Signal Oil and Gas Co.

National Labor Relations Board - Board Decisions

Jun 29, 1961

131 N.L.R.B. 1427 (N.L.R.B. 1961)

SIGNAL OIL AND GAS COMPANY 1427
2. By laying off Georgia Hartman , Jane Hardin , Minnie Seaton , Louise Kesterson,
Evelyn Weems, and Mildred Melton on April 15, 1960, and by transfering Cora
Belle Foshee to the night shift on March 8, 1960 , Southern Electronics Company,
Inc., has discriminated in regard to the hire and tenure of employment of the
above-named employees , thereby discouraing membership in the United Steelworkers
of America, AFL-CIO, in violation of Section 8(a)(3) and (1) of the Act.
3. By promising employees benefits upon condition that they abandon their union
affiliation , Southern Electronics Company, Inc ., has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Signal Oil and Gas Company and Oil, Chemical and Atomic
Workers International Union , Local No . 4-227, AFL-CIO and
Employees Representation Federation , Party to the Contract.
Case No. 23-CA-1077. June 29, 1961
DECISION AND ORDER
On February 27 1961, Trial Examiner Lloyd Buchanan 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 Inter-
mediate Report attached hereto. Thereafter, the General Counsel,
the Respondent, and the Party to the Contract filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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
this proceeding, and hereby adopts the findings, conclusions, and re-
commendations of the Trial Examiner.
ORDER
Upon the entire record in this 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, Signal Oil and
Gas Company, Houston, Texas, its officers, agents, successors, and
assigns, shall :
131 NLRB No. 175.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Recognizing Employees Representation Federation or any
other labor organization as the exclusive representative of its em-
ployees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other terms or conditions of employment, unless and until such
labor organization has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of such employees.
(b) Giving effect to the collective bargaining agreement, dated
August 5, 1960, between the Respondent and Employees Representa-
tion Federation, or to any extension, renewal, or modification thereof,
or to any superseding contract, unless and until the said labor organ-
ization has been duly certified by the National Labor Relations Board
as the exclusive representative of its employees : Provided, however,
That nothing herein shall require the Respondent to vary or abandon
any wage, hour, seniority, or other substantive feature of its relations
with its employees which the Respondent has established in the per-
formance of this agreement, or to prejudice the assertion by the em-
ployees of any rights acquired thereunder.
(c) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist Oil, Chemical and
Atomic Workers International Union, Local No. 4-227, AFL-CIO,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act or to refrain
from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Employees Rep-
resentation Federation as the exclusive representative of its employees
for the purposes of collective bargaining unless and until said labor
organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(b) Post at its plants at Houston, Texas, copies of the notice at-
tached hereto marked "Appendix." 1 Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-third Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof
and be maintained by it for a period of 60 days thereafter in con-
spicuous places including all places where notices to employees are
IIn 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 "Pursuant to a Decree of the United States Court of Appeals ,. Enforcing an Order."
SIGNAL OIL AND GAS COMPANY 1429
customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Twenty-third Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL withdraw and withhold recognition from Employees
Representation Federation as the exclusive representative of our
employees for the purposes of collective bargaining, unless and
until said labor organization shall have been duly certified by
the National Labor Relations Board as the exclusive representa-
tive of our employees.
WE WILL NOT recognize Employees Representation Federation
or any other labor organization as the exclusive representative
of our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other terms or conditions of employment, unless and
until such labor organization has been duly certified by the Na-
tional Labor Relations Board as the exclusive representative of
our employees.
WE WILL NOT give effect to the collective-bargaining agreement,
dated August 5, 1960, with Employees Representation Federation
or any extension, renewal, or modification thereof or to any super-
seding contract, unless and until the said labor organization has
been duly certified by the National Labor Relations Board as the
exclusive representative of our employees: Provided, however,
That nothing herein shall require us to vary or abandon any
wage, hour, seniority or other substantive feature of our rela-
tions with our employees which we have established in the per-
formance of any such agreement, or to prejudice the assertion by
employees of any rights they acquired thereunder.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
Oil, Chemical and Atomic Workers International Union, Local
No. 4-227, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purposes of collec-
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any and all such activities.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization of their
own choice.
