Quaker State Oil Refining Corp.

National Labor Relations Board - Board Decisions

Aug 7, 1958

121 N.L.R.B. 334 (N.L.R.B. 1958)

- 334 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
Quaker State Oil Refining Corporation and Oil , Chemical and
Atomic Workers International Union AFL-CIO, and Local
Union 11-481 thereof. Case No. 6-CA-1010. August 7,1958
DECISION AND ORDER
On November 14, 1956, Trial Examiner Eugene F. Frey issued his.
'Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate, Report
and, supporting briefs.' -
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 Inter-
mediate Report, the exceptions and briefs, and the entire'record in the
case, and 'hereby adopts the findings, conclusions, and recommenda-
tions ' of the Trial Examiner with the additions and modifications
hereinafter indicated.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1), (3), and (5) of the Act by threatening to shut
down, and thereafter shutting down, part of its operations during the
course of bargaining negotiations for a contract to succeed the then
expiring one. Like the Trial Examiner, we find that the Respondent
resorted to this action not because of any reasonable fear that the
Union would call a sudden strike which would endanger its vital
' In addition , the Respondent requested oral argument . The Board hereby denies
such request because the record, exceptions , and briefs adequately present the issues
and positions of the parties.
2 The Respondent claims prejudice by reason of certain rulings of the Trial Examiner
made with regard to its efforts to litigate the circumstances under which the employees
of the Pennzoil Company in Oil City, Pennsylvania , engaged in a strike, and the cir-
cumstances under which the employees of the Kendall Refining Co . engaged in a strike
in 1955.
The record shows that , although the Trial Examiner initially precluded the Re-
spondent from producing the testimony of a witness whom it called to testify concerning
the Pennzoil strike, he later reversed this ruling . At this time the Respondent , however,
stated that the Witness was not available , but that it would not object to resting on the
record as made following the stipulations of counsel to certain facts concerning the
Pennzoil strike and the Trial Examiner 's statement that "no unfavorable presumptions"
against the Respondent would exist by reason of its failure to recall that witness. In
the brief to the Board , however, the Respondent- asks, in effect , that the record be re-
opened to give the "respondent full opportunity to develop and present to the Board
the true and full facts of the Pennzoil and Kendall strike."
We find nothing in the findings of the Trial Examiner to warrant the position now
taken by the Respondent , nor to require reopening of the record as a means of reversing
the Trial Examiner 's evidentiary rulings. In any event , in reviewing the record herein,
we have carefully confined our consideration of the evidence concerning the Pennzoil
and Kendall strikes in the light of the Respondent 's offer of proof respecting such strikes
and its stipulations as above indicated. '
121 NLRB No. 49.
QUAKER STATE OIL REFINING CORPORATION 335
operating units, but to force the Union and the Respondent's em-
ployees to accept its proposed contract by a given date.
As is more fully set forth in the Intermediate Report, at the Janu-
ary 27 and 30 bargaining session 3 the Respondent reoffered to the
Union the package contract proposal substantially identical in sub-
stantive terms to that which the Union and the employees had 'rejected
as unsatisfactory on January 24, and as to which no further discus-
sion had taken place in the ,interim. At this meeting the Union
objected that it was not given an adequate opportunity to express to
the Respondent the basis for its dissatisfaction with the contract or to
seek some mutually satisfactory compromise. The Union therefore
asked for further opportunity to negotiate the .disputed contract
terms. The Respondent, however, demanded that the contract be
immediately resubmitted to the membership as representing its "final"
offer, and that the Union advise the Company by February 3 of the
membership's decision. It urged hasty action because of its asserted
desire to "protect" its vital and potentially dangerous equipment
"against the eventuality of strike action" and because of its intention
to - drain off and to effect a complete shutdown of such equipment by
midnight, February 7.4 Significantly, the Respondent also made it
clear that it would not operate these units without the "security of a
contract." In response to the Respondent's demands and in order to
allay the Respondent's alleged fears for the safety of its plant and
equipment and to, pave the way for further negotiations while the
plant remained in full operation, the Union offered the Respondent
prompt and unequivocal assurances, both orally and in writing, that
no strike was imminently contemplated, particularly as none had been
authorized under intraunion procedures.5 The Union also offered to
waive for 90 days its right to strike by agreeing to an extension of
the then expiring contract for such period.6
In these circumstances, we agree with the Trial Examiner that the
General Counsel established a prima facie case that, in,threatening,
and ' later completing, the shutdown of the vital operating units, the
3 The January 30 conference was described by the parties to be a "continuation" of
the January 27 session.
' It appears that the process of shutting down this equipment requires about 72 hours.
5 Before a strike could be called , union procedures required that notice of a strike vote
meeting be posted at least 3 days in advance of such meeting
i Contrary to the assertion in Member Jenkins' dissenting opinion, the Union's no-
strike assurances were a sufficient guaranty against any sudden strike action by 'the
Union . Indeed, if the Respondent honestly thought that such assurances were inadequate
for this purpose , it could have asked for a more explicit guaranty . However, it did not
do so and there is no reason to believe from the evidence that the Union would not have
granted such a guaranty . Moreover , neither at the hearing nor in its brief and excep-
tions filed with the Board did the Respondent contend that the extension of the no -strike
clause in its expiring contract , as proposed by the Union , was inadequate because it did
not cover all disputes , but only those'involving arbitrable grievances . Accordingly, there
exists no record basis for finding that ' the Respondent 's refusal to accept the Union's
proposal was motivated to any extent by the asserted limited scope of the no -strike
clause.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent did not have reasonable grounds for believing that the
Union would engage in a sudden strike which would endanger such
units, but actually resorted to such action to force the Union and the
employees to abandon their contract demands and, accede to the
Respondent's.
Notwithstanding the- Union's no-strike assurances, the Respondent
contends that its conduct was justifiable because it "feared" that-the
Union sought to prolong negotiations so that it could pick a strategic
time to pull a sudden strike. In support of this contention, the Re-
spondent relies upon the nature of the Union's strike-threat strategy
during past negotiations with the Respondent; the information.which
its officials had obtained concerning the occurrence of "quickie" strikes
at plants of other employers represented by the same Union and Inter-
national representative; the fact that the expiration of the 60-day
strike notices given by the Union in conformity with the requirements
of Section 8 (d) coincided with the contract termination date; and
the existence of an "impasse" or deadlock in the contract negotiations
at that time.
As shown in the Intermediate Report, the evidence pertaining to the
Union's past dealings with the Respondent and the Respondent's in-
formation concerning the "quickie" strikes at other employers' plants
does not impugn the sincerity of the no-strike assurances which the
Union gave to the Respondent in the instant negotiations. On the
contrary, the record establishes that the strike action taken on those
occasions was not in violation of any commitments given by the Union
to the affected employers. Moreover, the evidence discloses that, when
the Union struck the Respondent in 1950, it did so with, responsible
regard for the safety of the plant'
Nor was the Respondent justified in shutting down the operating
units in question because the Union's right to strike pursuant to its
60-day notice matured on February 8. In the circumstances of this
case, we find no reasonable basis for anticipating a sudden strike in
the face of the Union's no-strike assurances . By the same token, we
7 As the Trial Examiner points out in discussing the 1950 strikes by the Union against
the Respondent , the Union refused to give the Respondent assurances it had requested
for 72 -hour advance notice of actual walkout in a situation in which the membership
strike poll had already been consummated . However, although the Union 's refusal to
give such assurances may properly have warranted the Respondent 's decision to shut
down operations in advance of actual strike-a situation not before us here-the fact is
that the Union nevertheless agreed to furnish the Respondent with sufficient personnel
to maintain its boiler systems and keep the plant safe.
With respect to the "quickie" strike situation at other employer plants, it appears
that such strikes, which occurred while a no -strike agreement was in effect , were called
without union authorization . Moreover , in making offers of proof about these strikes
the Respondent did not suggest that the Union acted irresponsibly in these situations
or that in fact it had induced the strikes. Finally , the stipulated fact that these un-
authorized quickie strikes occurred while a contract was in effect seems to us to reflect on
the good faith of the Respondent ' s claim that its refusal to operate its vital equipment
without a consummated contract , despite the Union's no-strike assurances, stemmed solely
from considerations of plant safety.
QUAKER STATE OIL REFINING CORPORATION 337
cannot assume that the Union was not honestly desirous of continuing
negotiations with the object of reaching an amicable settlement of the
disputed terms and conditions of employment, without resorting to
strike action. In our opinion, the mere expiration of the statutory
60-day notice to strike does not deprive unions or the employees they
represent of their right to use the bargaining table to adjust their
differences with their employer or relegate them to economic warfare
to secure their demands. Indeed, a contrary conclusion would plainly
conflict with the express policy of the Act to encourage the peaceful
settlement of labor disputes.
Finally, we are not persuaded, as the Respondent contends, that
a, genuine impasse in negotiations was reached at the time it an-
nounced its intention to curtail operations and actually curtailed
them, which gave the Respondent cause to believe that further bar-
gaining was futile or reason to apprehend a sudden strike. As in-
dicated previously, at these times, the Union was still insisting on
continuing negotiations, offering adequate assurances against a sud-
den strike. Our appraisal of the entire course of bargaining con-
vinces us that the attitudes of the negotiators had not so hardened
as to have rendered further bargaining futile.
The Board has held that, absent special circumstances, an em-
ployer may not during bargaining negotiations either threaten to
lock out or lock out his employees in aid of his bargaining position.
Such conduct the Board has held presumptively infringes upon the
collective-bargaining rights of employees in violation of Section 8
(a) (1) and the lockout, with its consequent layoff, amounts to dis-
crimination within the meaning of Section 8 (a) (3) .' In addition,
the Board has held that such conduct subjects the Union and the
employees it represents to unwarranted and illegal pressure and cre-
ates an atmosphere in which the free opportunity for negotiation
contemplated by Section 8 (a) (5) does not exist.9 However, the
Board has recognized that there are special circumstances where the
right of employees to engage in collective bargaining is not absolute
but must be balanced against the employer's right to protect his
business against loss. Accordingly, it has held that lockouts are
permissible to safeguard against unusual operational problems or
hazards or economic loss where there is reasonable ground for be-
lieving that a strike was threatened or imminent.10 The burden of
8American Brake Shoe Company, 116 NLRB 820, set aside 244 F. 2d 489 (C. A. 7),
finding special circumstances , contrary to the Board 's determination.
11d.; cf. Insurance Agents ' International Union , AFL-CIO (Prudential Insurance Com-
pany of America ), 119 NLRB 768 , where the Board found bad-faith bargaining by a
union which engaged in unlawful slowdowns during negotiations . In so doing, the
Board analogized the Union 's conduct to bad-faith bargaining by an employer who shut
down his plant or cut hours during negotiations.
'o American Brake Shoe Company, supra; Betts Cadillac Olds, Inc., 96 NLRB 268.
487926-59-vol. 121-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going forward with the evidence to justify the lockout rests on the
Respondent.
Applying these principles to the present case, we find that the.
Respondent did not have reasonable grounds for believing that the
Union would call a sudden strike to the detriment of the Respond-
ent's vital operating units, and that by threatening ' to curtail and
actually curtailing its operations with the consequent reduction in
the employees' workweek the Respondent coerced employees in the
exercise of their bargaining rights in violation of Section 8 (a) (1)
of the Act and discriminated against them within the meaning of
Section 8 (a) (3) of the Act. We further find that such conduct
was the antithesis of good-faith bargaining contemplated by Sec-
tion 8 (a) (5).
2. We agree with the Trial Examiner that the two postshutdown
incidents, additionally encompassed by the complaint, establish that
the Respondent attempted to deal individually with its employees
and to persuade them to bypass the Union, thereby undermining
the Union's exclusive representative status. Such conduct clearly
constitutes independent violations of Section 8 (a) (5) and (1) of
the Act, and we so hold."
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
Relations Board hereby orders that the Respondent, Quaker State.
Oil Refining Corporation, Emlenton, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Oil, Chemical and
Atomic Workers International Union, AFL-CIO, and Local Union
11-481 thereof, as the exclusive representative of all production and
maintenance employees at the Respondent's Emlenton, Pennsylvania,
plant, excluding guards, professional and clerical employees, super-
intendents, assistant superintendents, foremen, and all other super-
visors as defined in the Act, with respect to wages, rates of pay,
hours of employment, and other conditions of employment.
(b), Discouraging membership in the above-named labor organi-
zation, or any other labor organization of its employees, by discrimi-
natorily locking out, laying off, or reducing the 'workweek of its
employees, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of em-
ployment, except to the extent permitted in Section 8 (a) (3) of
the Act.
"In addition to the cases cited by the Trial Examiner , cf. John L. Clemmey Com-
pany , Inc., 118 NLRB 599.
QUAKER STATE OIL REFINING CORPORATION 339
(c) Threatening its employees with a partial plant shutdown, lock-
out, and layoff in order to force them and their bargaining represen-
tative , to give up their bargaining demands and accept the Re-
spondent 's contract proposals without further bargaining.
(d) Offering full employment or other benefits to its employees
in order to persuade them to sign a collective -bargaining contract,
either individually or as a group , with the Respondent without, in
disregard of, or contrary to, the advice of their bargaining repre-
sentative.
(e) In any like or related manner interfering with , restraining,
or coercing its employees in the exercise of the right to self-organi-
zation, to form labor organizations , to join or assist the above-named
or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole all employees listed in Appendix B attached to
the Intermediate Report for any loss of pay they may have suffered
by reason of the discrimination against them , in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Upon request , bargain collectively , with Oil,. Chemical and
Atomic Workers International Union, AFL-CIO, and Local Union
11-481 thereof , as the exclusive bargaining representative of the em-
ployees in the aforesaid appropriate unit with respect to wages, rates
of pay, hours of employment , and other conditions of employment,
and, if an understanding is reached , embody such understanding in a
signed agreement.
(c) Preserve and make available to the Board or its agents upon
request , for examination and copying , all payroll records, social-
security payment records , timecards , personnel records and reports,
and all other records necessary to analyze and compute the amounts
of back pay due under the terms of this Order.
(d) Post at its Emlenton, Pennsylvania , plant, copies of the notice
attached to the Intermediate Report marked "Appendix A." 12 Copies
of said notice , to be furnished by the Regional Director for the Sixth
12 This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" In the caption thereof the words "A Decision and Order " In the
event that this Order is enforced by a decree of a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region, shall, after being duly signed by a representative of the Re-
spondent , be posted by it immediately upon receipt thereof, and be
maintained by it for sixty ( 60) consecutive days thereafter , in con-
spicuous places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced, or covered
by any other material. .
(c) Notify the said Regional Director for the Sixth Region in writ-
ing, within ten (10) days from the date of this Order, as to what
steps it has taken to comply herewith.
MEmBER RODGERS , dissenting :
For the reasons expressed in my dissenting opinion in American
Brake Shoe Company, 116 NLRB 820, 838, and adopted by the
United States Court of Appeals for the Seventh Circuit,"- in setting
aside the Board 's order in that case, I would dismiss the complaint
herein. In that case , the court concluded that there was a reasonable
threat of a strike and it was therefore proper for the Company to
reduce its output to avoid the imminent probability of a permanent
loss of business . In the face of a similar threat of strike, which I
would find here, the court 's reasoning should, a fortiori , have in-
creased application where the imminent and irreparable loss would be
not merely to future business , but rather to plant and community
property.
ME11EER JENKINS, dissenting :
I disagree with the majority's disposition of this case. In my
view, proper application of the very principles relied upon by the
majority requires dismissal of the complaint.
