Exxon Shipping Co.

EXXON SHIPPING CO Exxon Shipping Co (A Division of Exxon Corpora tion) and Exxon Seamen's Union Case 22-CA- 15169 October 31 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 26 1988 Administrative Law Judge Steven Davis issued the attached decision The General Counsel filed exceptions and a supporting brief and the Respondent filed a reply beef The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed William F Grant Esq for the General Counsel B Frank Flaherty Esq of Linden New Jersey for the Respondent DECISION STATEMENT OF THE CASE STEVEN DAVIS Administrative Law Judge Based on a charge filed by Exxon Seamen s Union (Union) on 3 August 1987 a complaint was issued against Exxon Ship ping Co (A Division of Exxon Corporation) on 3 No vember 1987 The complaint alleges that Respondent unilaterally denied permission to the Union to participate in an on vessel governmental investigation into the disappearance and presumed death of a unit employee without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the ex clusive representative of Respondents employees with respect to such acts and conduct and the effects of such acts and conduct It was further alleged that such on vessel governmental investigations relate to wages hours and other terms and conditions of employment of the unit and is a mandatory subject for the purposes of collective bargaining Respondents answer denied the material allegations of the complaint and set forth certain affirmative defenses A hearing was held before me on 8 February 1988 in Newark New Jersey On the entire record including my observation of the demeanor of the witnesses and after consideration of the brief filed by the Respondent and the oral argument made by the General Counsel I make the following FINDINGS OF FACT I JURISDICTION 489 Respondent a Delaware corporation and a wholly owned affiliate of Exxon Corporation is an American flag tanker operation which maintains facilities at Bayonne and Linden New Jersey During the past 12 months its vessels have transported products valued in excess of $50 000 to and from its New Jersey facilities di rectly to States outside New Jersey Respondent admits and I find that it is an employer engaged in commerce within meaning of Section 2(2) (6) and (7) of the Act Respondent also admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Facts 1 Background Respondent and the Union have had a collective bar gaining relationship for about 10 years The executive body of the Union consists of the six members of the board of governors whose duties inter alia are to negotiate contracts and monitor grievances A member of the board of governors is a unit employee who pursuant to the contract may be permitted to meet the board with the Respondents representative or master of the ship during working hours without loss of pay or in Respondents office 1 The contract further provides that a member of the board of governors not assigned to a vessel may go aboard a vessel to confer with the master A ship representative is a unit employee elected by the members on that ship The representatives duties are to handle all grievances represent the employees hold union meetings and conduct safety meetings and investi gations The representative has the contractual right to meet with the Respondents representative on board or at Respondent s office This matter arose as a result of the disappearance of employee Gus Garcia from aboard Respondents ship which was at the time at sea He was not found after a search and was presumed dead An investigation was conducted by the Respondent and the U S Coast Guard through the interview of witnesses on board the ship The Union requested permission to participate in the in vestigation and the request was denied by Respondent s official The issues presented for decision are whether (a) the Union had a right to participate in the governmental in vestigation and (2) Respondents denial of permission constituted an unlawful unilateral change in terms and conditions of employment A review of other instances of employee fatalities or injuries aboard Respondents various ships is instructive I The ship s master is the highest ranking Respondent agent on board ship 291 NLRB No 89 490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a February 1984 Employee Lejano was struck by a line and killed A crewmember called board of governors member John Hillman Hillman who was not assigned to that ship boarded on 4 February and spoke to the crew 2 The fol lowing day 5 February he again boarded and took a statement from an employee He returned the following day 6 February for the formal investigation 3 Hillman testified that he and the Coast Guard official went to the masters office aboard ship Hillman announced that he wanted to participate in the investigation by sitting in at the hearing The master looked at the Coast Guard offs cial and said that Hillman was a union official The Coast Guard investigator said that he had no rejection The in vestigation which lasted several hours was conducted by taking and recording the statements of witnesses who were called into the master s office Michael Hoffmans Respondents