Shell Oil Co.

National Labor Relations Board - Board Decisions

Feb 8, 1951

93 N.L.R.B. 161 (N.L.R.B. 1951)

SHELL OIL COMPANY 161
7. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Company has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (a) (1)
of the Act.
8. By causing the Company to discriminate in regard to hire and tenure of
employment in violation of Section 8 (a) (3) of the Act, the Union has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8
(b) (2) of the Act.
9. By causing the Association and its members to discriminate in regard to
hire and tenure of employment in violation of Section 8 (a) (3) of the Act, the
Council has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (b) (2) of the Act.
10. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (b) (1) (A) of the Act.
11. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Council has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (b) (1) (A) of the Act.
12. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
SHELL OIL COMPANY AND SIIELL CHEMICAL CORPORATION and OIL
WORKERS INTERNATIONAL UNION, CIO, LOCAL No. 367 . Case No.
39-CA-112. February 8, 1951
Decision and Order
On September 26, 1950, Trial Examiner Alba B. Martin issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondents filed exceptions to the Intermediate Report and supporting
briefs. The Union filed a brief in support of the Intermediate Re-
port. The Respondents' request for oral argument is hereby denied,
as the record, including the briefs and exceptions, adequately pre-
sents the issues and positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and finds merit in the Respondents' exceptions.
The facts giving rise to the controversy in this case are as follows.
The Union, a local of the Oil Workers International Union, CIO,
93 NLRB No. 20.
943732-51-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the certified representative of a single unit of employees of both
Shell Oil Company and Shell Chemical Corporation who respec-
tively operate a refinery and a chemical plant in Houston, Texas,
owned by these affiliated companies . An existing contract makes
provision for two so -called workmen 's committees , one for each plant,
to consist of not more than five employees of the respective plant, to
handle grievances . The contract provision here in question, which
relates to the handling of a grievance after it has been processed by
the grieving employee with his foreman , being in identical terms as
to both plants , reads as follows :
... [the] Union shall create a . . . Workmen's Committee
of member employees of which not more than five ( 5) will meet
with Management for the discussion of complaints .. .
During the negotiations leading to the incorporation of this pro-
vision into the contract , the Union took the position that it did not
desire such a provision in the contract and, in addition , that such a
contract provision would not affect its statutory right to designate
any person to appear for it in handling grievances ; however, the
parties were in agreement that such a contract provision , as a matter
of construction of language , meant that the Union was entitled to
bargain as to grievances only through members of the respective
workmen's committee . There is nothing in the record to indicate
that during the negotiations the Respondents ever took an adamant
position of conditioning the execution of a contract upon the Union's
acceptance of this clause . As a matter of practice , before the events
alleged as unfair labor practices here, the Respondents have on
occasion permitted persons other than members of the workmen's
committees to attend grievance meetings , but always with the express
reservation that such permission was granted as a matter of grace
and not as of right.
The complaint in this case alleges that the Respondents refused
to bargain collectively on three specific dates, namely , January 19,
March 28, and April 11, 1950.
On January 19, J. E . Crossland , secretary -treasurer of the Union,
who was not employed at either plant , accompanied the Shell Oil
workmen's committee to a grievance meeting with Shell Oil. The
meeting disbanded without dealing with any grievance , when man-
agement objected to the presence of Crossland because he was not a
member of the workmen 's committee . The Union had offered Cross-
land as a "witness ," stating that it wanted Crossland present because
of his familiarity with historical background leading up to the nego-
tiation of the contract; management had stated that it was willing
9
SHELL OIL COMPANY 163
to permit Crossland to give any specific testimony bearing on griev-
ances, but that it objected to his sitting in on the whole meeting.
On March 28, at a grievance meeting between Shell Chemical Cor-
poration and the Shell Chemical workmen's committee, management
objected to the presence of L. C. Dickey, a member-employee of the
workmen's committee at Shell Oil Company, because he was not an
employee of the chemical plant.' As a result, Dickey withdrew and
the meeting proceeded.
On April 11, a grievance meeting between Shell Oil Company and
the Shell Oil workmen's committee broke up without dealing with any
grievance, when management objected to the presence of Berkeley,
chairman of the Shell Chemical workmen's committee, who was em-
ployed at the Shell Chemical plant.
Based essentially on these facts, the Trial Examiner, relying on the
Board's decision in Bethlehem Steel,2 concluded that the contract pro-
vision in question as construed by the Respondents was in derogation
of the Union's statutory right to be present at the adjustment of
grievances, and thus did not justify the Respondents in limiting per-
sons attending grievance meetings to the respective members of the
workmen's committees. He therefore found that the Respondents
refused to bargain as alleged in the complaint.
