The Standard Oil Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Standard Oil Company (Ohio) and Oil, Chemi- cal and Atomic Wokers International Union and Its Locals 7-346, 7-395, and 7-624. Cases 8- CA-11723, 8-CA-11731, and 8-CA-11734 January 12, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On April 11, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed; provided, however, that: The Board shall retain jurisdiction of this pro- ceeding for the purpose of entertaining an appro- priate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issu- ance of this Decision, been either resolved by ami- cable settlement in the grievance procedure or sub- mitted promptly to arbitration; or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repug- nant to the Act. CHAIRMAN FANNING, dissenting: For the reasons set forth in my dissent in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), 1 think the Board neither can nor should require the issue of a violation of Section 8(a)(5) of the Act to be determined by an arbitrator instead of the Board. Therefore, I would decide the case on its merits. The Administrative Law Judge incorrectly reported the citation to Collyer Insulated Wire. A Gulf and Western Systems Co., which is 192 NLRB 837 (1971). 254 NLRB No. 12 DECISION STATEMENT OF THE CASE THOMAS A. RIcci, Administrative Law Judge: A hear- ing in this proceeding was held on January 29 and 30, 1979, in Cleveland, Ohio, on complaint of the General Counsel against the Standard Oil Company (Ohio), herein called the Respondent or the Company. The com- plaint issued on August 29, 1978, based upon charges filed during February 1978 by Oil, Chemical and Atomic Workers International Union, and three of its locals. Two questions were presented at the hearing: () Is it an unfair labor practice for an employer unilaterally-i.e., without bargaining with the Union-to offer its employ- ees a free comprehensive medical examination if they care to accept it? (2) In the light of the grievance proce- dures providing for binding arbitration in the collective- bargaining agreements, of other contract provisions for employer responsibility over personal health and hygiene in the places of work, and of the accepted past practices of the Company in unilaterally giving other diversified types of medical and physical examinations to employees, should this entire case be deferred to arbitration pursuant to the Board's established Collyer principle?' Briefs were filed by all parties. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation, is engaged in the retail and nonretail business of refining and selling gasoline, oil, and oil-based products. This case involves three of its facilities located in the State of Ohio. In the course of its business the Respondent annually receives goods valued in excess of $50,000 at these locations from out-of-state sources. I find that the Respondent is en- gaged in commerce within the meaning of the Act. 1. THE LABOR ORGANIZATIONS INVOLVED I find that the International Union, Oil, Chemical and Atomic Workers International Union, and each of its three locals, are labor organizations within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Significant Facts The International Union, together with three of its locals, represents employees of the Respondent at three of its plants. In Lima, Ohio, an oil refinery, there is Local 624, with two separate contracts, one covering about 400 production and maintenance workers, and one covering about 12 clerical employees. In Toledo, Ohio, another refinery, there is Local 346, its contract covering about 415 production and maintenance employees. And at Cleveland, an asphalt plant, there is Local 305, its con- ' Collyer Insulated Wire. A Gulf and Western Systems Co., 192 NLRB 871 (1971) 32 THE STANDARD OIL COMPANY (OHIO) tract covering about 45 employees. The bargaining rela- tionship at all three of these locations goes back many years, and there have been a series of successive con- tracts at each of them. There were such contracts in effect during 1977 and 1978. In August 1977 the Company decided it would offer to all employees at these three locations a complete physical examination to be made under supervision of a private medical firm. It was to be made available on a strictly voluntary basis, both to employees covered by the four collective-bargaining agreements in question and to nonrepresented hourly paid personnel. The Company was to pay for the examinations. At meetings with union representatives at each of the three locations the details of the plan, and how the employees would be informed and invited-including what question forms would have to be filled for use by the medical examiners-were shown and explained. At the two refineries-Lima and Toledo-the union agents took the position that this was a negotiable matter, and that the Respondent should not go ahead without first discussing the subject with the Union. At the asphalt plant, in Cleveland, the Local Union representatives did not express that view. But it does appear the International, apart from its Local offi- cials, also informed the Company it wanted to bargain on the subject first. It gave the "impetus," as the Re- spondent's brief concedes, to the general union reaction to the Company's medical examination plan. This means the Company did know, before the examinations were given anywhere, that in implementing the Company- sponsored program it was in fact refusing to bargain with the recognized union representative at every loca- tion involved. It refused to bargain on the subject. The