claims supervisor who investigates bodily injury and property claims for Respondent testified that he independently investigated this incident for Respondent as part of Respondents own investigation Hillman did not participate in that injury b June 1984 f Early March 1987 Union Official John Spencer was informed of employ ee Lopez death by Union Official Hillman Spencer traveled from Louisiana to meet the ship in California and was present with Respondents investigator Hoff mans Coast Guard Official Susan Wroten and a Los Angeles police coroner when they were greeted by Re spondent s Captain Thomas The captain suggested that the investigation should begin in his office and they all went there The investigation then proceeded with wit nesses being called Spencer told the investigators that Lopez was seen by a physician to whom he complained of chest pains and the paint used on the ship The chief mate gave a copy of the paint can s label to the invest[ gators Those assembled went to Lopez cabin and thereafter Spencer spoke to certain employees and left the ship Spencer testified at the Board hearing that he was called into the Lopez incident and wanted to be part of the investigation in order to learn whether paint was a cause of Lopez illness or death He stated that about 6 to 8 months before Lopez death several sailors com plained of symptoms due to a new paint that was being used While employee Wenzel was cleaning a tank he fell and sustained fatal injuries The Coast Guard and Re spondent investigated the incident The Union did not re quest to participate in the Coast Guard investigation and did not participate in either probe However the Union did ask for the Respondents report on Wenzel s death in order to see how many hours he worked before his fall c August 1984 Employee Knotts was found dead in his cabin Re spondent and Florida authorities investigated The Union did not request to nor did it participate in either investi gation d May 1985 Injuries were sustained by Respondents employees while rescuing crewmen of another vessel Respondent and the Coast Guard investigated the incident The Union did not participate in either inquiry 4 e June 1986 Employee Sells was found dead in his cabin The Union was informed of this incident by a call from Re spondent s labor coordinator An investigation was con ducted by the FBI and the California Police Department The Union did not request participation in the investiga tion and it did not participate 2 The employees believed that the accident was caused by a reduction in the number of crewmembers from nine to five 3 The investigation was supposed to have begun on 5 February but was postponed I day * Although not expressly testified to it does not appear that the Union requested participation 2 Instant case Late March 1987 About 3 weeks after Lopez death Spencer was ad vised by Respondent of the disappearance of employee Garcia while at sea Timothy Leitzell Respondents Gulf Coast Fleet port captain testified that Respondents team consisting of himself two attorneys investigator Hoffmans and two others was aware that Spencer would appear at the scene and would want to participate in Respondents in vestigation They decided before Spencer s arrival that he would not be permitted to do so The reason for this decision according to Hoffmans was that the Union had never before participated in Respondents investigation Hoffmans conceded however that Spencer had been a part of the Coast Guard and police department inquiries into Lopez death only 3 weeks before Leitzell denied knowing then that Spencer had participated in the gov ernmental investigation of Lopez death Spencer arrived at the dock Present were Coast Guard Official Wroten and Respondents personnel set forth above Leitzell asked Spencer why he was present He replied that he wanted to be part of the investiga tion 5 Leitzell then refused permission for him to do so Spencer protested that the Union should be involved Leitzell then told Spencer that he could board ship but that he could not speak to any one about Garcia until after our investigation was concluded at which time he would be advised of the findings Spencer boarded with the others He did not ask Wroten for permission to participate in the Coast Guard investigation because he 5 Leitzell stated that Spencer asked to participate in your investiga tion Regardless of the version credited it is clear that Leitzell had deter mined not to permit Spencer s participation in any investigation EXXON SHIPPING CO had been accepted at the Lopez inquiry at which Wroten was present Spencer complied wtih Leitzell s instruc tion The investigation was conducted in the captains office where employees were called in and interviewed by Coast Guard Official Wroten At times during those interviews Respondents investigator Hoffmans was also present and the investigations by Respondent and the Coast Guard were in effect jointly conducted At other times Hoffmans left the captains office and separately interviewed witnesses out of Wroten s presence 6 About 9 hours after they boarded Leitzell told Spen cer that the investigation had ended and that the deter mination was that this