The-Respondents except to the Intermediate Report on the ground
that the contract provision in. question is valid and hence their con-
duct is protected by its terms. We agree, for the reasons hereinafter
set forth.
Under the Act, a union, as the duly designated representative of the
employees, has a right to select the class of persons, whether they be
employees or nonemployees, to negotiate with the employer as to griev-
ances. An employer may not, without violating the Act, insist, as a
condition of signing a collective bargaining agreement, that the union
surrender its right to be represented by a particular class in bar-
gaining as to grievances.
The record in this case, however, does not show that the Respond-
ents had ever taken such a position. On the contrary, so far as
appears in this record, the Respondents and the Union agreed upon
' On January 24, 1950, the membership of the Union had voted that henceforth each
Shell Oil grievance meeting should be attended by a member of the Shell Chemical work-
men's committee and each Shell Chemical grievance meeting should be attended by a mem-
ber of the Shell Oil workmen's committee.
189 NLRB 341 . In that case a union signed a contract, containing a provision per-
mitting union stewards to attend the initial adjustment of grievances by foremen with
individual employees only if the aggrieved employees so elected , with the understanding that
it would seek a determination of its rights before the Board The Board held that the
provision was in derogation of the bargaining representative's rights under the Act and
that the employer refused to bargain by insisting on such a provision as a condition of
executing any contract.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grievance clause in question, which limited negotiations as to griev-
ances to a committee of five employees from each plant, through good-
faith negotiation and collective bargaining.3
While a union may not be compelled to bargain as to giving up its
right to negotiate grievances through any class it desires, we see no
reason why a union may not waive that right through genuine col-
lective bargaining, if it so chooses, just as a union may under certain
circumstances waive it rights to strike 4 or its right not to have an
employer deal with employees individually.5 It is not an uncommon
practice for unions to bargain about the composition of the committee
or class to negotiate grievances, as witness the numerous contracts
containing such clauses.e
We believe, on the basis of the record before us, that such a situation
prevailed here. The employees had exercised their free choice in
selecting the Local as their duly constituted statutory representative.
The Local, empowered by the employees to execute a collective bar-
gaining agreement on their behalf, negotiated a contract which con-
tained the grievance clause in question, setting forth the composition
of the Union's negotiating committee on grievances. The Local now
seeks to nullify this agreement by asking us to hold that it may at will
ignore its contractual arrangement and seek to negotiate grievances
through committees or classes other than that upon which it had
agreed.
We do not believe that it would effectuate the policies of the Act
to prevent disruptions to interstate commerce by stabilizing labor
relations, to permit such a disregard of a contractual obligation volun-
tarily assumed. Such a holding does not derogate from the principles
of collective bargaining. For, in the first instance, the union is not
required to bargain at all with respect to waiving or restricting its
8 The instant case , contrary to the view of the Trial Examiner , is not governed by the
Board's decision in the Bethlehem Steel case , cited supra . That case involved the ques-
tion as to whether a union was entitled, under the second proviso to Section 9 (a) to be
present at the'adjustment of a grievance prosecuted by an individual employee in his own
behalf In the instant case there is no question of the Union's right to be present at the
adjustment of grievances , the only issue related to the composition of the group represent-
ing the Union at such adjustments Moreover , in Bethlehem Steel, unlike the situation
in the instant case , the employer insisted upon inclusion of the provision there in question
as a condition of executing any contract , and the union signed the contract with an express
reservation that it would seek a determination of its rights before the Board . As noted
above, there is no indication that the Respondent ever took such an adamant position in
this case. We do not regard the Union' s mere expression of its belief that this clause did
not affect its statutory right as constituting an express reset vation of that right where the
clause was agreed upon pursuant to good -faith collective bargaining.
4 Cf. Shell Oil Company, Incorporated , 77 NLRB 1306.
Cf J I. Case Co. v . N. L. R. B , 321 U. S. 332 ; Order of Railway Telegraphers v. Rail-
way Express Agency, 321 U. S 342. See also, Alabama Marble Company , 83 NLRB 1047.
U S. Bureau of Labor Statistics , Collective Bargaining Provisions: Grievance and Aibi-
tration Provisions ( Washington , U. S. Gov 't'Printing Office, 1950, Bulletin 908-16 ),-pages
0-74.