The error of the majority, I feel, stems fundamentally from its
failure to assess the Respondent 's motivation in the context of the
realities of the situation and the circumstances facing the Respondent
at the time of the events forming the subject of complaint . Officials
of the Respondent testified that they shut down only the potentially
dangerous operating units in order to protect the economic integrity
of its enterprise and to insure the safety of life and property against
extraordinary risks which the Respondent otherwise faced in the
event of a sudden strike. It is conceded that the equipment which
was shut down was potentially dangerous and could not be left un-
attended. This fact clearly corroborates the testimony of its officials
and establishes, as well, the necessity for the precautionary measures
taken. The only equipment that the Respondent actually shut down
was the potentially dangerous units. This fact likewise corroborates
13 244 F. 2d 489.
QUAKER STATE OIL REFINING CORPORATION 341
the testimony of its officials. The Respondent assured both the Union
and the employees contemporaneously with its acts, that its shut-
down was motivated solely by protective safety considerations, and was
not meant to coerce them into taking a course of action inconsistent
with their organizational objectives or bargaining rights. This fact
also confirms the Respondent's good-faith desire to protect its plant
against destruction. And further supporting the lawfulness of the
Respondent's conduct is the fact that it did not impair the employ-
ment status of its employees; that it did not at any time refuse to
recognize the authority of the Union, their bargaining representative;
and that it never refused to meet with the Union to discuss" the formu-
lation of a contract or to explore the possibility of a solution of their
economic differences.
The Respondent's officials also testified that they timed the shut-
down, as they did, only because the situation was then ripe for strike
action; that, as a result of its past experience with the Union and
because of certain suspicious actions of the Union during the course
of current negotiations, they feared that the Union requested con-
tinued' negotiations • beyond February 8 under full-operation condi-
tions, only for the purpose of putting the Respondent in a vulnerable
position where a sudden strike would either force the Respondent to
capitulate to terms they deemed economically unsatisfactory, or to risk
irremediable damage to the Respondent's enterprise; and that, for
these reasons, they could not and did not regard the no-strike assur-
ances offered by the Union as adequate security against the risks
involved.
Upon a fair review of the undisputed objective facts in the record,
I am- not persuaded, as is the majority, that the Respondent's fear of,
a sudden strike was unreasonable. Indeed, it appears to me that the
measures taken by the Respondent to safeguard its plant was precisely
the action that any prudent businessman faced with the same situation
would have taken. Analysis of the status of negotiations in late Janu-
ary and early February establishes that the time was ripe for a strike.
The Respondent had met with the Union in good faith in six long and
extensive bargaining sessions prior to January 30. In these sessions
it became increasingly clear to the Respondent that, although many
of the substantive terms of a future contract were settled, the Union
would not consummate any contract in the absence of substantial wage
increases over and above those the Respondent deemed to be consistent
with its economic interests. The time for lawful exercise of the
Union's right to strike, absent agreement, was undeniably on or after
February 8,14 and the stalemate on the issue was such as to warrant
expectation of a strike to force acceptance of the Union's demands.
14 In view of the expiration of the 60-day 8 '(d) notice period and the contract term.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So far as the needs of the Respondent in such a situation are con-
cerned, it is clear that the Respondent required at least 72 hours in
advance of actual walkout to shut down its potentially dangerous
operating units and thus to protect its plant from destruction. The
Union was fully aware of this fact. Significantly, in 1950, when
negotiations had reached a point similar to that'in the instant case,
the Respondent specifically requested a 72 hours' notice pledge but
the Union refused to give it, preferring instead to' stage a walkout
and, in one instance at the St. Marys plant, doing so within 20 minutes
after communicating its intent to the Respondent. In the present case,
the Union's no-strike offers did not embody a 72-hour notice pledge,l5
nor was the Respondent given positive and unequivocal assurance that
it would have such notice before the Union struck. Although the
Union offered the Respondent a 90-day extension of the current con-
tract "together with its no-strike provisions," examination of such
no-strike provisions shows that they were qualified in nature.16 _
Other aspects of the Union's conduct during the course of the in-
stant negotiations confirm the Respondent's suspicions,of the Union's
ulterior' motives and created justifiable doubts concerning the genuine-
ness of the assurances offered by the Union's bargaining committee
and whether these assurances had the sanction of actual and final
authority. A review of the portions of the record setting forth what
happened at the negotiations establishes, as the Respondent has vari-
ously stated, that the Union appeared to be desirous of delaying nego-
tiations almost from the outset. The record of the December 9 and
January 9 conferences shows, for example, that the Union sought
postponement of the negotiations on both occasions over the Respond-
ent's objections. Although the Union's request for postponement of
negotiations appears to have been bottomed, at least in part, on the
fact that the International's wage policy committee had not specifically
established the minimum wage basis upon which the union committee
would be permitted to contract, the Union did not give this reason for
15 It is true that the union officials advised the Respondent that no strike was immi-
nently contemplated because the membership had not been polled to vote on strike. It is
also true that, had the Union followed the custom of posting meeting notices on the plant
bulletin board provided for union use, the Company might thus have obtained the 72
hours' notice it needed to secure the safety of its sensitive equipment against' the threat
of walkout. It is noted, however, that the .Union was under no obligation to the Com-
pany to post notices of its meetings ; that it did not offer to give the Company. an un-
equivocal pledge, either written or oral, otherwise to provide it with a 3-day notice in
advance of a walkout ; and that company officials, who testified as to their reasons for
regarding the above Union's no-strike assurances as "inadequate," gave as one of the
reasons the failure of the Union to give such an unequivocal pledge;
16 The contract discloses that the "no suspension of work" guarantee extended only
to "disputes or differences over the meaning, application or violation of any of the pro-
visions of this agreement or should any local trouble arise" and applied. only "until
earnest efforts have been made to settle such differences promptly through specified griev-
ance steps " While they obligate the parties to settle, by final and binding arbitration,
"any question as to the meaning or interpretation of the provisions of this agreement,"
they do not require arbitration of other disputes.
QUAKER STATE OIL REFINING CORPORATION 343
its postponement request. In these circumstances, the Respondent's
unawareness of these considerations might fairly be said to confirm
its apprehension of the Union's motives for delay, and its belief that
the Union's 90-day extension offer at the conclusion of negotiations
was only a "renewal" of its earlier delaying tactics.
Other instances of the Union's conduct also support the reasonable-
ness of the Respondent's concern over the Union's dilatory tactics.
Thus, while the union committee, in opposing the Respondent's wage
offers, made reference throughout the negotiations to the higher wages
paid by the Respondent at other plants, it failed to give any indi-
cation, until January 30, that it would be satisfied with a similar wage
rate offer. Indeed, it did not even state expressly what increase less
than 35 cents per hour would be satisfactory. Further, when the
Respondent offered the Union the terms of the St. Marys contract
on January 18, it also advised the Union that the international repre-
sentative had accepted it. But the Union failed to find out if this
were so, although it was true. It failed to communicate with the
International to obtain its views about the offer, while it kept re-
affirming its position, first stated on January 18, that the wage terms
of the Company's proposal were "below" the International's policy.
Finally, when the membership voted, on February 4, to accept the
Respondent's proposed contract, to which the Union objected on the
ground, among others, that the Company had not acquiesced in the
15 cent wage figure demand made by the Union on January 27 or
30, the committee refused to execute that contract. This the com-
mittee was legally privileged to do. However, because such refusal
was in fact contrary to the past bargaining procedures which the
Respondent believed to be still in effect, the Respondent was also
justified in viewing this refusal with "suspicion," regarding it as a
further "delaying" tactic, and concluding that someone other than
the bargaining committee would decide whether and when to strike
in support of the Union's demands.
In view of the foregoing, I cannot agree with the majority that
the Respondent did not have reasonable grounds for anticipating a
strike which would imperil the safety and security of its plant and
the means of livelihood of its employees. On the contrary, the evi-
dence establishes that the Respondent's officials acted as responsible
prudent businessmen who took only such measures necessary to avoid
destruction of their plant. To hold that the curtailment of operations
in these circumstances is illegal would be to deny the Respondent a
substantial property right to take all reasonable precautions consistent
with its safety needs before it was too late. The law is not so narrow-
sighted and unwise as to countenance a result, implicit in the ma-
jority's opinion, which would make one party to a labor dispute a
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"sitting duck" for the other party, irrespective of the necessity for
curtailing operations.17
Accordingly, and as there is no question that the Respondent other-
wise bargained in good faith, I would find, contrary to the majority's
decision, that the Respondent's curtailment of operations did not
violate Section 8 (a) (1), (3), or (5) of the Act.
There remain for consideration the allegations of the complaint
concerning certain conversations between the Respondent's officials
and a senior employee and the Respondent's letter which it sent to
employees on March 12, all of which occurred after the curtailment
of operations. I am not persuaded that these conversations and the
letter, when judged in the context of the Respondent's entire course
of dealings with the Union, constituted a breach of its statutory obli-
gations or otherwise reflected on its good-faith, bargaining.
Accordingly, I would dismiss the complaint in its entirety.
17 In my opinion , no unfair labor practice findings could properly be predicated upon
an employer 's voluntary curtailment of operations in an industry which, like the instant
one, is vulnerable to substantial destruction of its equipment in the event of a sudden
strike , with the consequent financial loss to the employer and the impairment of the
employees ' means of livelihood , unless the labor organization with which it is bargain-
ing gives the employer firm, unequivocal and written assurances against such improvident
action.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Oil, Chemical and Atomic Workers International
Union , AFL-CIO, and Local-Union 11-481 thereof , herein called collectively the
Union ,' a complaint was issued in the above cause on May 31, 1956 , by the General
Counsel of the National Labor Relations Board , through the Regional Director for
the Sixth Region ( Pittsburgh , Pennsylvania ), alleging that the Respondent , Quaker
State Oil Refining Corporation , had engaged in unfair labor practices in violation of
Section 8 (a) (5), (3 ), and (1 ) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended , 61 Stat. 136 , herein called the Act. After due service
of the charges , complaint , and notice of hearing thereon , Respondent filed an answer
in effect denying the commission of any unfair labor practices, and pleading an
affirmative defense.
The main issues raised by the pleadings are: (1 ) Has Respondent since Janu-
ary 30. 1956, refused to bargain collectively in good faith with the Union as exclu-
sive representative of employees of its Emlenton , Pennsylvania , refinery in an
appropriate unit described below, by (a) threatening a partial lockout and layoff of
such employees , and then carrying out the threat by shutting down part of its re-
finery and reducing the workweek of such employees , in order to force them and
the Union to accept Respondent 's contract proposals , and (b ) trying to persuade
them and Local 11-481 to withdraw from joint bargaining with the International
Union, thereby dealing unilaterally with its employees and bypassing the Union, all
in violation of Section 8 (a) (5) and ( 1) of the Act?
(2) Was the reduction of the workweek aforesaid from and after February 8.
1956, a discriminatory lockout or layoff for the purposes aforesaid , and motivated
by the employees ' membership in and activities on behalf of the Union , and other
concerted activities , and by a desire to discourage membership in the Union , in vio-
lation of Section 8 (a) (3) and (1) of the Act, or was it the result of a legitimate
shutdown and curtailment by Respondent of vital refinery operating units for
security and other legitimate business . reasons?
Pursuant to notice, a hearing was held July 9 through 17, 1956. at Franklin,
Pennsylvania , before the duly designated Trial Examiner , in which all parties par-
1 Where necessarv herein , the parent organization will be referred to separately as the
International , and Local 11-481 as the Local.
QUAKER STATE OIL REFINING CORPORATION 345
ticipated , were - represented by counsel , and were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to adduce evidence bearing on the
issues, to present oral argument , and to file briefs and proposed findings of fact and
conclusions of law. At the outset , the Trial Examiner denied a motion of Respond-
ent, filed before the hearing , to strike paragraphs 7 (d) and ( e) of the complaint.
At the close of General Counsel 's case-in-chief, the Trial Examiner denied Re-
spondent's motions to dismiss the complaint on the merits. At the close of the
testimony , he reserved decision on similar motions, which are now disposed of by
the findings and conclusions in this report . At the close of the case, General
Counsel's motion to conform pleadings to proofs in matters of minor variance was
,granted without objection . General Counsel and Respondent presented oral argu-
ment. All parties filed briefs with the Trial Examiner , which have been carefully
considered.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT , AND THE LABOR ORGANIZATIONS INVOLVED
Respondent is a Delaware corporation engaged in the production, refining, sale,
and distribution of petroleum and its byproducts in the States of West Virginia,
Ohio, and New York, and the Commonwealth of Pennsylvania . Its principal office
is located in Oil City, Pennsylvania , and it operates a refinery at Emlenton, Penn-
sylvania, which is the only plant involved in this case . During the past 12-month
period Respondent has bought materials , supplies, and equipment for use at the
above plant valued in excess of $4,000,000 , of which approximately 20 percent in
value was shipped to said plant from points outside Pennsylvania . In the same
period Respondent sold and shipped from said plant petroleum and byproducts
thereof valued in excess of $7,000,000 , of which approximately 50 percent in value
was shipped from that plant to points outside Pennsylvania . Respondent admits,
and I find from the above facts , that Respondent is engaged in commerce within
the meaning of the Act.
Oil, Chemical and Atomic Workers International Union , AFL-CIO, and Local
Union 11-481 thereof, are labor organizations within the meaning of Section 2 (5)
'of the Act, which admit to membership employees of Respondent.
H. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
Respondent admits, and I find, that all production and maintenance employees of
Respondent at its Emlenton , Pennsylvania , refinery, excluding guards, professional
and -clerical employees , superintendents , assistant superintendents , foremen , and all
other supervisors as defined in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
The parties stipulated, and I find, that the Union has been designated as bar-
gaining representative by a majority of employees in the unit aforesaid, and that
the Union has been at all material times, and is now, the exclusive bargaining
representative of employees in that unit within the meaning of Section 9 (a) of
the Act.
In January 1943, Oil Workers International Union, CIO, was certified by the
Board as the statutory bargaining representative of employees in the unit afore-
said, and thereafter Respondent periodically negotiated and executed bargaining
contracts and various addenda thereto jointly with that organization, or its suc-,
cessor, the International, and Local 11-481 thereof. The last such contract was
executed February 7, 1955, and expired at midnight, February 6, 1956. On
November 27, 1955, the Union notified Respondent that it was electing to termi-
nate the 1955 contract in accordance with its provisions, and requested a meeting
for negotiation of a new contract. Thomas F. Parks, superintendent of the Emlen-
-ton refinery, replied by letter of December 1, suggesting several dates for a meeting,
following which the parties agreed to meet December 9, 1955.
The parties held bargaining sessions on December 9 and 19, 1955, January 4,
9, 18, 27, and 30, February 22 and 26, April 2, 24, and 30, May 2 and 18, 1956.2
Respondent was represented at all sessions by Thomas F Parks, who was assisted
at most sessions by Archie R. Newton , Respondent 's office manager and personnel
2 During the hearing, they scheduled another meeting for July 19, 1956, the outcome
of which does not appear in the record.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor. The Union was represented by International Representative Francis
J. Prorok and a bargaining committee of five local members, including Local
President Joseph M. Russell, who attended all meetings except that of January
18, 1956. The International's District Director R. P. Buchanan took part in several
of the sessions.
At the December meetings, the parties discussed a written contract proposal
offered by the Union, which was essentially a rewrite of the 1955 contract, in-
corporating many of its .provisions without change, and setting forth in full only
such proposals as deviated from the 1955 provisions. The Union explained its
reasons for the changes, and Respondent presented arguments against some, but
offered no definite counterproposals, and no agreement was reached on the union
demands.
At the meeting of January 4, 1956, Respondent agreed to a few of the Union's
proposals, but they were still apart on wages and most substantial demands. At
the close of the session Respondent submitted an oral counteroffer, which the
union negotiators felt was insufficient but agreed to, submit to the union mem-
bers. The union membership turned down the counteroffer on January 7, and at
the meeting of January 9 both parties continued to bargain, principally on wages
and fringe benefits. At the close of that session, the parties had agreed only on
correction of two wage inequities offered by Respondent.