SIGNAL OIL AND GAS COMPANY,
Employer.
Dated---------------- 13y-------------------------------------
(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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
With conflicting claims and conclusions drawn by counsel concerning the effect of
certain assistance given by the Company to a labor organization of its employees,
this report can be made the vehicle for declaring a usable analysis of the extent to
which such assistance is lawful and beyond which it is violative of Section 8(a)(2)
of the Labor-Management Relations Act.
Without citing authority or precedent , the Court of Appeals for the Fifth Circuit,
in its opinion in the Valentine Sugars, Inc., et al., case i in 1954 , stressed the de-
sirability of "every courteous and kindly gesture" and "generous action on the part
of employers"; and so far from finding that the employer violated the Act, com-
mended it on activities which had theretofore been held to be unlawful . The Board
did not seek certiorari in that case, but neither has it followed that decision.
We can leave for a law review article an analysis of subsequent Board cases and
of the extent to which other decisions , in the Fifth and other circuits, have followed
Valentine Sugars . But it must be clear that , unless we accept every degree and
measure of assistance as cooperation and an instance of commendable courtesy,
thereby eliminating the element of support as violative , we are in each case left with
the question whether assistances is but lawful cooperation or violative; but with no
standard , not even an uncertain one since cooperation and courtesy are, apparently
by definition , themselves not violative.
It is here submitted that a satisfactory basis or test can be found in the law as
generally accepted . If violation of Section 8(a) (1) of the Act is derivative from
violation of Section 8(a)(2), as has long been held , then it follows as a matter of
logic ( which can only be recognized , not refuted by higher authority ) that where
there is no interference with employees ' rights under Section 7 of the Act , there can
be no violation of Section 8(a)(2). From this point it is but necessary to state
the converse , that assistance of a labor organization to the extent of interference will
be recognized as unlawful support.
Such a test is preferable and, in the light of the mass of precedent in cases of
interference , more meaningful than nebulous distinctions between lawful cooperation
and unlawful support. This is not to say that no problems will remain and that
differences of opinion will vanish . But whatever the differences of opinion, the
issue and the basis for decision will be more understandable with interference or
tendency to interfere replacing cooperation , to an extent praiseworthy but perhaps
becoming unlawful , as the test.
The complaint herein alleges that the Company has violated Section 8(a)(2) and
(1) of the National Labor Relations Act, 73 Stat . 519, by allowing the Federation
(ERF) free use of the Company's premises for meetings and voting , and of the
Company's office supplies and equipment ; by recognizing and bargaining with ERF
as the exclusive representative of its employees ; by paying employees for time spent
in ERF activities, all of the above allegedly since on or about February 19, 1960; and
by negotiating and signing a collective -bargaining agreement with ERF on or about
August 5, 1960. The answer , as amended , admits certain of the acts alleged, denies
others, and denies the allegations of unfair labor practices.
A hearing was held before me at Houston , Texas, on November 14, 1960. At
the conclusion of the hearing counsel were heard in oral argument , and pursuant
1 211 F. 2d 317
SIGNAL OIL AND GAS COMPANY 1431
to leave granted to all parties, briefs have been filed by the General Counsel and the
Company. The "proposed findings" appended to the Company's brief are adopted
to the extent that they are consistent with the findings and conclusions herein.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY 'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Company, a Delaware corporation , operates a
refinery in Houston , Texas, where it is engaged in the refining and marketing of
petroleum products; that during the year preceding issuance of the complaint herein
it received at its Houston plant from points outside the State of Texas materials
valued at more than $500,000, and shipped from said plant to points outside the
State of Texas materials valued at more than $500,000; and that the Company is
engaged in commerce within the meaning of the Act.