was a missing at sea incident for which no explanation could be found Thereafter Spen cer spoke to 10 or 11 employees (a majority of the crew) about Garcia 7 3 Related facts A ship representative or an acting representative was aboard in each of the seven incidents set forth above Spencer stated that although the acting ship represent ative could have conducted an investigation on behalf of the Union concerning Garcia s disappearance he (Spen cer) believed that he should participate in the formal in vestigation because of his (a) personal friendship with Garcia for 16 or 17 years and (b) doubts concerning Lopez death Spencer believes that the Union should be involved in the investigation of any fatalities He noted that before Lopez demise the Union accepted Respond ent s explanation of deaths of workers but now he is skeptical of Respondents reports The Union did not file a grievance protesting its denial of participation in governmental or company investiga tions and during collective bargaining negotiations con ducted in the past and as recently as the summer of 1987 made no formal demand that it be permitted to participate in such investigations The Union could conduct and has of course conduct ed its own investigations into at least the fatalities in volving Lejano Lopez and Garcia Respondents labor relations coordinator David Walker testified that safety is a condition of employ ment and that Respondent and the Union entered into a joint safety initiative program The contract provides generally that Respondent shall provide safe working conditions and the Union shall urge its members to pro mote safety practices The contract also states that the employees attend safety training programs as required Walker also stated that union representatives partici pate in certain safety investigations However he could find no language in this contract or any other contract of those he reviewed in the industry which granted a right 6 Captain Leitzell described the inquiry in the captains office as Re spondent s investigation at which all officers and crew were interviewed and the Coast Guard sat in on our investigations ' Thereafter three collisions occurred between Respondents ships and other vessels There was no evidence of any injuries or fatalities to Re spondent s employees and I therefore believe that evidence that the Union did not participate in the governmental investigations of those crashes is irrelevant 491 to a union to participate in a company or governmental investigation into deaths or other incidents Union official Spencer stated that the practice fol lowed in such incidents is to have the ship representative present if he wishes at the interview of witnesses by the master However no specific instances were testified to The Coast Guard is required to be notified of any marine casualty which includes loss of life An investi gating officer is then assigned to investigate and deter mine the cause of the accident and make recommenda tions The officer has the power to subpoena witnesses Pursuant to the Coast Guard Manne safety manual parties in interest have a right to be present at the inves tigation Parties in interest are defined as persons having direct interest in the investigation including vessel owners and masters whose rights may be adversely of fected by the proceedings and who are so named so that they have an opportunity to protect themselves or if they are responsible for or contributed to the casualty The manual states that unions in general are not par ties in interest The U S Code of Federal Regulations provides that Parties in interest shall be allowed to be repre rented by counsel to examine and cross examine witnesses and to call witnesses in their own behalf Witnesses who are not parties in interest may be assisted by counsel for the purpose of advising such witnesses concerning their rights however such counsel will not be permitted to examine or cross examine other witnesses or otherwise participate in the investigation James Atkinson a marine consultant and former Coast Guard official called by Respondent testified that the Coast Guard investigating officer exclusively determines who will participate in a marine casualty investigation He added that an agreement between a vessel owner and a union that a union representative should participate in such an investigation would not be binding on or en forceable against the investigating officer III ANALYSIS AND DISCUSSIONS A Mandatory Subject ofBargaining Respondent argues that the subject of this dispute the Unions right to participate in governmental investiga tion is not a mandatory subject of bargaining I do not agree As stated in Peerless Publications 283 NLRB 335 (1987) Labor law presumes that a matter which affects the terms and conditions of employment will be a subject of mandatory bargaining Sections 8(a)(5) and 8(d) of the Act limit the obligation to bargain to matters of wages hours and other terms and conditions of employment Congress did not limit those terms to any specific areas but left to the Board the function of defining what subjects the parties must bar gain over Generally if the topic settles an aspect be tween