examinations were given, some in November 1977 and some early in 1978. At the asphalt plant about 40 percent accepted the offer and took it; about 35 percent of the Lima refinery employees also took the test. The record does not show how many accepted the plan at Toledo, but a number did take it. Each employee was given a complete copy of the overall medical report of his or her test. Every employee who requested it was also given a second copy for use by his personal physi- cian. And of course the Respondent kept copies of the reports for its own use if necessary. The tests were never offered again and there is no in- dication the Respondent intends to make the offer a second time to any of these people. B. The Complaint The complaint has many paragraphs and many words; I do not clearly understand much of it. It often happens that ambiguities in the General Counsel's complaint are clarified at the hearing by the testimony of his witnesses. After all, it is they who bring the charges and are the real complainants; they should know without question what it is the Respondent did wrong. As I read the com- plaint together with the testimony of the union officers who told the story, I see one basic factual assertion or allegation, whatever it be called. And it is that when the managers explained in full what they intended to do and how, the Union said "stop," do not do it until you have fully discussed with us how you are going to do it and whether you are going to do it. When the Company, an- swering that it would do no more than adhere precisely to the procedure it had decided on, and went ahead and fulfilled it in its own way, it thereby violated Section 8(a)(5) of the Act. Did it commit that unfair labor prac- tice? That is the question as I see it. Repeatedly the complaint specifies that managers "so- licited" the employees, gave "speeches at company meet- ings," had "individual conversations with employees" which were "initiated" by supervisors. This paraphrasing and reparaphrasing of the same thing over and over again only befuddles the issue, brings echoes of Board law in other areas, applicable to all sorts of unlawful conduct by employers having nothing to do with this case. A principal reason why the Respondent gave this physical examination, and paid for it, was to comply with the requirements of other, recent Federal laws in- tended to protect the health of working people, and even hold the employer, in certain situations, accountable for inadequate protection of its working complement. Every- body knows of the Occupational Safety and Health Act of 1970. To help prove-to other authorities should the day ever come-that it had at least made such protective medical examinations available-the Respondent asked those employees who chose not to accept the offer to sign a paper saying they had been given the opportunity but themselves elected not to accept. It did not demand, or in any way insist upon such waivers, but simply asked the people to do that if they would oblige. Apparently, some of the employees did. Another very explicit allega- tion now appearing in the complaint is that the Respon- dent violated Section 8(a)(5) of the Act by refusing, de- spite the Union's request, "to return and or nullify" such waivers. Is the purpose of this charge so that the em- ployees will be in a position tomorrow to complain to other Federal agencies that the Respondent did some- thing wrong by not guarding their health properly? Does this mean the employees must be given an opportunity to change their minds and now accept the offer? Is the medical examination now to be viewed as something coming to the employees as a right, which the Company wrongly took away from them? The complaint can also be read as intended to allege a separate unfair labor practice against the Company-a violation of Section 8(a)(1) as distinguished from a viola- tion of Section 8(a)(5)-in this refusal to "return" or "nullify" the waivers some employees signed. Other than adding verbiage to the pleadings and unduly protracting the hearing, these cumulative allegations served no sub- stantive purpose in this proceeding. If every word out of the boss' mouth when he gives a coercive speech were to be listed in a separate paragraph in the General Coun- sel's complaint, all that remains is still no more than a coercive speech. If giving this medical examination was a "benefit" to the employees which had to be negotiated with their union at the risk of violating Section 8(a)(5), that truth would not change merely by separately exam- ining each and every step in the process of giving the tests. 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the Union understood exactly what it was that the Company planned to do, it posted a notice on all the bulletin boards throughout the several plants telling its members the Union was "opposed" to the program. The notice also made clear that the employees should feel free to accept the medical examination if they so desired, that it was a matter each man should decide for himself. The Union could hardly do otherwise. If this contempo- raneous conduct by the Union be viewed together with the oblique words of the complaint, it becomes indirect admission that there is very little merit in the essential thrust of the complaint. But the defense, too, is ambiguously phrased. The Re- spondent says the Union waived any statutory right to discuss this question, that the subject is not a bargainable issue matter anyway, that the contracts in effect conced- ed to management the right to give such physical test, etc. And, still according