It was admitted and I find that Oil, Chemical and Atomic Workers International
Union, Local No. 4-227, AFL-CIO, and Employees Representation Federation
are severally labor organizations within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged continuing violations of the Act
Admittedly the Company has permitted ERF to use the cafeteria for meetings once
or twice a month. But it was noted that other organizations, among them the base-
ball league, the bowling league, and the employees' credit union, have also used the
.cafeteria for meetings, as they requested. To the argument that the Act concerns
itself with labor organizations only, the short answer is that the Company made no
distinction at all, the facility being available to labor organizations as to others, and
presumably to 4-227 also; certainly it is not claimed that the latter was refused equal
privileges. Under such circumstances it did not constitute unlawful support or inter-
ference with employees' activities to permit use of the Company's premises for ERF
meetings. On the contrary, a charge of discrimination or interference might con-
ceivably be brought were facilities, available to other employee groups, denied to
their labor organization! It is not claimed that management representatives con-
trolled or attended these meetings.
As for use by ERF of the Company's premises for voting purposes, two (a third
was also referred to) ballotings were held: one in June 1960 for election of ERF
officers and representatives, and another on August 12 to ratify a contract with the
Company. While there is imprecise testimony that pavement or topping at the
Company's plant #2 is on both city and company property, and that there is no
public sidewalk there, it was agreed that a card table, on which employees could
mark their ballots, was set up between the sidewalk and the plant entrance but that
a ballot box was placed inside the company premises immediately beyond the guard
booth but 6 to 10 feet before the timeclock where employees punched in. (It was
later testified that in August the ballot box at plant #2 was on an automobile fender
outside the fence and near the card table.) At plant #1, both the table and the
ballot box were outside the plant fence, near the gate.
While we accept as fact that the ballot box at plant #2 was on company premises,
in June certainly, this appears to have been an exception, the ballot table there and
both table and box at plant #1 being outside the fence and gates. These various
locations indicate the intent to keep the voting independent of the Company and off
company premises. As for actual interference and support or tendency thereto
because a ballot box was located as at plant #2, this was minimal . Certainly all of
the voting was done outside of the timeclock and off company or working time.
Office supplies and equipment, including since February 1960 some 3,500 sheets of
paper, a file cabinet, a typewriter, almost a dozen stencils, 2 ballot boxes, etc.,
were apparently used with knowledge attributable to the Company even if permission
was not requested in each instance A timekeeper's desk and telephone should also
be mentioned as used by ERF's president, employee Wilcox, then employee Weathers.
Here again it should be noted that, aside from the trifle involved, other employee
organizations similarly used such supplies and equipment, without distinction and
without preference to any.
While it is separately alleged and admitted that the Company had recognized and
bargained with ERF; it has not been indicated on what basis violation is to be found
therein beyond the separate and specific allegation , infra, concerning the contract of
August 5. _
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the allegation that the Company paid employees for time spent
in ERF activities, it appears only that employees were paid for time lost, i.e., to
the extent that, on the respective representatives' working time, bargaining sessions
and semimonthly employee-management meetings were held or grievances were con-
sidered. Posting of ERF notices and other material on company bulletin boards
may be included in this subsection as an ERF activity, or in connection with use of
company equipment, supra; it adds nothing to what has previously been noted.
Neither singly nor collectively are these acts or conduct violative of the Act.
Aside from the fact that employees were not limited in their freedom of expression
or prevented from dealing with the Company at arm's length, which counsel for
the Company undertook to show, the evidence adduced does not indicate a tendency
to interfere with employees' rights or with the administration of ERF or to con-
tribute support to the latter in violation of Section 8(a) (1) or (2) of the Act. The
cases cited by the General Counsel in this connection in his oral argument and his
brief are distinguishable generally in the nature and certainly the extent of the sup-
port, which was here minimal and interfered with neither administration of ERF
nor with employees' rights.