At the meeting of January 18, 1956, Respondent made another oral counter-
proposal of a 2-year contract, with a 9-cent wage increase, and other provisions
already agreed upon. As to wages, fringe benefits and other items, it was the same
as an offer recently made by Respondent to employees at its St. Marys, West
Virginia, plant, and accepted by them on January 16; it differed from that offer
only in the effective date of the contract and wage increases, and in omission of
holidays worked from computation of overtime pay. When the offer was made,
Prorok showed Parks a copy of the St. Marys offer, and asked why Respondent
did not include all its terms in the offer at Emlenton, referring to the overtime
pay provision aforesaid. Parks replied that he did not believe in that provision,
and was not negotiating for St. Marys. Prorok told him that. he did not think his
offer would be accepted by the Union, as it did not meet the "International policy"
nor the specific wage and other demands which the Union had made. Parks re-
plied that he thought it would be accepted because it had been accepted at St.
Marys? The union negotiators indicated the offer was not acceptable but agreed,
at Parks' request,' to submit it to the union membership for consideration.
At a union meeting on January 24, 1956, the union membership rejected the
last company proposal by a secret ballot vote of 29 to 8, after the union negotiators
had recommended its rejection.
The January 27 meeting was attended by a Federal mediator at the Union's
request. At the outset, Prorok advised the company representative that the Union
had some counterproposals to make. Parks replied that the company offer of the
18th was its final offer, and that the Union could submit counterproposals and
talk about them all it wanted, and he would listen, but they would not change
his mind. After a private discussion with the mediator, the Union submitted
through him a counterproposal which included a 1-year contract with a 15-cent
general wage raise. The company representatives rejected this, but offered to
add to their present offer the St. Marys provision including worked holidays in
computation of overtime pay, "if that would settle the contract," and advised the
Union that the company offer at the St. Marys plant had been accepted and a
contract signed by the local officials and International representative for that dis-
trict. Prorok said he did not believe the "wage policy committee" would approve
the Emlenton offer, and questioned Parks' assertion that the St. Marys contract had
in fact been signed or approved. The union negotiators then requested an ad-
journment of the meeting to permit them to verify the accuracy of Parks' state-
ment. Prorok learned that evening that the negotiating committee and officers of
the St. Marys local and International Representative Sam Lopez had signed the
contract at St. Marys on January 16, 1956, shortly after Prorok had left the union
meeting at which the union members had voted to accept the final company offer.4
3 The employees at the St. Marys plant were represented by the International and Local
10-590 thereof.
4 The findings above are, based on documentary evidence, stipulated facts, and credited
and mutually corroborative testimony of Russell, Prorok, Thomas W. Anderson, and
Parks ; testimony of any of them in conflict therewith is not credited. Prorok's refer-
ence to a "wage policy committee"'at the January 27 meeting is not explained by him,
QUAKER STATE OIL REFINING CORPORATION 347
At the meeting of January 30, the union representatives indicated they, were
perturbed by Respondent's offer of the 18th , and Parks ' mention of its offer at
St. Marys, because they felt Respondent was in effect offering the St. Marys
contract at Emlenton without giving the Union a chance to negotiate on it. Parks
replied that he,felt that if the St. Marys local had signed a contract for the same
wages he had already offered , they ought to be able to get the same approval. The
union agents admitted that some provisions of his offer were acceptable , but that
a wage pattern of a 15 -cent-an-hour increase was "shaping up" in the oil industry,5
and the International had advised them its policy was to seek that increase, hence
they would accept that amount , but Respondent 's offer did not approach it. Parks
replied that he was not interested in the Union 's wage policy, and would not meet
it. He then restated the company offer of the 18th and asked the union men to
submit it to their membership promptly, as Respondent needed the security of a
signed contract before expiration of the present contract in order to continue
operation of the vital _ units in the refinery . After a private talk with the mediator.
egotiators told Parks that the company offer was still inadequate, andthe union negotiators '
since there was so little time for further negotiation on it before expiration of the
contract , the Union would be willing to' extend the present contract for 90 days
to permit further negotiation , and in that period would guarantee no interruption
of production as a safeguard to the Company. Parks replied that he was not
interested in a 90-day extension , and was not willing to operate the plant on a
day-to-day basis for security reasons, but that Respondent would be willing to extend
the existing contract for 1 year . The union negotiators rejected this suggestion,
saying they would not extend for a year unless Respondent met the industry wage
pattern of 15 cents. Parks refused this. Russell asked Parks to put the company
offer in writing so"that he could submit it to the union members , and toward the
close of the meeting Parks gave Russell two copies of the written proposal,6 stated
that this was the final offer , and asked that it be submitted to the union members
early enough so that he could be advised by 1 p . m. Friday, February 3, 1956,
whether they accepted or rejected it, and that unless he knew by that time that
it had been accepted , and that he "had a valid contract ," the Company would shut
down the plant . The union representatives told Parks that their membership had
already rejected his offer at their last meeting, and they felt it would be rejected
again , that Prorok and Buchanan could not 'accept it, because the International
would not approve it since it did not meet the wage pattern of the International,
that the offer had to meet that pattern or it would not be approved, and that it
would have to be submitted to the International for approval before a contract
could be signed by Prorok . They added that they would nevertheless submit the
offer to the union membership because of the one concession Parks made, but they
would recommend its rejection . They also asked why it was necessary for Parks
to shut down the plant starting on Friday. Parks replied he would like to know
by that time , because he would have to start shutting down vital processing units
at that time to protect the equipment against freezeup in the event of an emergency,
if "it looked as though we weren't going to 'get an acceptance" of the company
offer, before expiration of the contract . Prorok and Russell replied that he had
nothing to fear , as there would be no danger to company equipment , that they
would give their personal guarantees that there would not be a strike, and that
there was no threat of a strike , as no strike vote had been taken or was contem-
plated . They offered to put their offer of a 90 -day extension and a promise of
no strike in a letter to the Company. Parks replied that the safe operation of the
refinery was his sole responsibility , and that he would not take a chance, on a
quick walkout immediately after expiration of the contract, with the plant in full
operation , and that such a walkout was possible because no individual or committee'
but I am satisfied , and find, from testimony discussed hereafter , that he was referring
to the bargaining policy committee of the International , whose function will be described
below
s Prorok mentioned that the Bayway , New, Jersey , refinery of Standard Oil Company
of New Jersey had recently offered a general 15-cent increase , or 6 percent of base rate,
in collective -bargaining negotiations. He received this information from the Interna-
tional on the 27th , and interpreted it as establishing the Union 's minimum wage raise
objective.
6 At first, Parks gave the Union copies of his January 18 proposal , but when the union
agents commented it was the same offer the union members had already rejected, Parks
added to it , at the suggestion of the mediator , a clause providing for inclusion ,of worked
holidays in computation of overtime pay, saying he would include that in the offer "if
it would help "
348 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could guarantee that there would not be a strike, and he cited the instance of a
quick walkout without notice by employees affiliated with the Union at the
Pennzoil plant 7 in 1954, as an instance of what .could happen at any time, and
said he was not willing to risk that at his plant. Prorok explained that the Pennzoil
maintenance employees had walked off the job at lunchtime one day during the
contract term because of the discharge of another employee, and had picketed
the plant, that at the time he was out of town and the local union president was
off duty at home, but that as soon as he learned of the illegal strike, he (Prorok)
returned, talked to the strikers, and assisted the local officers in settling the dispute
with the employer and getting the men back to work. Parks replied that the same
thing could happen at Emlenton, as Prorok and Russell could not be there all the
time, and Respondent could have a similar work stoppage at the end of a contract.
Prorok said there was no parallel between the Pennzoil situation and that at
Emlenton, and that if Parks took that position, it made no difference whether
there was a contract in existence or not, for a contract would not give Respondent
any additional protection, because Respondent could not trust the employees in
any event. Parks also cited strikes by the Union at Emlenton in 1945 and 1950,
saying that in view of the Company's experience on those occasions, he would
not get the Company "into that position again," and operate the plant without the,
security of a contract. With regard to Parks' request for notice by Friday, the
union negotiators explained they could not convene a membership meeting before
Friday so as to have an answer for the Company by 1 p. in. that day, because they
had to give members 3 days' notice of a meeting, and that Prorok's schedule would
not permit him to be in Emlenton until Saturday, and that they-therefore would
have the meeting Saturday night. Prorok explained that since the International
was a party to the contract, he felt it was his duty to be present and express its
views at any meeting of the Local at which acceptance or rejection of a contract
was discussed. Parks still insisted that he must know of the members' action by
1 p. in., Friday, but asked Russell to call him Sunday morning, February 5, about
the Saturday meeting. At the close of this meeting, the parties were still apart on
wages, including shift differentials and specific wage inequities, holidays, vacation
periods, fringe benefits, length of contract, and other items.
On January 31, 1956, the Union sent Respondent a letter signed by Russell and
Prorok in their official capacities, restating its offer to extend the existing contact for
90 days while negotiations for a new contract "are concluded," and stating "this means
the `no-strike' clause will be in full force and effect during the extension," and that
"there is not the threat of a strike now, as no strike vote has been taken or is contem-
plated at this time ." Respondent received it February 1, 1956, and the next day
Parks sent all employees and the Union a circular letter which outlined its final offer
'of the 30th, and then said:
We suggested to the Union Committee that the Company's offer be presented to
the membership early enough to enable us to receive an answer by Friday after-
noon , February 3. The Union Committee stated-that a meeting could not be
arranged before Saturday night, February 4. Inasmuch as the present Contract
expires at midnight, Monday, February 6, prudent business management requires
that the vital operating units of the refinery be shut down before such expiration
to safeguard costly equipment from the possibility of freeze-ups and serious
damage. This action is intended in no way to be a threat or coercion.8
Respondent started shutting down the vital operating units 9 at Emlenton in suc-
cession about 1 p. in., Friday, February 3. The shutdown continued during the next
3 days so that by 8 p. in., Monday, February 6, all such units, except the boilerhouse,
were closed down to a point where Parks felt they could be handled safely by officials
and supervisory personnel in the event of an emergency such as.a sudden strike.
Complete shutdown of these units was not achieved until about February 8.10 The
shutdown was carried out in each unit by union employees under the supervision of
their foremen.
4 This is a refinery of the South Penn Oil Company located near Oil City, Pennsylvania.
8 The findings as to the events of January 30 through February 2 are based on credited
and mutually corroborative testimony of Russell, Prorok, Parks, and Newton, and docu-
mentary evidence Testimony of any of the above witnesses in conflict with the findings
is not credited.
6 The vital operating units are stills and other units which normally operate under
high temperatures and pressures, and are thus considered the most sensitive and haz-
ardous units in an oil refinery.
10 The plant was not completely closed, as the office force, and employees in the boiler-
house, pumping stations, and barrelhouse continued to -work full time.
QUAKER STATE OIL REFINING CORPORATION 349
Starting on February 8, Respondent gradually began to put production and main-
tenance employees on a reduced workweek. Company records show that in the
week of the 6th, 29 lost 1 day, 58 lost 2 days, and 20 were cut back to a 2-day week,
and starting in the week of February 13, approximately 138 employees were on a
reduced work schedule, most of them working 2 days a week, and some working 3 or
4 days. The employees affected are listed in Appendix B attached hereto.
The shutdown continued until May 24, 1956. On May 23 Respondent sent all
employees and published in local newspapers a notice that all vital units were being
prepared "for 'operation at the earliest possible date." The next day Respondent
began to resume full operations and gradually put the employees back on, a 5-day
week, under circumstances and for reasons which will be discussed later. Aside from
the notice aforesaid, Respondent did not consult with the Union, or its officials,
agents, or members , about the resumption of operations."
At the union meeting of February 4, the employees present were apprised of the
terms of Respondent's final offer, and the fact that it differed from Respondent's prior
offer in only one provision. All members of the negotiating committee, Prorok, and
District Director Buchanan recommended that it be rejected because it did not meet
the wage policy of the International, which Prorok told the membership had been
established at a wage raise of 6 percent of base rate, or a minimum of 15 cents an
hour, with 8- and 16-cent shift differentials. Russell read to the members the bar-
gaining policy and procedure announced by the bargaining policy committee of the
International in November 1955. After a motion was made to accept the company
offer, there was open discussion of the offer pro and con; some members indicated
they would vote to accept it because they felt that if it was not accepted, the plant
would shut down; there was also discussion of the fact that the St. Marys employees
had accepted the same offer. The membership finally voted by majority vote (56
for, 39 against) to accept the company offer, subject to approval by the International.
Russell told the members that their acceptance of the offer did not mean that they
had a contract, as it could not be signed by the negotiating committee or Prorok until
approved by the International. On Sunday morning, February 5, Russell telephoned
Parks the results of the vote, adding that it was subject to approval of the Inter-
national . Parks asked what that meant, and Russell replied that he needed four
copies of the contract to send to the International at Denver, Colorado, for approval
or rejection. Parks asked why it had to be sent to the International, saying Russell
had never done that in past negotiations. Russell replied that the contract did not
meet the International policy, and that he "had to send it." Parks asked if the local
negotiating committee would sign the contract, and Russell replied they would not.
until they received approval from the International. Parks commented that could
mean they would have no signed contract for weeks or months. Russell said the
delay might be "weeks, not months," and also told Parks he would not have to worry
about any trouble from the Emlenton workers while they were waiting for a reply
from the International, that while they were not satisfied with his 9-cent wage offer,
they would rather accept the loss of the difference between that and their 15-cent
demand than "fight" with him any further. Parks told Russell to pick up the required
copies of the contract at the plant office Monday morning. Russell did so and sent
them to the International with a letter of explanation the same day. The Inter-
national replied by letter of February 15, rejecting the company contract because its
wage offer was below -the pattern established by the bargaining policy committee, and
suggesting that negotiations be continued. Copies of the letter were sent to Parks,
Prorok, and Buchanan.
In the meantime, on February 8, 1956, Respondent mailed a circular letter to all
employees, which stated in pertinent part: ,
The Union held a membership meeting on Saturday, February 4, and on
Sunday morning, February 5, Mr. J. M. Russell, President of Local 11-481,
called us and advised that our offer was accepted by the membership, but sub-
ject to approval by the International Union.
Not knowing what action the officers of the International Union might
direct, we were left with no choice but to complete the closing down of the
vital operating units of the refinery before expiration of the Contract at mid-
night, Monday, February 6, to prevent possible damage.
It seems to us that had Mr. Russell and the Negotiating Committee desired
to be fair and considerate of the employees and the Company, they could have
presented our proposition to the International between the dates of January
27 and Saturday, February 4, to determine if it would be acceptable if voted
11 The above findings are based on documentary and stipulated evidence, and uncontra-
dicted testimony of Russell and Parks.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on favorably by the membership. Nevertheless, we advised Mr. Russell that
inasmuch as the membership had approved the offer, we would accept a Contract
executed by the Negotiating Committee, as has been done in the past, pending
word from the International Union. This was refused.
In the meantime the refinery will remain open, but inasmuch as the comph-
cated and sensitive units such as the Stills, Platformer, MEK, Filter House, etc.
are closed down, it will be impossible for us to provide full time work for all
employees, but every effort will be made to provide as much work as possible.