the employer and the employees Pittsburgh Plate Glass Co 404 U S 157 178 (1971) or regulates the re lation between them NLRB v Borg Warner Corp 356 US 342 (1958) that matter is a mandatory subject of 492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining In First National Maintenance Corp v NLRB 452 U S 666 677-678 (1981) the Supreme Court stated The aim of labeling a matter a mandatory subject of bargaining rather than simply permitting but not requiring bargaining is to promote the fundamental purpose of the Act by bringing a problem of vital concern to labor and management within the frame work established by Congress as most conducive to industrial peace Fibreboard 379 U S at 211 The concept of mandatory bargaining is premised on the belief that collective discussions backed by the par ties economic weapons will result in decisions that are better for both management and labor and for society as a whole The Supreme Court also held in that case that the sub ject for discussion must be amenable to resolution through the bargaining process The General Counsel argues that the Union s right to be present at governmental investigations constitutes a safety issue inasmuch as the Union has a strong interest in ensuring that the employees it represents work in a safe environment and that Respondent fulfills its obliga tion to provide a safe workplace In furtherance of its duty to represent the employees the Union according to the General Counsel has the right to be present at the governmental investigation of worker fatalities See Her cules Inc 281 NLRB 961 (1986) The Board in Holyoke Water Power Co 273 NLRB 1369 1370 (1985) stated that health and safety condi tions are a term and condition of employment about which an employer is obligated to bargain on request In addition when as here employees are called in by a respondent for questioning about a coworkers death and presumably asked about their wherabouts activities and knowledge of the circumstances surrounding the fa tality the Union similarly has a strong interest in pro tecting the employees and the workers have a need to be represented by the union during such interviews See NLRB v Weingarten Inc 420 U S 251 (1975) Whether the governmental inquiry at issue is called a safety matter or an investigatory interview of employees it clearly relates to a term or condition of employment and as such is a mandatory subject of bargaining Respondent argues that the Union s presence at gov ernmental investigations is not amenable to resolution through the bargaining process and that enforcement of any bargaining order that may be issued would be futile I disagree Although the Coast Guard investigating offi cer has the right to determine who should be present and who must be present by his designation as a necessary party at the inquiry the regulations received in evi dence contain no prohibition against the appearance at the inquiry of any person or organization The regulation that unions are not generally consid ered necessary parties simply means just that-that their presence is not ordinarily considered to be required Necessary parties are those who may have caused or contributed to the casualty or those who are so named to permit them the right to be represented by counsel in order to protect themselves Thus that regulation does not prohibit a union s presence at the investigation The Coast Guard official did not prevent the Union from par ticipating in two investigations and it has participated in those During one investigation Lejano the Coast Guard official expressly stated that he had no objection to the Union officials presence Of course what happened here was that Respondent foreclosed the Union from participation in the Garcia in quiry by prohibiting its attendance at the session Thus Respondents argument that this matter is not amenable to resolution through bargaining is without meet Bar gaining could result in an agreement between Respond ent and the Union that a union representative could be present at the governmental investigation Although such an agreement would not be binding or enforceable on the governmental official the decision would be up to the agent to permit or deny the Union s presence The fact that the Union was allowed to be present at two in quines and not prohibited from any of them is some evi dence that the Coast Guard would continue to permit its attendance Respondents summary exclusion of Spencer from the Garcia inquiry precluded the Coast Guard agent from even considering whether Spencer could be present Thus bargaining over this matter would not be futile as Respondent and not the Government agent initially determines whether the Union may participate in the in vestigation Ford Motor Co v NLRB 441 US 488 (1979) in which the Supreme Court rejected the employ er s argument that bargaining over food prices in its cafe terra would be futile because the prices are set by a third party supplier See Suffolk Child Development Center 277 NLRB 1345 1348 (1985) B Unilateral Change An employer violates it duty to bargain in good faith when it unilaterally changes the terms and conditions of employment of its employees without