to the Company, the whole dis- pute should in any event be arbitrated under the Union's contracts, with the General Counsel's case deferred for such purpose, as the cases say. C. Motion To Defer Granted I think there is merit in the Respondent's motion to defer to arbitration, and shall therefore recommend dis- missal of the complaint on that basis. See Collyer, supra: William E. Arnold Co. v. Carpenters District Council of Jacksonville and Vicinity, 417 U.S. 12 (1974); Roy Robin- son, Inc. d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977). This is not a matter of a waiver, as the Respondent contends, but rather a question of contract interpretation. If the Union waived its statutory right to bargain about this precise kind of physical examination, the waiver must be in clear and unmistakable language. The Timken Roller Bearing Company, 138 NLRB 15 (1962). But there is no mention in the contracts of exactly this form of medical examination. By the same token, however, the mere fact that this examination is not pinpointed in the agreements as a conceded management prerogative is not reason enough for disregarding the proof, if there be any, that the parties did intend to permit the Company to give such tests when appropriate. The intendment of contract language has had to be interpreted from time immemorial. Nor, moreover, does the fact, if such it be, that a test of this kind is a mandatory subject of collec- tive bargaining, suffice for bypassing the Collyer princi- ple. It has been said too often to require repetition that the fact that an act which "arguably, may contravene both the collective-bargaining agreement and our stat- ute" does not require that the Board proceed with its case and ignore the parties' arrangement to settle their dispute by arbitration. 1. Each of the four applicable contracts provides for binding arbitration of questions of this kind. From the contract of Local 395 at the Cleveland as- phalt plant: . . . the dispute may be submitted to arbitration provided the complaint or grievance is an alleged violation of the provisions of this agreement or an interpretation of it ... From the clerical employee unit contract: Arbitration-provided the grievance (defined above) is an alleged violation of the provisions of this Agreement, or an interpretation of it. . From the Lima refinery contract: . . . either party may, within 30 days of receipt of written decision Step 3 request that the matter be arbitrated, provided the complaint or grievance is an alleged violation of the provisions of this Agree- ment, or of an interpretation of it, or of a supple- ment to it. From the contract covering the Toledo refinery: Provided the grievance is an alleged violation of the provisions of this Agreement, or an interpretation of it . . . 2. There are provisions in the contracts involving the question of the health of individual employees as a con- dition directly related to their employment benefits in a number of respects. By necessary implication this means the parties contractually agreed the Respondent would have conceded right to ascertain the physical condition of its workmen. And, of course, this also logically means it had a right to have them looked at by the doctor. The explicit references in all of the contracts to an em- ployee's physical condition being a factor properly to be considered by management in assigning work and in making direct payments and giving fringe benefits, are too numerous to justify detailed recital here. A few ex- amples will suffice. Seniority, in the Toledo Refinery contract, "shall not operate to place men in jobs for which they are by reason of ability and physical fitness unqualified." That contract, for both production and maintenance and clerical employees, also provides that the "Sick Pay Plan" is in part dependent upon a man's possible "disability." There are like provisions in the Lima contract. At Cleveland the contract provides-still as only a further example-that job reassignment must take into consideration the possibility that a man might be incapable of performing the regular work through sickness or other causes. 3. And, finally, as in all cases where the question is what did the parties mean when they signed this contract or that, you look for some light in what they did in prac- tice during the implementation of the contract as a whole. No question was voiced by the Union over the employer's right, unilaterally, to subject the employees to the following medical physical tests. Every employee who is hired is first subjected to a complete physical examination. Every employee who goes on leave for sickness must pass a medical examination before returning to work. What work he is given depends upon the doctor's report. Every employee who is on leave for any reason for as long as 90 days must also pass a comprehensive physical examination. For many years, in the refineries, the Respondent gave almost all of the employees what is called a tetraethyl- 34 THE STANDARD OIL COMPANY (OHIO) lead test. "It was an examination conducted to determine whether or not an employee had sufficient lead content in the blood stream or the urine in order to be a hazard to his health." It was necessary to guard against infec- tion, and there was no question about the Company doing it in its own way without bargaining about it. All employees working in the asphalt plant must, every 2 years, take a comprehensive test, to ascertain that inhalation of fumes, etc., has not had any adverse ef- fects upon their organs. As one witness said, without contradiction: "Everybody who conceivably