Texaco, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1968

170 N.L.R.B. 142 (N.L.R.B. 1968)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texaco, Inc. and Lockport Local 7-222, Oil, Chemi-
cal and Atomic Workers International Union,
AFL-CIO. Case 13-CA-7778
March 8, 1968
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 1, 1967, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondent filed ex-
ceptions to the Decision and a supporting brief, and
the General Counsel filed a brief in answer to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Texaco, Inc.,
Lockport, Illinois, its officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in
this case are whether or not Respondent, Texaco,
Inc., has refused to bargain in good faith with the
above Union as the statutory bargaining agent of its
' The complaint issued after Board investigation of a charge filed by the
Union on March 2, 1967
employees in an appropriate unit at its Lockport, Il-
linois, refinery, by failing and refusing to' give the
above-named Union certain timestudies and other
information relating to revision and elimination of
certain job classifications of employees within said
unit, in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq. (herein called the Act).
The issues arise on a complaint issued April 27,
1967, by the Board's Regional Director for Region
13,1 and answer of Respondent admitting jurisdic-
tion but denying the commission of any unfair labor
practices. These issues were tried before me on
June 15 and 16, 1967, at Chicago, Illinois, with all
parties represented by counsel. At the close of the
testimony General Counsel and Respondent
presented oral argument and have since filed writ-
ten briefs with the Trial Examiner, all of which
have been carefully considered in preparation of
this Decision.
Upon the entire record in the case, and from my
observation of all witnesses on the stand, I make
the following:
FINDINGS OF FACT
1. Respondent's Business and Status of the Union
Respondent is a Delaware corporation duly
authorized to do business in the State of Illinois. It
has a refinery and place of business in Lockport, Il-
linois, the only facility involved in this case, where
it makes and distributes petroleum products. In the
past year Respondent in the course of its business
had direct outflow of products from said refinery
valued in excess of $50,000. I find that Respondent
is an employer engaged in commerce within the
meaning of the Act.
The above Union is a labor organization within
the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
From about 1965 to date the Union has been the
statutory bargaining representative within the
meaning of Section 9(a) of the Act of Respondent's
employees in a unit consisting of all employees at
the Lockport refinery, excluding office clerical em-
ployees, technical employees, and all supervisors as
defined in the Act. I find that this unit is ap-
propriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
In August 1964, Respondent and the Union ex-
ecuted a labor agreement effective from July 3 1,
1964, to June 30, 1966, covering employees in the
above unit, and in January 1967 they executed a
similar agreement effective from January 1, 1967,
to January 1, 1969. Both contracts provided that
company representatives would meet at regular
monthly intervals with the Workman's Committee
170 NLRB No. 18
TEXACO, INC.
of the Union "for the consideration of matters of
mutual interest," and pursuant thereto regular
monthly meetings, as well as some special meetings,
were held during 1966 and 1967 between the Com-
mittee, headed by Conrad Lillie, its chairman and
captain of the union stewards at the refinery, and
Robert F. Tierney, supervisor of employee relations
at the refinery, assisted at times by R. F. Peterson
and H. J. Stack, assistants to Tierney, as the com-
pany representatives.
Early in 1961 Respondent instituted at Lockport
a continuing study and survey of all departments
and units, and the operations and job classifications
therein, known as Texaco Experience Reduction
Program (herein called TERP), for the purpose of
improving economy and efficiency in the whole
operation. The studies also contemplated possible
manpower revisions, including "reductions" or
eliminations of jobs, and changes in job assignments
and classifications. The Union was advised of the
program and its purpose from the outset, and was
invited to give its comment to management about
the results of any changes made due to the studies,
including suggestions as to improvements in opera-
tions and general efficiency of the plant.
Thereafter, Respondent always advised the Union
of proposed changes in operations involving reduc-
tions in manpower in units, and the changes were
discussed between the parties. The issues here arise
from proposed and actual changes in two depart-
ments, the Light Hydrocarbon (LHC) department
and the Fluid Catalytic Cracking (FCCU) unit.