discussions with their representative NLRB v Katz 369 U S 736 (1962) The main issue to be decided therefore is whether the denial of permission to the Union to participate in the governmental investigation of Garcia s death constitutes a change in the employees terms and conditions of em ployment In order for this action to be considered a change a past practice that permission was granted and participation occurred must be established Such a deter mination is far from clear The General Counsel alleges that a past practice has been established based on the February 1984 and March 1987 participation of the Union in the governmental in vestigations of the deaths of Lejano and Lopez respec tively In the interim three other fatalities occurred-in July and August 1984 and June 1986 as to which the Union did not request participation and did not participate in the governmental probe Although the Union s failure to request participation or to participate does not prove that it abandoned or waived any right to take part in this inquiry it does tend to show the absence of an estab lished past practice of union attendance in each govern mental investigation into worker deaths EXXON SHIPPING CO 493 On the other hand Leitzell s actions in March 1987 are somewhat suspicious The asserted reason for deny ing permission to Spencer to participate in the investiga tion of Garcia s disappearance was that the Union had never before been permitted such participation Never theless Hoffmans who had been part of the management meeting at which the decision to exclude Spencer was made knew that Spencer had participated at the Lopez investigation 3 weeks earlier It also seems that the elaborate (a) forewarning of Leitzell that Spencer was expected to arrive and ask to participate in the investigation and (b) caucus of six man agement officials including two attorneys at dockside to decide how to respond to Spencer s anticipated request combined with Hoffmans and therefore Respondent s knowledge that Spencer had so participated only 3 weeks earlier leads to the conclusion that Respondent did indeed know that the Union had participated before in a governmental investigation and sought to stop its at tendance again The warning to Leitzell and the dockside planning meeting thus could be viewed as undertaken to institute a change to stop the practice to prevent the Union s con tinued participation in the investigation which would have occurred as it did before but for Leitzell s denial of permission to Spencer In Whirlpool Corp 281 NLRB 17 (1986) the Board dismissed a complaint alleging an unlawful unilateral change The change alleged was that the employer had departed from its past practice of producing witnesses at suspension hearings or postponing the hearings if the witnesses were unavailable The Board held that the General Counsel did not meet its burden of demonstrat ing an established past practice or understanding and that the employer was not shown to have undertaken through past practice or mutual understanding an obli gation to produce such witnesses Id at fn 1 The Board has historically required that the change complained of must be of an activity which has been satisfactorily established by practice or custom an es tablished practice an established condition of employ ment Granite City Steel Co 167 NLRB 310 315 (1967) Chefs Pantry 274 NLRB 775 (1985) a longstanding practice Brotherhood of Locomotive Firemen 168 NLRB 677 680 (1967) See Gulf States 261 NLRB 852 862 (1982) Regarding the payment of Christmas bounses the Board has held that such funds that have been paid with regularity over an extended period of time constitutes a mandatory subject of bargaining Henry Vogt Machine 190 NLRB 122 (1971) Here I do not believe that the General Counsel has met his burden of proving an established past practice or understanding The two instances in which the Union participated in governmental investigations in February 1984 and March 1987 are too remote in time and too intermittent in their occurrence to demonstrate an estab lished practice This is especially so where in the inter im no union participation occurred in three similar in vestigations It simply cannot be said that because of the Union s participation in two such investigations in 3 years that Respondent and the Union maintained a longstanding or established practice policy or understanding that the Union could participate in governmental investigations of worker fatalities Accordingly as I find that Respondent had no past practice of permitting union representative at govern mental investigations it did not unlawfully unilaterally change any practice by refusing permission to the Union to participate in the March 1987 investigation of Garcia s disappearance and presumed death Accordingly I will recommened that the complaint be dismissed CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3) The General Counsel has failed to establish by a preponderance of the evidence that Respondent violated the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record I recommend the following8 ORDER The complaint is dismissed 9 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses