Atlantic Richfield Co.

National Labor Relations Board - Board Decisions

Oct 31, 1972

199 N.L.R.B. 1224 (N.L.R.B. 1972)

1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlantic Richfield Company and Local 7-210, Oil,
Chemical and Atomic Workers International Union,
AFL-CIO. Cases 13-CA-8796, 13-CA-9351, 13-
CA-9498, and 13-CA-9610
October 31, 1972
DECISION AND ORDER
On October 6, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that these
allegations be dismissed. Thereafter, Respondent, the
General Counsel, and the Charging Party filed excep-
tions to the Trial Examiner's Decision and supporting
briefs. The Respondent, the General Counsel, and the
Charging Party also filed answering briefs to the ex-
ceptions filed by the respective opposing parties.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.
This case involves three essentially contractual
disputes between Respondent and the Union, who
have had a continuous collective-bargaining relation-
ship since 1935. The contract between the parties,
which was in effect at the time each of these disputes
arose, provides for a grievance procedure to resolve
any and all differences arising during the term of the
governing agreement regarding wages, hours, or
working conditions, and for final and binding arbitra-
tion of any such disputes which cannot be resolved by
the parties.
One such dispute arose out of a suspension by
Respondent of certain employees for refusing to work
overtime. That dispute was made the subject of a
union grievance, which was submitted to arbitration.
The arbitrator ruled that the grievance was without
merit. As set forth in detail in the Trial Examiner's
Decision, the proceedings in that arbitration were
complicated because the Union refused to participate
in the hearing, principally because it asserted that
Respondent was seeking to have arbitrated not only
the particular suspensions but the broader issue of
whether the contract permitted Respondent to en-
force a compulsory overtime policy. It was the
Union's claim that that underlying policy question
had been determined in a prior arbitration proceeding
between the parties which had arisen out of an earlier
suspension by Respondent of other employees under
a different set of facts. Nevertheless, the arbitrator in
the instant case ruled that the arbitration should pro-
ceed, and proceeded to rule both on the suspensions
in issue and on the broader contract interpretation
issue. His ruling on the broader issue was contrary to
the ruling in the earlier arbitration.
The Trial Examiner held that despite the above
summarized complications and the fact that two arbi-
trators had arrived at differing conclusions on a con-
tract interpretation issue, he would honor the award
growing out of the instant dispute in accordance with
his understanding of the doctrine established by this
Board in Spielberg Manufacturing Company, 112
NLRB 1080. We agree with his conclusion in this
regard for the reasons he set forth. We note with
approval his poignant observation that:
The fact that the intransigence of the parties has
prevented an end to the matter does not perforce
make the Board the proper forum for continuing
the fight.
We find unnecessary, therefore, to pass on his
alternative basis for dismissing on the merits the
overtime dispute allegations of the complaint. Unlike
our dissenting colleagues, we see no need for this
Board to serve as yet a third forum in which an issue
of contract interpretation should be allowed to be
presented, nor do we believe that we have greater
competence to decide such an issue than an expe-
rienced arbitrator selected by the parties for precisely
that purpose under their agreement.
Essentially identical considerations lead us to the
further conclusion that we should defer to the availa-
bility of the grievance and arbitration procedures of
the contract for resolution of the other two disputes.
One involves an issue as to whether the posting
by the Company for apprentices was in accord with
the collective agreement at the time in effect. The
other involves the propriety of the suspension and
discharge of two employees, which in turn hinges
upon an issue as to whether the refusal of these two
employees to perform a work assignment was just
cause for their discharge or whether, as the Union
contends, the men were entitled to so refuse because
of Respondent's alleged failure to comply with safety
requirements and procedures which are specified in
the collective agreement and in other understandings
in effect between the parties.
It requires no extensive discussion to demon-
199 NLRB No. 135
ATLANTIC RICHFIELD COMPANY , 1225
strate that these disputes, while arguably presenting
an issue as to whether Respondent's action was viola-
tive of Section 8(d) of our Act, nevertheless all are
fundamentally issues of contract interpretation, and
should, therefore, be referred to contractual grievance
and arbitration proceeding for resolution under the
principles established by this Board in Collyer Insulat-
ed Wire, A Gulf and Western Systems Co., 192 NLRB
No. 150. We shall so order.
There remains the allegation that the strike which
occurred in protest over the discharge of the two em-
ployees who refused work assignments is an unfair
labor practice strike. Having held that the dispute
over these discharges is one which should be resolved
under the parties' grievance and arbitration proce-
dure, it follows that the strike over these discharges
was subject to the contractual no-strike prohibition.'
The provisions in the agreement which provide for
peaceful machinery for resolving disputes go hand in
hand with the agreement by the Union not to engage
in strikes over such issues . It is thus clear that the
strike in this case was unprotected, that the allegations
of the complaint relating to the strike should be dis-
missed, and that there is no purpose to be served in
our retaining jurisdiction as to this portion of the
complaint.
Having so determined, we shall order dismissed
outright the allegations of the complaint as to the
"overtime" dispute and the unfair labor practice
strike, although as to the other issues we shall retain
jurisdiction as in Collyer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that those portions of the
complaint relating to the "overtime" dispute and the
"unfair labor practice strike" be, and they hereby are,
dismissed in their entirety. It is further ordered that
the remaining allegations of the complaint be, and
they hereby are, dismissed; provided, however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the disputes have not,
with reasonable promptness after the issuance of this
Decision, either been resolved by amicable settlement
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 which is repugnant to the Act:2
MEMBERS FANNING AND JENKINS , concurring in part
and dissenting in part:
We concur in the result reached by the majority
in dismissing that portion of the complaint involving
the "overtime" dispute. We do so on the basis of the
Trial Examiner's independent resolution of the
Respondent's right under the contract to assign
overtime and to discipline those employees who, with-
out valid reasons, refuse to comply with duly issued
overtime assignments.
As the Trial Examiner pointed out, this issue
does not fall within the Spielberg 3 guidelines. We note
that, there was not one, but two arbitrations. One
arbitrator has in effect sat as a court of review of
another arbitrator's decision of several years earlier.
Whether or not the hearing before Arbitrator Hebert
was fair and regular and therefore not repugnant to
the Act is not for us to decide at this time. More
important is the ultimate question as to whether or not
one arbitrator has the right to overturn an earlier
arbitration decision. This is not a question for this
Board, and the Board has no basis for making such
a choice, except on the arbitrary basis of which deci-
sion came first, or last. The Board does, however, have
the authority and power to review the Davis arbitra-
tion and either accept or reject it. This is what the
Trial Examiner did in his independent finding. Ac-
cordingly, we would adopt the Trial Examiner's inde-
pendent findings and conclusions as to the
"overtime" dispute.
For the reasons set forth in our dissent in Collyer
Insulated Wire, 192 NLRB No. 150, and for the rea-
sons stated in the decision of the Trial Examiner, we
do not believe that the remaining issues presented in
this case should be tried before an arbitrator rather
than before this Board.
The "apprenticeship" dispute involves a charge
tha4 the Respondent unilaterally changed the contract
terms setting out the conditions and limitations on
eligibility for the various apprenticeship programs in
violation of Section 8(a)(5) and (1) of the Act. The
record shows that on August 14, 1969, Respondent
posted notices of openings in the electrical, instru-
ment, and machine shop apprenticeship programs.
The notice for each contained the following eligibility
requirements:
1. 35 years of age or under as of August 1, 1969.
2. High school graduate.
The agreements relating to these programs provide
the following:
= Titus-Will Ford Sales, Inc., 197 NLRB No. 4 Wrought Washer Manufac-
' As the Trial Examiner properly held, the alleged unfair labor practices turing Co., 197 NLRB No. 14. The Respondent and the Charging Party have
alleged here are not of the nature of those in Mastro Plastics Corp v. requested oral argument . This request is hereby denied because the record
N.LR.B., 350 U.S. 270, which are "destructive of the foundation on which and statements submitted by the parties adequately present the issues and the
collective bargaining must rest ." Arlan's Department Store of Michigan, Inc, positions of the parties.
133 NLRB 802 3 Spielberg Manufacturing Company, 112 NLRB 1080.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric Shop:
1. 33 years of age or less.
2. High school education or its equivalent.
Instrument department:
1. 35 years of age or less.
2. High school education or its equivalent.
Machine shop:
No age or educational requirements.
It is clear that Respondent unilaterally changed
the age requirements of at least two of the apprentice-
ship categories, and unilaterally changed the educa-
tional requirements of all three categories, without
any notice to or the consent of the employees' bar-
gaining representative. Respondent does not contend
that the contract terms have not been changed. Rath-
er, Respondent contends that the issue should be tried
before an arbitrator, or alternatively, that because
they are at best "technical violations" they do not
require a Board remedy. We do not agree. Section
8(a)(5) requires that employers and unions bargain in
good faith and Section 8(d) in clear and unmistakable
language spells out that a party to a contract cannot
modify that contract unilaterally. Yet, this is exactly
what Respondent has done. In our opinion, there is
nothing to arbitrate on this issue, and any decision as
to whether a remedial order should or should not issue
against Respondent is exclusively a matter for the
Board. Accordingly, we would affirm the Trial
Examiner's Decision with respect to the apprentice-
ship issue.
As to the "safety-flexibility-size of crew" issue we
are of the opinion that deferral of these issues to arbi-
tration will only create duplication of litigation and
further frustration in the processing of the alleged
unfair labor practices, as has already occurred with
respect to the successive and differing arbitrations
had here. The majority apparently sees this case as
nothing more than a question of contract interpreta-
tion. Yet, substantial employee rights under the ,kct
are involved that will not be and cannot be resolved
by an arbitrator's decision. These issues are not limit-
ed to contract matters. Over and above the contract
terms and their meanings is the issue of whether or not
Maybaum and Padjen were engaged in protected con-
certed activity at the time of their suspension, and
whether or not their protest activity leading to a refus-
al to work on the part of their fellow employees was
an unfair labor practice strike. These latter issues can-
not be resolved by an arbitrator, and assuming ar-
guendo that an arbitrator could decide that the strike
was an unfair labor practice strike, it is exclusively
within the Board's province to determine what the
proper remedy is to be, and beyond the capacity of the
arbitrator to prevent in the future.
In the instant case, the Trial Examiner, after a
lengthy hearing, and after reviewing numerous doc-
uments and other exhibits, concluded that the Re-
spondent had not lived up to the terms of the collec-
tive-bargaining agreement. Concededly, an arbitrator
would have the authority to reach the same result. The
Trial Examiner, however, found that the protest activ-
ity of Padjen and Maybaum was protected activity
engaged in to protest the Respondent's unfair labor
practices and that the strike constituted an unfair la-
bor practice strike. Resolution of these issues, and
issuance of the appropriate remedy, are plainly not
within the ambit of an arbitrator's powers. Finally, the
Trial Examiner, in fashioning his remedy, concluded
that although it was an unfair labor practice strike the
principle announced in Arlan's Department Store of
Michigan, Inc., 133 NLRB 802, was applicable, and
that Respondent's unfair labor practices were not of
such a degree as to support a work stoppage in the
face of the Grievance-Arbitration/No-Strike clause.
Again, we submit, this is not an issue for resolution by
an arbitrator.
The majority now sends these issues back to an
arbitrator for resolution. They will be laid to rest only
if the arbitrator finds on all issues for the Respondent.
If the arbitrator concludes that Respondent in any
way breached the terms of its collective-bargaining
agreements with the Charging Party the case must
then come back to the Board, winding its way through
normal Board procedures for ultimate decision by the
Board as to whether or not Padjen's and Maybaum's
activity was protected, whether or not the "strike" was
an unfair labor practice strike, and if so, what the
remedy ultimately will be. These issues have been
tried before the Trial Examiner, the legal and factual
issues have been resolved by him, and an appropriate
remedy has been recommended. In short, these issues
are now before us for.decision. No useful purpose will
be served, in the name of justice or stability of indus-
trial relations, by submitting issues to an arbitrator.
As Chief Justice Marshall wrote:
... it is desirable to terminate every cause, upon
its real merits, if those merits are fairly before the
court, and to put an end to litigation, where it is
in the power of the court to do so. Church v.
Hubbart, 6 U.S. (2 Cranch) 187, 232 (1804).
The delays, duplication of expense and effort,
and the ineffectiveness of arbitration already had in
this case all illustrate the errors in the majority's Coll-
yer approach. More importantly, the majority action
in dismissing the issue whether the strike was an un-
fair labor practice strike, and the protection to be
afforded the employees if it was, constitutes a still
further undermining of the Act's protection by Coll-
lyer, contrary to Mastro Plastics Corporation v.
N.L.R.B. 350 U.S. 270. The effect is that an arbitra-
tion clause can eliminate unfair labor practice strikes
if the employer can somehow connect the strike to the
ATLANTIC RICHFIELD COMPANY
contractual terms and conditions of employment.
This is an easy task in most cases, as the present case
illustrates, for the strike resulted from (1) refusal to
cross a picket line of two employees protesting their
suspension because of allegedly unsafe conditions
which were arguably related to the contract terms
governing safety, and (2) the firing of the two employ-
ees for picketing and thus precipitating the strike.
Even if the arbitrator were to find the suspensions or
discharges unlawful,4 in the majority's view the strik-
ers joining in protesting them are not entitled to pro-
tection as unfair labor practice strikers. As a conse-
quence, for example, since the majority now defers
discriminatory discharge cases to arbitration, on the
ground that a contract provision restricting discharg-
es to "good cause" makes them arbitrable, a strike to
protest and rectify such discharges, heretofore an un-
fair labor practice strike with the strikers entitled to
substantial protection, will no longer receive the pro-
tection afforded by the Act and Board decisions.
Thus, the majority's justification of the action, that
the alleged unfair labor practices here are not "de-
structive of the foundation on which collective bar-
gaining must rest," has indeed a hollow ring; for since
most unfair labor practices can somehow be tied to a
contract provision, there will hardly ever be a case in
which an arbitration clause exists where the majority
will find the unfair labor practice to be "destructive
of the foundation" of collective bargaining. Would
the majority regard the arbitrator's decision as deter-
minative of the strikers' right to vote in an election
held during the strike? We do doubt it; and the same
considerations require that the Board, not an arbitra-
tor, decide the unfair labor practice strike issue pre-
sented to it. Accordingly, we would affirm the Trial
Examiner's Decision on this issue.
The majority errs in saying the two employees were discharged for refus-
mg to work as ordered Rather, they were discharged for picketing at the time
when they were not scheduled to work , clearly a concerted and protected
activity , and their discharges were clearly unlawful, as the Trial Examiner
found.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner: These cases
involve events which occurred at various times at an oil
refinery in East Chicago, Indiana . At the beginning of the
period in question the refinery was owned by Sinclair Oil
Corporation, referred to herein as Sinclair . During the peri-
od many of the assets of Sinclair , including this refinery,
were acquired by Atlantic Richfield Company,' referred to
herein as Respondent , and Sinclair ceased to exist as a
1 Name of Respondent as amended at hearing.
1227
corporate entity. Local 7-210, Oil, Chemical and Atomic
Workers International Union, AFL-CIO, bargaining repre-
sentative of employees at the refinery since 1934, filed the
original charge in Case 13-CA-8796 on December 9, 1968,
and amended it on November 10, 1969. It filed charges in
Case 13-CA-9351 on September 15, 1969, in Case 13-CA-
9498 on December 2, 1969, and in Case 13-CA-9610 on
February 6, 1970. Local 7-210 is referred to herein as the
Charging Party. Oil, Chemical and Atomic Workers Inter-
national Union, AFL-CIO, is referred to herein as the Un-
ion.