SHELL OIL COMPANY 165
right to be represented by any specific class, regardless of an employ-
er's insistence. But here the union, either voluntarily or because it
yielded to the normal persuasion attendant upon good-faith collective
bargaining, as distinguished from the case where yielding is made a
condition to the execution of an agreement,' willingly bargained with
respect to the subject matter in question, and agreed to the restriction
pursuant to the ordinary give and take of good-faith bargaining.
For us to hold that an employer under these circumstances violates
the Act by insisting that the union honor its contractual obligation
would make a mockery of the collective bargaining in which the parties
in good faith engaged.
Nor does our holding work any practical hardship on the Union,
which is still free to utilize the services of any representative outside
the class agreed upon in the contract by having such representative
testify as a witness. This was forcefully demonstrated in the instant
case when the Respondent, Shell Oil Company, indicated its willing-
ness to permit Crossland to testify as a witness.
The Union contends in its brief that the contract, properly con-
strued, limits the number of "member employees" who may attend
grievance meetings, but has no restrictive effect as to other preferred
representatives either as to their number or classification. We do
not so construe the contract. Furthermore, an examination of the
minutes of meetings relating to the negotiations which preceded exe-
cution of the contract does not support the Union's position. For
example, at one point in the negotiations, the Union proposed that it
be permitted to have its secretary-treasurer accompany the workmen's
committees to grievance meetings with management, but management
rejected this proposal. Even if the contract provision in question
be viewed as ambiguous, a view which we hereby reject, the Union fore-
closed itself from now urging a construction of the contract incon-
sistent with the understanding of the parties at the time of its
execution.
As the terms of the contract, under the circumstances here, justified
the Respondents in refusing to negotiate as to grievances with persons
who were not members of the respective workmen's committees, such
conduct did not violate the Act. We shall therefore dismiss the com-
plaint in its entirety.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
' Cf. American National Insurance Company, 89 NLRB 185.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the complaint herein against Shell
Oil Company and Shell Chemical Corporation, Houston, Texas, be,
and it hereby is, dismissed.
Intermediate Report and Recommended Order
Mr. Charles Y. Latimer, for the General Counsel.
Messrs. Russell Vandivort, John C. Quilty, Oliver L. Stone, of New York,
N. Y., and Messrs. P. E. Keegan and Harry A. Duffresne, of Houston, Tex., for
Respondents.
Mr. Robert C. Eckhardt, of Houston, Tex., and Mr. J. E. Crossland, of Pasa-
dena, Tex., for the Union.
STATEMENT OF THE CASE
Upon a charge filed-February 13, 1950, by Oil Workers International Union,
CIO, Local No. 367, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board, herein called the General Counsel and the Board,
respectively, by the Regional Director of the Sixteenth Region (Forth Worth,
Texas), issued his complaint dated May 22, 1950, against Shell Oil Company,
Inc., referred to herein as the Virginia corporation, and Shell Chemical Corpora-
tion, alleging that said corporations had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(5) and Section 2 (6) and.(7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the charge and the complaint, to-
gether with notice of hearing, were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on or about January 19, 1950, March 28, 1950, and April 11, 1950, and at
all times thereafter, said corporations refused and continued to refuse to bargain
collectively with the Union as the exclusive bargaining representative of all
the employees in units appropriate for collective bargaining.
On June 2, 1950, Shell Oil Company, a Delaware corporation, filed a motion
to intervene and be substituted as a respondent in place of the Virginia corpora-
tion, and filed an answer admitting, assuming the substitution, the jurisdictional
and certain other facts asserted in the complaint, but denying the commission
of any unfair labor practices. Shell Chemical Corporation filed a similar
answer.
Pursuant to notice, a hearing. was held on June 13-14, 1950, at Houston,
Texas, before Alba B. Martin, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel, the Union, and the corpora-
tions were represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the beginning of
the hearing the General Counsel joined in the motion to substitute the Delaware
corporation in place of the Virginia corporation as a party respondent, and the
motion was granted and the substitution ordered. The Delaware corporation
accepted service of the complaint, notice of hearing, and charge, and waived any
lack of sufficient notice. At the conclusion of the hearing the General Counsel's
motion to conform the pleadings to the proof was granted. All parties made oral
argument and Respondents and the Union filed briefs.
SHELL OIL COMPANY' 167
Upon the entire record in the case and from observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Involved herein are two plants located at Houston, Texas, one a refinery,'the
other a chemical plant. At all times mentioned herein prior to September 30,
1949, the refinery was owned and operated; by Shell Oil Company, Incorporated,
the Virginia corporation. On that date Shell Oil Company, the Delaware cor-
poration, acquired all of the assets, rights, powers, and privileges and assumed all
of the liabilities, duties, and obligations of the Virginia corporation including its
contract with the Union ; and since then it has operated the refinery. The unfair
labor practices alleged in the complaint occurred in 1950 while the Delaware
corporation was operating the refinery. The Delaware corporation is referred to
herein as Respondent Shell Oil and its r finery as the Refinery.