Sometime between February 6 and 8, 1956, 15 employees petitioned Local Presi-
dent Russell to call a special meeting of the Union on February 11, 1956, "for the
purpose of instructing the negotiating committee to fulfill the wishes of the majority
of the membership as indicated by the vote of February 4, 1956." Among the signers
of the petition were Donald S. Konkle, Sr., a veteran employee of 28 years' service
with Respondent, his son, Donald, Jr., and Howard M. Dotterer, who had nearly 20
years' service at Emlenton. Pursuant to the petition, Russell duly posted in the
plant notice of a special meeting for the 11th.12
On Friday, February 10, 1956, Hunter called Donald S. Konkle, Sr., to his office
in the Emlenton plant. He had known Konkle personally throughout his long
service with Respondent. Hunter told' Konkle that it was a "shame" the plant was
sitting idle when the men had voted to accept the contract and wanted to go to
work, but the Union had neither accepted nor rejected the company offer. Konkle
agreed. Hunter then commented that Konkle had been one of the workers who
petitioned for the union meeting on the 11th, and said that if Konkle would get
him a copy of the minutes of the last union meeting showing the resolution authoriz-
ing the union officers to execute "that contract," he felt that was "good enough
evidence of the contract" and would give him the "security I need for a contract,"
and he would accept it as a contract. Hunter also suggested that, if there were no
minutes or Konkle could not get them, Konkle should go to the meeting and offer
a "resolution" (which Hunter wrote out for Konkle) that "a copy of the resolution
accepting the new contract with the Emlenton plant be signed by the secretary and
delivered to" Hunter, and that, failing in that, if Konkle could get the signatures
of 60 to 70 percent of the employees "on that contract," that would give Hunter "a
sense of security, the security of a contract," it would satisfy his "requirements for
what a contract would do for us," he would "accept that as a contract." Konkle said
he would go to the meeting and see what he could do. Hunter then drafted a form
of acceptance which he felt could be attached to the final company proposal (of
which the Union had copies), and discussed and revised it with Newton, who then
typed it in the following form at the top of 4 sheets of paper, each of which had places
for 30 signatures under the acceptance:
We, the following production and maintenance employees of the Emlenton
Plant of Quaker State Oil Refining Corporation, hereby accept a new Contract
with Quaker State Oil Refining Corporation as outlined in the letter of February
2, 1956 from the Company to the Employees:
At the same time, Newton typed a short instruction sheet outlining the actions which
Hunter had suggested that Konkle take at the union meeting, as follows:
IF OFFICERS THERE:
1. DEMAND READING OF MINUTES OF LAST MEETING
2. IF MOTION TO ACCEPT COMPANY'S OFFER IS READ THEN
MAKE MOTION THAT A COPY OF THE RESOLUTION AC-
CEPTING THE NEW CONTRACT WITH THE EMLENTON
PLANT BE SIGNED BY THE SECRETARY AND DELIVERED
TO: ------------------------
The acceptance sheets and instructions were delivered to Konkle when he went off
shift that night 13
At the special union meeting of February 11, Russell reported to the members
that their wishes had been carried out, but explained that the contract had not been
signed because it had to be submitted first to the International for approval or
rejection. He read to them part of the International's wage policy letter of November
>z The above findings are based on documentary evidence and credited testimony of
Russell. Prorok, and Parks. -
13 The above findings are based on credited and mutually corroborative testimony of
Konkle,_Sr , Hunter, and Newton.
QUAKER STATE OIL REFINING CORPORATION, 351
21, 1955, which outlined the procedure to be followed by local unions in securing
approval of employer proposals . After some discussion , Konkle, Sr., told the
membership that Hunter had told him that Respondent would start the plant up if
Hunter received a copy of the union minutes showing the members' acceptance
of his final company proposal . He also announced that he had received petitions
from Hunter, to be signed "to start the plant up," if the members did not give
Hunter the minutes.14 The membership then passed a resolution authorizing Russell
to give a copy of the minutes to Hunter if he asked for it "through official channels."
Russell was directed by the members to advise Hunter of this action.
On Sunday morning, February 12, Dotterer visited Hunter at his home, to find
out at first hand about Hunter 's proposals to Konkle, as he felt Konkle had not
explained them very clearly. He asked Hunter if he would start up the refinery
if he had the minutes of the February 4 meeting . Hunter replied that he would
accept that as a contract . Dotterer then asked whether the "petition " was still
good , if he could not get the minutes. Hunter said that if Dotterer could not get
the minutes , he would still accept "that contract" 15 signed by over 50 percent of
the employees , stating that that would be "pretty good evidence . that we had
a contract," "it would give us the protection," and that he "knew those boys, that
they would not likely walk off the job." Dotterer said he would see what he could
do, left Hunter and sought out Robert Grimm , secretary of the Local, and Russell,
and talked to both about getting a copy of the minutes at once. Russell then called
Hunter who, after some preliminary discussion , asked for a copy of the minutes
in question , which he wanted signed and certified by the local secretary and notarized.
Russell asked why he wanted it, and Hunter replied he would use it "for a contract."
Russell had the local secretary prepare and sign a copy of the motion for a vote on
the company offer, and the vote thereon , which he delivered to Hunter 's office
Monday morning with a covering letter.
On Tuesday , February 14, 1956, Dotterer called Hunter and asked if he had re-
ceived the copy of the minutes. Hunter replied that he had. Dotterer asked if they
were "all right for a contract ." Hunter said no, that it was of no value because it
only showed the tally of votes for and against acceptance of the company offer,
which was not sufficient evidence of a contract . Dotterer then asked him "what about
getting signatures on the `petition ' " (meaning the acceptance forms aforesaid).
Hunter replied that he would accept that as a contract , if he got nearly 100 percent
of the men to sign it. Dotterer said that was not possible , as President Russell and
the negotiating committee would not sign it . Dotterer than asked , "How are we
going to get a contract?" and Hunter said he did not know, the men would have
to figure that out, and the best thing they could do was to get a lawyer.
At the next bargaining meeting on February 22, the Union asked Parks to put
the men back to work and continue negotiations for a contract . To the first request,
Parks replied that he had to have a signed contract before he would resume opera-
tions, and that he had shut the plant down at first to prevent a possible freezeup in
the event of a strike . As to the second , he said that he was only there to listen.
District Director Buchanan , in referring to the lack of a signed contract , read to
Parks portions of the International 's policy letter and constitution , explaining that
under their provisions the local negotiating committee could not consummate a
contract without approval of the International , which had the "final say" before a
contract. could be signed . Russell gave Parks a copy of the 1955 constitution
containing these provisions . During this discussion , Parks told the union agents
that in his past experiences with the Union , when local union members had accepted
contract proposals , the local bargaining committee and the international repre-
sentative , who took part in the negotiations, had always signed the contract without
question and without submitting it to the International , and from that he had con-
cluded that when the members of the Local had accepted the company offer,
Respondent "had a contract," and that the International would "go along" and also
sign it. Parks told the committee members that he had copies of the contract
available for signature if they wished to sign it. The Union then made a new
offer which included a, 15-cent wage demand . Some of its provisions had previ-
14 Before the meeting , Konkle showed the petition to Dotterer, and also told his son
and several other employees about it. _ '
w In his testimony Dotterer always referred to the 4-page document , General Counsel's
Exhibit No 23b etc ., as a "petition ." Hunter's testimony 'indicates that 'he felt be would
have a contract sufficient for his purposes if he had the requisite number of signatures,
either on the last company proposal handed to the Union on January 30, or on the
acceptance forms ( General Counsel 's Exhibit No. 23b, etc.), which could be attached to
that proposal.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ously been agreed upon by the parties, but after some discussion they could not
reach any agreement on five items including wages, even after the Union reduced
its wage demands.
At the meeting of February 26, the Union referred to its offer of the prior meeting,
and Parks replied it had already been rejected by Respondent. The union agents,
then asked if there was any change in Respondent's position, to which Parks replied,
no, that Respondent "had' a contract." Prorok then pointed out that Respondent
had recently given a 10-cent raise to all employees at its Farmers Valley, Pennsyl-
vania, plant, including nonunion clerical and supervisory employees, and asked why
the Company did not make that offer at Emlenton. Parks admitted the raise had
been given, and said the 10 cents was "available if it would settle the contract."
The union men asked, if Respondent was making that as an offer, and Parks replied,
no, that "it was available" if the Union would accept Respondent's final offer. The-
Union adhered to its demand for a 15-cent increase, with 8- and 16-cent shift.
differentials. When Parks said that Respondent "had a contract," Prorok asked'
Parks why he was not operating the plant and working the men full time. Parks.
replied that he had to have a "signed contract."
On March 12, 1956, Respondent mailed to its Emlenton employees a letter
signed by Parks and reading in pertinent part as follows:
We have been asked on numerous occasions who is holding up the signing
of the agreement reached between the Company and our employees-members.
of Local 11-481, AFL-CIO, and accepted by them at a meeting held February
4, 1956. Frankly, we do not know the answer.
During the negotiations Mr. Frank Prorok stated that he was a qualified
representative of the International Union, but after the agreement was accepted
by members of Local 11-481 he advised that he did not have authority to sign it.
We subsequently advised Mr. Russell and other members of the Negotiating
Committee that we would accept their signatures to the contract, and the
authorized International Representative could sign later. This request was.
refused, and he gave as his reason that if he signed it he and the other members.
of the Negotiating Committee would jeopardize their union standing. This is.
a little hard to understand for the reason that Mr. Russell was elected President
by the members of Local 11-481 and is responsible to them.
It seems to us that if Mr. Russell wanted to serve the best interests of the
members of the local union; also the, best interests of the community, that he
would make every effort to prevail upon the International Union to sign the
agreement, and, failing in that, to sign the contract without the permission of
the, International Union.
* * * * * * *
,So long as Local 11-481 is the duly certified bargaining agent for the-
production and maintenance employees of the Emlenton Plant it is only busi-
nesslike that we have a signed contract incorporating the agreement reached with
them, and we feel that it is most unfortunate for our employees that their-
wishes are thwarted by the arbitrary action of the International Union.
At the April 24 meeting, Respondent made a new proposal which increased its
wage offer, and included several other concessions. The parties bargained on
these items, and the Union submitted two counterproposals, both of which were
rejected by Respondent. In offering the new company proposal, Parks said it was
subject to several conditions which must be met by the Union: (1) the proposals
must be accepted unanimously by the local negotiating committee and the interna-
tional representative before they left the conference room that day; (2) it must be
accepted by the union membership, and the contract signed by the local negotiating
committee and the international representative; (3) both parties must withdraw the
charges filed against each other before the Board; 16 (4) Respondent must sign the
contract; and (5) all of the foregoing steps must be completed within 96 hours,.
otherwise Respondent would revert to its prior offer. The Union said these condi-
tions could not be met, arguing that while the offer might be approved by a majority
of the local committee, it could not assure unanimous approval, that the committee-
and Prorok would not accept the offer before they left the meeting, and that 96-
hours was not sufficient time within which to secure approval by the International.
160n February 16, 1956, Respondent filed a charge with the Board in Case No.
6-CB-322, alleging that the 'Union had refused to bargain in good faith with Respondent
in violation of Section 8 (b) (3) of the Act. The charge was dismissed by the Regional
Director for the Sixth Region and, on appeal by Respondent, the dismissal was upheld!
by the General Counsel on July 5, 1956.
QUAKER STATE OIL REFINING CORPORATION 353
Respondent thereupon withdrew its offer at the end of the meeting . The question
of resumption of full plant operations was brought up, and Respondent adhered
to its stand that it could not operate the plant without the security of a signed
contract.
On April 26, 1956 , Respondent sent all employees in the unit a letter reciting its
offer of the 24th and the conditions to the offer , explaining its reasons for those
conditions.
At meetings on April 30 and May 2 and 18 , 1956, the parties continued negotia-
tions on the basis of their respective prior offers , and finally agreed upon wages and
certain fringe benefits, but could not resolve their differences on seniority, certain
rate inequities , length of contract , effective date of contract, and scope of wage
reopener clauses. However, they did not reach an impasse or foreclose further
bargaining on these points , but scheduled another bargaining session for July 19,
during the hearings.
Concluding Findings ; Contentions of the Parties
1. The January 30 announcement , and shutdown of February 3 to 8
General Counsel contends that Parks ' announcement on January 30 that her
would start a shutdown on February 3 in default of an acceptance of the Company's
final offer, the actual shutdown starting that date, and the consequent reduction of
the workweek of union employees , were all for the purpose of exerting economic
pressure on the employees and the Union to accept Respondent 's final offer and to
penalize the employees for their failure to sign it as a contract, and that Respondent
was thus using a temporary, partial lockout of its employees as a weapon in
collective bargaining in violation of the Act. Respondent, on the other hand,
claims Parks' announcement and the shutdown was merely the application of a
longstanding company policy of not operating its plants without the security of
a contract, which was the outgrowth of past experience with the Union and was
based on sound considerations of prudent business management.
While Hunter and Parks testified that Respondent needed the security of a•
"signed contract" before expiration of the old one, in order to continue full opera-
tions and avoid a shutdown, and it appears that Parks maintained this stand in
negotiations during the shutdown period , the facts of Parks' submission of a final,
"package" offer at the close of the January 30 bargaining session , his insistence that
he be advised before February 3 that it had been accepted so that he had a "valid
contract," and his warning that he would start the shutdown unless he was so
advised, clearly indicate that the Union's acceptance of the final company offer
by the deadline date was the only condition upon which Parks would continue
full operations . I do not credit his testimony that the parties could have con-
tinued negotiations on contract terms after the 30th and up to the deadline, and'
that Respondent was willing to do so, for he admitted that there was little discus-
sion of his final offer on the 30th, and that Respondent never suggested a continua-
tion of negotiations between January 30 and February 3, because "we felt there was
not any point in meeting until after the membership acted on " the offer . Newton
admitted that he considered the Union's offer on the 30th of assurances of no
strike during further negotiations as tantamount to a suggestion that the parties
continue bargaining , and says that Respondent was ready to-do so, "but we had
to wait until action took place on our offer." I find from these circumstances and
admissions that Parks made it clear to the union representatives on January 30,
that the Union would have to accept his final "package" offer, without further bar-
gaining on its terms, by February 3, otherwise he would shut down the plant. In
other words, on the 30th the only "signed contract" which Respondent was in-
terested in and would accept, as a condition for not shutting down, was the Union's
acceptance of its proposal of that date. This ultimatum, of course, effectively pre-
cluded further bargaining by the Union on the offer; it could only accept or reject
it. The same conclusion is impelled by Hunter's admission that Respondent de-
sired, at expiration of the old contract, "some evidence that would satisfy me that
these men wanted to work under the conditions that were proposed"; the "condi-
tions" he mentioned could only have been Respondent's final proposal of the 30th,
because Respondent had rejected all material wage demands of the Union up to
that point . The general policy is also outlined in Hunter 's admission that, when
the parties bargained up to the end of a contract term , and Respondent submitted
a final proposal, and the Union gave him "the acceptance of the contract" 48 hours
or a few days before the term end , then Respondent would not shut down the plant.
487926-59-vol. 121-24
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also clear that as late as February 17, acceptance of its offer was still Re-
spondent's price for resumption of full operations, for Parks and Hunter testified
that Parks would not have shut down if the negotiating committee had signed the
final offer on February 3, that he would have discontinued the shutdown if they
had signed it on the 5th, or if the International had approved the contract in its
letter of the 15th, and that when he learned from Russell on the 5th that the con-
tract would not' be signed until approved by the International, he ordered his fore-
men to continue the shutdown. Newton testified that, after Respondent received
notice on February 17 of the International's rejection of its offer, Respondent's
officers did not discuss or consider resumption of full operations, that "we had
nothing at that time to offer in addition," and that Respondent expected the Union
to seek further meetings if it had something which might lead to agreement. Parks
maintained the same position at the meeting of February 22, when he reiterated
that he had to have a signed contract in order to resume operations, and was "only
there to listen ," and then told the union committee he had copies of "the contract"
available for signature by them. Respondent, made the same position clear to all
members of the Union in its letter of March 12 when it referred to the lack of
signature of the "agreement reached between the Company and our employees-
members of Local 11-481, AFL-CIO, and accepted-by them at a meeting held
February 4, 1956," reported that "we subsequently advised Mr. Russell and other
members of the Negotiating Committee that we would accept their signatures to
the contract, and the authorized International Representative could sign later," and
expressed the view that "if Mr. Russell wanted to serve the best interests of the
members of the local union, . that he would make every effort to prevail upon
the International Union to sign the agreement, and, failing in that, to sign the con-
tract without the permission of the International Union." [Emphasis supplied.]