had any ex- posure to asbestos" had to take it. It was not a matter of testing a sick man, to learn what is wrong with him. It was a cautionary examination to be sure he is well, and not in danger, exactly like the comprehensive examina- tion which gave rise to this proceeding. There is an audiometric test given to guard against im- pairment of hearing. The Company has been giving this test to employees exposed to a dangerous level of sound since 1971. There is what is called a respiratory examination, given periodically to employees who must wear breath- ing masks in the course of their work. Still another test was for employees exposed to radio- activity. It seemingly is no longer given. Still another was for employees involved in sandblasting. With this the picture of how the parties read, and acted in the fulfillment of their overall written contracts, a very reasonable argument can be made that they did intend that the particular physical test offered by the Re- spondent in late 1977 was also encompassed within their agreements. Indeed, were the Board itself to pass upon the question in the first instance it could well decide the evidence sufficient to support a finding that even as writ- ten the contracts yield this particular prerogative to the employer. The Union's argument, in its brief, analogizing this case to something like the old Christmas turkey, is not well taken. Of course the test was a "benefit" in a very strict sense, for we live in a day when anyone would welcome having somebody else pay $125 to his doctor when he needs to be checked over. Here, however, the purpose was not to make a gift, or to give additional emoluments for work performance. It was, or at least can be so viewed, continuation of past practice in health procedures. Among the contract clauses indicating past agreement by the Union that the Respondent could do what it did unilaterally, is the following provision in the Lima Refinery contract: "In addition to the foregoing, the Company intends to continue its existing industrial hygiene program as administered by company person- nel." In the attempt to offset the persuasive force of all the foregoing as indicia that the Union had agreed to the Company's right to look after the physical well-being of its employees, the Union's witnesses spoke of their con- cern over "restrictions" upon the employees as basis for opposing these particular tests. One official said he told the Company that in the event of "restrictions" on an employee, "could we possibly have these restrictions worked out by a third party as called for by the con- tract, a third doctor, before they instituted them against the individual...." And the contracts do provide that if an employee is physically disabled for any reason his job assignment can be changed; he can be transferred to less dangerous, or less difficult work, with, I suppose, some- times reduced pay. The trouble with this argument is that it has nothing to do with this case. What an employ- er does with an employee found to have a physical infir- mity of any kind is one thing; how he learns, or keeps himself informed about the man's physical condition, is quite something else. Of course a union disputing the em- ployer's attempt to downgrade a man on the ground of asserted incapacity, can call another doctor to assert the contrary. But this is a right that stands completely apart from how the Company learns what it learns. What this Union witness was saying, with respect to this particular physical examination, could as well be said about any medical test, including every one detailed above that the Company has long given. By direction of the Interna- tional Union, the locals, when demanding bargaining rights with respect to this test, listed the following as one of the subjects to be negotiated-called a mandatory sub- ject of collective bargaining in the Union's later brief. "The retention of rates of pay, benefits, etc. in the event any employee's job classification is ultimately affected by the information disclosed by the survey." Did this call upon management to explain-before the tests were given-at what level of high blood pressure a man would be taken off a job, how many lung spots would be considered too many for the employee to work full-time, what kind of mobility impairment would disqualify a workman from manual labor, etc.? It will be time enough, when the Respondent, relying upon one of these medical reports, tries to discharge a man as physically unfit, for the Union to grieve over that issue, also as the contract provides it may do. Meanwhile, it may, if it wishes, bring this question to arbitration via the same grievance procedure, as it agreed with the Company it would do if questions of this kind ever arose. ORDER2 It is hereby recommended that the complaint be dis- missed; provided, however, that the Board shall retain jurisdiction of the proceeding for the purpose of enter- taining an appropriate and timely motion for further con- sideration upon a proper showing that either (a) the dis- pute has not, with reasonable promptness after issuance of this Decision, been either resolved by amicable settle- ment in the grievance procedure or submitted promptly to arbitration; or (b) the grievance or arbitration proce- dures have not been fair and regular, or have reached a result that is repugnant to the Act. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the rul- ings, findings, conclusions, and recommended Order herein shall. as pro- vided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall he deemed waived for all purposes. 35