At all times mentioned herein prior to `ebruary 1, 1946, the chemical plant
was operated by the Virginia corporation as its chemical division of the re-
finery. On that date Shell Chemical Corporation, a Delaware corporation and
a wholly owned subsidiary of the Virginia corporation, took over operation of
the chemical plant and assumed the Virginia corporation's contract with the
Union. After the Delaware corporation assumed the assets of the Virginia
corporation on September 30, 1949, including all of the stock of Shell Chemical
Corporation, the latter corporation continued to operate the chemical plant.
Shell Chemical Corporation is referred to herein as Respondent Shell Chemical
and its chemical plant as the Chemical Plant. Respondent Shell Oil and Re-
spondent Shell Chemical when referred to together are called Respondents.
Respondent Shell Oil has its main office in New York City and operates
numerous plants, including the Refinery, throughout the United States. During
the past year raw materials consisting of crude oil and other petroleum prod-
ucts exceeding $1,000,000 in value were shipped to the Refinery from points
outside the State of Texas, and finished products consisting of gasoline and
petroleum products exceeding $1,000,000 in value were shipped from the Re-
finery to points outside the State of Texas. Respondent Shell Oil concedes
that it is engaged in commerce within the meaning of the National Labor Re-
lations Act.
Respondent Shell Chemical has its main office in New York City and operates
numerous chemical plants, including the Chemical Plant, in various parts of the
United States. During the past year raw materials exceeding $500,000 in value
were- shipped to the Chemical Plant from points outside the State of Texas,
and finished products, consisting of chemicals and chemical products exceeding
$1,000,000 in value were shipped from the Chemical Plant to points outside
the State of Texas. Respondent Shell Chemical concedes that it is engaged
in commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, CIO, Local No. 367 , is a labor organization
admitting to membership employees of Respondents.
11
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and the Union's representation of a majority therein
The Board established a bargaining unit comprising the employees of both
the Refinery and the Chemical Plant in 1939,1 1943,2 and 1944,' when both were
operated by the Virginia corporation. The parties do not now challenge this
unit. Effective February 1, 1946, when it assumed operation of the Chemical
Plant, Respondent Shell Chemical became a party to the existing contract be-
tween the Virginia corporation and the Union. Effective June 1, 1946, and at
all times since, Respondent Shell Chemical has recognized and bargained with
the Union for those employees in the appropriate unit who work in the Chemical
Plant.
It is found that the following employees in the Refinery and the Chemical
Plant constitute an appropriate unit for the purposes of collective bargaining
within the meaning of the Act : All hourly paid employees of Respondents, in-
cluding the machinists and the employees in the boilermaking and welding
department, cargo inspectors,' ethyl blenders, telephone system supervisors,
and escort clerks, but excluding bricklayers, clerical employees, general fore-
men, department heads and their immediate assistants, stillmen, treaters, dock
shift foremen, boilerhouse shift foremen, iso-octane shift foremen, stabilizer
shift foremen, laboratory shift foremen, labor subforemen, assistant instrument
foremen, assistant electrical foremen, carpentry foremen, painting foremen,
assistant pipe fitter foremen, assistant clean-out foremen, insulator foremen,
assistant floor foremen, assistant loading rack foremen, head dispatchers, as-
sistant head dispatchers, motor laboratory foremen, boilermaker foremen, and
welder foremen, and excluding also all other supervisory employees with au-
thority to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action.
The complaint alleged, the answers admitted, assuming the corporate re-
arrangements as found above, and I find that on or about January 27, 1939,
a majority of the employees at the Refinery and the Chemical Plant in the units
found above, designated or selected the Union as their representative for the
purposes of collective bargaining, and that at all times since that date the Union
has been and now is the representative for the purposes of collective bargaining
of a majority of the employees in said units.
2. The refusal
This case arises over the refusal of Respondents at regular grievance meet-
ings, to discuss the grievances scheduled with the workmen's committees of its
employees in the presence of a nonmember of the workmen's committee not ap-
proved for attendance by it. The regular grievance meetings and the workmen's
committees were established pursuant to identical contractual clauses between
Respondents and the Union, further discussed hereafter.
Since at least December 12, 1947, Respondent Shell Oil and its predecessor
corporation have taken the position in their dealings with the Union that at
grievance meetings only employee members of the workmen's committee may be
111 NLRB 572.
2 52 NLRB 313.