The various charges alleged the commission of unfair
labor practices by Sinclair and/or Respondent as the corpo-
rate situation was known to the Charging Party at any given
moment. The General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 13 (Chica-
go, Illinois), issued various orders consolidating two or more
of these cases and consolidated complaints, the first on
December 24, 1969. The last was issued on March 6, 1970.
This document consolidated all four cases for hearing and
alleged a host of violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended, by both
Sinclair and Respondent based on the charges in all four.
As each consolidated complaint issued. Sinclair and Re-
spondent filed answers. Their answer to the final consolidat-
ed complaint was duly filed on March 30, 1970. It admitted
certain allegations of the complaint and denied others, de-
nied the commission of any unfair labor practices, and ad-
vanced various affirmative defenses to the violations
alleged.
At the hearing, held before me pursuant to due notice
in Chicago on May 25, 26, 27, and 28 and June 2, 3, 4, 5,
29, and 30, 1970, a number of significant procedural things
happened. The confusion caused by naming Sinclair as a
party when all parties were agreed that only one employer
entity has existed at any given moment, that Respondent is
now that entity, and that Respondent is responsible for all
the employer's actions, whether performed in the guise of
Sinclair or Atlantic Richfield Company, was cleared up by
the simple expedient of amending the caption and all the
pleadings as already indicated in footnote 1, above.
Respondent's motion to strike allegations of the complaint
relating to events which took place in October 1966 and
October 1967 was granted on the ground that they preceded
the 10(b) date. Respondent's motion to dismiss on the
ground that the Board should defer to the grievance and
arbitration procedure contained in the collective-bargaining
agreement between Respondent and the Union was denied
with leave to renew at the close of the hearing. It was , in fact,
duly renewed and is disposed of herein. The parties reached
an informal settlement with respect to the issues raised by
the charge in Case 13-CA-9610. The General Counsel's
motion to withdraw those parts of the consolidated com-
plaint which were based on Case 13-CA-9610 was granted.
Consequently, the issues litigated grew out of three separate
and distinct disputes between Respondent and the Union;
namely, the overtime dispute, the apprenticeship program
dispute, and the safety dispute. All parties appeared at the
hearing and were given full opportunity to participate, to
adduce relevant evidence with respect to each of the issues
litigated, to examine and cross-examine witnesses , to argue
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orally, and to file briefs. Upon the entire record,2 including
the very able briefs filed by all parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Pennsylvania corporation involved at
numerous locations in the United States in the oil business.
One of those locations is the refinery in East Chicago, Indi-
ana, involved in these cases. During the year just prior to the
issuance of the final consolidated complaint herein, Re-
spondent refined and manufactured petroleum and related
products valued in excess of $500,000 at its East Chicago
refinery and shipped such products valued in excess of $100,
000 directly from that refinery to customers outside the
State of Indiana. On the basis of these admitted facts, I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act; so is the Union.
111. THE UNFAIR LABOR PRACTICES
A. Facts
1. The overtime dispute
The so-called master agreement between Respondent
and the Union covers the East Chicago refinery as well as
other of Respondent's installations . At East Chicago there
are also various supplementary agreements . The master
agreement contains a provision with respect to hours of
work. It reads, in pertinent part:
ARTICLE VI
Hours of Work
1. Hours of work shall not exceed forty (40) in any one
work week, or eight (8) in any one day, or sixteen (16)
in any two consecutive days, except in the case of emer-
gency....
Article XXVI of the master agreement sets forth a five-step
grievance and arbitration procedure. In the first step an
aggrieved employee and/or his union committeeman takes
up the grievance with the employee' s immediate foreman. If
he is still dissatisfied, the employee moves to step two by
filing a written grievance with the refinery workmen's com-
mittee . This committee is an arm of the Charging Party. The
workmen's committee is also authorized to institute written
grievances "concerning any alleged violation of this agree-
ment" by filing them with the superintendent of the refin-
2 The General Counsel 's motion to correct transcript is granted Also, in
order to place them in the proper sequence , pp. 1314, 1315, and 1316 of the
ery. At step two the committee screens out those grievances
from employees which, in its opinion, have no merit. It
carries those that remain to a meeting with the refinery
superintendent or his representative.
If step two fails to resolve the dispute, it moves out of
the local and into the International level of the Union. Step
three calls for a conference between the president of the
Union or his representative and Respondent's director of
industrial relations or his representative. At step four arbi-
tration enters the picture. At the request of the president or
a district director of the Union, an arbitration board con-
sisting of one person designated by either the president or
a district director of the Union and one person designated
by Respondent is set up at the refinery level. As this provi-
sion is worded, of course, only the Union and not Respon-
dent has a contractual right to force a grievance to
arbitration. These two partial arbitrators attempt to resolve
the dispute or, failing that, to agree on an impartial third
arbitrator. If they can reach no agreement, the services of
an impartial arbitrator are acquired through Federal Me-
diation and Conciliation Service. Consideration of the
grievance by a three-man arbitration board, one repre-
senting the Union, one representing Respondent, and one
impartial, is step five. Section 9 of article XXVI reads:
The decision of the Board aforesaid, as provided
in Section 8 hereof [i.e., the decision of either a two-
man or three-man board], shall be final. However, if
the rules and conditions existing at the time a given
case originated are subsequently changed, it is under-
stood that the arbitration award rendered under former
rules and conditions shall not act to prohibit considera-
tion of a complaint originating under the changed rules
and conditions.
When an impartial arbitrator is resorted to his fee and ex-
penses are shared between Union and Respondent.
Whether Respondent has the right under article VI of
the master agreement to require employees to work
overtime is a dispute of long standing. Its recorded history
goes back to grievance 45-D-65, filed on May 26, 1965.
Three employees protested 2-day suspensions meted out to
them for refusing to work overtime on Saturday, May 22,
1965. Grievance 45-D-65 wended its way through all the
steps outlined in article XXVI, ending in an Opinion and
Award handed down on July 18, 1966, In the Matter of the
Arbitration Between Sinclair Refining Company, East Chica-
go, Indiana, and OCAWIU, Local 7-210, 66#52, FMCS
66A/598. The Opinion and Award reads, in pertinent part:
The hearing in this case was held on April 5, 1966
... before Pearce Davis serving as sole arbitrator. The
parties waived the Board of Arbitration provided in the
contract.
11
The company's case was presented by Earl H. Green-
lee.
11
transcript are hereby renumbered 1316, 1314, and 1315, respectively. cient cause to impose the discipline.
The issue is whether the company had good and suffi-
ATLANTIC RICHFIELD COMPANY 1229
* * * * * this award is supported for reasons other than require-
ment to work overtime, as already explained above.
If the company cannot obtain sufficient manpow-
The record demonstrates, as indicated above, that er through voluntary overtime, in nonemergency situ-
the grievants refused a direct and unambiguous order ations, then its only alternative to modification of
of the company to report to work. They erred, in the present contract terms is increase in its regular labor
opinion of the arbitrator, in disregarding the force.
company's instructions.
0
The arbitrator finds that a measure of discipline was
warranted because of the improper method of protest
utilized by the grievants.
However, the contractual position of the company
in this case is very weak, in the judgement of the arbi-
trator. Article VI, Section 1 specifically states that
hours of work shall not exceed 40 "except in the case
of emergency." This clause, be it noted, was brought
into existance [sic] by action of the company as well as
of the union. It restricts, quite severely, the usual gener-
al right of a company to require employees to work
overtime, in reasonable amounts, without interference.
Section 1 of Article VI places this company in a very
different position than it would be in if the last six
words of the first sentence of Article VI had not been
jointly placed in the contract. The arbitrator certainly
cannot disregard the presence of these words. They
mean, in practice, that the company cannot, with con-
tractual propriety, require that employees work
overtime except when emergencies occur. Emergencies
means unusual, unforseen [sic] situations of the Act of
God type or rare and unusual (definitely limited in
frequency) situations where output must be maintained
or increased because of unusual and unexpected busi-
ness reasons.
Contract terms being what they are at present, the
company really is not free to choose, as it stated it did
at the hearing, between hiring more employees and
regularly working existing employees overtime. That
choice was eliminated when present Article VI, Section
1 was placed in the contract. The choice can only be
restored if, through negotiations, Section 1 of Article
VI is appropriately modified.
Of course, if existing employees wish to work
nonemergency overtime on a regular basis, and suffi-
cient overtime manpower can be obtained in this fash-
ion, Section 1 will not and does not serve as an effective
limitation. But the grievants in this case did not wish
to work the overtime on May 22, 1965.
At the hearing the company conceded that no
emergency existed on May 22, other than brisk compa-
ny business. There was no plea of unusual, rare or
unexpected business circumstance . If there was no
emergency, then, contractly, employees were not re-
quired to work overtime. Since it is admitted that no
emergency existed and the contract only requires
overtime work when there is an emergency, the arbitra-
tor can scarcely support disciplinary actions imposed
upon employees who didn't want to serve on an
overtime basis. The degree of discipline supported in
* * * *
AWARD
* * *
0
0
3. The grievants and union are supported in their
contention that the company violated the contract (Ar-
ticle VI, Section 1) when it required overtime work in
an admitted nonemergency situation. The company
did violate the contract by this action.
Points 1 and 2 of the award rescinded the suspensions and
substituted written warnings. This document became fa-
mous in the history of Union-Respondent labor relations as
"45-D or the Pearce Davis Award."
On September 29, 1966, Earl H. Greenlee, who signed
as "Company Arbitrator," filed a Dissenting Opinion of
Company Arbitrator. This document reads, in pertinent
part:
The undersigned dissents for the reason that the Arbi-
trator exceeded his authority by ruling in his Award
upon a matter beyond the Issue in the case, as defined
by the Arbitrator and as raised by the complaint, and
which at no time had been submitted to him for deci-
sion . More particularly, the Arbitrator's statement as to
Article VI, Section 1 of the Master Agreement as recit-
ed in paragraph 3 of the "Award" on page 4 of the
aforesaid Opinion and Award, is in excess of his au-
thority and hence of no binding force and effect.
Respondent has consistently refused to abide by point
3 of the Pearce Davis award, standing on the position that
it is ultra vires. On October 4, 1966, Respondent suspended
15 electricians for 5 days for refusing to work nonemergen-
cy, in the Pearce Davis sense, overtime on Sunday, October
2. A grievance protesting the suspensions was filed on Octo-
ber 12, 1966. It,was processed through step four of the
grievance-arbitration procedure. Respondent did not lift
the suspensions or otherwise modify the punishment meted
out in the course of the grievance process. The Union did
not explicitly acquiesce in Respondent's decision during the
grievance process. On October 24, 1966, Respondent sus-
pended four compounding and packaging department em-
ployees for 2 days for refusing to work overtime on
Saturday, October 22, 1966. Once again, grievances were
filed and processed through step four.
On October 12, 1967, Respondent disciplined two com-
pounding and packaging department employees, Eugene
Mysker and E. Dorcik, for refusing to work overtime on
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday, October 7. Mysker was suspended for 2 days.
Dorcik was issued a warning. This time a work stoppage
involving the refinery's entire complement of some 1,000
employees resulted. Respondent sought an injunction in a
state court. The Union removed the case to the United
States District Court for the Northern District of Indiana.
On October 20, 1967, a hearing was scheduled before Judge
George N. Beamer on Respondent's motion to remand the
matter to the state court. Judge Beamer informally suggest-
ed the parties might better resolve the real issues between
them by resorting to arbitration. At the judge's invitation,
representatives of the parties spent several hours in the
judge's chambers in discussions which ultimately resulted in
another arbitration case on the overtime issue . Judge Beam-
er continued the case before him on the understanding that
work would be resumed at the refinery the next day, as it
was. Precisely what the representatives of the parties said to
each other in Judge Beamer's chambers that. day poses the
only significant credibility conflict in this record.
The Union contends that it agreed only to arbitrate the
specific suspensions which caused the work stoppage and
not the underlying question of whether Respondent could
require employees to work overtime in nonemergency situ-
ations . Respondent contends that the Union agreed to rear-
bitrate the entire Pearce Davis award. In support of its
position the Union offered the testimony of Kenneth
Hanes, an International representative who was present
during the discussions . Hanes testified that the Union's
spokesman stated specifically the Union would only arbi-
trate the question of whether Respondent could legally dis-
cipline Mysker and Dorcik in light of the Pearce Davis
award and would not rearbitrate point 3 of that award. In
support of its position, Respondent offered the testimony of
John Macaulay, Respondent' s area manager of industrial
relations who was also present on October 20, 1967, in
Judge Beamer's chambers. Macaulay testified that no union
representative stated specifically the Union was not agree-
ing to arbitrate point 3 and that the first time he heard such
an allegation made was at the arbitration hearing which
ensued. I credit Macaulay over Hanes for several reasons.
In the first place, Hanes was most reluctant to make the
point the Union's counsel was seeking, as the following
excerpt from his testimony indicates:
Q. What did he [the Union's attorney] state?
A. The issue as the union seen [sic] it, that the
Mysker incident came under 45-D and that 45-D be
arbitrated. We had won the decision and that the
2703's 3 which had been issued, should not have been
issued, and that was what we would have arbitrated.
Q. Did the union at any time ever agree to rearbi-
trate the issues in 45-D?
A. Certainly not.
Miss HILLMAN No further questions.
TRIAL EXAMINER Did it ever state specifically that
it would not, Mr. Hanes?
THE WITNESS In front of the judge?
TRIAL EXAMINER At any time during that time.
THE WITNESS During the course of discussions
3 2703 is the number of the Individual Personnel Report form Respondent
uses in disciplining employees.
with Mazur [Respondent's attorney] in the refinery,
and I'm sure with Mr. Tadlock [the Union's attorney]
it was our very strong position that we were not going
to arbitrate the issue of 45-D again because of the
Mysker incident.
TRIAL EXAMINER' I take that answer to mean that
this was specifically stated in the conference in Judge
Beamer's chambers on the 20th of October.
THE WITNESS To my recollection, yes.
In the second place, the arbitration case which followed
could not have taken the course it did, as developed more
fully below, if the Union had made its position crystal clear
before the parties went back into Judge Beamer 's courtroom
to tell him that they were going to follow his arbitration
suggestion. In the third place, I think the most accurate
picture of what happened that day was painted by Tyler
Swanson, another staff representative of the International
union. He testified:
Q. Now, Mr. Swanson, you testified there was
some agreements and some disagreements in Judge
Beamer's chambers.
Could you tell me what was discussed and what
was the disagreements between the parties and the
agreement reached between the parties?