That Parks' announcement and the shutdown had an effect on the employees is
shown by the fact that the union members on January 24 had rejected Respond-
ent's offer of January 18 by a vote of 29 to 8, but after his ultimatum and the start
of the shutdown they voted to accept the same offer (with one minor concession)
by a vote of 56 to 39 at the February 4 meeting, in'which some employees indicated
they 'would vote to accept it, because they felt that the plant would shut down if
they did not. In view of these facts, I do not credit Parks' and Hunter's denials
of any intent or purpose to coerce the employees and the Union to accept Respond-
ent's final proposal. It is clear from all the above facts and circumstances that
Respondent's announcement of January 30 was reasonably calculated to, and in
fact did, compel the employees to recede from their prior position during bargain-
ing and accept Respondent's last offer without further bargaining on it ; and that
when the International still refused to approve the contract, and the local negotiat-
ing committee refused to sign it , Respondent continued and completed the partial
shutdown and reduced the workweek of the employees because of the action of
their bargaining agent in refusing to accept the final contract proposal and insist-
ing upon continuance of collective bargaining, and the refusal of their negotiating
committee to sign that proposal without the International.
I conclude that the above facts and circumstances, and all reasonable inferences
which can be drawn therefrom, establish a prima facie case of violation of Section
8 (a) (5), (3), and (1) of the Act as charged in paragraphs 7 (a), (b), and (c),
8, 9, 10, and 11 of the complaint, in the light of recent decisions of the Board and
the courts. In Morand Brothers Beverage Co., 99 NLRB 1448, 1466, the Board
held that: -
the right of employees to adhere to a position taken by their union in good
faith in collective bargaining is one of the most important rights protected by
the Act, that a temporary lockout which has as its purpose causing employees
to recede from the bargaining position of their union is presumptively an inter-
ference with that right and violative of the Act.
In American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820, where
the employer announced at the outset of negotiations that it would start a shutdown
of its plant before the contract expiration date if an agreement was not reached
promptly so that it could schedule work for that plant, the Board held that the
announcement of the shutdown policy at the outset made it clear to the employees
that collective bargaining would proceed only at the risk of temporary loss of their
jobs, and that the ensuing shutdown and layoff of employees occurred because they
engaged in such collective bargaining, and that the reasonably foreseeable conse-
quences of the employer's conduct were such as would normally infringe employee
rights guaranteed by Section 7 of the Act to engage in collective bargaining and to
be free from employer discrimination based on such activity; hence such conduct
QUAKER STATE OIL REFINING CORPORATION 355
-was prima facie a violation of Section 8 (a) (1), (3), and (5) of the Act. As to the
employer's defense, the Board said:
The Respondent contends , however, that it was justified in shutting down its
plant because it sought thereby to avoid losses due to an anticipated strike.
Stated another way , it contends , in substance , that an employer, to avoid losses
incidental to an anticipated strike, may curtail operations and lay off employees
as a consequence of their lawful union activities in bargaining ,14 without violat-
ing the Act. The Board has never adopted the broad principle thus stated by
the Employer . It has recognized that there are unusual circumstances, as ex-
emplified by those in Betts Cadillac Oldsmobile , Inc. [96 NLRB 268], and Inter-
ational Shoe Company , 93 NLRB 907, under which an employer may be justified
in closing down his plant to avoid unusual operative problems or economic
losses over and beyond the ordinary loss of business or customers attendant
upon any strike . 16 In deciding whether these unusual circumstances exist, the
nature of the business and the consequence of a strike on the employer and the
public interest , as well as the reality of the threat of strike are all pertinent
considerations.
• 14Apart from the Respondent 's contention that the TAM did not bargain in good
faith, which we reject below, there is no contention that any of the labor organiza-
tions or employees engaged in unlawful or unprotected activities . Likewise, we
-reject the Respondent ' s contention , made before 'the Trial Examiner , that the shut-
down was caused by the IAM's alleged failure to bargain in good faith
'- See also Duluth Bottling' Association, 48 NLRB 1335 , 1336, 1359-60 (where
spoilage of materials would have ensued from an anticipated strike ) ; International
Shoe Co. , 93 NLRB 907 ( where the intermittent work stoppages in two departments
disrupted operations in other integrated departments ) ; Betts Cadillac Oldsmobile,
96 NLRB 268 ( where an anticipated strike would have left stripped - down cars of
customers brought to the employers for repair tied up .foor the duration of the strike,
thus depriving the customers of their cars for that period ). See also Associated
General Contractors , 105 NLRB 767 ; Link-Belt Co, 26 NLRB 227, Hobbs Wall and
Company, 30 NLRB 1027.
Respondent's justification for its announcement of shutdown and the ensuing shut-
down and layoff must be analyzed in the light of the considerations stated in the
above decision.
In defense of the shutdown , Respondent makes two points: -
(1) The shutdown was announced and effected in the normal application of a
company policy of long standing, well known to the employees and the Union, that
it would operate, at or after the expiration of a labor contract , only so many of the
potentially dangerous operating units in a refinery as could be handled and shut down
by supervisory personnel safely and without danger to life or property in the event
of a sudden strike or walkout without notice . This policy is based on the premise
that , when collective bargaining with a labor organization continues up to the expira-
tion date ofgan existing contract, without agreement or consummation of a new
contract , there is always the possibility of a strike which might come-without warn-
ing, leaving a plant in full operation without sufficient personnel to handle vital units
properly. Hence, Respondent wants to shut its plant down beforehand to avoid the
operational hazards and difficulties inherent in that situation , in order to protect its
investment and the lives of its employees.
(2) The policy was applied at Emlenton in 1956 because of past experiences of
Respondent and its competitors with tactics of the Union during collective bargain-
ing, the unusual hazards accompanying operation of the plant during the cold weather
of February 1956, and the unusual and misleading tactics of the Union during the
1956 negotiations where, contrary to past practices , the International and its repre-
sentative refused to, accept or sign a contract , although accepted by the local union
members, and the refusal of the international representative to secure prompt-tele-
phonic approval or rejection of the final offer , as in the past , and Russell 's insistence
on sending the written document to the International , when • he already knew it would
be rejected by the International , all of which created a reasonable suspicion in the
minds of Respondent 's officials that a quick strike at expiration of the old contract
impended
I find from uncontradicted testimony of Hunter , Parks, Newton , Noble W. Hill,
manager of the Farmers Valley, Pennsylvania , refinery, and Thomas A. Anderson,
manager of the St. Marys , West Virginia , refinery, that Respondent has had in
- effect since 1950 a policy of partial shutdown in the absence of a consummated labor
1
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract at the expiration of a prior contract , in the terms stated above , and that
Hunter reminded each plant manager about this policy each year thereafter, when;
he engaged in negotiation of a new contract with the Union for his plant
I further find on credited testimony of Russell, Prorok, Hunter, Parks, and Newton,
that the Union and its members had been advised of the shutdown policy, and had
seen it applied by Respondent, during the 1955 contract negotiations at three plants
To the extent that this policy was motivated by Respondent 's desire never-
to have a plant left suddenly unattended by sufficient skilled operating personnel
to shut down and handle the sensitive operating units in an emergency, there'
can be no question that the policy was based on sound economic and safety con-
siderations The record shows that the operation of an oil refinery is attended
with. constant risk of fire or explosion in stills and other processing units which
contain highly flammable liquids and gases and are operated under high tempera-
tures and pressures If these units are left unattended , or there are not sufficient
skilled personnel to shut them down in an orderly fashion in any emergency, the
risk of fire or explosion is much greater The hazards are even greater in the
winter months, because of the constant danger of freezing of water and steam used
in the operation of the units , and damage resulting therefrom , and the necessity
of an orderly shutdown of equipment by skilled personnel in an emergency is all
the more impelling These hazards, and the necessity of protecting the plant against
them at all times , were particularly apparent at Emlenton in the late winter\ of
1956, because that locality experienced freezing temperatures during some part
of each day during January and February 1956 That plant includes 8 or 10 stills
and other sensitive units which are located in close proximity to the main office,
laboratories , and other production units, and about 200 storage tanks containing
thousands of gallons of highly flammable oils, gasoline , and other products One-
half of the plant is located within the corporate limits of the borough of Emlenton,
which has about 1,000 population, and the storage tanks are adjacent to a residential
area Clearly, a fire or explosion in a vital unit of the refinery, if not prevented
or unchecked, could quickly involve the whole plant while many employees were
on duty, and could spread to the populated areas of the borough as well I further
find from credible testimony of Hunter and Parks that in an emergency , such as
a strike without notice, it would take the full staff of supervisory and operating
personnel at Emlenton about 72 hours to shut down the vital units in an orderly
manner to a point where they could safely be handled by supervisory personnel
thereafter, and that these units could not safely be shut down , either all at once-
or in rotation, by supervisory personnel alone in the winter Once the vital units
are down, there are sufficient supervisory personnel at Emlenton to take care of
necessary maintenance and to shut down the remainder of the plant in the event of
an emergency On these facts , I conclude and find that the nature of Respond-
ent's business at its Emlenton plant involved unusual operational difficulties and
hazards in the event of a sudden strike without notice, which would justify ap-
plication of its shutdown policy aforesaid in anticipation of a strike
I find from testimony of Hunter , Parks, Newton, Hill, and Anderson that Re-
spondent 's shutdown policy was based on their feeling that lacking a signed con-
tract or some assurance of one before expiration of the old contract, there was,
always the possibility or "danger" of a strike or work stoppage without warning
at any time, with the consequent operational hazards noted above, and that
this possibility existed even in the absence of a strike vote or threat by-
the Union, and despite assurances against a strike offered by the Union_ The
only security they considered sufficient to rule taut the possibility of a strike was,
a new, signed contract In its absence , a strike or work stoppage is a constant
threat, regardless of what the Union may say or do to show the contrary If we
are to judge Respondent's conduct only by possibilities , there can be no effective
answer to this contention , for "anything can happen," as Parks testified Labor
organizations have always used strikes as their major weapon in industrial war-
fare, and will do so in the future The record shows that the Union here had
called strikes against Respondent in the past , and that both parties knew of one
instance (Pennzoil in 1954) where members of the Union had walked out of
a refinery without warning and without authorization from the Union , and Prorok
agreed in his testimony that the same thing could happen at Emlenton
However, as the Board indicated in the American Brake Shoe case,i7 the
shutdown or lockout policy cannot be justified by Respondent's "fear of possibility-
of a strike which could have caused operative difficulties ', the proper inquiry
must be whether all the circumstances surrounding the shutdown disclose that
%'i 116 NLRB 820
QUAKER STATE OIL REFINING CORPORATION 357
Respondent was faced with a real threat of a strike such as to bring the case within
the "unusual circumstances" doctrine.ls
I have found above that the parties negotiated in six bargaining sessions before
Respondent made its final offer and issued its shutdown ultimatum on January 30.
This was only 7 days before the expiration of the old contract and the time when
the Union could legally strike after expiration of its 60-day notice in accordance
with Section 8 (d) of the Act. Thus, the negotiations had reached a point where
in the ordinary course Respondent could expect a strike to occur momentarily after
February '6. However, when Parks expressed his fear of the possibility of.a strike
-and of a plant left helpless as the reason for his shutdown announcement, the Union
quickly advised him that no strike vote had been taken and no strike was contem-
plated', offered to extend the existing contract for 90 days, gave an oral guaranty of
no interruption of work in that period, and put these assurances and offers in writing
over the signatures of Russell and Prorok the next day. Parks and Newton admitted
that these offers were made by Russell and Prorok as "responsible agents of the
Union." and that they never questioned their sincerity in making the assurances and
offers, but they still refused to accept the offers as "guaranties," and Hunter agreed
with them, expressing doubt whether the union officials could govern the actions of
their members that closely. As to Russell, I am convinced his doubt was not sup-
ported by experience. Russell had been employed by Respondent for 14 years. He
had been a charter member of the Local for 13 of those years, had served as its
elected president for a total of 8 years, and as a member of its bargaining com-
mittee since 1945. His long service as an officer or agent of the Local at the behest
of its members bespeaks the confidence they had in him, and warrants the inference
that he had some influence with them in the matter of strikes, as he testified. As a
member of the Local's bargaining committee, Russell had signed every bargaining
contract executed with Respondent since 1946, and there is no proof in this record
that the union members ever engaged in any sudden, unauthorized walkout in viola-
tion of contract or otherwise, during his incumbency as a union official or otherwise.
Under these circumstances, Respondent had no apparent justification for rejecting
his sincere offer of a guaranty of no strike as valueless. Nor did it have any more
reason for rejecting Prorok's offer as agent of the International. Prorok had been
assigned to service locals in the Emlenton area late in 1953. Respondent dealt with
him as the international representative in contract negotiations in 1954, 1955, and
1956. The record shows that during this period the Local at Emlenton had never
threatened or voted to strike, and the International had never authorized a strike at
that plant. During contract negotiations in February 1955, when Parks cited the
same need of the security of a signed contract, as in 1956, the Union offered through
Prorok a 15-day extension of the old contract with a guaranty of no strike, plus a
72-hour strike notice in the event the Local voted to strike after the extension, and
a guaranty of a safe and orderly shutdown by union employees in the event of a
strike. Prorok testified that since Respondent had rejected this offer and proceeded
with a shutdown in 1955, the Union determined to enlarge the extension offer to
90 days in 1956, as a greater protection for Respondent, and that this offer with a
guaranty of no strike had been approved by the International before it was made,
so'that Russell and Prorok had full authority to sign an extension agreement if it
had been accepted by Respondent. It is clear that the extension offer amounted to a
substantial concession by the Union for, if accepted; it would automatically extend
the old contract, with its no-strike clause, for 90 days, during which the Union
would be foreclosed of its powerful right to strike; Russell admitted that a walkout
in that period would be a plain breach of the contract as extended. All of these
facts convince me that the offers and assurances tendered by the Union on Janu-
ary 30 and 31 were not given lightly, and that Respondent had no good reason to
believe that, if accepted, they would be disregarded by the Union or its agents.19
Prorok's responsibility in dealing with employers is further evidenced by his co-
operation with the employer in the Pennzoil strike of 1954, which he explained at
length to Parks at the same time he offered assurances against a similar occurrence
at Emlenton. I am of the opinion, and conclude, that on January 30 and 31, the
19 This approach snakes it unnecessary to consider or rule on General Counsel's con-
tention that Respondent's shutdown policy was basically an illegal attempt to equate a
temporary lockout of employees with the employees' right to strike protected by the Act,
an equation which the Board appears to have rejected in Davis Furniture Co., 100 NLRB
1016, and Buffalo Linen Supply Company, et al., 109 NLRB 447, 448.
