were not represented by any labor organiza- tion. t The parties stipulated 12 the Company planned and accomplished the boundary changes for valid business reasons and I so find. In accordance with the contract provision recited above and customary practice, on October 11 the Company directed a letter to Local 4-14 informing Local 4-14 of the projected boundary changes. Prior to Local 4-14's receipt of the letter, two company representatives approached Kenneth McVay, president of Local 4-14, informed McVay of the contemplated changes, directed McVay's attention to the contract provision concerning such changes, and informed McVay the Company was prepared to bargain with Local 4-14 concerning the personnel affected by the change in accordance with the contract provision. They also discussed the date for commencement of negotiations for an agreement supplanting the current agreement scheduled to expire January 10, 1977. October 20 was set as the date. At the outset of the October 20 meeting, David Nible, an OCAW International representative who acted as Local 4- 14's spokesman in the earlier series of meetings, informed the Company that Local 4-14 was invoking Local 4-14's right under the contract provision set out heretofore to request collective bargaining.' 3 At the October 20 and subsequent (November 5) negotiations, Nible took the position the Company was free to make whatever boundary changes it desired but could not remove employees represented by Local 4-14 and covered by the current Company-Local 4-14 contract from the bargaining unit and Local 4-14 would not bargain over any such removal. The Company responded with the position that under the contract it had the right to change boundaries and the right to subject employees affected by the changed boundaries to the representation and contract coverage prevailing in the area or division such employees were placed within as a result of the boundary changes (as it had in the past under agreements with Local 4-14's predecessor) subject, at Local 4-14's request, to bargaining concerning treatment of personnel affected by the changes. Nible then proposed that employees within the Hastings, Old Ocean, and Corpus Christi areas who were transferred from one area to another due to the boundary change be afforded the opportunity, at their option, to transfer into their former area without loss of seniority, etc. He further proposed Local 4-14 be recognized as the exclusive collective-bargaining representative of any production and maintenance workers employed by the Company in any II OCAW lost an election wherein it sought to represent the Company's production and maintenance employees in the New Orleans division (Amoco Production Company. 15-RC 5471). 12 The stipulation is supported by the evidence. 13 Local 4-14 on October 22 formally notified the Company that it wished "to bargain on the subject of personnel changes as provided in offshore operations on the ocean floor off the Texas and Louisiana coasts leased from the Federal governments4 and covered by any agreement then in effect between the Company and Local 4-14 continue to function as the exclusive collective-bargaining representative of produc- tion and maintenance workers within northern Louisiana and southern Arkansas placed within the Lake Charles area of the New Orleans division under the proposed boundary change and they continue to be covered by agreements between the Company and Local 4-14. Nible complained otherwise that both the president and secre- tary-treasurer of Local 4-14, who were located in northern Louisiana, would be removed from bargaining unit and contract coverage and Local 4-14 representation. The Company pointed out section 1.02 of the contract authorized it to make boundary changes and limited bargaining to the treatment to be accorded affected personnel; that since there were no production or mainte- nance personnel employed in any offshore operations, there were no personnel whose treatment could be the subject of bargaining. The Company countered Local 4- 14's proposal concerning transfer rights for employees affected by the area boundary changes within the Houston division with the proposal that the same rights be afforded employees affected by the divisional boundary change. Nible rejected the counterproposal, contending the north- ern Louisiana-southern Arkansas personnel should not only retain their current representation and contract status (which would permit them to transfer and bid throughout the Tyler area of the Houston division as well as the northern Louisiana-southern Arkansas portion of the Lake Charles area of the New Orleans division), with like rights for the balance of the employees in the Tyler area of the Houston division vis-a-vis the northern Louisiana-southern Arkansas portion of the Lake Charles area of the New Orleans division, while personnel within the Lake Charles area of the New Orleans division outside the northern Louisiana-southern Arkansas portion of that area and division be barred from exercising such rights within the northern Louisiana-southern Arkansas portion of their area and division. The Company rejected that position as contrary to its policy and good practice. In answer to his inquiry, the Company informed Nible that it intended to make its proposed changes on December 1. Nible reverted to his original position, stated that they were at an impasse on the issue, that it would have to be resolved in another forum, and suggested they resume bargaining on the other issues in dispute between them on December 1. The Company agreed. As noted heretofore, Local 4-14 filed its charge alleging that the proposed changes violated the Act on November 26. On December I the Company placed the boundary changes in effect, including the transfer of administrative, supervisory, personnel, labor relations, and operational Article 1, Section 1.02 of the contract . . . brought about by the proposed changes of the geographical boundaries of the Division and operating areas 14 No offshore operations employing workers subject to the contract were in progress. though their future employ was contemplated. 