A. Well, I understood the situation that particular
day the company was trying to insist or get us into a
position of re-arbitrating and certainly going at arbi-
trating and getting the judge to rule against us to arbi-
trate the case, and our position was, as I remember it,
that particular time, that the issue was not a question
of whether the individual had a right to work or not
work the overtime, but the real problem question was
from our viewpoint did the company have a right at
that time to require the overtime as provided for under
the Davis award and was Mysker and Dorcik right in
refusing and was the 2703's and the disciplinary action
given to these individuals justifiable as provided for
under the Davis award.
Our position was it was not. The company's posi-
tion was that it was.
Q. Now, did you reach an agreement to arbitrate
certain matters?
A. As I remember, the judge came back into the
courtroom, he recommended that the parties meet im-
mediately to try to resolve the issue and suggested that
we do arbitrate, get together and try to arbitrate the
differences, if we could not resolve the issue.
Q. Did you reach any agreement in that regard, the
company and the union, the persons there?
A. Not at that time in the judge's chambers and,
frankly, we never did reach an agreement.
We had a meeting at the Dorchester Inn imme-
diately thereafter with management and the union
being present which Mr. Jenkins was the spokesman
for the union.
Q. And did you reach an agreement at that meet-
ing?
A. No, we did not.
Q. You never reached an agreement as to the is-
sues to be arbitrated?
A. No.
ATLANTIC RICHFIELD COMPANY 1231
Therefore, I find that, on October 20, 1967, in the discus-
sions in Judge Beamer's chambers which led up to the sec-
ond arbitration of the overtime issue , the Union's
representatives did not state that the Union would not rear-
bitrate point 3 of the Pearce Davis award.
As Swanson indicated, the parties went from Judge
Beamer's courtroom to the Dorchester Inn in Dolton, Illi-
nois , on October 20, 1967, to carry out the judge's instruc-
tions that they arbitrate without delay. There the Union
drafted a grievance which was given the number 90-F-67.
It read:
The Company's action in issuing 2703's to Mysker
and E. Dorcik is unjust, improper and in violation of
the Articles of Agreement and Supplements.
We demand that these 2703's be withdrawn and
that all proper adjustments be made.
It was officially filed on October 21, 1967, and expedited
through the preliminary steps of the grievance-arbitration
process. On November 16, 1967, Paul Hebert was named
impartial arbitrator .4 Hearing was set for February 12, 1968,
in Dolton before an arbitration board comprised of Hebert,
Swanson as union arbitrator, and R. E. Legg as company
arbitrator. At the Union's request it was postponed until
April. However, Swanson became ill in late March, and
Hanes was substituted as union arbitrator. The hearing was
again postponed without objection until July. On July 1,
1968, Legg requested an indefinite postponement in a letter
which suggested to Hebert that discussions in progress be-
tween the parties might make arbitration unnecessary. He-
bert granted the request, once again without objection.
In October 1968 the overtime issue again popped up in
the compounding and packaging department. Respondent
suspended various employees for either 5- or 10-day periods
for refusing to work in a nonemergency, in the Pearce Davis
sense, situation. These suspensions are presented in tabular
form in the Appendix attached hereto. Respondent only
resorted to drafting employees for overtime if it could not
get enough volunteers. Some employees in the com-
pounding and packing department were refusing to vol-
unteer at this time because they were upset that Respondent
had disciplined employees in an unrelated incident. The
Charging Party sought, in meetings with Respondent on
October I1 and 18, to resolve the situation by having Re-
spondent withdraw the 2703's it had issued if the Union
would persuade the disaffected employees to begin vol-
unteenng for overtime again . Respondent refused to with-
draw the 2703's. Grievances were filed and processed
through step three of the grievance-arbitration proceeding.
Respondent did not lift the suspensions or otherwise modify
the punishment meted out in the course of the grievance
process. The Union did not explicitly acquiesce in
Respondent's decision during the grievance process. No in-
cidents involving the overtime issue have arisen at the refin-
ery since October 1968.
However, the arbitration based on the October 1967
e The Opinion and Award which resulted from this arbitration is titled In
the Matter of Arbitration Between Atlantic Richfield Company, East Chicago,
Indiana, and Oil, Chemical and Atomic Workers International Union, Local
7-210, Complaint 90-F-67, Federal Mediation and Conciliation File No 68-
incident has, as already indicated, resulted in an Opinion
and Award by impartial Arbitrator Hebert. On February 9,
1969, Respondent asked Hebert to reset the case for hear-
ing. He picked May 12 and 13, with Hanes' concurrence. On
April 25, the Union asked for an indefinite postponement
on the ground that the unfair labor practice charge in Case
13-CA-8796, filed on December 9, 1968, was pending. Re-
spondent objected. Consequently, Hebert refused to cancel
the heanng set for May 12 and 13. It was, at the request of
the Union's attorney, postponed for a few days.
The hearing opened in Dolton, Illinois, on May 16
before a board of arbitration made up of Hebert, Hanes,
and Legg. The first issue taken up was whether the proceed-
ing should be continued because the unfair labor practice
charges were pending. Hebert denied the Union's request
and ruled that the hearing on the merits should proceed.
Following a short caucus, the Union stated that it refused
to participate any further. Respondent took the position
that whether the hearing should proceed at that point was
within Hebert's discretion. Since the Union was refusing to
go ahead with the hearing while Respondent was not insist-
ing on continuing, Hebert adjourned indefinitely, stating:
I think the wise thing to do is to adjourn the hearing
indefinitely, without prejudice to the right of either side
to take such legal or other proceedings as are indicated
by the present state of the record in light of what was
developed here this morning. It is my opinion on the
record as I see it now, that as Arbitrator, I would have
authority to direct that the hearing proceed and then to
go on to decide the case, including the jurisdictional
issue, based on whatever evidence is actually presented
and on the arguments that have been addressed to that
question. This, however, would be exceedingly difficult
to do if only one side were to participate. And, as I have
indicated, I am convinced that this would probably be
more harmful than helpful in the relationship the par-
ties are striving to maintain. All recognize, I am sure,
this is a unique case. If I were sitting as a judge in a
State or Federal Court in a normal judicial proceed-
ings, I guess I would be expected to go on with the case.
But in the situation that has here developed, I believe
it is wiser not to do so. It is entirely possible that time
and further developments might mean that we would
be back at the arbitration table shortly, or possibly the
necessity for arbitration at all might be averted by the
tenor of subsequent developments.
In August Respondent sent Hebert a copy of a letter
it had sent to the Board's Regional Director in Chicago. It
referred to the Respondent's understanding that the Gener-
al Counsel was deferring action on Case 13-CA-8796 pend-
ing the outcome of the arbitration case. On October 3, 1969,
Respondent asked Hebert to reset the case for hearing. On
October 16 the Union refused to join in Respondent's re-
quest, arguing in its letter that it was not required to reliti-
gate the Pearce Davis award as Respondent was trying to
do. It stated that its understanding of the status of Case
13-CA-8796 was that a decision had been made by the
A/2237. It is famous in the history of union-respondent labor relations as
"90-F or the Hebert Award." Hebert is pronounced A-BEAR. It is spelled
phonetically in a variety of ways in the transcript.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel to issue complaint. On October 24 Hebert
ruled that the arbitration case should proceed and set it for
hearing in Dolton on December 11, 1969. He also ruled that
the hearing on the merits would proceed even if the Union
refused to participate. On October 28 Respondent informed
Hebert that it, too, now understood that complaint was to
issue in Case 13-CA-8796.5 On November 3 the Union
protested Hebert's decision and stated that it was withdraw-
ing the grievances which had given rise to the arbitration
case . On November 12 Hebert ordered both sides to submit
memoranda by November 24, later extended to December
2, on the basis of which he would rule on the Union's
withdrawal of the grievances and Respondent's request for
a hearing on the merits . In order to give himself time to
study the memoranda he received, Hebert postponed the
hearing from December 11 to December 18. On December
11 Hebert ruled that the Union could not withdraw the
grievances, that his jurisdiction was not affected by the
pending Board case, and that the hearing would be held on
December 18. He denied the Union' s request for a further
postponement until January 1970. On December 13 the
Union advised Hebert that its withdrawal of the grievances
had ended the arbitration and that it would not participate
further. On December 15 Hebert invited the Union to have
observers present on December 18 or make a special ap-
pearance if it so desired.
The hearing convened as scheduled in Dolton on the
morning of December 18, 1969. George Liskow had previ-
ously been substituted for Legg as Respondent's arbitrator.
Hanes was still the Union's. Hanes and other representa-
tives of the Union appeared only specially in order to make
their objections to Hebert's jurisdiction a part of the record
being made that day. When the jurisdiction phase of the
hearing was complete , Hanes and the other union represent-
atives withdrew. Hebert proceeded to hear the merits of the
case . Only Respondent presented evidence. Hebert issued
his 69-page Opinion and Award, concurred in by Liskow,
on March 12, 1970. In it, Hebert said, in pertinent part:
On the Jurisdiction of the Board
The Chairman has restudied the contentions ad-
dressed to thejurisdiction of the Board and finds them to
be without merit. The filing of charges before the Na-
tional Labor Relations Board on December 9,1968 while
this dispute was pending in arbitration did not have the
effect of preempting or depriving the Arbitration Board
of jurisdiction. Likewise, the subsequent action of the
National Labor Relations Board in issuing a complaint
and setting the matter for hearing does not deprive this
Arbitration Board of jurisdiction to proceed with the
rendition of an award.
The first consolidated complaint in this matter which included Case
13-CA-8796 was one issued on February 2, 1970. The delay from August or
October , as the case may be, to February is unexplained in the record
I am also firmly of the opinion that the Union's
attempted withdrawal of the Grievance after the arbitra-
tion stage had been reached came too late and is not
effective over the opposition of the other party to this
proceedings. Such withdrawal could not unilaterally de-
prive the Arbitration Board of the right to proceed fur-
ther in the hearing on the merits.
I also hold that the prior rendition of the Pearce Da-
vis Award under the same contract between the same
parties, because arbitration is by its nature an ad hoc
proceeding, does not foreclose the exercise of jurisdic-
tion to determine the merits of the instant grievance.
Similarly, the Arbitrator is compelled to rule that the
failure and refusal of the Union to participate in the
arbitration of the dispute on its merits after adverse
rulings on the jurisdictional issues did not deprive the
Arbitration Board of authority to proceed to hear the
matter. Consequently this Board had and now has full
jurisdiction to decide the merits of the dispute. Any
other conclusion would make shambles of the Arbitra-
tion process.
Ample authority supports the foregoing conclu-
sions.
A question which is of considerable concern to the
Impartial Chairman and which he himself directed the
parties to consider and argue is that of whether or-not
the prior arbitration award rendered by Arbitrator
Pearce Davis should not be followed and applied in the
interest of stability in the maintenance of the relation-
ship under the contract between the,parties. In this
connection the Impartial Chairman had in mind the
line of decisions disclosing a marked reluctance to re-
fuse to apply the conclusions reached by a prior arbi-
trator under the same contract between the same
parties.
These statements express desireable policy with
respect to subsequent arbitration proceedings between
the same parties under the same contract. In the instant
case also the contract provision relative to arbitration
affords additional plausibility to the argument that a
matter once decided ought not to be reopened unless
circumstances are changed [Footnote omitted.] A sub-
stantial showing has been made, however, that Arbitra-
tor Pearce Davis went beyond the merits of the exact
ATLANTIC RICHFIELD COMPANY
issue submitted to him , and an additional showing has
been made that there were matters of the history of
negotiations pertinent to the question which he decided
not submitted or considered . In that case , without the
elaborate emphasis on the basic contract interpretation
issue here involved , it was not inappropriate for the
case to be tried on narrower grounds than the present
dispute . There is also substantial countervailing arbi-
tration authority to the effect that the arbitration pro-
cess is by its nature an ad hoc proceeding and
consequently a subsequent arbitrator ought not to con-
sider himself bound by a prior arbitration award.
I have concluded on the exact facts here pre-
sented , that under the circumstances the best interests
of justice will be served by considering the Pearce Davis
Award on its merits and, in the process , to determine
whether or not it represents the correct logical and
applicable interpretation of the collective bargaining
agreement which should be deemed binding and fol-
lowed by the parties to this Master Agreement. This
conclusion is based in part upon practices in the plant
and other grievances , rules, exchanges of correspon-
dence and similar factors all of which combine to indi-
cate that the parties may , indeed , in their long
relationship have given an entirely different recogni-
tion to the obligation of working overtime than that
reflected in the award which is questioned in this pro-
ceeding and these matters were not previously brought
to bear in the arbitration process as they are here. The
meets of the question here presented must be decided.
In the discussion on the merits the extent of the ques-
tion and nature of the proceedings decided by Arbitra-
tor Pearce Davis will be considered.
ON THE MERITS
Under the facts in evidence , it is established that the
two grievants did decline to work as requested and
further declined to give any excuse for their actions in
failing or refusing to report for overtime work on Octo-
ber 7, 1967 except to say that they had "personal busi-
ness ." Likewise, the evidence established that they were
told to report to their supervisors to discuss the matter
and neither of them reported for such discussions nor
did they report for work on Saturday , October 7, 1967.
As these facts are so clearly established , it would
be possible to dispose of the instant grievance on the
narrow ground that, pretermitting the validity of the
order to work overtime, the conduct of the employees
constituted a refusal to comply with an order of their
supervisors and that the discipline is justified on that
1233
narrow ground. A disposition on the basis of this issue
would treat the dispute as an "obey now and grieve
later" matter . There is considerable arbitration authori-
ty which would support an award for the Company on
this basis:
The Impartial Chairman , however , does not believe it
would be proper in this proceedings to dispose of the
instant dispute exclusively on the narrow rationale ac-
cepted in these cited decisions . The extent of the entire
dispute involved and fully explored by this grievance
has been in the context of raising for decision the ques-
tion of whether the Company has a right to require
employees to work overtime , absent emergency condi-
tions as those conditions were interpreted in the prior
award of Arbitrator Pearce Davis.
I am convinced by the record that this is the issue
the parties agreed to submit to arbitration in proceed-
ings before Federal District Judge Beamer in October,
1967, and it is the same continuing dispute which is
reflected in the exchange of letters between Company
representatives and the International Union officials in
November and December 1966 following the rendition
of the Pearce Davis Award. As already indicated, I hold
that the meets of this grievance must be considered
and that such consideration is not foreclosed by the
Davis Award .... In reaching this last-mentioned con-
clusion, the Impartial Arbitrator has not overlooked
Article XXVI, Sec. 9 , which provides that the decision
of the Board of Arbitration shall be final and the possi-
ble implication from the last sentence of Section 9 from
which it is possible to conclude that absent changed
conditions or changed rules a matter once decided is
not to be relitigated . Section 9 of Article 6 [sic], in my
opinion , does not apply to a situation in which the prior
award did not require a determination of the issue
deemed crucial by the prior arbitrator in the rendition
of his award and important pertinent matters were not
considered . Here , there are substantial contentions that
the issue of compulsory requirement of overtime was
not intended to be submitted to the prior arbitrator
and, for this reason, important matters relating to nego-
tiating history and practice under the parties of the
agreement were not brought to bear in the prior pro-
ceeding. Under such circumstances it is proper to hold
that the previous award is not necessarily binding in
this proceeding.