19 Cf. American Brake Shoe Company, supra, where the Board held that oral assurances
against a strike were not lightly given, even though the Union refused to put them in
writing.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union offered Respondent every reasonable assurance, even to the extent of con-
tinuing the existing contract for 90 days, to protect Respondent's plant against the
hazards of a sudden strike during negotiations which it apparently dreaded so much,
and that such offers,. apparently made in all sincerity, indicate that Respondent was
not then faced with the real threat of a strike at expiration of the contract which
would justify the shutdown. In fact, Hunter admitted on cross-examination that an
extension agreement signed-by both parties would give Respondent the "security"
of a contract, and that he felt a contract executed by the Union at the time of the
hearing would be a "good contract, and would not be violated." He tries to justify
Respondent's rejection of the extension offer by saying that Respondent could not
operate its plant on anything less than a -1-year contract, because of its commitments
to customers, and that, if Respondent took a 60- or '90-day contract, it would `result
in Respondent operating its plant eventually on an hour-to-hour basis, as in the past,
which would put Respondent in an "unfortunate" position. Here, he obviously
relies on the Union's 1950 strike at the St. Marys plant, but the example does not
justify his position because, as will appear below, that plant operated for nearly
2 months without a contract and under an actual constant threat of a strike, before
Respondent concluded to shut down. The Union's attitude in 1'956 was the direct
opposite of its tactics at St. Marys in 1950. At another point, Hunter testified he
felt a strike by the Union is likely where (as in 1956) negotiations are carried by
the Union right up to the end of the existing contract, and "there is no evidence of
trying to carry the contract over or to mutually agree upon a date and time to pro-
tect the plant," which would "instill confidence." This testimony is not credible,
because one of the conditions he wanted, a "carry-over" of the old contract, was in.
effect offered by the Union; and the other condition, a safe shutdown, had been
offered or given in 1955 and earlier years by the Union, as will appear hereafter,
so that past experience should have indicated to him that Parks could have had the
same assurances in 1956 if he had asked for them. The Union was offering the
very protection which Hunter said was necessary to "instill confidence" in his mind
that a strike was not likely. Hunter claimed he could not "necessarily" depend on
asking the Union for an orderly shutdown, because he felt that was not the Union's
"responsibility," but only that of the plant manager. I discredit this argument as a
mere pretext for, as will appear below, Respondent demanded, and the Union agreed
to, continuance of plant maintenance and safety by union employees during the
1950 strike at Emlenton, and agreed to give sufficient notice of an actual strike to
permit an orderly shutdown at the same plant in 1952. From these experiences,
Respondent had some reason to believe that similar assurances would have been
forthcoming in 1956 if asked for. The above facts, the testimony of Hunter, and
the fact that Respondent never sought such assurances but rejected them when
offered by the Union, as Parks and Newton admitted, compels the inference that
Respondent was not really concerned about plant safety or protection of investment
when it announced and effected the shutdown; but that it used the shutdown only as
a bargaining weapon.
With respect to Respondent's past, experiences with the Union, Hunter and Hill
testified that the shutdown policy was based largely on the Union's past tactics of.
carrying negotiations with Respondent right up to the expiration of the old contract
every year, and trying to continue negotiations thereafter, when it could strike .
momentarily during a night shift, leaving the plant without operating personnel and
in a dangerous position, with the idea of compelling Respondent to yield and accept
the Union's demands; these tactics created a "crisis," making it difficult to schedule
future operations, and made Respondent so suspicious of the Union that it adopted
the shutdown policy found above. The main experience on which Hunter relied was
a series of strikes by the Union at the Emlenton, St. Marys, and Oil City plants in
1950. I find from testimony of Hunter, Hill, Anderson, and Parks that: - Since
1950, Hunter has told his plant managers every year during contract negotiations
that they must be sure to shut down before the contract expiration date if they have
no signed contract, so that the Union could not get Respondent "over a. barrel again,"
in a helpless position, as it did in 1950. He gave Parks this admonition several times
during the 1956 negotiations, the last time after the January 30 meeting, when Parks
reported to Hunter on the results of that session. Parks testified that he relied in part
on the 1950 strikes in effecting the shutdown.
I find from credible testimony of Russell, Hunter, and Newton that: The 1949
contract covering the Emlenton plant expired February 8, 1950. The Union gave the
same 60-day notice of termination as in 1956 , and the parties engaged in collective-
bargaining negotiations during that period and up to midnight, March 10, 1956, when
the employees went on strike, which continued until May 11. The Local took a
strike vote on or about January 24, and Respondent had notice of it. Early in Febru
QUAKER STATE OIL REFINING CORPORATION 359
ary, the Federal Government seized all coal in transit and_ at the mines, during a
strike of the United Mine Workers, and since the Emlenton plant carried only a 2
days' supply of coal on hand, all vital units at that plant which required steam for
their operation were shut down on February 17. The shutdown was to the same ex-
tent as in 1956. Thereafter, the employees were placed on a 2-day workweek, and
were advised by Respondent that the shutdown was due to the coal shortage caused by
the UMW strike. The shutdown continued until the strike ended on May 11.
Thereafter the plant resumed full operation, and the parties continued negotiations
which culminated in the signing of a new contract in June or July. On March 8, 2
days before the strike, the Union told Respondent at a negotiation meeting that it
would strike unless Respondent agreed to certain demands, and that the union
members would meet on the 10th to vote on the time of a strike. The union meeting
took place about 10:30 p. m., on the 10th, and immediately thereafter Russell advised
the plant manager that the men would walk out at midnight. At a meeting between
the union agents and Newton and the plant manager just before the strike, the com-
pany officials demanded, and the Union agreed, that union employees would continue
to, operate the boilerhouse, and union watchmen would be allowed to go through the
picket line and continue to work for purposes of plant maintenance and protection.
This arrangement was adhered to during the strike. I conclude that these facts
afforded Respondent no basis for fearing a sudden strike was imminent in 1956.
First, the plant operated full blast without a labor contract from February 7 to 17.
Second, the shutdown was due solely to the coal shortage, and did not hinge in any
way on the course of negotiations with the Union; as Hunter and Newton admitted.
Third, it is clear, as Hunter admitted, that as the vital units were shut down long
before the strike, there was no danger to the plant when it occurred, and there would
have been none if it had come without any warning at all. Notwithstanding the
existence of the shutdown, the Union gave Respondent notice of every move it took'
preparatory to a strike, so that it cannot be said that the Union struck without warn-
ing. Fourth, the Union gave, and carried out, an oral agreement for continued
maintenance of the plant by union employees during the strike. Fifth, after the
strike ended, the plant was in full operation for over a month without the security of
a signed contract 20 Sixth, Parks admits that he knew all these facts in 1956 from
his conversations with Hunter, particularly the fact that the Union had not struck at
the expiration of the contract. To counter these facts Parks and Hunter say that
"even if they don't strike the next minute, it can happen any time," the damage to the
plant was "potentially there," "it could have been disastrous," but this is an argu-
ment based purely on hypothetical facts and is untenable as a matter of law for
reasons noted above.
As to the 1950 strike at the Oil City plant, the testimony of Parks, its manager
at the time, and Hunter shows that: The contract expired at midnight, February
6, 1950, without agreement between the parties on a new contract. They continued
negotiations until March 14. At an 8 p. m. negotiation meeting that evening, the
Union told Parks it would strike at midnight, and a picket line was set about 11
p. m., so that Respondent had about 3 hours' notice of the actual time of the strike.
However, the Union had taken a strike vote long before, and Respondent had
knowledge of it shortly after. There was no hazard to the plant when the strike
occurred, because the vital operating units had been shut down by operating per-
sonnel in the normal course on February 11 for considerable maintenance and
repair work. The plant was in full operation for 4 days, from February 7 to 11,
without a contract. I conclude that these facts afforded Respondent no more reason
to fear a sudden strike with hazard to the plant than did the situation at Emlenton,
for at Oil City the Union, while giving very short notice, called the strike when the
vital units were down and the hazards to the plant were at a minimum.
I find from credible testimony of Hunter and Anderson, manager at the St. Marys
plant in 1950, that: The contract expired January 17, 1950; the parties continued
negotiations and the plant continued in full operation without a contract until March
2; and the Union had taken a strike vote prior to expiration of the contract, but did
not go on strike until March 10. While the parties negotiated between January 17
and the date of the strike, Anderson had all his supervisors on duty every night
at the change of shifts at midnight, because the Union had stated in press releases
21 Hunter testified that this was because of a back-to-work movement started by some
employees when the strike ended, which he considered "pretty good assurance" that the
employees would not be likely to walk out and leave the plant helpless during future nego-
tiations. However, I find from Russell's uncontradicted testimony that the vast majority
of the employees returned to work on orders from the Union, from which it appears that
the Union effected the abandonment of the strike.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the plant was operating on an hour-to-hour basis, and various employees had
expressed doubt to their supervisors from time to time whether they would come to
work the next night, or would walk off the job after coming in. Anderson operated
under that "continual threat" and "pressure" until March 2, when he shut down the
vital units and put the men on a reduced workweek, rather than subject his super-
visors to the pressure any longer. Prior to the shutdown, Anderson asked the Union
for a 72-hour strike notice, which was refused. Respondent was given about 8
hours' notice of the strike when it occurred. While the Union's "pressure" tactics
at St. Marys afford some support for the belief that the Union might use them
again at any time, the facts show that the Union took a directly opposite course in
1956, to counteract Respondent's fears in that respect, by offering Respondent strong
assurances that' there would be no strike during continuance of the negotiations.
Furthermore, the St. Marys strike occurred long after expiration of the old contract,
which indicated that, while the Union held the threat of a strike over Respondent
for a long while during negotiations, it did not carry out the threat until after
Respondent had shut down and protected its plant against that event, in which situa-
tion the strike on 8 hours' notice caused no damage or operational difficulties.
Obviously, a strike without any warning in that situation would have involved no
greater hazards. Hence, the St. Marys case provides no substantial support for
a belief that the Union was likely to strike without warning at the expiration of the
contract in 1956, or that its offers of assurance against sudden interruption of plant
operations were made in bad faith.
Parks testified that he also relied on the 1954 Pennzoil strike, a 1954 strike at the
Bradford, Pennsylvania, plant of Kendall Refining Company, and a strike at the
Canton, Ohio, plant of Ashland Refining Co. in 1955, all of which Hunter had
mentioned in reminding him of his responsibility to protect his plant against a strike.
He relied most heavily on the quick strike without warning at Pennzoil, throwing
it up to Prorok as a good example of what could happen at Emlenton and arguing
than the Union would be powerless to prevent it. Prorok was concerned by this
reference, for he took pains to explain to Parks how he had promptly stepped in to
try to end the illegal walkout and settle the dispute amicably. That it was a good
illustration of Parks' argument is shown by stipulated facts and Prorok's testimony,'
from which I find that the walkout of maintenance men occurred without notice
one day at noon in March 1954, during the term of a collective-bargaining contract.
It was not authorized by the International or its Pennzoil local, and Prorok con-
sidered it a serious situation from the standpoint of both employer and the Union.
Although he and the local union officials warned the strikers that the walkout was
illegal and violated their contract, and asked them to return to work at once, they
refused to return for 2 weeks until after Prorok and the local union committee had
negotiated and signed a settlement' agreement with the employer which satisfied
the strikers. However, other circumstances known or available to Respondent should
have indicated to it that, while a similar walkout could happen at Emlenton, the
probability of it was remote. First, Hunter and Parks admitted that the Union,
in its long dealings with Respondent, had never threatened or called a strike without
warning at any plant while in full operation, either during a contract or after its
expiration. There is no proof that any group of Respondent's employees ever
engaged in an unauthorized "wildcat strike" without warning.21 Second, the
Pennzoil walkout was the sole instance of an unauthorized stoppage within Prorok's
jurisdiction during his incumbency. Respondent offered no proof of any similar
occurrence involving members of the Union anywhere. Hence, the Pennzoil case
cannot be called an example of the Union's practice: rather, it might well be called
"the exception that proves the rule." Third, Prorok testified without contradiction,
and I find, that shortly after the Pennzoil maintenance men struck, the local union
agreed, at the employer's request, to have operating personnel already on duty remain
at work overnight to shut down the vital units with their supervisors, and to have
union boilerhouse employees remain on the job day and night thereafter, sleeping
21 Credible testimony of Hunter, Newton, and Russell shows that the Union called a
"wildcat" strike at Emlenton in 1945, shortly after a new contract took effect, but the
Union gave Respondent notice thereof, and it was called off shortly before it was to take
place. A strike took place later, but the.Union gave Respondent ample notice to enable
it to shut down vital units with the use of union employees beforehand, and there was
no damage or danger to the plant when the men walked out. After the walkout, Respond-
ent canceled the contract, and the plant was operated without a contract thereafter.
However, Parks apparently relied but little on this strike when he effected the shutdown,
for he did not cite it in his testimony, and Hunter admitted that he did not mention
it in his talks with Parks about past experiences with the Union.
QUAKER STATE OIL REFINING CORPORATION 361
in the plant, until the strike ended. Newton admitted that in their talks about this
strike, Parks, Hunter, and he did not discuss, and were not concerned about, the
facts that the Union assisted in an orderly shutdown and maintenance of the plant.
But this was a pertinent fact which Respondent could and should have ascertained,
and had no right to ignore, in judging how the Union would probably act at Emlen-
ton. Finally, the assurances which the Union offered when Parks brought up the
Pennzoil strike should have made it plain to him that the Union was anxious to do
everything in its power to prevent that type of occurrence, and to assure uninter-
rupted operation of the plant, while the parties continued their negotiations. I
conclude that the Pennzoil strike, if objectively viewed by Respondent in all its
aspects in the light of the circumstances of the 1956 negotiations, would have given
Respondent scant reason to believe that it was faced with similar action by the
Union or its members after February 6, 1956.
I find from credited testimony of Hunter and Parks that they learned that in
1954 the Union called a strike without notice after expiration of a contract at a
nearby plant of Kendall Refining Company, and set up picket lines while a contract
negotiation meeting was in progress. Prorok took part in those negotiations, and
I find from his credible and uncontradicted testimony that: The contract with
Kendall expired February 7, 1954. The local union took a, strike vote on January
31, and the employer was apprised of it at the next negotiation meeting, before
expiration of the contract. The employer started a shutdown of vital units 3 or 4
days before the expiration date, and all such units were under control by February
8. They remained down while the parties continued negotiations, until April 22.
At a bargaining meeting that morning, the employer announced its intention to start
up some units, whereupon the negotiating committee announced that pickets would
be at the plant gates when the meeting recessed. Picketing started at that time, and
apparently the employer did not start up its units. The testimony of Hunter and
Parks indicates that they did not learn, and were not concerned about, the strike
notice and other facts found above, but were bothered only by the fact that a strike
was called while no contract was in existence. It would have been patent to Re-
spondent, if it had bothered to investigate fully, that the Union in fact gave enough
advance notice of the strike to enable the employer to shut down its plant in an
orderly manner, and that the actual strike, while occurring without notice, involved
no damage or hazard to a plant already shut down. I must conclude that these facts
afforded no reasonable basis for inference that Respondent was faced with a real
threat of strike without notice in 1956, especially in the light of the specific assurances
of plant protection which the Union offered. And this is true all the more where
Respondent did not bother to get all the facts about the Kendall strike before it
shut down its plant.
Parks and Hunter testified that they had learned that in 1955 at the Canton,
Ohio, plant of Ashland Refining Company there was a shutdown of the plant for a
"turnaround" 22 at a time when a contract had expired, and when the employer
started to operate his cracking plant, the union employees came to work in the
morning and picketed without notice. Here, again, all the facts surrounding the
strike are not disclosed, and I must conclude that the bare fact of a sudden strike
without notice, in the absence of a contract, just as plant units were starting up
again, affords very slim support for an inference of the likelihood of a similar
strike by the Union against Respondent, which cannot overweigh (1) the fact that
the Union had never called a similar strike in any of Respondent's plants, but (2)
had offered or aided in measures to protect a plant where it had struck, always with
some notice, and (3) the substantial and sincere assurances offered by the Union
in 1956.