On the basis of TERP studies made in the LHC
department in summer 1964, Respondent advised
the Committee at the regular meeting of January
1966 that it was in the process of making six
changes in equipment in the gas plant area of the
department, preparing to eliminate the classifica-
tion of helper, gas plant, and to reassign specific
duties of that classification to three other em-
ployees (stabilizer controlman, poly plant control-
man, and compression plant controlman) effective
February 6, 1966, so that the helper classification
would be finally eliminated and the four junior wor-
kers in that classification "reduced" as of March 7,
1966.2
On the basis of a similar TERP study made in Oc-
tober through December 1964, in the FCCU,
Respondent advised the Committee at the regular
meeting of August 1966, that on October 3, 1966,
the classification of Helper-Blower and Furnace in
that unit would be eliminated, and four junior em-
plpyees in that classification "reduced." It also
detailed 16 specific revisions of operations, which
involved these reductions, reassignment of duties
thereof, and changes of remaining operators' work-
loads, which were either completed or in process
s This proposal was designated in minutes of later meetings as
Item 2230 SENIORITY- General
Departmental Reorganization
Gas Plant Area-LHC Department
143
for completion by September 1, 1966. It also
detailed 20 other similar changes in process or
completed to increase overall operator efficiency. It
stated that workers in three controlman classifica-
tions and two helper classifications would be
required to train in the additional specified duties
beginning September 5, and that an extra control-
man would be required to assume additional
specified duties formerly performed by certain of
the "reduced" and other helpers, after the regular
controlmen had taken on their new duties.'
A. Discussions on Item 2230
In the 2 months following notice of the changes
in the LHC department, the Union made its own in-
vestigation of the changes through discussions with
the workers affected by the changes and other work-
ers in the department. At the March meeting, it
claimed that elimination of the helper job was not
warranted on the basis of facts it had up to that
time, but said it would continue to study the
proposals. At the April meeting, when Respondent
advised that the manpower reductions had been
finished and the helper job eliminated, the Union
protested that its review of the company proposals
did not show any justification for assignment of ad-
ditional duties to the three controlmen in the LHC
department, that on the basis of "much informa-
tion" provided by department employees, and the
Union's study of it, the Union felt that Respondent
had failed to take into consideration the close rela-
tionship of the gas plant to other areas in the
refinery, the time required by the controlmen for
performing the additional duties, the safety hazards
involved in lack of sufficient manpower after the
reductions, the probability of injuries arising from
hazardous conditions, inadequate handling of emer-
gency situations in shutdowns and startups of
equipment, inadequate time allowed for good
housekeeping and adequate cleanup, and the dan-
gerous requirement that controlmen must remain
away from control boards while performing the ad-
ditional duties. Hence, the Union requested rein-
statement of the eliminated helper classification.
The Union then formally requested that Respon-
dent give it, for purposes of "intelligent further
study of these reductions" and pursuant to the Act,
all the timestudy data which Respondent may have
used in making its determination, including:
(1) Records, studies, surveys, study manuals,
instructions and procedures used in making the
time studies of the jobs in the areas affected by
this Helper classification reduction, including
full information as to the weight given to each
factor used to arrive at a final decision on
' This proposal was listed in minutes of later meetings as.
Item 2250 SENIORITY-General
Departmental Reorganization
FCCU Department
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reduction of classifications and the factors con-
sidered in making such decisions.
(2) All other relevant and available informa-
tion, reports, records, studies, surveys,
manuals, directives, or documents pertaining
to this Gas Plant Helper classification reduc-
tion.
At the May meeting, Respondent replied that
after consideration of the union claims, it believed
the reduction was "practical, efficient and safe,"
and that it felt the Union had been given all infor-
mation pertinent to discussion of the matter. The
Committee disagreed, arguing that the reductions
had sacrificed safety of the operators in the interest
of economy. It claimed the data presented to it to
date was not enough for thorough and intelligent
review and analysis of all aspects of the reductions,
arguing that presentation of adequate material now
would avoid repetition of difficult discussion of
prior manpower reductions still under discussion in
this and other departments.