3 56 NLRB 318.
1 For this and succeeding included categories , see the Board 's Fifth Supplemental De-
cision in case No. R-626 (16-R-87 ) dated June 16, 1944.
SHELL OIL COMPANY 169
present and that paid representatives of the Union, such as the secretary of
the local union, may not sit in as a matter of right-although on occasion Re-
spondent Shell Oil and its predecessor corporation have permitted the presence
of such a non-employee "outsider," with the statement that his presence shall
constitute no precedent. The Union has consistently challenged this position
and brought this case to test it.
a. January 19, 1950
At the regular grievance meeting between Respondent Shell Oil and the work-
men's committee of its employees held January 19, 1950, five persons were pres-
ent representing Respondent and eight representing the Union, including John
Crossland, secretary-treasurer of the local. At the beginning of the meeting
P. E. Keegan for the Company asked "how Mr. Crossland happened to be
present." Cansler, a member of the workmen's committee, replied, "He is a
witness," Crossland then stated, "I don't know that it matters, Mr Keegan.
What is the Company's contention?" Keegan replied, "You aren't a member of
the workmen's committee." To Crossland's reply that "I am as much a mem-
ber as any member that is on the committee," Keegan countered, "I am afraid
I couldn't agree." Then ensued a discussion as to the rights of the parties in
the matter, and their statements of position, Respondent claiming the right to
exclude from attendance at the discussions anyone who was not a member of the
workmen's committee. Specifically it objected to the presence of Crossland, not
as an individual, or because of anything connected with him personally, but
as an "outsider and a nonemployee of the company." The Union stated Cross-
land was there as a witness. Respondent claimed, in unoffending language, that
that position was "simply . . . a subterfuge or a way to accomplish a purpose
of having an outsider in where that is not the intention under our contract "
Respondent stated that it had no objection to Crossland's giving a "particular
piece of testimony" but that it did object to his sitting in on the whole meeting.
At another point in the discussion P. E. Keegan, Respondent's administrative
superintendent, who did most of the speaking for Respondent, tended to indi-
cate that before permitting an outsider to remain in the meeting at all he would
want to know "what testimony he could offer as a witness in that particular
case.. . . " The Union stated that it wanted Crossland present because he knew
the history of all the clauses in the contract and what language and examples
went into their making. Keegan replied that the parties should first discuss
the grievance far enough to determine whether any such background informa-
tion was necessary, and that it it was he would be willing to have Crossland come
in and give it. Keegan then asked if the grievance involving the treating plant,
which the Union at the opening had stated was the first grievance to be taken
up, required any such background information, or whether any of the other
grievances on the agenda did. The Union stated that it did not wish to put
the matter on that basis, that its position was that it was entitled to bring in any
witnesses it pleased and so was the Company, that the Union would not dictate to
the Company nor allow the latter to dictate to it. The meeting was adjourned
without discussing any grievance because it was evident that the parties could
not agree on the Crossland question.
At this grievance meeting Respondent did not voice any objection to the pres-
ence of more than five members of the workmen's committee, although seven were
there, not counting Crossland.
Immediately following this meeting, on January 24, 1950, the membership of
the local voted unanimously that henceforth each grievance meeting between
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Shell Oil and the workmen 's committee of its employees should be
attended by one member of the workmen 's committee of the Chemical Plant, and
vice versa . This, decision was not changed prior to the hearing.
b. March 28, 1950
At a meeting between Respondent Shell Chemical and its workmen 's committee
on March 28 , 1950, the Union was represented by five employee -members. The
meeting began at 10 a. m. The parties stipulated that the following correctly sets
forth what took place at the beginning of the meeting :
Mr. G. R . Duke, *Chairman of The Committee introduced Mr. L. C. Dickey,
a member of The Workmen 's Committee of The Houston Refinery of Shell
Oil Company . Mr. Duke then asked if the Corporation was ready to proceed
with the meeting . The Corporation asked if Mr . Dickey was attending the
meeting as a witness in the grievance submitted by Mr. C. N Frazier , Chemi-
cal Plant employee concerning the reciprocal rights of Refinery and Chemical
Plant guards . The Union stated that they had been instructed by their
membership that, as a matter of procedure in the future , one member of The
Refinery Workmen ' s Committee would attend each grievance meeting be-
tween the Chemical Plant Workmen ' s Committee and The Shell Chemical
Corporation . The Corporation stated it could not agree to such a procedure
since it had been agreed, in negotiating the contract , that the Chemical Plant
Committee would be comprised of Chemical Plant employees . The Cor-
poration pointed out that it would always be agreeable to having joint meet-
ings of The Refinery and Chemical Plant Committees and representatives of
both Managements if at any time matters involving both The Refinery and
Chemical Plant required a joint discussion.