Nor is it accurate so say that ERF was dependent on the Company. That is quite
different from noting that it did in fact, to the extent shown, depend on the Com-
pany. Had the latter not provided supplies and equipment, ERF might well have
started to collect dues before November 3, 1960. (Aside from the fact that the
explanation for beginning to collect dues and distributing membership cards and
authorization cards is in each case adequate, i.e., dues and cards were not needed
earlier, these circumstances are not alleged as violative or as supporting the viola-
tions alleged.) Since supplies and equipment were available, and money was other-
wise not needed, dues were not collected: the activity or practice was limited to the
need. The General Counsel does not claim that measure of control and domina-
tion which "dependent" suggests. Should it be urged that the word connotes no
more than reliance on lesser assistance, such assistance, nonviolative, has already
been found.
B. The execution of a collective-bargaining agreement on August 5
With an existing collective-bargaining agreement expiring on August 5, 1960, nego-
tiations for a new contract were held at various times prior to August 4 and con-
cluded on the latter date. But the contract now had to be drafted to include the
matters agreed upon during some 6 weeks of negotiations, with verbal "final negotia-
tions" (quoting the Company's witness) carried on for the last week or 10 days. As
counsel for the Company noted, 4-227 filed a representation petition with the Board
on the morning of August 5, while the contract was "in the process of being signed."
In fact that Union's request for recognition and negotiation was received by the
Company at 8:30 that morning, and the petition was filed at 9:15. (The petition
was filed and the request letter was signed by or on behalf of the International Union;
I find it of no consequence that the letter was on the stationery of the Local Union.)
Aside from the fact that one or two of ERF's representatives did not sign the con-
tract on August 5, Weathers apparently obtained various signatures after 9:15 a.m.:
he got some signatures at plant #1, where he worked, then went out to plant #2,
approximately a mile away, where he got others, including that of Blaize, the Com-
pany's vice president and general manager; and later that day got the signatures of
the signers who worked on the evening shift. The Company had knowledge of the
recognition request, and the petition was filed before Blaize signed the contract and
well before the signing procedure was completed. We can only speculate that the
Company promptly received notice from the Board that the petition had been filed;
and we can speculate also that the employees who were not available to sign on
August 5 did that immediately upon their return to work. If we were compelled to
rely on probabilities, we should conclude that the Company received notice of the
filing of the petition before the "time of execution" 2 of the contract by the last
signer. But in any event, the stability which the Board seeks to foster in labor rela-
tions is not enhanced by an all too evident race to obtain signatures on a contract
when employees have made known a desire for a Board-conducted election.
With respect to the element of subsequent ratification (this was no mere "matter
of form" even if various portions had been separately ratified earlier; the products
of the "final negotiations" had not been ratified as ERF's constitution and bylaws
provided, and there had been no overall or complete ratification), also noted by the
General Counsel, we need but cite Appalachian Shale Products Co.,3 relied on by
2 Deluxe Metal Furniture Company, 121 NLRB 995, 999.
8 121 NLRB 1160, 1162.
SIGNAL OIL AND GAS COMPANY 1433
him, in which the Board declared that "only where the written contract itself makes
ratification a condition precedent to contractural [sic] validity shall the contract be
no bar until ratified." It does not appear that the contract so provides.
To this point it could be urged that the contract of August 5 does not bar an elec-
tion , and in the William D. Gibson Co., Division of Associated Spring Corporation 4
case the Board held that the very opportunity for an election should permit renewal
of a contract and continued recognition of an incumbent union until the latter is dis-
placed as collective-bargaining representative; this without finding a violation of
Section 8(a) (2). But in Kiekhafer Corporation,5 the Board "question[ed] the
validity" of the Gibson decision ; and it decided, in Shea Chemical Corporation,6
"[a]fter full consideration of all the implications of the Gibson exception," to over-
rule that case, holding that "upon presentation of a rival or conflicting claim which
raises a real question concerning representation, an employer may not go so far as to
bargain collectively with the incumbent (or any other) union unless and until the
question concerning representation has been settled by the Board."