This leaves , however, the question, of whether or
not that prior arbitration award, by virtue of its expres-
sions and holdings, should be followed in this
particular case. If that prior award can be deemed to
be erroneous because all pertinent considerations were
not brought to bear in its determination for the reasons
indicated , it is the Arbitrator 's opinion that the prior
award should not necessarily be followed.
This brings us to a consideration of the Pearce
Davis Award.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My study of the Pearce Davis Award leads me to
the conclusion that the Arbitrator did go beyond the
authority imposed upon him by the submission to arbi-
tration in that case . The statements concerning com-
pulsory overtime may properly be regarded as "obiter
dictum" and , as such , are not binding upon a subse-
quent arbitrator. In the instant hearing, evidence was
introduced (Tr. pp. 133, 134) that the Company de-
fended the complaint before Arbitrator Pearce Davis
as a case involving merely failure of an employee to
follow a foreman 's instructions. This was not an im-
proper position at the time of the Pearce Davis Award
because the Arbitrator himself held in the opinion that
the employees were at fault in not raising the overtime
question in a proper proceeding. The testimony ad-
duced in this case is that the Company did not present
evidence as to the negotiating history concerning the
meaning of the hours of work and overtime clauses of
the Master Agreement and they did not do so because
the complaint in that case was considered to be quite
narrow in scope.
*
The negotiating history introduced into this volu-
minous record by the Company is quite convincing to
show that the "except in the case of emergency" limita-
tion contained in Article VI (Hours of Work) was in-
tended to apply to the regular normal scheduled work
week and its reduction or extension. Thus, in the 1946
negotiations, Umon President Knight even made the
statement: "We have agreed to work overtime." There
is a strong implication in the Agreement itself that
employees would work overtime in the detailed provi-
sions contained in Article VII (overtime clause) gov-
erning the manner in which employees are to be paid
when they work overtime. The record in this case also
shows that complaints filed in 1950 (No. 21-0-50), in
1964 (No. 48-C-64), in 1966 (Complaint 78-E-66)
were all denied or rejected on the ground that Article
VI did not restrict the management's right to require
overtime. The evidence is also convincing to show that
there have been agreements in the plant under which
the "draft the junior man principle" has been followed
when a sufficient number of employees do not vol-
unteer for necessary overtime assignments . In the opin-
ion of the Arbitrator the complaints and practices
referred to confirm the idea that the parties did con-
template that overtime could be required under the
terms of the present Master Agreement and they did
not adopt a restrictive version of an "emergency" but
related it to business exigencies.
Further confirming evidence of what the parties
must have in mind is afforded by the circumstances
involved in the Meltzer Award of February 1, 1965.
This case dealt with a grievance in which the complaint
was addressed to the Company's failure to distribute
Sunday overtime uniformly when work had to be done
on the overhauling of the 810 Still. Significantly, as the
Company points out in its brief, this grievance did not
protest the Company's right to assign Sunday overtime
but merely protested the uniformity of distribution.
This award and its subsequent application in the Autrey
Award (arising at Sinclair's Houston Refinery) both
give implied indication that the parties were acting on
the assumption that the right to assign overtime exists
under the Master Agreement between the Company
and Umon. It also is established in this record (Testi-
mony of Company witness MacAulay) that the "emer-
gency" limitation incorporated into Article VI of the
Master Agreement refers to a change in the regularly
scheduled or normal work week, and that it was not
intended originally to restrict the Company's right to
assign and require employees to work overtime.
Study of the contract provisions incorporated in
Article VII leads the Arbitrator to the conclusion that
the parties certainly must have contemplated that
overtime in a refinery requiring continuous operation
could be required. If this were not so, it is difficult to
understand why such elaborate and detailed provisions
regarding the method of compensation for overtime
should have been incorporated into the agreement.
Also at various points in Article VII language is used
giving unmistakable evidence of intent to require
overtime in this continuous operation.
* * *
When one adds to the contract language, the supple-
mental overtime procedures which have been agreed
upon, it is difficult to escape the conclusion that the
parties did in fact agree and understand that there is a
requirement that the employees will work overtime
when business conditions incident to continuous oper-
ations reasonably require such overtime. I am persuad-
ed by the evidence that if the parties had intended such
an important qualification upon the rights of Manage-
ment as is urged in this case, it would have been more
clearly spelled out in the Agreement. What the parties
have done, as I see it, is to stipulate various penalties
as a deterrent to excessive overtime , but also to give
recognition to the practical necessities dictated by con-
tinuous operation in a refinery of this nature.
*
Reviewing this evidence in the light of all the mat-
ters in the record, your present Arbitrator is in agree-
ment with the Company argument that there is a
continuing thread of official Union recognition of
Company's need and the Company's right to schedule
overtime occasioned by operating necessities as de-
termined by management and its right to require em-
ployees to work such overtime reasonably and fairly
assigned. The evidence further strongly suggests that
the Union was relying upon the overtime payment pen-
alties as a means of discouraging compulsory overtime
rather than to limit management's rights by non-recog-
ATLANTIC RICHFIELD COMPANY
nition of any right to assign overtime if done in a rea-
sonable and fair manner.
When the evidence in this record is considered,
along with the trend generally in arbitration awards,
which is to recognize that employees may be required
to work overtime under pain of disciplinary penalty for
failure and refusal to perform such work unless a rea-
sonable excuse is tendered and accepted in advance,
your present Arbitrator is led to the conclusion that the
prior award rendered by Arbitrator Pearce Davis was
an erroneous interpretation of the Master Contract. I
do not believe Arbitrator Davis would reach the same
conclusion on the facts before the Arbitrator in this
record. For that reason, the Pearce Davis Award will
not be followed here.
s
The crux of the present case is whether or not the
word "emergency" as used in Article VI operates as a
limitation on the right to require overtime when the
exigencies of the business would dictate that overtime
be worked in a reasonable amount and subject to pro-
cedures which afford the opportunity to provide excus-
es for non-compliance with an order to work overtime.
It is my opinion that the Company has made a convinc-
ing showing that the emergency clause in Article VI
was not intended to limit the right of the Company to
require employees to work overtime. Taken in context,
the limitation means that the normal work week shall
be 40 hours per week and 8 hours per day "except in
emergencies" and that the management in case of
emergencies related to refinery operations may depart
from such normal scheduling of employees.
My study of the testimony and supporting doc-
uments, including the excerpts from transcriptions of
negotiations and the wording of prior contracts con-
vinces me that the parties to this agreement never con-
sciously intended to limit the right of the Company to
require employees to work overtime. The Company
had a 36 hour week prior to World War II. This was
changed during the war and the Union was interested
in getting back to the normal 36 hour week when condi-
tions would permit. The term "emergency" in Article
VI must be understood in this context, namely, that the
normal work week could not be changed except in
cases of "emergency." There was repeated recognition,
express and implied, that the Union did not intend to
prohibit overtime but was relying upon premium pay
clauses in Article VII to discourage it. The past prac-
tice, as testified to by Mr. Mazur, abundantly confirms
this interpretation of the Agreement. It is virtually im-
possible to study the record made in the arbitration
hearing of December 18, 1969 without concluding that
the Davis Award, in which such matters were not con-
sidered, reached an erroneous conclusion because the
full record of details presented in this case were proba-
bly not made available in the hearing before Arbitrator
Davis.'In this state of affairs, it would be grossly unfair
to follow the Davis Award as a final and binding dispo-
1235
sition of the dispute in which the contentions urged
against compulsory overtime are so clearly contra-
dicted by the practices in the plant and by the negotiat-
ing history. I also give weight of repeated recognition
by the Union of a duty to work overtime and of the
right of the Company to require it with proper limita-
tions which were present in this case.
s s s s
AWARD
0
Complaint No. 90-F-67 filed at the Company's
East Chicago Refinery against Sinclair Oil Corporation
(now Atlantic Richfield Company) is in all respects
denied.
2. The apprenticeship program dispute
A supplementary agreement entered into on September
22, 1955, covers the training of apprentices in the electric
shop at the East Chicago refinery. It provides that, in order
to qualify for the program, trainees must be 33 years of age
or less and have a high school education or its equivalent.
A similar agreement for the instrument department dated
March 11, 1947, provides that trainees must be 35 years of
age or less and have a high school education or its equiva-
lent. A third such agreement for the machine shop dated
June 1, 1942, provides no age or pnor schooling limitations
for entry into the program.
On August 14, 1969, without any prior notification to
or discussion with the Charging Party, Respondent posted
separate notices that applications were being accepted for
each program. The notices read, in pertinent part:
Applications for Electrical [or Instrument Depart-
ment or Machine Shop] Trainee Program are now
being accepted at the Personnel Department Office, 1st
Floor, Main Office. Applications must be made no
later than August 29, 1969.
ELIGIBILITY
Any hourly man with the qualifications listed be-
low may apply:
1. 35 years of age or under as of August 1, 1969.
2. High school graduate.
Robert Dermody and H. Reitz, chairman and vice
chairman, respectively, of the workmen's committee, spoke
to H. L. Letherman, Respondent's personnel supervisor
(training), on the morning of August 26 or 27. They protest-
ed that the notices contained age limits for applicants which
differed from the supplementary agreements. Letherman
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he had posted the notices as he had been told . He said
that he had been instructed to accept applications from all
who applied, regardless of their ages. Employees older than
35 applied for admission to each of the training programs.
In September 1969 five applicants were selected for elec-
trical shop training ; all were younger than 33 . Four were
selected for instrument department training ; only one, born
December 13, 1933, had passed his 35th birthday. Three
were selected for machine shop training ; all were younger
than 35. In December 1969 another applicant was added to
the machine shop program; he was under 35. The record
does not reveal the educational level of any of the appli-
cants, successful or unsuccessful . Applicants for machine
shop training who were older than 35 were selected for
machine shop training in September 1966 and June 1964.
The 1960 census reveals that median schooling of males in
Lake County, Indiana, the county in which the East Chica-
go refinery is located, is 10.2 years. It also reveals that, of
135,732 males over the age of 22 in Lake County at the time
of the census, only 22,081, or approximately 16 percent, had
graduated from high school.
Written grievances were filed in September 1969 pro-
testing Respondent's changing the apprenticeship criteria
and its selection of trainees under the new standards. Step
two discussions were held on September 19. By agreement,
Respondent has not yet filed the written reply required of
it in that stage of the grievance -arbitration process . Discus-
sions of the apprenticeship programs generally, as distin-
guished from discussions of the grievances , were held
between Respondent and the Charging Party in late Octo-
ber or early November.
3. The safety dispute
a. Negotiation of flexibility
Prior to January 1969 article IV (Classification
Changes-Work Assignments), section 5, of the master agree-
ment read:
5. All work peculiar to any craft or classified em-
ployment (job) shall be done by employees regularly
assigned to that craft or classification (job) except in
cases of extreme emergency . No arbitrary changes in
present classifications will be made with the purpose or
result of reducing the pay of any classified job.
Respondent wanted a more liberal clause which would
permit it to require one craft or classification to do the work
normally assigned to another craft or classification where
the work is only incidental or related to the basic job being
performed. This concept is known as "flexibility." Similar
clauses had been successfully negotiated by other employers
in the oil industry , leading to Respondent 's first suggesting
such a modification in the master agreement to the Union
in January 1968. At that time Respondent submitted the
following proposal:
COMPANY PROPOSAL FOR DELETION OF AR-
TICLE IV, SECTION 5 OF MASTER AGREE-
MENT AND SUBSTITUTION OF THE
FOLLOWING:
Work normally considered a skilled qualification of a
craft or classification shall be done by employees as-
signed to that craft or classification , except in cases of
emergency. Work not normally so considered shall be
assigned to employees in any classification according
to the practicalities of the situation at hand.
Under the foregoing provision the parties agree that
employees shall perform work incidental or related to
work which is part of their craft or classification; that
during turnarounds , unscheduled shutdowns , or peri-
ods of slack work operating employees may be as-
signed, when practicable, to such other work as is
available ; and that no arbitrary changes in present
crafts or classifications will be made for the purpose or
result of reducing the pay of any classification.
In applying the foregoing work incidental and related
concepts, it is agreed that:
1. The work or tasks assigned will be incidental or
related to the primary job assignment;
2. The work or tasks will be within the normal capabili-
ties of employees responsible for the job assignment;
3. Clean up and good housekeeping is work incidental
or related to the work normally considered a part of
each craft or classification; and
4. Running maintenance is work incidental or related
to work normally considered a part of each classifica-
tion assigned to the operation of refinery units and
equipment.
A special meeting was held between Respondent and
the Union to discuss the proposal. In its presentation Re-
spondent mentioned several examples of the sort of job
situations it had in mind. The discussion was fruitless.
Another special meeting was held in July 1968 at which
Respondent's flexibility proposal was discussed. This time,
Respondent expanded its explanation of what it had in
mind by showing slides which illustrated examples of work
situations to which the new concept would apply. Again, the
discussion came to nothing . Respondent 's proposal that a
subcommittee be formed to study flexibility was rejected.
The master agreement was scheduled to expire Decem-
ber 31, 1968. Negotiations for a new contract were held in
Kansas City. They began with the exchange of proposals in
September . Included in Respondent 's package was its flexi-
bility proposal as set forth above. Negotiators next met from
October 8 to 15. Flexibility was discussed, along with other
subjects on the bargaining table. Respondent again made a
slide presentation with additional examples included. It
again suggested a subcommittee.
Negotiators next met for a period in November. Flexi-
bility was again among the subjects discussed. On Novem-
ber 13 the Union agreed to a subcommittee to study
flexibility. Such a subcommittee was formed. It met periodi-
cally in November during the week or so that negotiations
continued following its formation. Negotations were re-
cessed until December . When they resumed , the subcom-
mittee continued to meet and discuss flexibility periodically
until negotiations recessed on December 20 for the Christ-
mas holiday. Among the concerns expressed by the Union
during subcommittee discussions was the effect a change in
the contract would have on safety. Respondent expressed its
continuing concern for and interest in safety.
Negotiations resumed December 27, 1968. A Decem-
ber 31 strike deadline had been set. Consequently, the flexi-
ATLANTIC RICHFIELD COMPANY 1237
bility subcommittee met no more. Flexibility, still an
unresolved issue , was among the many open issues which
continued to be discussed by the full negotiating committee.
Negotiations were conducted on a daily basis until January
6 or 7, then recessed for approximately a week. When they
resumed they ran daily until agreement was reached on a
new contract on January 24, 1969. A strike affecting all of
Respondent's installations and operations covered by the
master agreement began on January 3 or 4 and lasted until
January 27. The Federal Mediation and Conciliation
Service was involved in the latter stages of the negotiations.
On January 20, 1969, Respondent made a new written
proposal. Included was a modified proposal on flexibility.
It read, in pertinent part:
Delete present Section 5 of Article IV, and substi-
tute the following therefor:
5. Work normally considered a skilled qualification
of a craft or classification shall be done by employees
assigned to that craft or classification, except in cases
of emergency; provided, however, that employees
shall perform work incidental or related to work
which is part of their craft or classification. No arbi-
trary changes in present crafts or classifications will
be made for the purpose or result of reducing the pay
of any classification.
During the negotiations, and especially during the
strike, Respondent took the position that it could not reach
an agreement without getting some concession in the area
of flexibility. The Union took the position that it would not
go beyond the question of work done by the crafts, as distin-
guished from noncraft workmen.