Respondent argues that it had reasonable grounds for suspecting that a strike
was imminent, from the facts that, for the first time in its dealings with the Union,
the officials and committee of the Local refused to sign a contract proposal after the
local membership had accepted it, but insisted upon sending the written document
to the International for approval. Parks testified that, when Russell told him on
February 5 that the union members had accepted Respondent's final offer, he felt
that Respondent "had a contract," and that it would be signed shortly by the union
committee and Prorok, because when the membership accepted an offer in the past,
the negotiating committee had always signed the contract with Respondent's officials
shortly after, and the international representative signed at the same time or later;
however, when the committee and Prorok refused to sign it, despite its acceptance
by the employees, he suspected that there was "something going on" that he did not
know about, which led him to believe that there might be a work stoppage. Parks
22 This term is not explained in the record.
362 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
and Newton further testified that when Parks reported his conversation with Russell
to Hunter on February 6, he told Hunter he would continue the shutdown because
the Union's action was a "new wrinkle" to him, and he did not know what its plan
would be. The three concluded that there might be a sudden walkout, and Hunter
agreed with Parks' decision to complete the shutdown. Parks and Newton further
testified that Respondent did not consider resuming operations on the basis of the
employees ' acceptance of its offer , because of the refusal of the union committee
and the International to support their action and sign the contract, which had never
happened before. I find from credible testimony of Russell, Newton, and Parks
that: In past negotiations with the Union, Respondent usually made a final offer,
shortly before expiration, of the old contract , which was submitted by the negotiating
committee to the membership for consideration , even when the committee and the
international representative indicated they would not recommend its acceptance.
When the membership voted to accept the offer, Respondent was promptly notified
of their action , and the next step was signature of the contract by company officials,
the union negotiating committee , and the international representative ; on 1 or 2
occasions, the latter official signed the contract at a later date. It is clear that the
refusal of the local committee and Prorok to sign the contract in 1956 was a depar-
ture from that procedure. Russell and Prorok admitted that this was the first time
that a contract offer had ever been submitted in writing to the International for
approval, after the local membership had accepted it. This departure from
precedent , standing alone, might well raise a question in Parks' mind about
the Union's future tactics, especially where he knew that the same offer he made
on January 30 had just been accepted by the local membership and the international
representative at the St. Marys plant, which gave him some basis for assuming that
it might be accepted and signed by the International in like manner at Elmenton.23
However, I am unable to conclude for several reasons that this "new wrinkle"
caught Respondent so completely by surprise as to warrant an apprehension that
the Union would use its strike weapon at any moment and without warning. In
the first place, the Union made it clear to Parks on January 30 that his final offer did
not meet the wage "pattern" of the International and would not be accepted by it,
hence Prorok as the international representative would not sign it . Although he
did not say it in so many words, Prorok's remarks to Parks that day clearly
implied that the International would not accept it even if the local membership did,
and that approval and signature by the International was a condition precedent to a
binding contract, and not a mere pro forma step subsequent to consummation of a
contract by the Local. In addition, the fact that the International and its predecessor
had been the statutory bargaining agent at Emlenton for 13 years, and had actively -
participated in contract negotiations and signed contracts as such throughout that
period, was clear notice to Respondent that the- International was far from a per-
functory participant in negotiations or merely followed the lead of the local union
membership in accepting contract proposals. Furthermore, the necessity of ap-
proval by the International of terms of local contracts, including wages, was well
known to Respondent since 1952, when Newton, who kept track of such matters for
Respondent, received a copy of the international constitution of that year. Article
IV of that document provided in section 1 for a policy committee with authority to
act for any local or the International in bargaining on matters of national concern,
including wages, hours, and other conditions of employment, for the purpose of
making or amending contracts. Section 2 prohibited a local or company group of
a local from accepting less than the established policy without approval of the
international president or the policy committee , and made agreements executed in
violation of the prohibition subject to nullification by pronouncement of the interna-
tional president or the policy committee.24 It is clear from these provisions, and the
-Although Porok testified, and I find, that the St. Marys contract was below the inter-
national wage policy , and the international representative , Sam Lopez , signed it with-
out authority, and was criticized for it, and the International has never approved it, he
admitted that the Local and Respondent have operated under the contract since its exe-
cution. • I think Respondent was entitled to assume Lopez' authority to sign, and was
not bound to inquire as to his lack of authority in that respect, especially when the con-
- tract has been honored by both parties, and never canceled by the International.
24 The 1952 constitution had been adopted by the predecessor Oil Workers International
Union, CIO. The 1955 constitution was the first adopted by the successor International as
named in the caption of this case . However, the 1955 constitution contained the same
provisions as to approval of local contracts as the 1952 document , and there is no proof
that the 1952 procedures had been changed in any respect before adoption of the 1955
QUAKER STATE OIL REFINING CORPORATION 363
credible testimony of Prorok and Russell , that any company offer , including wage
provisions , must be submitted to the International for approval before a contract can
be signed . As Parks and Newton were notified on the 30th that their final offer
still did not meet the Union 's wage policy , they must have known that under its
constitution the offer would have to pass the final hurdle of international approval
before its acceptance by the local membership became effective . I also credit
Russell 's testimony to the effect that , in negotiations over the past 10 years, he had
always told Respondent 'screpresentatives that the local negotiating committee had
authority to sign,a contract ,- if it had been accepted by the local membership, but
"subject to the constitution ." Since 1949 , he had always submitted the, terms of
Respondent 's final offer to the International for approval , and up to and including
1955 he had received oral approval beforehand , and thus knew what the local
negotiating committee could accept as a contract ; hence when the local membership
accepted an offer which was within the,policy of the Union , the local officers and
committee signed it promptly. The exception occurred in 1956, when he sub-
mitted Respondent 's offer of January 18 to the International by telephone before
the meeting of January 30, and was advised that it would not be approved, which
is what he and Prorok told Parks on the 30th . This was the first time in Russell's
experience that the local membership had gone against international policy and the
recommendations of the international representative and its own negotiating com-
mittee,and it is clear from the testimony of Russell and his letter transmitting the
final offer to the International that he considered himself in an unusual position
which compelled him to send the whole , offer in writing to the International, in the
-hope that the policy committee would authorize an acceptance of the offer even
though it was below existing international policy.25 Neither the 1952 nor the 1955
international constitutions required submission of a .written contract proposal to the
International in any situation , hence the submission in this instance must have been
Russell 's own decision . Russell's dilemma should have been plain to Parks when
Russell spoke to him on February 5.26 While the situation was unusual , there was
nothing in it to warrant an apprehension that a strike was imminent . On the con-
trary, the action of the local membership contrary to international policy and
favorable to Respondent was a clear indication to Respondent that the employees
would not be disposed to strike in the face of an ' offer of their employer which
they had voted to accept . The testimony of Hunter and Newton indicates that
they considered acceptance of Respondent 's final offer by vote of the local member-
ship the important step which was in their minds "the same as a contract ," which
would protect them against a walkout , and that was plainly the thought motivating
Hunter when he solicited employee Konkle to secure for him some reliable evidence
,of the action of the membership , or signatures of a majority of the employees
accepting the company offer , and in talking , to employee Dotterer about it on
February 12. Hunter testified that this would be "sufficient evidence to me that a
substantial number of the employees in that plant accepted the Company 's proposi-
tion , and in the event of pickets thrown up, whether local or outside pickets, that
a sufficient number of them would ignore the picket line to keep that plant
going . . ."; he wanted this as "evidence that the employees wouldn't blindly follow
a strike directive as they did in 1945 ," it would have been "sufficient protection"
against a "quickie walkout." Hence, when Hunter got the minutes of the February
4 meeting , he had the very assurances that he then wanted against precipitate action
by the employees at the behest of the International which would place the plant in
jeopardy . According to his own standards , this evidence negated any real threat
of a strike . In this connection , Hunter also testified that the Emlenton plant
resumed full operation without the security of a signed contract after the 1950
constitution Newton admitted that Respondent had been receiving copies of the Union's
newspaper regularly for the past 5 years , and that he perused it for data relating to
union policies which Respondent used as a guide in negotiations
Article VIII of the 1955 international constitution specifically provided that devia-
tions from mandatory bargaining policies established for the petroleum industry can be
granted to any local union or bargaining group by the bargaining policy committee or the
international president.
^ Parks knew that Russell , as president of the Local and member of the negotiating
committee , represented the 'membership of the Local and was bound to respect their
wishes, for he stated as much to the employees in-his letter of March 12 , 1956. At the
Same time Respondent was on notice through the 1952 constitution that Russell also
had the duty , as local union president , to "enforce compliance with the International
constitution and with the policies and programs of the International Union" ( 1952 Con-
stitution, Mandatory Article II , Section 3 of Temporary Local By-Laws, p. 60).
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike ended, because some of the men 27 came back to work on their own initiative,
which he considered "pretty good assurance" that the employees would not be
likely to walk out and leave the plant helpless during future negotiations Further-
more, Hunter and Parks testified that they resumed full operation at Emlenton in.
May 1956, after they received notice from the Board that a decertification petition-
signed by at least 30 percent of the employees had been filed, from which they
concluded that a good percentage of the workers did not "favor the situation as it
stood," and that "all of the men were not in agreement," and that if the Union
picketed the plant, "these boys" would go through the picket line, and not leave the
plant helpless Finally, Respondent argued at one point in the hearing that, if the
men were on strike, and the strike became "disorganized," and the men went back to
work, there would be no further threat of a strike without a contract, and that would
be a good reason for Respondent to assume it could operate without the security of
a contract
Other facts and circumstances disclosed by the record indicate that Respondent
was not faced with any real threat of a strike Hunter and Parks admitted that
the Union had never in the past threatened or called a strike without notice in any
plant while it was in full operation, either during a contract term or at its expira-
tion, or during negotiations They also admitted that up to February 5 in the
1956 negotiations, there was no threat of a strike by the Union at expiration of
the contract Newton admitted that there was no more threat of a strike up to
and after the Union's letter of February 15 rejecting Respondent's final offer than
there had been previously Hunter admitted that the likelihood of a strike or
walkout after expiration of a contract by a "responsible union" is very remote to-
day While he refrains from calling the Union a "responsible union," the record
contains substantial evidence, aside from Respondent' s admissions noted above, that
the Union has acted in a responsible manner in past dealings with Respondent
Hunter and Parks admit that all union employees at Emlenton are fire- and safety-
conscious, and know the hazards inherent in a sudden work stoppage without a
proper shutdown of equipment The record shows there has never been an un-
authorized, or "quickie," strike at any of Respondent's plants, the strikes that
occurred at Emlenton in 1945 and 1950 were authorized by the International after
constitutional procedure had been followed 28 Parks admitted tha^t in his experi-
ence the Union had never called a strike immediately on expirations of a contract,
but always at some later date Newton, who had been in negotiations at Emlen-
ton for about 12 years, and Parks admitted that union employees there had always,
cooperated in shutting down vital units before a strike took place Further, Hunter
admitted that in the 1945 "wildcat" strike, the Union gave advance notice before
it struck the plant, and the record- shows that in the 1950 Emlenton strike the Union
gave similar notice and also carried out an agreement for proper maintenance of
the plant by union employees during the strike The Union also acted with due
regard for plant safety during the 1952 negotiations at Emlenton I find from
credible testimony of Newton and Russell that In those negotiations, the Union
took a strike vote about 3 weeks before expiration of the contract, and gave Re-
spondent notice thereof, but advised that it was not threatening any strike then
Before the deadline the Union would not give an outright promise of a 72-hour
actual notice of strike, but did agree to cooperate in an orderly plant shutdown
`before an actual strike The Union voted on May 28 to strike at a later date, and
advised Respondent thereof No strike took place, as the parties reached agree-
ment and signed a contract on June 9, 1952 With respect to the Union's strike
record elsewhere in the area, I find from Prorok's credible testimony that, during
his tenure of nearly 3 years in the Emlenton area, there have been only 7 strike
27I find from credible testimony of Russell that the majority of the employees abandoned
the strike and returned to work on orders of the Union
28 The procedure for a legal strike required by the Union before 1952 is not disclosed
in the record, but the credible testimony of Russell and Prorok and the provisions of the
1952 constitution show that the following steps must be taken First, a motion to hold a
strike vote must be passed at a union meeting Second, notice of a special meeting to
take a strike vote must be given all members usually by notice posted on plant bulletin
boards Third if a motion to strike is carried by vote of three fourths of the member-
ship at that meeting, a report of the vote including all circumstances of the dispute Is
sent to the International which must first try to settle the dispute itself and then must
approve the strike by action of its president and executive council The whole procedure
requires not less than 10 days, from the first local vote to approval by the International
I find from admissions of Newton, Parks, and Anderson that this procedure was well
known to Respondent, and I do not credit Hunter's testimony to the contrary
QUAKER STATE OIL REFINING CORPORATION 365
votes which received approval of the International , and only 2 authorized strikes -
occurred. One was the Kendall strike of 1954 discussed above. The other was
an 8-week strike at expiration of a contract at the Pennzoil plant in 1955, which
had been preceded by the usual constitutional ' procedure noted above . The•em-
ployer was duly notified of the strike vote, and began a shutdown of vital units with
the help of union employees a day before expiration of the old contract. This
was the only strike during Prorok 's tenure which came immediately upon expira-
tion of a contract, but it was called after notice to the employer and only when
the plant was safely shut down . Considering the Union 's record as a whole in
this area , I agree with Hunter's admission that "their tactics have improved some,"
but the preponderance of credible evidence of the Union's past practices, coupled
with the assurances it offered in 1956 , militates strongly against his qualifying com-
ment that he still lacked confidence that "a quickie [strike] will not be pulled
when a contract has expired ," and supports the conclusion that in' 1956 the Union,
more probably than not, would honor the no-strike assurances it offered to Re-
spondent. On this aspect of the case, the following remarks of the Board in a
somewhat similar situation in the American Brake Shoe case , supra, are applicable:
Moreover , it is well recognized that employees do not lightly engage in'
strike activity , entailing as it does loss of earnings and the risk of loss of jobs
by being replaced . Indeed , here, the employees neither engaged in a strike
nor did they or their bargaining representative threaten to strike in support
of their 1954 bargaining demands.
Respondent also argues that when Parks submitted the final offer on the 30th
and told the Union he needed an answer by February 3 to avoid a shutdown, the
negotiating committee and Prorok could have telephoned the offer to the Inter-
national that very night and secured its answer, as had been done in the past, so
that after the rejection negotiations could have continued up to the expiration
date of February 6; hence, the union representatives were not acting in good faith
when they sent the contract by mail to the International, entailing a delay of weeks-
in the bargaining; this unwarranted delay was misleading to the Company, and
justified the suspicion that a sudden walkout would occur, which would leave
the Company "helpless" and compel it to accede to the Union's demands without
further bargaining , and this type of tactic justified the shutdown . Prorok and
Russell admitted that the final offer could have been submitted to the Inter-
national and a rejection secured the same day it was made . The record shows
that the union representatives had been able to secure quick approval of offers in
the past . In the 1955 Emlenton negotiations , the final company offer was submitted
to the union committee February 4, and between that date and February 6, Russell
and Prorok secured telephonic approval thereof from the International , following
which the local membership met on February 6 and voted to accept the offer,
all before the expiration date of the contract . During negotiation of a wage ad-
dendum to that contract in June 1955 , Respondent submitted its final offer on
June 20 , it was submitted to the International by telephone and approved the same
day, and the local membership voted to accept it the next day. Prorok admits
that on January 30 he had an emergency situation, due to the approaching con-
tract expiration date and Parks ' shutdown ultimatum , and that he suggested to
District Director Buchanan that the offer be 'submitted to the International that
night by telephone for a prompt answer, but Buchanan declined . to telephone, as
he felt the offer would not be approved. Both men already knew what the inter-
national wage policy was, and that the company offer did not meet it ; hence they
knew beforehand what the International 's answer would be, and Parks could
have inferred it from Prorok's remarks to him that day. However, even if the
offer had been submitted and rejected on the 30th , there could have been no
immediate resumption of negotiations , as Respondent claims, for Russell felt he
was required to submit the offer to the union membership , as Parks requested, be-
cause it had never been submitted to them in its final form . Respondent well
knew , as Hunter admitted , that acceptance of the offer by the local membership
was one prerequisite to a binding contract, just as it must have known from the
1952 constitution that approval by the International was another.29 Thus, the
Union's compliance with Parks' request for a membership vote precluded further
negotiations until that step was taken , irrespective of the submission to the Inter-
national . Parks and Hunter claimed in their testimony that a membership meeting
29 Hunter admitted that even if he had secured signatures of acceptance of the final
offer by most of the union employees , he would still not have a legal or binding contract.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been held on or before' Friday,' February 3. A meeting could have
been held on the 3d, if Russell had posted the required 3-day notice the night
of the 30th or the next day. However, Prorok could not have been present until
the 4th, so that compliance with Respondent's demand would have denied the
international representative his clear right to talk to -the local membership before
they voted. I do not consider it bad-faith bargaining for Russell to refuse to,
convene his members without Prorok present, for the International was an essential
signatory of any bargaining contract and the union members had a right to.have
a representative of their bargaining agent present at any deliberations by them
on any offers. If it had been possible for Russell to convene the union members
for a vote on January 31 by dispensing with union rules and ignoring Prorok, and
the members had rejected the offer, and negotiations had resumed that same day,
and the parties had remained in continuous session for 4 days through February
3, it is hardly likely that they would have reached complete agreement, or that a
shutdown would have been avoided, for they were unable to reach agreement in
7 bargaining sessions, spread over 4 months, after the shutdown. And even if
agreement had been reached before February 3, through acceptance of the-offer
by the local negotiating committee and vote of the membership, it is clear from
testimony of Hunter,* Parks, and Newton that Respondent would still have been
without a legal contract and would have • proceeded with the shutdown, as it in
fact did on the 5th when Parks knew that the international representative would
not sign the contract until approved by the International. Finally, Respondent's
submission of a "final," "package" offer on the 30th was in itself an indication to
the union representatives, as Prorok testified, that further negotiations on its.
terms at that time would be futile. On these considerations, I conclude that Re-
spondent's charge of bad-faith bargaining by the Union is without merit.