The Committee then asked for a recess. The meeting was recessed at
10:20 a. m.
Meeting was resumed at 10: 30 a. in. with only the Chemical Plant work-
men's committee and management present.
The Union presented the following grievances.
c. April 11, 1950
At a grievance meeting on April 11, 1950, between Respondent Shell Oil and
its workmen ' s committee , the Respondent questioned at the outset the presence
of Berkley , chairman of the Chemical Plant's workmen 's committee . The Union
replied that Berkley was present as a member of Respondent Shell Oil 's work-
men's committee . Keegan, for Respondent Shell Oil , said that it did not consider
Berkley a member of the committee , that no joint grievances involving both the
Refinery and the Chemical Plant were involved , that the committee could not
keep Berkley in the meeting as a matter of right. Keegan explained that as the
Union knew the position of Respondent Shell Oil (and its predecessor corpora-
tion ) for many years had been and was that in bargaining meetings towards a
contract-referred to alternatively by him as "negotiations"-the Company would
do business with anybody representing the Union , but that in grievance meetings
the Company would do business only with members of the workmen ' s committee
who worked for Respondent Shell Oil . Keegan agreed that both the Refinery
and the Chemical Plant were in the same bargaining unit. Keegan stated that
on occasion by mutual agreement outsiders may be allowed to sit in on grievance
meetings, but not as a matter of right. Keegan admitted that the "top manage-
ment" of the industrial relations department in New York City was the same for
SHELL OIL COMPANY 171
both the Oil Company's Houston Refinery and the Chemical Corporation ' s Chemi-
cal Plant , that one personnel and industrial relations department handles the
"whole thing. " Since Respondent would not proceed with Berkley and the Union
would not proceed without him, the meeting was adjourned.
d Conclusions as to the meetings
It is clear from the entire record in this case and the fact that John Crossland
had been secretary -treasurer and business agent of the local union since 1935 and
as such had had many dealings with P. E. Keegan , that Keegan knew Crossland
was present in that capacity at the January 19, 1950, grievance meeting. This
is indicated beyond dispute by Keegan ' s ignoring Cansler's statement that Cross-
land was present as a witness and his disagreement with Crossland 's observation
that he was as much a member of the workmen 's committee as any member of it.
Keegan had no objection to Crossland 's giving testimony on a specific grievance
and several times during the short meeting invited it. What he objected to and
what led to the breakup of the meeting was the presence of Crossland at the
discussion of the grievances , whether in the guise of a witness or otherwise Re-
spondent refused to discuss the grievances on the agenda with the committee
of its employees in the presence of Crossland , whom it knew to be a representative
of the local union and present in that capacity.
At this meeting of January 19, 1950, the discussion was confined to Crossland's
being "present ," to his "sitting-in," to his being "in," as to whom the Union could
"have in " or have "sit through" or "bring in"; several of these words and phrases
were used numerous times. There was no discussion whatsoever as to Cross-
land's participating in the adjustment of the grievances . It is clear from the
minutes of the meeting that on test in this case is only the question of the Union's
right to be at the grievance discussions , not its right to participate in the adjust-
ment of the grievances.
It is clear also that the Respondents understood at the March 28 and April
11, 1950, meetings that the Union was asserting what it claimed to be its right
to have nonemployees of the corporation involved sit in on grievance meetings,
and that it was this asserted right which the Respondents were contesting.
3. The contract in effect at the time the meetings took place
In effect at the times the above grievance meetings were held was a con-
tract effective May 16, 1947, amended June 1, 1948, signed by the Virginia cor-
poration, Respondent Shell Chemical, and the Union. The contract, using iden-
tical language , sets up two so-called workmen 's committees , one for the Refinery
and one for the Chemical Plant. The clauses provided, under the title, "Work-
men's Representation ," that the local,
. . . shall create a . . . Workmen ' s Committee of member employees of
which not more than five (5 ) members will meet with the Management for
the discussion of complaints. Any employee out of service on a leave of
absence of one hundred twenty ( 120) days or more shall not meet with the
Managament as a member of the Workmen's Committee.
* * * * * * *
The manager and such assistants as he may designate shall meet with the
Workmen ' s Committee . . . at regular monthly intervals . . . . For any
such meetings , the committee members attending shall receive straight-
time not to exceed eight ( 8) hours pay . . ., and complainants and nec-
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essary witnesses attending shall receive, for time spent in such meetings
during their schedule working hours, regular pay as though worked....