On June 9, 1966, the Union by letter formally
requested the same information it had sought at the
April meeting, claiming it was needed in prepara-
tion for, and during actual negotiation of, a new
contract and also to process any grievances based
on the reductions. Respondent considered this
request during June and July, and on July 20, 1966,
called a special meeting to reply to the letter. In
that session, Respondent emphasized (1) that the
purpose of the TERP studies was to find out how a
job might be done more efficiently and economi-
cally, (2) hence the studies included much informa-
tion on dollar savings, technical improvements,
operation improvements, proposed capital invest-
ments, and where applicable recommendations for
manpower reductions and changes in job assign-
ments, and (3) since it had already discussed the
latter recommendations with the Committee, it
considered the other financial and technical infor-
mation in the studies not relevant to discussions on
manpower revisions and changes of job assign-
ments, which resulted from the studies. It then
reviewed in detail the operating factors cited by the
Union in the April meeting and said it had given
full consideration to each, but on the factors of
time for performance of additional duties, for
housekeeping and cleanup, and the need for
absence from control boards to perform such du-
ties , it gave to the Committee a tabulated chart
showing the present and recommended use of time
for each classification involved in the gas plant
area, and the number of workers, both actual and
as recommended. The chart also showed the exact
period in 1964 in which the TERP study was made,
the job classifications observed, and the number of
shifts during which each was observed. After a
short recess to review it, the Committee said it
would take this data under consideration, and
would discuss it with the LHC workers and "review
that department."
After considering the tabulation through July and
August, the Committee at the September meeting
stated its concern about alleged unsafe conditions
in the as plant area due to elimination of the hel-
pers, citing an instance in August when a control-
man had been away from his control board about 3
hours to perform an added duty with another
worker, during which time pressures in certain
equipment rose to an unusually high level. It also
claimed the availability of two men to light certain
heaters, as against three before the reductions, was
another instance of inadequate and unsafe manning
of equipment. The Committee then asked Respon-
dent specific questions about a claimed lack of
adequate manpower in servicing certain pumps,
where inhalation of fumes was a danger, and how
certain other duties and operations could be per-
formed properly with reduced manpower. It chal-
lenged the company figures on present and recom-
mended use of time, and questioned the value of
the TERP study because it was made only during
normal conditions, with a limited number of obser-
vations of operations, and ignored the interrelation
of the various jobs. It then requested more data on
the factors considered and weights given each by
Respondent in reaching its decisions, and specifi-
cally asked for detailed descriptions of the various
time-use categories in the tabulation previously
furnished. The Committee concluded by repeating
the general request for data stated at the April
meeting and in its June letter.
At the October 11 meeting, Respondent gave
specific answers to the claim of unsafe situations
cited by the Union, and also to the questions asked
by it, and replied that it concluded all units were
then being operated safely and efficiently, and that
it had previously given the Committee all pertinent
data.
At the November meeting, the Committee re-
peated its request for full descriptions of each of
the five time-use categories listed in the tabulation
given it in July, and asked eight specific questions
about Respondent's consideration, vel non, of cer-
tain other factors which might affect an employee's
use of his time, in making the studies and reaching
its decisions. The Committee again questioned the
validity of the manpower reductions, so far as
safety of operations was involved, because the stu-
dies had not involved adverse or unusual operating
conditions. Respondent, on inquiry, advised that
each worker assigned to additional duties had been
advised of the new requirements by his local super-
visor.
At the December meeting, Respondent furnished
the Committee detailed descriptions of the five
categories of time use listed in the tabulation,
which it obtained from the TERP studies, and also
advised that responsible officers of Respondent had
made the studies, and that they had been fully
TEXACO, INC.
reviewed, including the factors of safety of person-
nel and maximum efficiency of operation, before
the changes were made. The Committee replied
that it would review the company presentations, but
still insisted they were not the full and complete
presentation the Committee wanted, and it re-
peated its prior broad request for all data.
At the February 1967 meeting,' the Committee
said it still needed more data to make a study of the
reduction of manpower, that it could not presently
make an accurate appraisal of the justification for
it, since the information it had received did not
mean much without the "supporting information"
requested, such as the "general ground rules of the
TERP study." It cited, for example, that the time-
use figures in percentages were not significant
without information about the exact dates of the
observations, the unit operating conditions and
weather conditions at the time, the amount of
safety preparation, experience of the operators ob-
served, etc. Respondent replied that it had given
the Union over the past year all the pertinent data
to which it was entitled, and repeated its claim that
the changes had proven satisfactory and all work
was being done in a safe and efficient manner.
B. Discussions on Item 2250
As soon as the manpower revisions and reduc-
tions in the FCCU were announced, the Union for-
mally requested the same broad types of data re-
garding the basis of the reduction of the Helper-
Blower and Furnace and for the same reasons as on
Item 2230.