On January 24, when agreement on a new contract was
reached, the negotiators for each side were in separate
rooms with the Federal mediator conveying messages be-
tween them. The Union made an offer to Respondent which
took the form of certain changes written or marked on
Respondent's January 20 proposal. With respect to the part
of section 5 of article IV immediately above , a line was
drawn through the words "or classification" in each of the
first three places they appear. The Union' s purpose in so
doing was to limit its flexibility concession to the crafts, in
keeping with the last position it had taken during negotia-
tions. The paper presented to Respondent by the mediator
looked like this:
5. Work normally considered a skilled qualification of
a craft shall be done by employees assigned to that
craft except in cases of emergency; provided, however,
that employees shall perform work incidental or related
to work which is part of their craft. No arbitrary
changes in present crafts or classifications will be made
for the purpose or result of reducing the pay of any
classification.
Respondent accepted the counterproposal. The paragraph
as altered by the Union was included in a 12-page memo-
randum of understanding executed on January 24.
Respondent's chief negotiator stated that the language of
section 5 as altered by the Union did not meet Respondent's
needs but Respondent could live with it. Respondent's em-
ployees ratified the agreement on January 25. The strike
ended on January 27, 1969.
During the negotiations it had been agreed that flexi-
bility, if adopted, would apply only to the maintenance
departments of Respondent' s refineries . Consequently, sec-
tion 5 of article IV in the current master agreement as
ultimately executed by Respondent and the Union reads:
5.(a) In refineries, work normally considered a
skilled qualification of a craft shall be done by employ-
ees assigned to that craft, except in cases of emergency;
provided, however, that employees shall perform work
incidental or related to work which is part of their craft.
No arbitrary changes in present crafts will be made for
the purpose or result of reducing the pay of any classifi-
cation.
In applying the foregoing work incidental and re-
lated concepts, it is agreed that:
(1) The work or tasks assigned will be incidental
or related to the primary job assignment;
(2) Clean up and good housekeeping is work
incidental or related to the work normally consid-
ered a part of each craft.
(b) In pipeline and producing operations, all work
peculiar to any craft or classified employment (job)
shall be done by employees regularly assigned to that
craft or classification (job) except in cases of extreme
emergency. No arbitrary changes in present classifica-
tions will be made with the purpose or result of reduc-
ing the pay of any classified job.
b. Implementation of flexibility
Starting around February 10, 1969, John Macaulay
toured all of Respondent's refineries to explain the new
concept of flexibility to local management. His tour includ-
ed East Chicago. He left with the local managers lists of all
the examples which had been brought up during negotia-
tions suitably annotated to indicate those situations to
which flexibility, as finally agreed to, would not apply.
During the negotiations Respondent had suggested
that, 60 days after the new contract went into effect, local
meetings between Respondent and the various locals of the
Union might be useful to discuss any flexibility problems
which had arisen. Respondent kept track of situations in-
volving a change based on flexibility in preparation for
these meetings if the Union did, in fact, request them. Such
meetings were held at Respondent's refineries in Houston,
Texas, and Sinclair, Wyoming, with no major disputes over
the implementation of flexibility developing, In East Chica-
go, the story was different.
More than 950 different instances where Respondent
sought to implement flexibility were recorded by Respon-
dent at East Chicago by the time of the hearing in these
cases . These involved approximately 95 different recurring
work situations . Enough serious trouble developed at East
Chicago and at Marcus Hook, Pennsylvania,6 that a na-
tional level meeting on flexibility was held between Respon-
dent and the Union in New York in the spring of 1969.
6 Like East Chicago (see below), the refinery at Marcus Hook also suffered
a work stoppage as the result of a local dispute over Respondent 's efforts to
implement flexibility shortly after the new contract went into effect
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No local 60-day meeting was ever requested by the
Union in East Chicago. Respondent held a series of meet-
ings with groups of employees to explain flexibility. It used,
as examples of changes in work assignments it planned to
make, those of its slides which were still applicable to flexi-
bility as finally negotiated. Various officials of the Charging
Party protested during these meetings that Respondent was
going beyond what had been agreed to in the new contract.
In May 1969 a work stoppage occurred as the result of
Respondent's attempt to have one man both drive and oper-
ate a truck used to vacuum sludge from tanks? In June a
work stoppage occurred when Respondent assigned carpen-
ters the job of demolishing a wooden stack on top of a
cooling tower, including removing metal banding as an "in-
cidental or related" task. As a result, a meeting between
Respondent and the Union was held in Dolton, Illinois, in
mid-June at which flexibility at East Chicago was discussed.
Respondent capitulated. As they had been in the past, boil-
ermakers were assigned the work of removing the metal
bands on this particular demolition.
The safety issue arose on November 25, 1969, over the
task of charging tower number 826. A tower is charged by
filling it with a material such as clay or salt. The material
serves as a filter. Petroleum products are pumped through
towers in the course of the manufacturing process. The filter
removes unwanted substances such as water. At no time
during the negotiations leading up to agreement on the new
contract containing flexibility or during Respondent's
postagreement explanations of flexibility to managerial, su-
pervisory, or rank-and-file employees was the possible ap-
plication of flexibility to the task of charging a tower
brought up. Plug gang men charge towers. Plug gang men
are laborers.8 Laborers are not a craft, within the meaning
of the master agreement, at Respondent's refineries.
c. Safety and the Bunger letter
Article XXIII (Inspection of Equipment and Safety
Hazards), section 2, of the master agreement reads:
2. No employee shall be required to perform serv-
ices that seriously endanger his physical safety, and his
refusal to do such work shall not warrant or justify
discharge. In all such cases an immediate conference
between the Employer and the Union shall be held to
settle the issue in question.
There is a management safety committee at the East
Chicago refinery. It is chaired by the assistant plant manag-
er. It includes two representatives of the Charging Party
who are elected to it by the workmen's committee. These
two Charging Party members of the safety committee are,
in practice, the union representatives who participate in the
immediate conference contemplated by section 2 of article
XXIII when a safety complaint arises.
On March 2, 1962, L. R. Bunger, at the time assistant
plant manager, issued a memorandum on safety procedures
to all department heads, assistant department heads, and
foremen in his capacity as chairman, management safety
committee. The Bunger letter is included in Respondent's
Safety Procedure Manual for the East Chicago refinery. On
July 24, 1967, E. J. Burke, Jr., who had succeeded Bunger
as assistant plant manager, reissued the Bunger letter over
his own signature as chairman of the management safety
committee. The Bunger letter reads:
In the event an employee believes he is working
under an unsafe condition, the procedure to follow to
remedy the condition is to be the following:
1. Contact his immediate foreman who is to imme-
diately attempt to remedy the unsafe condition, provid-
ed one exists. If the immediate foreman is not available,
then the Assistant Division Head or the Division Head
should be contacted. In a situation where a mechanical
man is working in an operating area and the alleged
unsafe condition is related to operating conditions or
operating procedures rather than to the mechanical or
physical aspects of the job, the operating foreman re-
sponsible for that area should be contacted.
2. In the event that a solution cannot be found
satisfactory to the employee and the foreman, then the
foreman is to immediately notify Mr. H. G. Roessner,
of the Safety Department, and at the same time notify
the Safety Committeeman's foreman. The latter, in
turn, will notify the Safety Committeeman of an imme-
diate on-the-spot conference in an effort to work out a
solution to the problem.
3. Failure to reach a satisfactory solution to the
safety problem will then require contact with the Chair-
man of the Management Safety Committee for imme-
diate handling of the problem.
On occasions prior to November 25, 1969, when a safe-
ty dispute arose that could not be resolved at the first or
second steps of the Bunger letter procedure, the third step
was followed. These occasions were numerous enough and
frequent enough to establish a past practice that
Respondent's assistant plant manager, acting in his capacity
as chairman of the management safety committee, would
participate in discussions with representatives of the Charg-
ing Party before Respondent made a final decision in a
safety dispute.
d. Charging the tower
Tower 826 is located in the continuous treating plant
area of the East Chicago refinery. Less volatile petroleum
products such as kerosene and number 1 and number 2 fuel
oils are manufactured in the continuous treating plant area.
More volatile products such as gasoline are manufactured
7 There were seven work stoppages at East Chicago between October 1967 resulted from Respondent's efforts to implement flexibility, as described in
and November 1969. The first grew out of the overtime dispute which led to this section In each case, almost all unit employees struck. The refinery
the Hebert award as described in sec. I, above . The second occurred in continued to operate using managerial and supervisory personnel.
October 1968 Two more , in January 1969, were related to the negotiations s However , the plug gang is a separate department from the general labor
at that time The last three , beginning with the fight over the sludge truck, pool
ATLANTIC RICHFIELD COMPANY 1239
in an area north of the continuous treating plant which is
surrounded by a fire dike.
Tower 826 is the north and east most of a group of six
vertical steel cylinders arranged in two east-west rows of
three tanks each . Each is 9 feet in diameter and 22 feet 10
inches tall . A railing around the top of each raises the total
height above the ground to 26 feet 4 inches. The distance
between adjacent tanks is 6 feet. West of tower 826 in north
row are first tower 827 and then tower 828 . South of tower
826 is tower 343. West of tower 343 in the south row are first
tower 933 and then tower 970.
South of tower 343 is tank 321, the west most of three
parallel, horizontal, steel cylinders of 10,000 gallons' capaci-
ty each which are used as storage tanks. They also lie in an
east-west row. The distance from the southern edge of tower
343 to the northern edge of tank 321 is 15 feet 10 inches.
East of tank 321 and separated from it by a space of 1 foot
4 inches is tank 320 . East of tank 320 the same distance lies
tank 319. The long axis of tanks 319, 320, and 321 runs north
and south. Each is 30 feet long by 7 feet 10 inches wide. The
top of each is 8 feet 4 inches above the ground. There is an
iron walk bridge across the top of all three. The top of the
bridge is 9 feet above the ground.
Tower 826 is dumped, repaired, and recharged two or
three times a year. Clay is brought to the area in bags on
a trailer. A Lorain-Moto crane with a 70-foot boom is used
to lift the clay from the ground to the top of the tower. The
crane is positioned west of the tanks and south of the towers.
Prior to November 25, 1969, two plug gang men opened the
bags on the trailer and emptied them into a bucket on the
end of the boom. When the bucket was full, a bottom hook-
er took hold of a tag line attached to the bucket and signaled
the operator of the crane to lift the bucket and swing toward
the top of tower 826. A plug gang man and a top hooker
were on top of the tower. When the crane had swung to a
position where he could see the men on top of the tower, the
operator shifted his gaze from bottom to top hooker. The
top hooker guided the crane over the opening in the top of
the tower. The plug gang man dumped the load of clay into
the tower by tripping a lever on the bottom of the bucket.
The bucket was then returned to the trailer for another load.
The operator took his signals from the top hooker as he
began the swing and from the bottom hooker as he ended
it. Thus, prior to November 25, Respondent used six men-
one crane operator, two hookers, and three plug gang
men-m charging tower 826.
On November 25, as more fully developed below, Re-
spondent tried to eliminate the bottom hooker. In all other
respects, the operation would have been the same as on
prior occasions. The bucket weighs 1,100 pounds. Approxi-
mately 10 bags, each containing approximately 75 pounds
of clay, are required to fill the bucket. Thus, a loaded bucket
weighs somewhere in the vicinity of a ton. Approximately
35 bucketfuls of clay are required to charge the tower. The
purpose of the tag line is to steady the bucket while it is in
the air. If the tag line is not held the bucket will spin. The
crane and the trailer are positioned in such a way that when
the bucket is on the ground at the trailer, the boom of the
crane is pointing south. To reach tower 826 the boom and
bucket must describe a half circle in a counterclockwise
direction over tanks 319 and 320. In returning to the trailer,
they follow the same path in a clockwise direction. The
Lorain-Moto crane is so constructed that the base of the
boom is to the right of the cab, blocking the operator's view
in that direction. He has full visibility to his left and straight
ahead. In swinging from trailer to tower, the boom does not
obscure the operator's vision at all since the swing is toward
his left. However, in swinging from tower back to trailer, the
boom prevents the operator's seeing the bottom hooker un-
til a major part of the swing has been completed.
On November 25, 1969, the other towers grouped with
tower 826 were filled with salt and were being used to re-
move water from various products. Number 2 fuel oil was
being pumped through 828, 933, and 970. Number 1 fuel oil
was being pumped through 343. Kerosene was being
pumped through 827. At any given moment each contained
approximately 200 barrels or 8,400 gallons of fuel oil or
kerosene. Tanks 319 and 321 were essentially empty. Tank
319 is used to store deicer. Tank 321 is used to store AFA-
1, a gum inhibitor used in kerosene. Each had been emptied
by pumping until air came through the outlet valve, located
near the bottom of the tank. Thus, on November 25, tank
319 had a small residue of deicer and tank 321 had a small
residue of AFA-1 lying in the bottom below the level of
the outlet valve. Tank 320 contained approximately 2,000
gallons of Primene 81R, a gum inhibitor used in number 1
and number 2 fuel oil.
Flashpoint is the temperature of a liquid at which suffi-
cient vapors will be given off to form an ignitable mixture
at the surface of the liquid. The flashpoints of the various
liquids just mentioned are:
Number 2 fuel oil-140 degrees F.
Number 1 fuel oil-115 degrees F.
Kerosene-115 degrees F.
Deicer-115 degrees F.
AFA-1-220 degrees F.
Pnmene 81 R-205 degrees F.
A liquid must be a few degrees hotter than its flashpoint
before it will burn rather than merely flash.
November 25, 1969, was a cold day in East Chicago,
Indiana. The temperature averaged in the 30's.
e. The events of November 25, 1969
Tower 826 came up for periodic recharging in mid-
November 1969. A meeting is held daily at the refinery to
schedule upcoming maintenance work. At the one, some 2
weeks before November 25, at which tower 826 was dis-
cussed, the maintenance planner suggested that the job
could be done with five rather than six men by letting one
of the plug gang men on the ground double as bottom
hooker. Frank Luzzi, assistant superintendent of mainte-
nance, approved the suggestion . Consequently, when No-
vember 25, the day on which the tower was scheduled to be
charged, rolled around, five men rather, than six were as-
signed to the job. They were Gordon Maybaum, a crane
operator with some 34 years' seniority, Mike Petty, the
hooker whose normal assignment is to work with Maybaum
on the Lorain-Moto crane, and three men from the plug
gang ; namely, William Padjen, John Lundsford, and
George Jonkman. Padjen had 22 years' seniority. Jonkman
had worked for Respondent only a week or two.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of November 25, Steve Gigac , the area
foreman in charge of the job , assigned Lundsford to the top
of the tower and Padjen and Jonkman to work on the
ground. Gigac instructed Padjen that , when he and Jonk-
man had filled the bucket with clay, he was to jump down
from the trailer , grab the tag line, and hang onto it while the
crane lifted the bucket to the tower . Padjen protested. He
pointed out that the job had always had an experienced
bottom hooker in the past . He indicated that he had never
held a tag line before . He asked who was going to do the
signaling . Gigac said all he was asking Padjen to do was
hold onto the tag line . Padjen said he could not do that and
demanded union representation . Gigac said he would get
him a committeeman . Paden asked for George Badus, a
member of the workmen 's committee from the truck and
crane department.