292 AMOCO PRODUCTION COMPANY responsibility and authority over production and mainte- nance employees working in northern Louisiana and southern Arkansas within the command and control of its Lake Charles Area-New Orleans division. There were 38 employees within the bargaining unit covered by the Company-Local 4-14 contract affected. From the date of the change, the Company ceased to check off dues of those of the 38 who executed dues-checkoff authorizations under the contract directing such checkoff and remission of same to Local 4-14 or otherwise to recognize Local 4-14 as their collective-bargaining representative or their coverage un- der the Company-Local 4-14 contract. On December 3 Steve Holland, a Local 4-14 steward, filed a grievance with the Company on behalf of mainte- nance employee J. D. Bryant protesting Bryant's assign- ment to the Lake Charles Area-New Orleans division as a result of the boundary change,15 asserting such transfer violated the seniority (and other) provisions of the Company-Local 4-14 contract, and demanding Bryant be reassigned to the Tyler area, Houston division. When Local 4-14 attempted to take up the grievance with representa- tives of the Houston Division, they took the position that the grievance would have to be processed with representa- tives of the New Orleans division since Bryant no longer was employed in the Houston division. In the early stages of contract negotiations the Company proposed Local 4-14 cease its effort to secure dues the Company refused to deduct and remit from the wages of employees covered by a contract between the Company and Local 4-14's predecessor, NOW Local 14, for the period September 1974-November 1975 (as set forth in the backpay specification in NLRB Case 23-CA-5285). In the later stages of the negotiations 16 the proposal was dropped. It is obvious that the Company did not insist on its proposal to impasse nor condition its agreement to the new contract on Local 4- 14's acceptance of the proposal. B. Analysis and Conclusions I. The unit and majority representative status Issues While the Company denied in its answer the appropri- ateness for collective-bargaining purposes of the employee unit specified in the complaint, the Company has recog- nized Local 4-14 (and predecessor labor organizations) as the exclusive collective-bargaining representative of a majority of the employees within that unit at times pertinent to this proceeding and the Board has in a prior decision i7 recognized both the appropriateness of the unit and Local 4-14's majority representative status therein. On the basis of the foregoing, I find, at all pertinent times, the unit in question was appropriate for collective- "i Bryant lived in Texas but spent over 50 percent of his worktime in northern Louisiana. 16 The parties reached agreement on the terms of the new agreement on January 7, 1977. IT Amoco Production Companv, 220 NLRB 861 (1975). 1i Bruce E. Kronenberger. et al, d/b/a American Needle & Novelty Compan,. 206 NLRB 534 (1973); Weltrronic Company, 173 NLRB 235 (1968). 19is Citing The UniversiIy of Chicago, 210 NLRB 190 (1974): C & S Industries, Inc., 158 NLRB 454 (1966), and cases of like import. bargaining purposes under the Act and Local 4-14 represented a majority of the employees therein. 2. The employee transfer issue After noting an employer's obligation under the Act to bargain with the labor organization representing a majority of his employees within an appropriate unit concerning changes in work assignments which cause bargaining unit employees either loss of work or transfer outside the bargaining unit,ts the General Counsel contends that the Company violated that obligation when it removed both bargaining unit work and the employees who performed it from the bargaining unit, contending such removal was unlawful under the Company-Local 4-14 contract and the Act because it was made during the contract term without Local 4-14's consent.'9 In essence the General Counsel argues that during the term of the contract neither the scope of the work performed by bargaining unit employees nor the contract-covered status of the employees perform- ing it may be changed except by mutual agreement of the parties. The argument ignores the language of the contract and previous history. While on the effective date of the contract the Company recognized Local 4-14 as the exclusive collective-bargaining representative of the Company's production and maintenance workers employed within the borders of four areas within the Houston division delin- eated on a map made part of the contract, the contract went on (in section 1.02) to provide that the Company was free to change those area and divisional boundaries as conditions warranted2° during the contract term on 40 days' notice to Local 4-14 and bargaining during the first 30 days thereafter concerning the treatment of personnel affected thereby. Such provision appears to codify requirements governing situations where employees covered by a contract are affected by management decision to contract out their work,2 1 reassign it, etc.; i.e., that management must give notice to the union representing such employees and bargain concerning its effect prior to the change. The record establishes the Company, in accord with previous history and practice, notified the same labor officials with whom it dealt previously22 of its intended boundary change, exchanged proposals and counterproposals in bargaining over the treatment of affected employees, and, after reaching an agreed impasse, placed the changes in effect. The parties agree the contract gave the Company the right to change area and divisional boundaries encompass- ing the bargaining unit as business exigencies warranted and that the changes at issue here were so warranted; acceptance of Local 4-14's position, however, would result in a situation wherein production and maintenance workers employed within the northern Louisiana-southern Arkansas portions of the Lake Charles area of the New 20 The nature of the industry necessitates shifts in activity from one area to another as fields are exhausted, developed, etc. II Fibreboard Paper Products Corp. . N. LR. B., 379 U.S. 203 (1964), and cases following. 