At the September meeting, Respondent an-
nounced that it had set back the beginning of train-
ing of the FCCU workers in their new duties to
September 12, and the reduction of the helper clas-
sification to October 10. It reiterated the same
economic and technical purposes of the TERP stu-
dies as on Item 2230, and stated the same reasons
for not giving the Union financial and technical
data from those studies. It then gave the Union the.
same type of detailed breakdown of actual and
recommended time use, as in Item 2230, for eight
classifications in the FCCU unit; the breakdown
proposed elimination of the job of Controlman-
Compression plant (days), as well all the Helper-
Blower and Furnace, plus creation of a new Helper-
General classification, but Respondent explained
that after further consideration, the controlman job
would be retained with new duties added, and the
proposed Helper-General job deleted. In discussion
of the tabulation, the Committee asked specific
questions about the new duties and required move-
ments of one helper and two controlmen, how they
would be relieved of their regular duties in certain
operating situations, and what manpower would be
available in certain weather conditions, and re-
" There was no meeting in January due to the beginning of new contract
negotiations that month
145
ported that the FCCU operators were very skepti-
cal about ability of workers remaining after the
reduction to handle upset and emergency condi-
tions, as their duties in such situations were not
clearly defined, citing the variety of duties involved
in handling valves, steam fittings, and the crucial
heaters, and questioning whether the men could
handle certain vital valves and connected equip-
ment in case of line blocks. In conclusion, the Com-
mittee, relying on its "experience and knowledge of
the unit's operation and in anticipation of the
results of this reduction," contended, that unsafe
conditions would result from the helper reductions.
It also- challenged the accuracy and value of the
time-use tabulations for the same reasons stated re-
garding the similar tabulations under Item 2230. It
repeated the same request for information about
factors considered, and weights given them, in rely-
ing on the recommended time-use tabulation, and
for detailed descriptions of the categories of time
use involved, as well as the same broad, general
request for information as for Item 2230.
At the October 11, meeting, Respondent an-
nounced a retraction of the proposed changes in
duties to the extent that one duty assigned to the
controlman would be retained by the Controlman-
Compression plant. It then answered the specific
questions about revised duties of certain workers,
both general and specific, asked by the Committee
at the prior meeting, by explaining their new duties
in more detail. It repeated its conviction that the
unit was being run safely and efficiently, and
refused the broad request for more data. The Com-
mittee said it would consider these responses.
At the November meeting, the Committee re-
peated its request for detailed descriptions of the
five categories of time use in the tabulation, and
also asked seven questions about specific aspects of
the changes in duties, and whether specific. factors
had been considered and ' how evaluated. It also
requested a raise in rate, for the Fractionator
Helper, who was doing control work assigned to the
Catalytic Controlman, a job with higher pay, and
charged that actual reassignment of duties between
these jobs was not in accordance with the an-
nounced shift of duties among retained helpers.
At the December meeting, Respondent furnished
the detailed descriptions of the „five categories of
time use, advised that it felt the Union had been
given all pertinent data on this item, that the study
basing the changes had been made by responsible
management agents, ° after careful evaluation of all
the findings in the study, with a view to, safety of
personnel and equipment as well as maximum, effi-
ciency. On the request for a rate raise, it advised
that its investigation indicated the worker involved
had been handling the same duties at one spot as
the eliminated helper classification, and that any
misunderstandings about duties of the remaining
350-999 0 - 71 - 11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
helpers had been cleared up by the supervisor. The
Committee still pressed its request for a raise on the
basis of the duties outlined in writing for that
worker by the department supervisor. It also
requested that all workers be given clear instruc-
tions on their respective duties, both in normal
operations and under upset conditions. The Com-
mittee said it would study the detailed descriptions
furnished, but reiterated its broad request for all
pertinent data.
At the February 1967 meeting, the Committee
explained that its prior request for the Fractionator
Helper was that he be raised to the rate of the
Helper-Catalytic, and repeated its reasons for the
request. It said it, had reviewed all information
given by Respondent and still felt that it needed
broader and more detailed data in order to make a
study of_the manpower reductions in the FCCU de-
partment and find out if they were justified. As an
example, it said the percentage figures for time use
in the tabulation by Respondent were not signifi-
cant without additional information about exact
dates of the observations, unit conditions, weather
conditions, amount of safety preparation, opera-
tor's experience, etc. Respondent repeated its prior
views about the sufficiency of the data already
given to the Union, and the safe and efficient
operation of the FCCU.