Badus arrived on the scene shortly before 9 a.m. Paden
told him what had happened . Badus said Padjen could not
do the job the way Gigac had ordered, Padjen would get
killed . Paden said he agreed , that was why he had sent for
Badus . Badus said it was a matter for the union safety man.
He sent for Ray Lewis , one of the two union representatives
on the management safety committee . Apparently he also
sent for Robert Dermody , chairman of the workmen's com-
mittee , for Dermody as well as Lewis arrived on the scene
a few minutes later.
In the meantime , word had also passed up manage-
ment channels that there was trouble at tower 826. Luzzi
went to the tower . So did Don Long , foreman of the truck
and crane department. From about 9:45 a .m. until lunch-
time various combinations of employees , Charging Party's
officials , and representatives of management held various
conversations about the situation . While the sequence of
who said what to whom is not clear in the record, it is
undisputed that the following statements were made and
positions taken:
The question of who was going to do the signaling on
the ground was raised . Luzzi said Paden . Padjen said he did
not know how and asked if there was a set of signals he
should use . Luzzi said it did not matter what signal he used
so long as Maybaum understood it, he could nod his head
if he wanted to.
Dermody insisted that safety was the issue. Luzzi disa-
greed . He said there was nothing unsafe about the work
assigned to Paden . Dermody and his colleagues argued that
Respondent had to assign a bottom hooker for safety rea-
sons because there had always been a bottom hooker as-
signed to the job for that reason in the past . Luzzi insisted
that Respondent could assign the bottom hooker's duties to
Padjen because they were incidental and related to Padjen's
primary job of filling the bucket with clay.
Maybaum said that he would not operate the crane
without a bottom hooker who was qualified to give proper
signals because it was unsafe to do so.
Long telephoned the plant safety department and
asked Herman Neimann , director of plant safety , to send
one of his two safety men over to inspect the job. Neimann
sent both Sherman Moore and Tom Chorba. They went to
the tower , inspected the setup , rendered an opinion that the
job was not unsafe , and reported back to Neimann.
Luzzi sent for Neimann after Moore and Chorba had
come and gone . Neimann went to the tower, inspected the
job, and ruled that it was not unsafe.
After lunch , around 12:30 p .m., William Faissler, su-
perintendent of maintenance , went to the tower and in-
spected the job. He encountered Dermody in the area. He
told Dermody that he saw nothing unsafe about the job,
that safety was not the real issue , that the men were going
to be ordered to do the work , and that Dermody should talk
to them because the situation was getting out of hand. Der-
mody replied that the men could not perform the job until
Respondent made it safe.
The men had gathered in a pumphouse near tower 826
after lunch . Dermody joined them there. Long, the crane
foreman , was the first management representative to enter
the pumphouse. He asked Maybaum and Petty whether
they were going to go and do their job . Maybaum said he
would as soon as the job was made safe . Dermody read
section 2 of article XXIII of the master agreement. Long
told Maybaum and Petty they were both suspended.
A little after 2 p.m. Faissler, Luzzi , Long, and Gigac
came to the pumphouse. Another long , animated discussion
took place . Padjen and Maybaum were warned they would
be suspended if they refused to do the job . When the ques-
tion of signaling came up , Faissler said that Long would
give the signals . The employees and Charging Party repre-
sentatives laughed at the idea, pointing out that Long would
not be permitted to because he was a foreman. During the
discussion of employees' rights where safety is involved,
Dermody again read section 2 of article XXIII . Finally,
around 2 : 30 p.m., Faissler asked Padjen and Maybaum
again whether they would do the job. They replied they
would as soon as Respondent made it safe . Faissler sus-
pended them and ordered them to leave the refinery. Petty
was not suspended . As Faissler was leaving the pumphouse
he was asked whether the suspensions would be put in writ-
ing. He replied that they would . Padjen and Maybaum sub-
sequently received 2703's dated November 26, 1969, which
stated that they were suspended from 2 : 30 p.m. November
25 through November 28 for violation of paragraph 5 of the
Respondent's code of conduct in that:
On November 25, 1969 , you were given a direct
and clear order to return to work and proceed with your
assigned duties. You did not return to your work
place and after being warned that your conduct would
result in suspension you were suspended.
Paragraph 5 of the code of conduct proscribes "refusal to
obey direct and proper instructions or deliberate disobe-
dience of such instructions of management."
Dermody accompanied Padjen and Maybaum toward
the guardhouse as they left the plant. A sergeant of the plant
guard force told Dermody that Stanley Skrentny , manager
of industrial relations , would be happy to see him imme-
diately if the Charging Party wanted to talk about the situ-
ation. As a result, a meeting was held in Skrentny 's office
around 3 p.m. at which Skrentny discussed the situation
with A. F. Schilling , the president of the Charging Party
who had been summoned to the refinery by Dermody, and
a group of workmen 's committee members , including Der-
mody . Padjen and Maybaum were not present . Once again,
ATLANTIC RICHFIELD COMPANY 1241
the parties disagreed on whether the issue involved was
safety or flexibility. Burke , assistant plant manager and
chairman of the plant safety committee, came into
Skrentny's office for a while during the discussion. Howev-
er, he did not enter into the debate.
On the evening of November 25, Maybaum telephoned
Paden at home. They agreed to meet in front of the refin-
ery the next morning to picket.9 Both made picket signs that
night.
f. The strike
Padjen and Maybaum appeared at the entrance to the
refinery with their picket signs around 6 a.m. on November
26. Padjen picketed in front of the clockhouse. Maybaum
picketed at the automobile entrance. Padjen's signs read
"Doggone by ARCO" and "How do you like your safety
clause now, fellows?" Maybaum's read, simply, "On strike."
As a result of the picketing, few of the employees in the unit
represented by the Charging Party reported for work. Many
of them gathered outside the plant.
Article III (Strikes-Lockouts-Slowdowns-Work Stop-
pages), section 3, of the master agreement reads:
3. Union further agrees that during the term of this
Agreement there shall be no strikes or work stoppages:
(1) For any cause which is or may be the subject of
a grievance under Article XXVI of this Agreement,
or
(2) For any other cause, except upon written notice
by Union to Employer provided:
(a) That Employer within thirty (30) days from
the receipt of such notice will meet with the repre-
sentatives of the Union and endeavor to reach an
agreement on the matter in dispute.
(b) In the event an agreement is not reached
within forty-five (45) days after the expiration of the
thirty (30) day period specified in (a) hereof, Union,
upon the expiration of such forty-five (45) day peri-
od, may exercise its right to strike by serving fifteen
(15) days' notice in writing upon Employer of
Union's intention to strike at the expriation of such
notice.
Dermody arrived at the refinery around 7:20 on the
morning of November 26. He was met near the gate by
Skrentny and other management officials. Skrentny urged
Dermody, as the highest ranking Charging Party official 10
who was employed at the refinery, to live up to the no-strike
clause and get the employees back to work. Skrentny said
Respondent would investigate the Padjen-Maybaum sus-
pensions as soon as the strikers returned. Dermody urged
Skrentny to investigate first. Skrentny refused. Dermody
talked to some of the strikers. They told him they were
striking because of Respondent's attitude toward safety.
When Dermody reminded them of the no-strike clause and
9 They had precedent . In the June 1969 incident involving the stack on the
water cooler, carpenters who refused to remove the metal bands were sus-
pended . They picketed the next morning , causing a work stoppage The
record does not indicate whether they were discharged I would assume, from
Padjen's and Maybaum 's willingness to follow their example and from
the grievance-arbitration procedure, they indicated they
were also angry because of Respondent's refusal to live up
to the Pearce Davis award.
Schilling, president of the Union, and Hanes and
Swanson, the two business representatives of the Union who
were involved in the overtime dispute, also went to the
refinery that morning and conferred with management offi-
cials. Respondent stuck to its position that it would not
consider the Padjen-Maybaum situation until the strike
ended. Hanes and Swanson talked to strikers outside the
refinery. They were also told by various employees that the
employees' reasons for striking were dissatisfaction over
safety, the Pearce Davis award, and Respondent's discrim-
ination against older employees by its changes in the ap-
prenticeship program.
Respondent discharged Padjen and Maybaum on No-
vember 28 for instigating a strike in violation of the no-
strike clause. The 2703's mailed to them that day read:
Commencing on or about 7:00 a.m. November 26,
1969, in concert with [Padjen or Maybaum] you paced
across and/or stood at the entrances to the Clockhouse
and the # 1 Gate driveway, displaying placards read-
ing "On Strike" and orally encouraged employees, as
they were about to report for work, not to cross your
picket line and not to report for work as scheduled.
Such employees illegally withheld their services in re-
sponse to your actions and conduct, which thus precip-
itated a "wildcat strike." Your irresponsible and
inexcusable conduct, which has caused and is causing
the Company considerable operating difficulties, sub-
stantial expense and inconvenience, consitiutes a fla-
grant violation of Article III of the Master Agreement
and universally-accepted standards of industrial be-
havior, both of which preclude and render deplorable
any such resort to self-help.
For the foregoing reasons your employment with
Atlantic Richfield Company is terminated effective im-
mediately.
Respondent brought suit in the United States District
Court for the Northern District of Indiana. It sought an
injunction against the strike, an order that the Union submit
all grievances to arbitration, and money damages. Hearing
was held before Judge Beamer on December 4 and 10, 1969.
On December 17, Judge Beamer ruled that he had no au-
thority to enjoin the strike or to order arbitration and that
his jurisdiction was limited to granting Respondent "dam-
ages against the union under Section 301 of the Taft-Hartley
Act and against the union and the individual members
thereof under applicable state law." The suit is pending.
Union representatives met with Respondent's repre-
sentatives several times during the strike . The Umon urged
Respondent to take Padjen and Maybaum back as a way of
ending the strike. Respondent continued to insist that the
strikers return to work first.
Respondent's capitulation in the June 1969 discussion of flexibility with the
Union, that they were not.
10 Dermody is also president of the Atlantic Richfield Nationwide Council
composed of representatives from all the locals of the Union at Respondent's
plants and, as such, participates in negotiations and other union activities at
national level
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The strike ended on December 29, 1969. During the
strike no more than 25 of the approximately 950 employees
represented by the Charging Party as well as a group of
some 50 clerks whom it does not represent reported for
work. All the strikers finally went back to work after they
were informed, on December 27, by the Union's attorney
that the National Labor Relations Board had issued com-
plaint on the apprenticeship program and safety disputes
and was going to issue complaint on the overtime dispute.
Grievances over their suspensions and discharges have
been filed by both Padjen and Maybaum. They are pre-
sently in step four.
Since the end of the strike, towers have been charged
at the East Chicago refinery without the help of a bottom
hooker and without mishap. On those occasions, a plug
gang man on the ground held the tag line as the boom lifted
the bucket straight up from the ground until it was higher
than the tanks before swinging.
B. Analysis and Conclusions
1. Deferral to arbitration and the overtime dispute
Respondent contends that the Labor Board should de-
fer to arbitration in these cases and dismiss the consolidated
complaint in its entirety. There is merit in Respondent's
position with respect to the overtime dispute but not the
apprenticeship program or safety disputes.
The parameters of the Board's policy on deferring to
arbitration are set forth in Speilberg Manufacturing Compa-
ny 11 and Jos. Schlitz Brewing Company.12 In Spielberg, the
Board said:
... the proceedings appear to have been fair and reg-
ular, all parties had agreed to be bound, and the deci-
sion of the arbitration panel is not clearly repugnant to
the purposes and policies of the Act. In these circum-
stances we believe that the desirable objective of en-
couraging the voluntary settlement of labor disputes
will best be served by our recognition of the arbitrators'
award.
In Schlitz, it said:
... where ... the contract clearly provides for
grievance and arbitration machinery, where the unilat-
eral action taken is not designed to undermine the Un-
ion and is not patently erroneous but rather is based on
a substantial claim of contractual privilege, and it ap-
pears that the arbitral interpretation of the contract will
resolve both the unfair labor practice issue and the
contract interpretation issue in a manner compatible
with the purposes of the Act, then the Board should
defer to the arbitration clause conceived by the parties.
This particular case is indeed an appropriate one for
just such deferral. The parties have an unusually long
established and successful bargaining relationship;
they have a dispute involving substantive contract in-
terpretation almost classical in its form, each party
asserting a reasonable claim in good faith in a situation
wholly devoid of unlawful conduct or aggravated cir-
cumstances of any kind; they have a clearly defined
11 112 NLRB 1080, 1082.
^Z 175 NLRB No. 23.
grievance-arbitration procedure which Respondent has
urged the Union to use for resolving their disputes;
and, significantly, the Respondent, the party which in
fact desires to abide by the terms of its contract, is the
same party which, although it firmly believed in good
faith in its right under the contract to take the action
it did take, offered to discuss the entire matter with the
Union prior to taking such action.
Thus, Spielberg sets forth the applicable guidelines where
arbitration has been invoked and completed; Schlitz, where
arbitration is available but has not been invoked.
In these cases, arbitration has been invoked in the
overtime dispute but not the other two. Turning first to the
latter, it is clear that the apprenticeship program and safety
disputes involved in these cases are totally unlike the relief
scheduling dispute in Schlitz. In the first place, while Re-
spondent and the Union apparently have a long and suc-
cessful bargaining relationship at other installations
covered by the master agreement, it is obvious that the
relationship at the local level during the period covered by
these cases has been somewhat less than successful when
success is measured in terms of labor peace and stability. In
the second place, while I have no doubt that Respondent
acted in good faith and did not seek to undermine the
Union or the Charging Party, in each of these disputes
Respondent is the party which sought, improperly, to
change the terms of its contract, as developed more fully
below, and not the party which, in fact, desires to abide by
its terms. Therefore, I reject Respondent's deferral-to-arbi-
tration defense with respect to the apprenticeship program
and safety disputes and deal with them on their merits in
sections 2 and 3, respectively, below.
The overtime dispute, however, has been through the
arbitration procedure which the parties themselves have
voluntarily established not once but twice. Therein, of
course, lies the rub. That the overtime dispute does not fit
Spielberg guidelines exactly is as obvious as the fact that the
other two do not fit Schlitz. The Pearce Davis award did not
resolve the issue, for Respondent refused to accept it. The
Hebert award has not resolved the issue for the Union and
the Charging Party have refused to accept it. Each side takes
the position that the proceeding which went against it is
invalid. Respondent contends that Arbitrator Davis went
beyond the scope of his authority in ruling that it could
order employees to work overtime only in truly emergency
situations. The Union contends that Arbitrator Hebert had
no authority to rule on the question at all since , by with-
drawing from the proceeding, the Union effectively ended
it before he ruled. But, in my opinion, all of the important
factors which underlie both Spielberg and Schlitz are pre-
sent here.