22 McVay, currently president of Local 4-14, and Jackson. currently secretary-treasurer, were past officials of Local 4-14's predecessor labor organizations and familiar with past boundary changes and personnel transfers under preceding contracts containing identical language. 293 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orleans division would exercise seniority, bid, and transfer rights within the Tyler area of the Houston division; production and maintenance workers within the Tyler area of the Houston division would exercise similar rights within the same portions of the Lake Charles area of the New Orleans division; production and maintenance workers within the Lake Charles area of the New Orleans division outside northern Louisiana-southern Arkansas would be excluded from such exercise and other categories of employees in the latter area and division would exercise such rights throughout the area and division. In a previous instance wherein a change in boundary lines placed company employees covered by a contract with a sister local of the predecessor organization (Local 16, NOW) within another division of the Company, Local 16 petitioned for certification as the exclusive collective- bargaining representative of the employees within the area of the division where the employees in question were placed.23 Under Local 4-14's proposal it would represent a portion of the production and maintenance employees of an area, an obviously inappropriate unit for collective bar- gaining purposes. On the basis of the foregoing, I find and conclude that the Company did not fail or refuse to bargain in good faith with Local 4-14 concerning the personnel affected by its December 1 boundary changes in violation of Section 8(a)(1) and (5) of the Act and shall recommend those portions of the complaint so alleging be dismissed. 3. The alleged failure to process a grievance The record establishes the Company did not refuse to process the Bryant grievance but rather insisted the grievance be processed with its New Orleans division personnel representatives rather than its Houston Division personnel representatives; while Houston Division person- nel representatives informed representatives of Local 4-14 they questioned the applicability of the Company-Local 4- 14 seniority provision asserted by Bryant, this goes to the merits of the grievance dispute and/or its arbitrability, which are questions for determination either before an arbitrator or the United States district courts in a proceeding under Section 301 of the Act to enforce the grievance-arbitration provisions of the contract. The Company has the right to designate representatives of its choosing to process grievances or otherwise engage in bargaining and to take such positions as it chooses concerning either the arbitrability or merits of a grievance; neither constitutes a failure or refusal to bargain violative of Section 8(a)( ) and (5) of the Act. 23 Pan American Peiroleum Corporation, 179 NLRB 180(1969). 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. I therefore shall recommend those portions of the complaint so alleging be dismissed. 4. The back dues proposal It is undisputed the Company proposed in negotiations to supplant the contract expiring in January 1977 that Local 4-14 drop or withdraw its back dues claims pending before the Board. It is likewise undisputed the Company dropped its proposal in the course of negotiations and prior to the time the parties reached agreement upon and executed a new contract. It is clear the Company did not condition its agreement to a new contract on Local 4-14's acceptance thereof, as alleged in the complaint, nor insist on its proposal to the point of impasse. The mere advancement of a proposal subsequently abandoned and never carried to impasse is not violative of Section 8(a)() and (5), and I so find and conclude. I therefore shall recommend those portions of the complaint so alleging be dismissed. CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce and Local 4-14 was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. A unit consisting of all employees of the Company employed in its Houston Division producing department in its Corpus Christi, Hasting, Old Ocean, and Tyler areas in the job classifications set out heretofore, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, is appropriate for collective-bargaining purposes under Section 9 of the Act. 3. At all pertinent times Local 4-14 has represented a majority of the Company's employees within the aforesaid unit. 4. The Company did not violate Section 8(a)(l) and (5) of the Act as alleged in the complaint. 5. The actions of the Company alleged in the complaint affected interstate commerce as defined in the Act. On the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER24 The complaint shall be dismissed in its entirety. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 294