C. Contentions of the Parties and Concluding
Findings
The main issue is whether Respondent violated
its bargaining duty under the Act by failing to dis-
close to the 'Union on request all the "raw data" ac-
cumulated by its agents during the 1964 TERP stu-
dies in the two departments mentioned above, after
it appeared that changes in manpower and job du-
ties were made as a result of changes in equipment
and operating procedures arising out of those stu-
dies. General Counsel argues that all such basic and
detailed data, in the form of field notes of observa-
tions during the studies, all manuals and instruc-
tions used by!TERP teams in making the studies,
and all financial and engineering data included
therein, were relevant and necessary for the
Union's examination so that it could intelligently
evaluate the "validity" and "need" for these
changes, since they actually affected tenure of cer-
tain workers and made changes in duties and work-
ing conditions of others. Respondent's main
defense is that it satisfied its obligations under the
Act, when it readily gave the Union all the informa-
tion found above, which was all that it needed for
such evaluation, and discussed it fully at meetings,
and that the Union has not shown any need for the
financial and engineering data contained in the stu-
dies, hence it is not obligated to furnish such data,
Montgomery Ward & Co , Incorporated, 146 NLRB 76, 78, The Fafnir
Bearing company, 146 NLRB 1582, 1585, enfd 362 F.2d 716 (C A 2)
F It is significant that Respondent itself did not accept and act upon the
TERP recommendations in toto, because during the discussions of both de-
which is held confidential by Respondent as a
matter of business policy.
It is well settled that Respondent is obligated by
the Act to give the Union as bargaining agent all in-
formation that is relevant and necessary for the
proper performance of its duties as such agent, not
only during contract negotiations but also during
administration of any collective-bargaining agree
ment . N.L.R.B. v. Acme Industrial Co., 385 U.S.
433 (1967). However, where the information
sought is data not dealing with - wages or fringe
benefits, and there is no issue about the ability of
the employer to pay wages or other financial
benefits, there is no prima facie presumption of
relevancy and need, but the Union must prove both
the relevancy of and the necessity for the informa-
tion sought. White Furniture Company, 161 NLRB
444; Metlox Manufacturing Company, 153 NLRB
1388, 1394; Standard Oil Company of California,
Western Operations, Inc., 166 NLRB 343. How-
ever, where the information is requested to enable
the Union to determine what position to, take or
course to pursue, whether under the grievance pro=
cedure or otherwise, during administration of the
current contract, about the actual and proposed
changes of equipment and operating conditions
which would appear to have a definite effect
on the safety of employees, as well as making
definite changes in their methods of performing
their duties, all of which clearly affect their work-
ing conditions, it would appear that it is both
relevant and necessary to performance of the
Union's duties as bargaining agent.,, This becomes
particularly apparent where, as here, the Union
early raised and continually pressed the issue
of reduced safety of operations with fewer work-
ers, emphasizing the new requirement that cer-
tain workers be absent from vital control stations
and equipment. contrary to past practice, in
order to handle new duties. Although the Union
pressed this issue throughout with specific ar-
guments and facts gleaned from its own recent in-
vestigation of the units affected, I think it was
clearly entitled to' bolster its arguments and try to
persuade Respondent to return operations to the
status quo ante, if it could, by checking the details
of the observations made by the TERP teams nearly
2 years before, to see if the conditions which
prevailed then were similar to current conditions,
and whether Respondent's decision to make
present changes on the -basis of a 2-year-old study
was based on stale facts or took into consideration
and weighed all factors which involved workers'
safety under present working conditions, as well as
the basic factors of efficiency and economy, or
whether in fact safety as well as proper working
conditions had been sacrificed for economy, in
making both operational and manpower revisions.'
partments , it backed off from several of its initial manpower changes, and
announced that one change was only temporary, pending further study of
the operation
TEXACO, INC
Furthermore, both relevancy and need become ap-
parent from the circumstances that, while the
record shows the reductions of helpers in both de-
partments did not affect them financially or in their
basic tenure of employment,' Tierney admitted that
they did lose some seniority rights in their former
department, and it also appears that remaining em-
ployees were subjected to a substantial change in
working conditions, as they were being required
both to shoulder some of the helpers' old duties and
to change their actual operations during a shift to
include more "Working time" in the form of physi-
cal activity, and reduce or eliminate "Standby" or
"Unnecessary" time.' Finally, it appears that
Respondent in effect recognized the relevancy of
some of the information sought, and its obligation
to furnish it, by giving the Union the time-use tabu-
lations, detailed descriptions of categories of time
use used therein, and giving in some detail the
exact method of performance of additional and
regular duties of certain workers in specified cir-
cumstances.9 Respondent admits that all this infor-
mation was extracted from the TERP studies, that it
would also have given more details thereof, if
requested, including names of workers observed,
exact dates of observation, and weather and operat-
ing conditions at the time, and that it could have
extracted from the studies the exact number of
hours, a particular worker was observed, the wor-
ker's physical condition at the time, if other than
normal, and like data. It partially satisfied the
Union's request for details of unit operating condi-
tions, by advising repeatedly that the TERP studies
were made only for and during normal conditions,
and did not involve actual operations or lack of
operations under adverse or unusual circumstances.