First, the overtime dispute is purely and simply a "dis-
pute involving substantive contract interpretation almost
classical in its form." Everything hinges on what the parties
meant when they used the word "emergency" in section 1
of article VI of the master agreement . That question has
been considered at length and ruled on, albeit differently,
by both Davis and Hebert. Next, unlike the apprenticeship
program and safety disputes, in the overtime dispute Re-
spondent is not trying to change its contract. It is simply,
in good faith, contending for its interpretation of what the
parties meant when they wrote article VI, section 1. Last,
ATLANTIC RICHFIELD COMPANY 1243
and most important, the proceedings before both Davis and
Hebert have been fair and regular and the decision of nei-
ther is clearly repugnant to the purpose and policies of the
Act. The Union, of course, disagrees that the proceeding
before Hebert was "fair and regular," as that phrase is used
in Spielberg, relying on the fact that it refused to participate
in that proceeding beyond a certain point. At the core of the
Union's position lies the question of whether a party to an
arbitration proceeding can legally subvert the arbitration
process by withdrawing unilaterally once the machinery has
been set in motion . As indicated in the brief summary above
of the procedural path followed in the case before him,
Hebert leaned over backwards to assure the Union a fair
and regular hearing on all the contentions it made. After
careful deliberation and a weighing of the authorities on the
question, he ruled that the Union could not withdraw. That,
I think, is sufficient to meet the Spielberg "fair and regular"
standard. In summary, the overtime dispute has been dealt
with in a grievance and arbitration procedure to which the
parties voluntarily consented 13 involving a fair and regular
proceeding in which the rights of both sides were protected
with a final result that is not clearly repugnant to the pur-
poses and policies of the Act. The fact that the intransigence
of the parties has prevented an end to the matter does not
perforce make the Board the proper forum for continuing
the fight. A court in which one side or the other seeks to
enforce its arbitration victory is. Therefore, I find that the
Spielberg doctrine covers an arbitration proceeding which
has taken the involved route of the overtime dispute here
and that the Board should defer to that proceeding by dis-
missing all allegations of the consolidated complaint which,
are based on the overtime dispute.
I am mindful, however, that this finding goes beyond
narrow reading of Spielberg and thus may be beyond my
authority as a Trial Examiner. Therefore, I now turn to a
consideration of the overtime dispute on its merits.
In the overtime dispute the General Counsel has al-
leged that Respondent violated Section 8(a)(3) and (1) of the
Act by suspending employees in October 1968 for refusing
to work overtime and Section 8(a)(5) and (1) by unilaterally
changing existing hours of employment. Implicit in both
theories is the idea that it is an unfair labor practice for
Respondent to refuse to abide by the Pearce Davis award,
right or wrong.
I have already found that Respondent acted through-
out in good-faith reliance on its interpretation of the master
agreement. In fact, if there is any bad faith present, the
Union is the guilty party. I have found, on the basis of the
record made before me, that the Union did not specifically
state that it was refusing to rearbitrate the overtime dispute
when it agreed, in Judge Beamer's chambers on October 20,
1967, to carry the Mysker-Dorcik matter to arbitration. Ar-
bitrator Hebert went even further. He specifically found,
` ... whether the Company has a right to require employees
to work overtime, absent emergency conditions as those
conditions were interpreted in the prior award of Arbitrator
Pearce Davis ... is the issue the parties agreed to submit to
arbitration in proceedings before Federal District Judge
Beamer in October, 1967." But whether or not the Union
has acted in good faith is irrelevant. What is relevant and,
in fact, decisive is Respondent's good faith. If there were
some evidence that Respondent's motive, in insisting that
Arbitrator Davis was without authority to rule on the basic
issue and wrong in his interpretation of the contract, was to
discourage employees from supporting the Union and/or
the Charging Party or undermining their position, Respon-
dent would be guilty of unfair labor practices regardless of
whether Davis was right or wrong. However, there is no
such evidence.14 Absent such evidence, Respondent can
only be guilty of an 8(a)(3) violation if its suspension of
employees was so inherently destructive of their rights un-
der the Act that no specific motive need be proved; Respon-
dent can only be guilty of an 8(a)(5) violation if the Davis
award's interpretation of the overtime provision "became as
much a part of the contract ... as if it had been written in
nuncpro tunc."15 For either theory to prevail, it is first neces-
sary that Davis have been right. Therefore, when considered
on the merits of an unfair labor practice case, the overtime
dispute comes down to a determination by the Board of
whether the Pearce Davis award was right or wrong on the
merits of the contract question.
I have set forth both the Pearce Davis and Hebert
awards above at such length because they speak so elo-
quently for themselves. The Hebert document is much the
more cogent. I agree with Hebert's conclusion that Davis
would not have reached the conclusion he did if he had had
before him the record made before Hebert. The fact that the
record before Hebert consisted solely of evidence presented
by Respondent does not make it any less valid. The Union
had an opportunity both before Hebert and before me to
present any evidence it chose which might have countered
the evidence on which Hebert based his decision. The tran-
scripts of both Hebert hearings as well as all exhibits were
introduced into this record. No evidence going to the merits
of the contract question was offered to counter them. There-
fore, I find that, insofar as the merits of the contract issue
are concerned, Davis was wrong, Hebert right. Since failure
to follow the Pearce Davis award can only be unfair labor
practices if Davis was right, I find, on the merits of the
overtime dispute tried before me, that Respondent did not
violate Section 8(a)(1), (3), or (5) by its actions in suspending
employees in October 1968 for refusal to work overtime.
13 The General Counsel argues that Respondent could bankrupt the Union
by forcing it to the expense of arbitrating all disputes if it is denied the
protection of the Act in this proceeding Abstractly considered , the proposi-
tion may be correct , but it misses the point of these cases completely. There
is no evidence Respondent had any such purpose in mind The cost of
arbitration is part of the puce the Union elected to pay when it agreed to the
grievance-arbitration procedure of the master agreement Finally, and more
specifically, only the Union can carry a dispute to arbitration under the terms
of the master agreement and that is precisely what it agreed to do in the
situation which led to the Hebert award regardless of what, if any, limitations
it intended to put on the issue to be arbitrated
14 The Charging Party contends that Respondent's failure to abide by the
Pearce Davis award is itself sufficient evidence to establish Respondent's bad
faith Such an argument is, of course, circular, since the element , bad faith,
required to make an act, refusal to abide by an arbitrator' s decision , illegal
is supplied by the act itself. I reject it See sec 3 for more on the question
of Respondent 's good or bad faith
15 International Union, United Mine Workers of America, et at (Westmore-
land Coal Co), 117 NLRB 1072, 1075
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The apprenticeship program dispute
In the apprenticeship program dispute the General
Counsel has alleged a violation of Section 8(a)(5) and (1) of
the Act on a unilateral change theory. On the merits, Re-
spondent argues that "the Company's postings for appren-
tices ... was not one impinging on the Union's or employ-
ees' basic statutory rights, nor was it one suggesting any
superiority of Board remedies over resort to and utilization
of the grievance-arbitration machinery." The second half of
that argument simply harks back to Respondent's basic
deferral-to-arbitration defense . There is simply no require-
ment that Board remedies must be found to be superior to
arbitration remedies before a unilateral change in terms and
conditions of employment becomes an unfair labor prac-
tice.
The first half of Respondent 's argument is also without
merit . Certain age and educational requirements for entry
into apprenticeship programs were negotiated between Re-
spondent and the Charging Party and formalized in written
agreements . Thereafter, without consulting the Charging
Party, Respondent changed them. In the case of the ma-
chine shop, Respondent imposed an age limitation where
none had existed before . In the case of that agreement as
well as the electric shop and instrument department it stiff-
ened the educational standard by requiring a high school
diploma where something less sufficed before . The effect
was to bar from the programs employees who had previous-
ly qualified. The fact that Respondent raised the age limita-
tion for electric shop apprentices from 33 to 35, thus
possibly opening an opportunity for employees previously
barred, does not help it any. Respondent 's employees had
a statutory right not to have any changes made without
Respondent's first negotiating with their representative.
Therefore, I find that Respondent violated Section 8(a)(5)
and (1) when , on August 14, 1969, it unilaterally changed
the standards for admission to apprenticeship programs in
its electric shop, instrument department , and machine shop.
Wisconsin Contractors, Inc., 183 NLRB No. 84; Bierl Supply
Company, 179 NLRB No. 125.
3. The safety dispute
a. The events of November 25, 1969
In the safety dispute the General Counsel has alleged
violations of Section 8(a)(3) and ( 1) of the Act in that Re-
spondent discriminatorily suspended and discharged Wil-
liam Padjen and Gordon Maybaum and violations of
Section 8(a)(5) and (1) in that Respondent unilaterally
changed terms and conditions of employment by reducing
the number of employees used to charge tower 826 on No-
vember 25 , 1969, from six to five and by failing to follow
step three of the Bunger letter by having the chairman of the
management safety committee himself confer with the
Charging Party's safety committeeman before suspending
Padjen and Maybaum that day. In addition , he has alleged
that the tower changes created abnormally dangerous con-
ditions for work at the place of employment of its employees
within the meaning of Section 502 of the Act and that the
strike which began on November 26, 1969 , was caused by
Respondent's unfair labor practices.
This phase of these cases turns on whether the dispute
which erupted at the East Chicago refinery on November
25, 1969 , was really a safety problem , as the General Coun-
sel contends , or a flexibility problem , as Respondent con-
tends . A threshold question is whether "abnormally
dangerous conditions" within the meaning of Section 502
were created that day . I find they were not . The only thing
which Respondent sought to change that day about the
routine procedure for charging a tower was to eliminate the
bottom hooker. All other details , especially the fact that clay
in a heavy metal bucket was to be lifted by a crane from the
ground some 30 feet in the air and swung over storage tanks,
remained precisely the same . Such a slight change is not
sufficient to change "normal" working conditions to "ab-
normal."16
A more difficult question is whether Padjen was being
"required to perform services that seriously endanger[ed]
his physical safety" when he was ordered to hold onto the
tag line and signal Maybaum . Here , the problem is compli-
cated by the manner in which the issue has been formulated
by the General Counsel in the pleadings , during the hearing,
and in his brief . Paragraph XIII(b) of the complaint reads:
Respondent ARCO's conduct alleged above in
subparagraph (a) created abnormally dangerous condi-
tions for work at the place of employment of its em-
ployees within the meaning of Section 502 of the Act.
Respondent moved for a bill of particulars . Trial Examiner
Charles W. Schneider ordered the General Counsel to
"specify what place within the Chicago refinery is referred
to in Paragraph XIII(b) of the Amended Complaint." The
General Counsel 's response stated:
Respondent ARCO's conduct alleged in subpara-
graph XIII(a) created abnormally dangerous condi-
tions for work throughout Respondent ARCO's entire
East Chicago , Indiana refinery within the meaning of
Section 502 of the Act.
Early in the hearing the question arose of just what the
General Counsel 's theory was. Was he relying on dangers
to Padjen in having to perform an unfamiliar job? Or was
he relying, as his response to Schneider's order seems to
imply, on the danger of an explosion or fire if Padjen ineptly
guided the bucket into one of the storage tanks? Or was he
relying on both? On the second day of the hearing the
General Counsel stated:
I believe the General Counsel's position was that
the movement of this bucket in the way that it was
ordered by the respondent and over the physical equip-
ment or physical properties . . . is what created the
abnormally dangerous condition.
And Mr . Padjen's safety is just one part of that
abnormally dangerous situation that would have oc-
curred with an inexperienced man being required to
perform the operation as directed and ordered by the
respondent on that particular day.
Thereafter, the hearing went off in the direction of estab-
lishing the facts set forth in section A, 3, d, above, which
relate to the question of whether there was any danger of
explosion or fire if the bucket had hit something on Novem-
ber 25. ,
16 Cf. Knight Morley Corporation, 116 NLRB 140, and Fruin -Colnon Con-
struction Co, 139 NLRB 894.
ATLANTIC RICHFIELD COMPANY 1245
In his brief, the General Counsel appears to have
dropped this part of his theory completely. There is no
discussion of storage tanks, their contents, or the chemical
properties of the contents. There is no discussion of the
weight of the loaded bucket, the construction of the storage
tanks, or the possibility of such a bucket so loaded breach-
ing a storage tank so constructed if they happened to col-
lide. There is no mention of explosion or fire. Instead the
General Counsel merely states:
The employees were endangered because an inex-
perienced employee, Padjen, was assigned to perform
the critical job of ground hooker in the charging of the
826 Tower. In the performance of this job, it is undis-
puted that it would have been necessary for Padjen to
guide, by using signals, a 1-ton metal bucket back and
forth over horizontal tanks during 35 swings between
the ground and the top of a 22-foot high tower ....
Therefore, the safe movement of the bucket depended
on the signals given by the ground hooker.
i f f •
The testimony which is material and decisive came
from Maybaum. He testified:
Q ... Would you show us on this exhibit, would
you draw for us the path that the bucket follows up to
this point?
A. Well, at this point where this bucket is here in
the center of this lowboy [i.e., the trailer]-
Q. You are pointing to the starting point, is that
right?
A. I'm starting at the starting point. Now the buck-
et is setting here on the ground.
Q. All right.
A. This bucket starts to come up like this. I swing
it up over the tank.
Q. Now you have given us the entire path that is
followed by the bucket, is that right?
A. Right.
Q. Thank you. You may sit down. Now, after the
ground hooker gives you the swing signal, what would
happen next?
• A. While I'm swinging up over these [tanks] 18 at
It is the contention of the General Counsel that the
myriad of dangers which arose from using an inexpe-
rienced man as a ground hooker created "abnormally
dangerous" conditions, within the meaning of Section
502 of the Act, when Padjen was assigned this job.
In any event, whether or not General Counsel intended
to preserve an explosion/fire theory by his vague references
to "employees" who were endangered'7 or to "myriad of
dangers," it is clear that no such danger existed on Novem-
ber 25. Without belaboring all the facts in section A, 3, d,
it is obvious that, if the bucket had hit one or more of the
storage tanks or towers, the tanks or towers would probably
not have been ruptured, and even if they had, no explosion
or fire would have resulted. I so find.
With respect to the dangers to Padjen and his col-
leagues, the General Counsel relies heavily on the testimony
of John Howe. Howe, a rigger employed by Respondent at
East Chicago, was called as an expert witness. He testified
about the long apprenticeship rigger's serve, the length of
time it takes to master the standard hand signals regularly
used between hookers and crane operators, the technique by
which the tip of the boom is placed slightly off center of the
load to be lifted in order to lift the load straight up when
its weight causes the boom to dip slightly, the danger that
the cable will wind onto the drum in an irregular manner,
slip, and cause the load suddenly to drop 6 or 7 feet, and
the danger that the bottom hooker may inadvertently let the
end of the tag line wind around his leg, causing him to go
up with the load. I credit all of its. I also find it immaterial
to this issue.
17 There is no evidence that any employees were in the immediate area on
November 25, either on or near the horizontal storage tanks or on or near
the vertical towers, other than Padjen and his colleagues If they had tried
to carry out Respondent 's instructions that day, Padjen and Jonkman would
have been on the ground near the trailer , Maybaum in the cab of the crane,
and Petty and Lundsford on top of tower 826.
this time-
Q. You are referring to, you are pointing to the
horizontal [tanks]?
A. Horizontal [tanks]. When I get to the north of
these [tanks] here, then I pick my hooker up on top of
the tower.
Q. What do you mean you pick your hooker up?
A. I disregard this man and then I'm watching this
hooker on top of the tower.