The grievance procedure for the handling of routine grievances provided three
steps : First, between the aggrieved employee and his foreruan ; second, presen-
tation to the top management of the plant concerned by the workmen's com-
mittee of that plant, first in writing and then at a meeting ; third, arbitration.
The contracts provided that at the meeting under the second step, "The Company
or the Committee, if they so desire, may have witnesses present for the purpose
of testifying at the proceedings."
4. Previous contracts and bargaining history
The language stated above, that the Union " . . . shall create a . . . Work-
men's Committee of member employees of which not more than . . . members
will meet, with the Management for the discussion of complaints" did not ap-
pear for the first time in the contract of May 16, 1947. Its first appearance was
in the contract effective March 24, 1941, which provided that not more than
eight members would meet with management. The language has remained
the same since then through the several contracts between the parties,' except
that the number became five members from the July 1, 1942, "interim" agree-
ment on.
The bargaining history behind the compdsition on the workmen's committees
through the years indicates that the parties never changed their positions, the
Union always insisting that it wanted the door to be left open for nonemployee
representatives to be present at the discussion of grievances as a matter of right,
and the companies-whichever ones were involved-always insisting that non-
employee representatives could not be present as a matter of i ight. The repre-
sentatives of the Virginia corporation pointed out that this was that Company's
practice and policy in all its plants, not just the two here involved. The bar-
gaining history shows also that the Virginia corporation and Respondent Shell
Chemical intended the contractual language quoted above to exclude nonem-
ployees from attendance at grievance meetings, and that the Union so understood
the Virginia corporation's contention. In at least one of the bargaining con-
ferences leading to the contract in effect in 1950, on February 20, 1947, the
Union based its claimed right upon the Act.
5. Conclusion
The basic question in this case is whether the Respondents violated Section
8 (a) (5) of the Act by insisting that no nonemployee representatives of the
Union be present at grievance meetings even though the contract provided for
a committee to be composed only of employees of the plant involved.
These grievance meetings represent the second stage of the grievance procedure
established in the contract, and are attended by the top management of the
plant concerned and the workmen's committee. This case is concerned only with
this second step.
The question of the Union's right to attend the adjustment of employee
grievances by the top management of the Refinery and the Chemical Plant has
been the subject of long-standing dispute between the parties, harking back
to at least 1941. The clause relied upon by management was that the local
' Interim letter agreement dated July 21, 1942 ; contract dated March 1, 1946 ; contract
dated June 1, 1946 ; contract dated May 16, 1947.
SHELL OIL COMPANY 173
union ". . . shall create a .. . Workmen's Committee of member employees
of which not more than five (5) members will meet with the Management for
the discussion of complaints " The Union has always indicated its dissatisfac-
tion with this clause as interpreted by the management to curtail its statutory
right to attend the adjustment of grievances.
Section 9 (a) of the Act provides that :
Representatives designated or selected for the purposes of collective bar-
gaining by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment : Provided,
That any individual employee or a group of employees shall have the right at
any time to present grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining representative; as
long as the adjustment is not inconsistent with the terms of a collective-
bargaining contract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity to be present at such
adjustment.
This case is determined by the Board's recent Bethlehem Steel case` in which
the Board said, with reference to the second proviso to Section 9 (a),
Thus, in explicit language, the second proviso to Section 9 (a) guarantees
to the bargaining representative an opportunity to be present at the adjust-
ment of grievances. Clearly, the Act does not limit this right to the adjust-
ment of grievances by any particular managerial representative ; nor is
there-any evidence in legislative history that any such limitation was con-
templated.
In the Bethlehem Steel case the respondents were held in violation of Section
8 (a) (5) for insisting during bargaining negotiations upon a clause which the
Board found would interfere with the unqualified right of the union to be present
at the adjustment of grievances. The Board held that the clause in question
circumscribed "the Union's statutory right and cannot be reconciled with the
plain language of the second proviso to Section 9 (a)." Here the Respondents
actually kept "outside" union representatives out of the bargaining conferences
by refusing to discuss the grievances on the agenda in their presence, acts which
as clearly circumscribed the Union's statutory right to be present at the adjust-
ment of grievances as was insisting upon a clause having the same result.
Respondents contend, in effect, that the Act does not prohibit them from
negotiating and abiding by the contractual clause, which all parties- under-
stood limited attendance at grievance meetings to employee members. Such a
provision as this second step in the grievance procedure, however, is not en-
forceable by the Respondents because it contravenes the Union's statutory
right to be present at the adjustment of grievances. As the Board said in the
Bethlehem Steel case, "It is well settled that an employer violates the Act by
imposing terms of agreement that are in derogation of the bargaining repre-
sentative's rights under the Act."