However some evidence of bad faith appears in its
attempts to justify its refusal to give more data than
it did by the repeated claim that it was "inter-
twined" in the TERP studies with confidential fi-
nancial, engineering, and technical data to which it
claims the Union was not entitled, and which it
took pains at all times to keep secret from competi-
tors and even from subsidiary companies. This ap-
pears to be a lame excuse, for it clearly had no real
difficulty in extracting from the studies the substan-
tial data it did furnish, and Tierney admitted it
would have no difficulty in extracting the additional
data which it says it would have given if
requested:10
' They had the right under the contract to "bump" employees in other
departments without loss of wages
' The Kroger Co, 163 NLRB 441
' Cf Taylor Forge & Pipe Works v N L R B, 234 F 2d 227, 229, 230
(C.A 7), Montgomery Ward & Co , Incorporated, supra
i" I find no substantial evidence of bad faith in Respondent's piecemeal
divulgence of information , from meeting to meeting over 8 months, and
only as and when the Union asked for it specifically The TERP studies
contained a mass of information on operating conditions, technical and en-
gineering , and financial data of various types , all intertwined The studies
were not new and strange to the Union, for the record shows its officers had
been aware ofthe studies, their nature and timing , and the makeup of vari-
ous TERP teams since 1961, and the Union had had many discussions with
Respondent in the past about similar changes arising from the studies. This
147
- I conclude and find that Respondent in all the
above circumstances violated Section 8(a)(5) of
the Act by its failure and refusal since October 11,
1967, to give the Union on request such data out of
the TERP studies as gave details of the exact dates
and shifts of the TERP studies in the two depart-
ments , the names of workers observed, conditions
of those workers at the time, if other than normal,
weather and unit operating conditions at time of
the studies, as well as such data and instructions
from TERP manuals or other study instructions and
procedures as related to its manner of considera-
tion of physical and operating conditions, and the
safety, efficiency, and personnel factors to be con-
sidered in making the studies, and the actual weight
and importance given to any or all such factors in
making manpower revisions on the basis of such
studies.
The remaining issue is whether Respondent also
violated the Act by refusing to give the Union so
much of its TERP studies and supporting data as in-
volved financial, technical and engineering data
which showed the technical nature, complexity, ex-
tent, and cost of making the actual equipment and
operating changes. This data, comprising the bulk
of the TERP studies, dealt with reductions in plant
losses, fuel savings, reduction of inventories, con-
trol of chemical supplies, improvements in handling
of tools, supplies, and equipment, including en-
gineering design changes, technical and operating
improvements, all with estimates of the costs and
capital investments involved and overall dollar
savings. During the discussions Respondent ex-
plained to the Union the general nature and pur-
pose of the TERP studies along these lines. There
can be no question that such data, in and of itself,
dealt with purely management problems involved in
the efficient and economical operation of the plant,
and it.would appear basically that it was of no con-
cern to the Union, especially where changes made
thereunder did not essentially change the basic
working hours or affect the existing pay rates or
wages of employees affected thereby, according to
Tierney. During the meetings, the Union gave
Respondent no specific reasons why it needed this
data, aside from its pro forma argument that it was
necessary for intelligent evaluation of the man-
power revisions involved.