I also reject the argument that the International acted in bad faith in refusing to•
approve the final offer after its local members had done so. The record shows that
in past negotiations, final company offers had normally been submitted to the
International for approval during negotiations, and the members and officers of the
Local were bound by this procedure under the 1952 and 1955 international consti-
tutions, with which Respondent was familiar. Membership votes on employer pro-
posals, and the extent to which they are in conformity with union policy, and the
action and authority of the bargaining representative with respect to them, are all
purely internal union matters, which are not subject to question by Respondent.
See Midland Rubber Corporation, 108 NLRB 930; American Brake Shoe Company,
116 NLRB 820.
Respondent also argues that the Union's offer of a 90-day extension of the "old
contract was not sufficient assurance to warrant continued operations , because ex-,
tension of a contract is a matter for negotiation, and here the parties could not agree
on the term of such extension. That argument is beside the point, for extension of
the old contract was not an issue in the negotiations at any time; the parties were
engaged in negotiating a new contract, not the term of extension of the old one.
The salient fact is the Union's sincere offer of a substantial extension of the old
contract, regardless of its exact term, solely to permit the parties to continue bar-
gaining -on terms of a new contract without hazard to Respondent's operations.
For reasons already noted above, I consider this offer in itself cogent proof that a
strike was unlikely. On the other hand, the fact that Respondent rejected the 90-day
offer, and would accept nothing less than a 1-year extension of the old contract
as an alternative to acceptance of its final offer as the price of continuance of
operations, is further proof that Respondent was trying to force the Union to
relinquish its demands without further effectual bargaining. For union acceptance
of the 1-year extension, while clearing the way for 'continued bargaining without
a shutdown or loss of employment, would have compelled the employees to postpone
for a year the enjoyment of any benefits that the parties might agree on at any
earlier date. I conclude that this stand of Respondent was the opposite of bona
fide bargaining.'
After careful consideration of all the facts and circumstances discussed above,
and the arguments of the parties, I am constrained to conclude and find that Re-
spondent has not sustained the burden of going forward with evidence in support
of its defenses which is strong enough to overcome the prima facie case of violation
of the Act made out by General Counsel. Accordingly, I conclude that Respondent
was not faced with a real threat of a strike by the Union during the 1956 negotiations,
and that its fear of damage to its property and danger to lives of its employees in
the event of a possible future strike was not such as to justify the announcement
of a partial shutdown, and the ensuing shutdown and layoff, under the circumstances
of this case, and that it took those steps solely as a bargaining weapon in the course
QUAKER STATE OIL REFINING CORPORATION 367
of negotiations to coerce its employees and their bargaining agent to give up their
bargaining demands and accede to the terms offered by Respondent. I find that
such conduct subjected the employees to illegal pressure during negotiations which
caused them to succumb to Respondent's bargaining demands, and was reasonably
calculated to cause them to disregard and rebel against their bargaining agent, which
would inevitably undermine the status of that agent, and thus constituted a refusal
by Respondent to bargain in good faith with the Union, in violation of Section
8 (a) (5) and (1) of the Act.
I further conclude and find that by such conduct Respondent discriminated in
regard to the hire and tenure of employment of its employees named in Appendix
B attached hereto, thereby discouraging membership in the Union, within the
meaning of Section 8 (a) (3) of the Act, and also interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
in violation of Section 8 (a) (1) of the Act.
2. The solicitation of Konkle on February 10
The facts as to the solicitation and the result of it have been found above. Hunter
testified that: He had been asked by employees and stockholders what he was going
to do to get a signed contract. He assumed Respondent would have a contract if
the union members had voted to accept it, but his counsel advised that the existence
of a contract depended on "just how that contract had • been authorized by the
membership." Hence, he tried to get the minutes of the meeting to find out how
they accepted the final offer, and if it was enough to satisfy him that the employees
would not engage in a "quickie" strike on orders from the Union. He did not expect
it to amount to a legal contract that would "stand up in court." He also testified
that the signatures of a majority of the employees on the "petition" to be attached
to the final offer would give him the same sense of security. Respondent claims
this was not an illegal "persuasion" of the employees or an attempt to bypass the
Union, but merely a legitimate attempt to get some evidence "from his employees"
on which he could rely to operate the vital units of the plant. I do not agree. It
is clear from Hunter's testimony, and Konkle's report of his suggestions to the
union members , that Hunter wanted one or the other of these documents which
would evidence action only of the employees, not the Union, as the quid pro quo
for resumption of full operations and returning the. men to full employment, and
that the employees understood they were necessary for that purpose. Hunter
rejected the minutes delivered to him as insufficient because they only recorded
the total vote for and against acceptance of the company offer. He does not say
what was missing, but it is clear from his alternate suggestion, and his final remarks
to Dotterer on the 12th and 14th, that he wanted the signatures of the employees
accepting the final offer. His testimony indicates that he would open the plant on
the basis of these signatures alone, regardless of whether the local negotiating com-
mittee' or the union representatives signed the offer. His admission that he did
not expect such signatures to make a legal contract, but felt they would be some
"security" that the employees would not blindly walk out on orders of the Union,
indicates that he wanted their signatures as a form of estoppel or persuasion, whether
legal or merely moral, which he could use to keep the men from obeying a strike
call by the Union and their local leaders. While he did not mention the committee
or the International in his remarks to Konkle and Dotterer, his suggestions were
reasonably calculated to give them the impression that Respondent would give
employees full employment under the terms of its final offer if ,most of them
would accept it individually, and that it would thus deal with them individually,
without their bargaining agent or its representative. I conclude that this was
conduct calculated to induce the employees to bargain individually with their em-
ployer, and to disregard their chosen bargaining agent, and was an attempt to bypass
the Union and to undermine its authority as the statutory collective-bargaining repre-
sentative, which violated Section 8 (a) (5) and (1) of the Act. Central Metallic
Casket Co., 91 NLRB 572, 574, 575; Ben Corson Manufacturing Co., et a!., 112
NLRB 323, 341; Medo Photo Supply Corporation v. N. L., R. B, 321 U. S. 678, 684.
3. The letter of March 12, '1956
Parks' letter of March -12 to the employees followed the same pattern and intent
as Hunter's coercive actions on February 10 and 12 found above. When Parks
expressed the view that Russell would "serve the best interests of the members of
the local union" by signing "the contract without permission of the International
Union," if he could not prevail upon the International to sign it , he was in effect
telling all employees that it would be to their advantage to have their local leaders
368 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
sign the final offer without the International. Their "best interests" at the time, of
course, involved resumption of full operations and full employment at the plant.
While he expressed this suggestion as an opinion, I think it was clearly calculated to
persuade them to sign a contract with Respondent without their bargaining agent,
in order to get their full jobs back. In this aspect, it falls outside the protection of
Section 8 (c) of the Act. The same coercion is implicit in the last paragraph of
the letter, as quoted hereinabove, for by this paragraph Respondent indicated that
it desired to deal and sign a contract only with the Local as the bargaining agent,
which was in clear derogation of the admitted status of the International as statutory
bargaining agent, and was calculated to turn the members of the Local against their-
chosen bargaining agent, and persuade them to deal only as a local group with
Respondent. I conclude and find that by this letter Respondent further attempted
to bypass the Union and undermine its status, in violation of Section 8 (a) (5) of
the Act 30
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above, occurring in connec-
tion with the operations of Respondent set forth 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.
IV. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take cer-
tain affirmative action which I find necessary to effectuate the policies of the Act.
I have found that Respondent unlawfully laid off and reduced the workweek of
its employees beginning February 8, 1956. On May 24, 1956, Respondent began to
reinstate its employees to a full, workweek and, so far as appears, all employees
affected by the layoff have been so reinstated. I shall therefore not recommend
reinstatement of any employee. However, I shall recommend that Respondent make
whole each of the laid-off employees listed in Appendix B attached hereto for any
loss of pay he may have suffered by reason of his unlawful layoff during the period
from the date of his layoff to the date of his actual reinstatement to a full workweek
by payment to him of a sum of money equal to that which he would normally have
earned as wages during such period, less his net earnings during that period, such
sums to be computed in accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289. I shall also recommend that Respondent, upon request,
make available to the Board or its agents, for examination and copying, all payroll
and 'other records necessary to enable the Board to analyze and compute the amounts
of back pay due.
I shall also recommend that Respondent, upon request, bargain collectively with
the Union as the exclusive bargaining agent of the employees in the appropriate unit
found above.
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, Chemical and Atomic Workers International Union, AFL-CIO, and Local
Union 11-481 thereof, are labor organizations within the meaning of Section 2 (5)
of the Act. '
2. All production and maintenance employees at Respondent 's Emlenton, Penn-
sylvania, plant, excluding guards, professional and clerical employees, superintend-
ents, assistant superintendents, foremen, and all other supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. The labor organizations named in paragraph 1, above, are, and have been at
all material times, the exclusive representative of the employees in the unit described
in paragraph 2, above, for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the above labor organizations in the
respects found above, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
31 In view of the above findings and conclusions, I adopt Respondent's proposed findings
of fact Nos. 1, 2, 3, 5, 8, and 9, and reject all others, and I reject all its proposed con-
clusions of law. -
QUAKER STATE OIL REFINING CORPORATION • 369
5. By its partial plant shutdown , lockout of its employees , and reduction of their
workweek, Respondent has discriminated in regard to the hire and tenure of em-
ployment of its employees , thereby discouraging membership in the above labor
organizations , and thereby has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By the above and other conduct found herein, which is and has been interfering
with, restraining, and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1), of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Oil, Chemical and Atomic Workers
International Union, AFL-CIO, and Local Union 11-481 thereof, or any other
labor organization of our employees, by discriminatorily locking out, laying off,
or reducing the workweek of, our employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or condition
of employment.
WE WILL bargain, upon request, with the above-named labor organizations as
the exclusive representative of all our employees in the appropriate bargaining
unit described below, with respect to rates of pay, wages, hours of employment,
or other terms of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The appropriate bargaining unit is:
All production and maintenance employees at our Emlenton, Pennsylvania,
plant, excluding guards, professional and clerical employees, superintendents,
assistant superintendents, foremen, and all other supervisors as defined in
the Act.
WE WILL NOT threaten our employees with a partial plant shutdown, lockout,
and layoff in order to force them and their bargaining representative named
above'to give up their bargaining demands and accept our contract proposals
without further bargaining.
WE WILL NOT offer full employment or other benefits to our employees in
order to persuade them to sign a collective-bargaining contract, either individ-
ually or as a group, with our corporation without, in disregard of, or contrary to
the advice of, their bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right- to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing, to engage
in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement requiring member-
ship. in a labor organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act. •
WE WILL make whole all employees named in the attached list for any loss of
pay suffered by them as a result of our discrimination against them.
All our employees pare free to become, remain, or to refrain from becoming or
remaining, members of the above-named labor organizations or any other labor
organization, except to the extent that such right may,be affected by an agreement
authorized by Section 8 (a) (3) of the Act.
- QUAKER STATE OIL REFINING CORPORATION,
Employer.
Dated------------------ By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced; or covered by any other material.
487928-59-vol. 121-25
370 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
M. Rhoads H. R. Grimm B. G. Kriebel
W. L. Boyer R. N. Milliren R. E. Myers
P. J. O'Brien D. W. Milford C. E. Best
J. W. Ritchey G. W. Dunkle J. J. Corbett
P. L. Solhnger C. R. Burrell E. R. Kahl
W. S. Shaw F. M. Shick B. Corbett
C. H. Hetzler P. L. Crape R. H. Fair
C. A. McMurdy A. R. McGinnis C. H. Jackson
R. B. Ritts J. D. Wetzel L. E. Confer
L. E. Rhoads D. R. Shoup E. H. Shoup
K. D. Yingling H. H. Dotterer C. L. Bell
R. D. Garris B. E. Crawford W. L. McNany
W. G. Champion H. E. Winkler W. T. Layton
F. E. Longnaker W. L. Sweetapple R. F. Gerwick
R. J. Grimm J. W. Hughes D. M. Davis
J. E. Louise J. E. Hughes C. A. Leopold
A. R. Russell, Jr. L. E. Gerwick W. C. Shaffer
W. D. Weller V. L. McGinnis D. E. Shreffler
J. R. Kriebel A. P. Spirnock W. W. Kurtz
J. C. Weller H. R. Klingler C. B. Bottz
F. T. Russell F. J. Hofacker W. R. Kahl
F. D. Middleton R. E. Lepley F. H. Allen
A. R. Logue J. L. Cropp J. J. Lehnortt
G. W. Winslow G. M. Klingman F. K. Uhlott
G. H. Bechtel. F. P. Say H. E. Kahl
J. L. Fleming G. F. Gerwick M. E. Andrews
D. M. Ritts G. S. Ritts J. F. Gates
D. W. Wike R. C. Levy D. W. Dittman
K. O. Altman J. A. Defibaugh D. J. McGinnis
D. R. Confer F. L. Shawl H. F. Grimm
G. A. Bechtel V. A. Kunselman H. D. Courson
W. G. Berlin J. R. Stahlman D. S. Konkle, Jr.
L. A. Murray J. L. Klingler D. W. Schreffler, Jr.
C. K. Mains E. V. Ashbaugh R. E. Fleming
L. C. Altman E. M. Hunsberger D. A. Elder
LongG S R. V. O'Brien J. C. Thompson. .
D. S. Konkle F. Facini D. W. Kunselman
R. C. Sollinger T. N. Anderson R. R. Douglas'
L. M. Stewart J. A. Sheffer H. A. Fleming
L. AceC J. A. Novak C. L. Say.
O. SmithP H. A. Eckel E. J. Fisher.
J. M. Russell L. M. McElhattan L. H. Patterson
WetzelIJ H. R. Shaner W. J. Steele..
LouiseA C. C. Cotterman J. T. Weller.
M. D. Rhoades C. A. Jordan C. D. Kriebel
United States Gypsum Company and United Stone and Allied'
Products Workers of America, AFIr-CIO, Petitioner. Case No-
39-RC-1252. August 7,1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National"
Labor Relations Act, a hearing was held before C. L. Stephens, hear--
ing officer. The hearing officer's rulings made at the hearing are free'
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board'
has delegated its powers in connection with this case to a three-
121 NLRB No. 53.