A fortiori, an employer may not at that stage enter into a contract with a union.
The element of support to one of two rival unions inherent in bargaining with it is
enhanced when the employer enters into a formal written agreement with that union;
and in this case the written agreement was not fully executed until after August 5.7
It is not ratification but subsequent execution of the contract, noted in Deluxe Metal
Furniture and City Cab,8 both cited by the Company, which is here significant.
As for negotiations being completed earlier, it has long been recognized that "the
signing of a written contract embodying a wage and hour agreement [is] the final
step in the bargaining process." 9 I find that the request of August 4 (received on
August 5) by 4-227, supported by its immediate filing of a petition raised a real ques-'
tion concerning representation, and that the Company, by thereafter signing and
accepting later execution of the collective-bargaining agreement by ERF, violated
Section 8(a)(2) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and sub-
stantial 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 the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by executing a collective-bargaining agree-
ment on August 5, 1960, after a real question concerning representation had arisen
by presentation of a rival claim, contributed support to Employees Representation
Federation in violation of Section 8(a)(2) of the Act, and interfered with, re-
strained, and coerced its employees in violation of Section 8(a)(1) of the Act. I
shall therefore recommend that it cease and desist therefrom and from any like or
related conduct.
I shall further recommend that the Company withdraw recognition from, and
cease giving effect to, its contract with Employees Representation Federation, unless
and until that Union shall have been certified by the Board.
Upon the basis of the above 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, Local No. 4-227,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. Employees Representation Federation is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By executing a collective-bargaining agreement with Employees Representation
Federation on August 5, 1960, after a real question concerning representation had
4110 NLRB 660, 662-663.
6120 NLRB 95, 97.
6 121 NLRB 1027, 1029, cited in North Electric Company, 129 NLRB 675.
7 Cf. Deluxe Metal Furniture Company, supra.
9 City Cab, Inc., et at., 128 NLRB 493.
9 H. J. Heinz Company v. N.L.R.B , 311 U.S. 514, 524.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arisen by presentation of a claim by Local No. 4-227, thereby contributing support
to ERF, the Company has engaged in and is engaging in unfair labor practices.
within the meaning of Section 8(a) (2) of the Act.
4. By such support, thereby interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Company
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce.
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Morgan Transfer & Storage Co ., Inc. and Brotherhood of Rail-
way and Steamship Clerks, Freight Handlers, Express and
Station Employees , AFL-CIO, Petitioner . Case No. 27-RC
1951. June 29, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Allison E. Nutt, hearing
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-member-
panel [Chairman McCulloch and Members Leedom and Brown].
Upon the entire record in the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of'
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3. The Petitioner filed a petition on October 26, 1960, seeking to
represent all regular full-time platform workers of the Employer at
its Denver Union Pacific dock operation.2 The Employer and the
Intervenor contend that the full-time employees in question are prop-
erly included under an existing contract between the Intervenor and
Colorado Transfer and Warehousemen's Association, Inc. (herein-
after called the Association), of which the Employer is a member.
More specifically they are contending that the petition should be dis-
missed on the ground that the unit sought is an accretion to the multi-
employer unit and on the further ground that the existing contract
between the Association and the Intervenor constitutes a bar to the
proceeding?
IInternational Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Local No. 17, was permitted to intervene on the basis of a contractual interest.
2 As an alternative it sought also all regular part -time platform workers at this location.
8 The contract in question , by its terms , became effective on May 1, 1958 , and will expire
on January 19, 1962 . We find for reasons hereinafter set forth that the contract does not
cover the employees sought by the Petitioner . Moreover , the contract does not bar a-
131 NLRB No. 173.