At the hearing Lillie testified for the Union that
the cost data was necessary to find out if the "pro-
knowledge, and its own discussions with workers in the LHC and FCCU de-
partments during 1966, apparently gave the Union enough data on which
to make specific requests for information from time to time, as found
above, and when the Union did so, Respondent furnished much of that
data, though not always in the precise, detailed form that the Union desired
it The requests and subsequent submissions of data came in a rather
deliberate and routine fashion, month by month, with the Union usually
taking a month or more to study data submitted before it raised further ob-
jections or asked for more information In this pattern of deliberate but am-
icable discussion , I find no evidence that Respondent "dragged its feet" in
responding to the Union 's requests when in a formal but broad and vague
form It is also significant that in his testimony , Lillie, the main union agent,
could not give in any reliable detail the type of additional data which the
Union wanted
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed revisions reduced costs," for the workers
would then "pay the price of the costs" by taking
on more responsibility and possible exposure to un-
safe conditions. Later he said the Union still wanted
such data, although he admitted that if the revision
happened to improve operations and reduce the du-
ties of the workers, "it would not be of concern" to
the Union. This testimony ignores the obvious fact
that the Union's own- investigation of the manpower
changes indicated clearly to what extent working
conditions of remaining workers (aside from the
helper "reductions") were actually changed under
the recommendations of the TERP teams, so that it
already knew that vital fact, whether or not the
equipment or operating changes were costly or
cheap in dollars, so that it could argue fully against
the resulting changes on working conditions, as was
its duty, without knowing the cost or savings to
Respondent. This raises the inference that the
Union really wanted the cost and financial data in
an attempt to review and second-guess the basic
managerial decision in adopting most of the equip-
ment and operating changes, so that it could try to
persuade management to rescind them, for reasons
unrelated to their effect on the workers' tenure of
employment and working conditions. This in-
ference is supported by Lillie's admission that,
when the Committee discussed with the workers
Respondent's proposed changes in time use as
stated in the tabulation, the workers' reaction was
generally negative, indicating that they were against
any change in the status quo as a general proposi-
tion.11 Hence, I am constrained to conclude that the
Union desired the cost data essentially as an enter-
ing-wedge into the field of management's conduct
of its business so that it could attempt to exercise
some oversight or veto in that area in the future.
The economic danger to Respondent inherent in
release of such data, as well as the settled principle
that employers are entitled to operate their business
as they please, provided they do not violate the
Act, and that not even the Board can second-guess
employers in the operations of their business; shows
the fallacy in this reasoning. General Counsel
makes the same argument when he claims all the
"raw data" in the TERP study, including engineer-
ing and cost data, is needed by the Union so that it
could "evaluate the validity" of the observations, as
to whether they were accurate,12 to decide in part
whether the, difference between the observed actual
breakdown of time use and the recommended
breakdown was ' close enough to be "statistically
It In this connection, Lillie could not explain how the workers would be
harmed, or their working conditions worsened, where the TERP recom-
mendations would increase their "personal" and "standby" time in some
instances , as contrasted with physical "working" time. He admits that
where he found out some "standby" time was increased, he did not go back
to the workers involved to get their reactions
" The Union's desire to take part in management decisions also appears
in (1) Lillie's testimony that the TERP studies were essentially valueless
because not made in part under emergency or unusual operating condi-
tions, although Respondent had repeatedly told the Union that it did not
senseless," so that the Union could make the
Company "prove its savings." and base compara-
ble wage revisions on them, if the changes were ef-
ficient as Respondent claims. But here, again,,
General Counsel improperly equates efficiency, an
operating matter, with cost savings, incorrectly as-
suming the one automatically goes with the other,
and ignores' Lillie's admission that the Union was
not concerned with either if there was no effect on
the worker, that the Union was concerned with
possible change in wage rates only if there was a
greater burden of work put on the workers by the
changed methods of operation, and his testimony
that, in his view, some of the equipment and
operating changes, at least in his FCCU depart-
ment, were not improvements in efficiency.
General Counsel admits this later when he argues
that, while Respondent's right to discontinue hel-
pers' jobs under the contract is not challenged, the
Union still has the right to bargain "about" such
changes, which means basically the effect of such
changes on workers.13 I must conclude that neither
General Counsel nor the Union has shown that the
cost and other financial data requested was relevant
or necessary for performance of its duties under the
contract with respect to the manpower revisions in
question.