Respondents contend that the Union in fact was present in the form of the
workmen's committee. If the class or group who spoke for the Union was in
any way limited or determined by the Respondents through contract or other-
Bethlehem Steel Company, Shipbuilding Division, and Bethlehem-Sparrows Point Ship-
yard, Inc, 89 NLRB 341.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise, the Union was not present through representatives of its own selection but
through representatives imposed by Respondents. Here Respondents insisted
upon the Union's being represented only by Respondents' employees, the Re-
spondents therefore, rather than the Union, making the selection as to what
class or group should speak for the bargaining representative. The refusal to
discuss grievhnces under any other condition was an infringement upon the
Union's unqualified right to be present in the form of any persons it selected,
including Crossland, and spokesmen from the other plant, and was therefore
in contravention of the second proviso of Section 9 (a) and in violation of Section
8 (a) (5) of the Act.
It is found that Respondent Shell Oil, by refusing on January 19 and April
11, 1950, to meet with a union committee which included nonemployees of the
Refinery, and that Respondent Shell Chemical, by refusing on March 28, 1950,
to meet with a union committee which included nonemployees of the Chemical
Plant, refused to bargain collectively with the Union as the exclusive repre-
sentative of their employees in an appropriate unit and thereby interfered with,
restrained, and coerced their employees in the, exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Respondents having engaged in unfair labor practices by insisting, as a con-
dition of bargaining on grievances, that the Union forego its statutory right to
be present at the adjustment of grievances by the top management of the Refinery
and the Chemical Plant, it will be recommended that they cease and desist from
engaging in the proscribed conduct and that they cease giving effect to any
clauses in their contract with the Union of May 16, 1947, amended June 1, 1948,
or in, any successor contract, which provide that at the second step in the
grievance procedure management will meet only with workmen's committees
comprised of employee-members. It will be recommended also that Respondents
cease and desist from engaging in like or related conduct.
Upon the basis of the foregoing findings of fact and upon the entire'record
in the case I make the following:
CONCLUSIONS OF LAW
1. Oil Workers International Union, CIO, Local No. 367, is a labor organiza-
tion admitting to membership employees of Respondents.
2. The following employees constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act : All hourly
paid employees of Respondents at the Refinery and the Chemical Plant in
Houston, Texas, including the machinists and the employees in the boilermaking
and welding department, cargo inspectors, ethyl blenders, telephone system
supervisors, and escort clerks, but excluding bricklayers, clerical employees,
general foremen, department heads and their immediate assistants, stillmen,
HAMILTON PHOTO ENGRAVING CO . 175
treaters, dock shift foremen, boilerhouse shift foremen, iso-octane shift fore-
men, stabilizer shift foremen, laboratory shift foremen, labor subforemen, assist-
ant instrument foremen, assistant electrical foremen, carpentry foremen,
painting foremen, assistant pipe fitter foremen, assistant clean-out foremen,
insulator foremen, assistant floor foremen, assistant loading rack foremen, head
dispatchers, assistant head dispatchers, motor laboratory foremen, boilermaker
foremen, and welder foremen, and excluding also all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action.
3. Oil Workers International Union, CIO, Local No. 367, was on January 27,
1939, and at all times since has been the exclusive representative of all the
employees in the above-described unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on January 19, March 28, and April 11, 1950, and at all times
thereafter to bargain collectively with Oil Workers International Union, CIO,
Local No. 367, as the exclusive representative of all the employees in the afore-
said unit, the Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By said acts Respondents have interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the
Act, and have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume]
MARTIN DONIGIAN, HARRY DONIGIAN, AND JOUHAR DONIGIAN, TRADING
AS HAMILTON PHOTO ENGRAVING Co. and NEWARK PHOTO ENGRAVERS
UNION, LOCAL #28, AFFILIATED WITH INTERNATIONAL PHOTO EN-
GRAVERS UNION OF NORTH AMERICA, AFL, PETITIONER. Case No.
2-RC-1961. February 8, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held on April 24 and 25 and
May 1, 1950, before Jonas Silver, hearing officer. On October 4,
1950, the Board issued an order reopening the record and remanding
the proceeding to the Regional Director for further hearing. Ac-
cordingly, a further hearing was held on November 30, 1950, before
D. J. Sullivan, hearing officer. The hearing officers' rulings made
at the hearings are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds :
1. The business of the Employer :
93 NLRB No. 13.