Q. Where is the bucket when this happens?
A. It's north of these horizontal [tanks] here.
Q. How far north would it be would you say?
A. I'd say around maybe five foot past these
[tanks].
D
THE WITNESS When I pick this bucket up and start
swinging and when I get over the top of the east [tanks],
I am looking at him . That's when I start swinging the
bucket over to the east [tanks] here to my left.
TRIAL EXAMINER You mean by swinging you are-
THE WITNESS I am cleared of this.
TRIAL EXAMINER How do you know that?
THE WITNESS From this man right here . He gives
me the signal when I clear these hand railings and
everything on this [tank]. Then he gives me the signal
to start swinging over these horizontal [tanks].
Q. (By Mr . Mazur) When do you look at the hook-
er at the top of the tower?
A. When I get past around about at the north edge
of these [tanks].
's The word used throughout is "towers" but it is clear from the context
and the use Maybaum made of the diagram before him as he testified that
both the General Counsel and Maybaum were referring to what I have called
the horizontal tanks to distinguish them from the vertical towers.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In other words, Maybaum would have relied on Padjen to
tell him that the bucket was high enough off the ground to
clear the horizontal tanks before starting his swing toward
tower 826. By the time the bucket got near the higher verti-
cal towers, Maybaum would have been relying on Petty, his
experienced hooker on top of the tower, for directions.
Howe's expert testimony is meaningless because Pad-
jen was not asked on November 25 to be a skilled rigger. All
he was asked to do was hang onto the tag line so that the
bucket would not spin and signal Maybaum to lift the buck-
et higher than 9 feet so that it would clear the horizontal
tanks as Maybaum swung the crane to and from tower 826.
Any movement of any part of Padjen's anatomy which told
Maybaum when to start lifting, how high to go before he
started swinging, and when, on the return trip, the bucket
was in position to be lowered to the ground would have
done the trick. For this Paden did not need a knowledge of
all the hand signals . Some recollection of what he had done
in the past would have helped him with the problem, for, as
Paden admitted, he had given up-and-down signals to the
operator of an A-Frame type crane which differs from the
Lorain-Moto in design but not in function. Even, as Luzzi
suggested, a simple nod of the head would have served if
Paden and Maybaum had worked it out between them.
As to Howe's other points on the way an expert rigger
would have done thejob, a slight swing of the bucket caused
by the dipping of the boom as it took the weight of the load
posed no real threat. From where he was standing as the
bucket started up, Padjen could not have seen whether the
cable was rolling onto the drum smoothly. The drum, on the
Lorain-Moto crane, is behind the cab. Padjen would have
been standing in front of it, some 70 or more feet away. As
to the danger of getting entangled in the tag line, a little
common caution would have avoided the problem. The
Padjen who testified did not strike me as being either a
stupid man or a careless workman. For all of these reasons,
therefore, I find that Respondent' s assigning Paden the
additional duties of a bottom hooker on November 25,
1969, did not, in fact, require him to perform services that
seriously endangered his or anybody else's physical safety
within the meaning of article XXIII, section 2, of the master
agreement.
It does not follow from this finding, however, that Pad-
jen did not honestly think his physical safety was seriously
endangered that day. I have no doubt that not only Padjen
but all the representatives of the Charging Party and the
Union who got involved in this dispute took the position
only safety was involved in good faith. By the same token,
I am equally certain that Respondent took its position that
the only issue was flexibility in good faith. On the question
of whether safety was the issue, the Charging Party was
wrong, Respondent was right.
As I have already indicated, whether Respondent was
acting in good faith throughout the events of these cases is
an extremely important question. I have set forth the facts
and considered the various disputes separately in the hope
of clarifying a complex situation. I have not, however, lost
sight of the fact that these disputes are intertwined. For
example, I have kept in mind and weighed the fact that
Respondent unilaterally changed the apprenticeship pro-
gram between the first and second Hebert hearings and the
fact that the second Hebert hearing was held during the
strike which grew out of the safety dispute. There is no
explanation in the record of why Respondent tried to
change the apprenticeship programs. This could justify a
finding that Respondent was seeking, in some devious way,
to get rid of the Union. But not, I think, on this record. On
the basis of the relationship at the national level between
Respondent and the Union, the length of time that relation-
ship has existed, and the fact that relations at the East
Chicago refinery have become exacerbated, a more likely
explanation is that Respondent overlooked the provisions
of the supplementary agreement when it drew up the notices
it posted on August 14, 1969, then was unwilling to concede
its mistake when the Charging Party made an issue of it.
Similarly, the fact, as developed immediately below, that
Respondent was wrong in its position that the new flexibili-
ty clause in the master agreement gave it a contractual right
to eliminate the bottom hooker from the tower charging job
couldjustify a finding of bad faith. Such a finding would be
incorrect. Once again, I think, the explanation lies in the
tension that existed between Respondent and the Charging
Party at the East Chicago refinery. Therefore, after weigh-
ing together all the evidence on which a finding that Re-
spondent was seeking to cripple or get rid of the Charging
Party could be based, especially Respondent's refusal to
abide by the Pearce Davis award and its attempt improperly
to apply flexibility to the tower charging job, I do not find
that Respondent acted in any aspect of these cases in bad
faith. I find, rather, that it did what it did in a good-faith
belief that the things it said and did were right and necessary
to maintain its position vis-a-vis the Charging Party.
Respondent, then, was right that flexibility, not safety,
was the issue on November 25. It was wrong, however, when
it took the position that the new article IV, section 5(a),
covered the situation. Respondent sought to negotiate a
broad flexibility clause . The Union took the position that it
wanted to retain the old agreement. The disagreement was
compromised in the final settlement of the 1968-69 negotia-
tions on January 24, 1969. Respondent got something less
than it wanted. The Union gave something more than it
wanted to give. Just what was got and what was given is
evidenced by the words-"or classification"-the Union
struck out of Respondent's last proposal on flexibility and
by the acknowledgement of Respondent's chief negotiator
that what the Union had agreed to was less than what
Respondent sought but still something it could live with.
What Respondent and the Union had agreed to was that
flexibility would apply only to the work of craft employees.
Consequently, Respondent could properly rely on flexibility
on November 25, 1969, only if Padjen's job was a craft job.
There are two ways of looking at the job Padjen was
assigned to do on November 25. He can be viewed either
as a plug gang man or as a bottom hooker. Either way he
was not involved in craftwork. Plug gang men are admitted-
ly only laborers. Riggers are a craft, but the bottom hooker's
work on tower charging jobs does not require the skill of a
fully trained rigger . Therefore, Respondent had no contrac-
tual right on November 25 to reduce the size of a tower
charging crew from six men to five without first discussing
the change with the Charging Party.
From these three basic findings, namely, that flexibility
ATLANTIC RICHFIELD COMPANY 1247
and not safety was the real issue on November 25, that both
sides, notwithstanding, were acting in good faith when they
did what they did that day, and that Respondent had no
contractual right to act as it did, three violations of the Act
flow. First, when Respondent reduced the tower charging
crew by one man without first consulting the Charging Par-
ty, it unilaterally changed a condition of employment, there-
by violating Section 8(a)(5) and (1).19 Similarly, even though
safety was not really the issue that day, the fact that Padjen,
Maybaum, and the Charging Party raised a safety question
in good faith brought the provisions of the Bunger letter and
the past practice established under it into operation. When
Respondent suspended Padjen and Maybaum before it
complied with the third and last step of the Bunger letter
procedure, it again made a unilateral change in a condition
of employment, thereby violating Section 8(a)(5) and (1).
Finally, Padjen and Maybaum were concertedly seeking to
invoke a contractual right that day. Even though they were
wrong about the application of article XXIII, section 2, of
the master agreement to the situation, they were acting in
good faith and thus had a colorable right under the contract
to take the position they did 20 Therefore, they were sus-
pended for engaging in a protected, concerted act, and Re-
spondent thereby violated Section 8(a)(1) of the Act 21
sions of Padjen and Maybaum so that there was no time
,between the violation and the strike for even the lowest steps
of the grievance-arbitration procedure to be invoked. Pad-
jen and Maybaum were only suspended for 3 days, a mild
enough punishment for refusing to do the work to which
they were assigned. Most importantly, all of these disputes
could have been resolved through arbitration. There is no
evidence that Respondent has ever failed to abide by an
arbitrator's award which went against it in a case where, as
distinguished from the Pearce Davis award, the issue was
fairly and fully framed, presented, and argued before an
arbitrator who did not go beyond the issue before him.
There is no reason to think that Respondent would not have
abided by awards which went against it on any or all of
these issues. When weighed against Padjen's and
Maybaum's egregious conduct on the morning of Novem-
ber 26, 1969, Respondent's unfair labor practices on August
14 and November 25 pale into insignificance. Therefore, I
find that Respondent did not violate the Act when it dis-
charged them.24
Upon the foregoing findings of fact, and upon the en-
tire record in these cases, I make the following:
CONCLUSIONS OF LAW
b. The events after November 25, 1969
Respondent's employees struck on November 26, 1969,
because Padjen and Maybaum set up a picket line at the
entrances to the refinery. Padjen and Maybaum picketed
because they had been suspended. When Respondent sus-
pended Padjen and Maybaum it committed an unfair labor
practice. Therefore, the strike was in protest of and thus
caused by Respondent's unfair labor practice. That much is
simple . What effects flow from this finding that the strike
was an unfair labor practice strike is not so simple.
The General Counsel relies on the Mastro Plastics 22
principle to excuse Padjen's and Maybaum's conduct in
instigating a strike of approximately 1,000 employees at a
major American refinery in the face of an explicit no-strike
clause in the master agreement. In Mastro Plastics the Su-
preme Court ruled that a no-stake clause does not waive the
right of employees to strike in protest of an employer's
unfair labor practices. Padjen and Maybaum were dis-
charged by Respondent on November 28, 1969, for instigat-
ing the strike. Therefore, despite the existence of article III,
section 3, of the master agreement , they may have been
engaged in a protected activity when they picketed on the
morning of November 26 and their discharges for that rea-
son could be violations of the Act. Whether this is so must
depend, in the final analysis, on whether the unfair labor
practices which Respondent has committed are serious
ones.23 I think they are not. The three instances of unilateral
changes in conditions of employment are technical viola-
tions only. Two of them arose in the context of the suspen-
19 American Oil Company, 160 NLRB 541.
20 Anaconda Aluminum Company, 160 NLRB 35
21 But not Sec. 8(aX3), there being no evidence on which to base a finding
that, by suspending Paden and Maybaum, Respondent discouraged mem-
bership in the Union
22 Mastro Plastics Corp v N LR.B, 350 U S 270
1. Atlantic Richfield Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, and its Local?-210 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. All employees who were, prior to the merger of Sin-
clair Oil Corporation and Atlantic Richfield Company on
March 4, 1969, engaged in refining as conducted by the
manufacturing division of Sinclair Oil Corporation; pipe-
line operations as conducted by the Sinclair Pipe Line Com-
pany; and the development and/or production of crude oil
and/or natural gasoline and the purchase and marketing of
crude oil by the producing division of Sinclair Oil Corpora-
tion; and those employees who were covered and employed
by the research division of Sinclair Oil Corporation consti-
tute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. At all times since 1934 the Union has been and
presently is the representative for the purpose of collective
bargaining of the employees in the unit described above
and, by virtue of Section 9(a) of the Act, has been and now
is the exclusive representative of all the employees in said
unit for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, or other terms
and conditions of employment.
5. By unilaterally changing the standards for admission
to apprenticeship programs in the electric shop, instrument
department, and machine shop at its East Chicago, Indiana,
refinery, on August 14, 1969, and by unilaterally reducing
the crew used to charge towers from six men to five and
changing the procedure followed in adjusting good-faith
claims by its employees that they are being required to
perform services that seriously endanger their physical safe-
23 Arlan's Department Store of Michigan, Inc, 133 NLRB 802.
24 Sunbeam Corporation, 184 NLRB No 117
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ty on November 25, 1969 , Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. By suspending William Padjen and Gordon May-
baum on November 25, 1969 , for concertedly engaging in
the protected activity of asserting , in good faith , a claimed
right under a collective -bargaining agreement , Respondent
has engaged in unfair labor practices within the meaning of
Section 8 (a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. The following allegations of the consolidated com-
plaint have not been sustained:
'a. That Respondent violated Section 8(a)(5), (3),
and (1) of the Act in October 1968 by suspending em-
ployees for refusing to work overtime and unilaterally
changing existing hours of employment;
b. That Respondent violated Section 8(a)(3) of the
Act by suspending William Paden and Gordon Mayb-
aum on or about November 25, 1969; and
c. That Respondent violated Section 8(a)(3) and
(1) of the Act by discharging William Padjen and Gor-
don Maybaum on or about November 28, 1969.
9. Respondent did not create abnormally dangerous
conditions for work at the place of employment of its em-
ployees within the meaning of Section 502 of the Act when,
on November 25, 1969 , it reduced the crew used to charge
towers at its East Chicago , Indiana , refinery from six men
to five.
10. The strike which began at Respondent 's East Chi-
cago, Indiana , refinery on November 26, 1969 , was caused
by Respondent 's unfair labor practices.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I would ordinarily include a reinstatement and make-
whole remedy for William Paden and Gordon Maybaum
to undo the effect of their illegal suspensions . However,
their suspensions merged into their discharges so soon
thereafter and the conduct for which they were legally dis-
charged caused such a disruption to Respondent 's normal
business activities that I will omit any remedy for them.
Similarly , while I have found that the strike which began on
November 26, 1969 , at the East Chicago refinery was caused
by Respondent 's unfair labor practices , I will omit the usual
remedy that Respondent reinstate all strikers who make an
unconditional offer to return to work . All of them made
such an offer and duly returned to work on December 29,
1969.
[Recommended Order omitted from publication.]
ATLANTIC RICHFIELD COMPANY 1249
Employee Date of
APPENDIX
Date of Length of Date
Incident Company
Action
Suspension Suspension
Began_
W. Czarnik 10/9
_
10/10 5
,
10/21
10/10 10/23 5 12/16
E. Dorcik 10/9 10/10 5 10/14
10/10 10/23 5 12/16
R. Ewbank 10/10 10/23 5 12/9
J. Gaio 10/9 10/10 5 11/18
10/10 10/23 5 12/16
C. George 10/10 10/23 5 12/23
10/22 10/22 10 12/?
W. Golubiewski 10/9 10/10 5 10/28
10/10 10/23 5 12/2
J. Herrman 10/10 10/23 5 12/23
J. Kicho 10/9 10/10 5 10/28
10/10 10/23 5 12/16
10/22 10/22 10 j2./2
P. Kuntz 10/9 10/10 5 11/11
10/10 10/23 5 11/25
10/22 10/22 10 12/9
R. Lewis 10/22 10/22 5 12/9
T. Nevers 10/9 10/10 5 11/11
W. Parsons 10/9 10/10 5 11/4
J. Petrunich 10/9 10/10 5 10/21
10/10 10/23 5 12/23
W. Piorkowski 10/9 10/10 5 11/4
J. Skorupa 10/9 10/10 5 10/14
10/10 10/23 5 12/9
W. Wright 10/22 10/22 5 12/2