The demand for engineering and technical data
stands on no more favorable footing. Lillie says it
was needed because the Union's past experience on
other changes after TERP studies indicated that,
after a manpower reduction was made, the design
changes in instruments or equipment did not func
tion as efficiently or economically as Respondent
claimed "in point of production." However, since
the record shows that workers were paid on an
hourly rate for an 8-hour shift of work, no matter
how well or poorly the plant operated in that
period, and none of them were on a piece-rate stan-
dard of "production," this argument is irrelevant,
for good or bad production of the plant or any unit
in it does not affect the workers' wage rates or total
pay. It may well be that the Union would seek an
upward revision of rates if actual experience (with
or without benefit of the TERP studies) shows that
workers given additional duties are required to
spend more time in physical "working" time, as
against "standby" or "unnecessary" time, which
might justify a claim for higher rates and pay; but
this could obviously be best supported by the physi-
cal facts as to the more onerous (and possibly un-
safe) working conditions after the change, as con-
staff the plant for emergency conditions , and the Union well knew from
contract provisions that workers could often change their normal modus
operandi in their judgment where unusual conditions required it, even to go
so far as to shut down units in emergencies , and (2) his vague opinion that
a TERP study would be of value only if pursued for a period of a year, to in-
clude all types of operating conditions
13Cf Dixie Ohio Expiess Company, 167 NLRB 573. There is no
charge in the complaint, nor contention by General Counsel, that Re-
spondent's institution of changes under the TERP studies was an illegal
unilateral action.
TEXACO, INC. 149
trasted with before; cost and engineering data and
business considerations which may have caused
Respondent to make the changes in the first place
would have no proper place in an argument over
the effect of the changes on the men.
On this basis, I must conclude that the engineer-
ing and technical data, as such, sought by the
Union was not relevant or necessary to its adminis-
tration of the contract grievance procedure or
other clauses thereof for the benefit and protection
of employees in the appropriate unit. I find that
Respondent did not violate the Act by refusing to
furnish such data.
The findings and conclusions above dispose of
Respondent's separate defenses nos. XIII through
XVI and XVIII through XX. The claim in no. XVII
that the dispute over discontinuance of the helper
classifications involved contract interpretations
which the parties can resolve through the grievance
procedure (which included possible arbitration) has
no merit because it is well settled that the availabili-
ty of such settlement procedure and even the
failure of the Union to file a grievance thereunder
does not preclude the Board from prosecuting and
adjudicating possible violations of the Act arising
out of the dispute, regardless of whether the parties
have resorted to all or part of the contract
grievance procedure, especially where the data
sought by the Union will help it to decide whether
or not to invoke the grievance procedure. N.L.R.B.
v. Acme Industrial Co., 385 U.S. 432; The Timken
Roller Bearing Company, 138 NLRB 15, enfd. 325
F.2d 746 (C.A. 6).1
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate, 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.
Upon the basis of the foregoing findings of fact
and on the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce, and the Union is a labor organization,
within the meaning of the Act.
2. All employees at Respondent's Lockport, Il-
linois, refinery, excluding office clerical employees,
technical employees, and all supervisors as defined
in the Act, constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
3. Since 1956, and at all times thereafter, the
Union has been the statutory bargaining representa-
tive of all employees in the aforesaid unit within the
meaning of Section 9(a) of the Act.
4. By refusing since October 11, 1967, to give
the Union on its request certain details found above
from its 1964 TERP studies in the LHC and FCCU
departments at the Lockport refinery, the
procedures and instructions given to TERP teams
in making such studies, the actual weight and im-
portance given by Respondent to physical and
operating conditions and the factors of safety, effi-
ciency, and types and conditions of personnel in
such departments, in making manpower revisions
therein during 1966 as found above on the basis of
such studies, Respondent has failed and refused to
bargain in good faith with the Union as bargaining
representative aforesaid, and also interfered with,
restrained, and coerced its employees in the exer-
cise of rights guaranteed to them by Section 7 of
the Act, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(5) and (1) and 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in
certain limited unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, I
recommend that it be ordered to cease and desist
therefrom and from any like or related conduct,
and that it take certain affirmative action designed
to effectuate the policies of the Act. In giving the
Union data from its TERP studies as required by
the affirmative portions of the Recommended
Order, the Respondent should not be required to
furnish information in the exact, all-inclusive form
requested by the Union, but will only be required to
cull out from those studies such data as required by
the Recommended Order in reasonably clear and
understandable form. See American Cyanamid
Company (Marietta Plant), 129 NLRB 683, 684;
Westinghouse Electric Corporation, 129 NLRB 850,
866; and cf. General Aniline and Film Corp., 124
NLRB 1217. The manner and form of disclosure of
information of these types should be left to the
good faith and commonsense of the parties at the
bargaining table during the regular meeting
procedure or under the grievance procedure, with
the Recommended Order herein guiding Respon-
dent as to its obligations in this regard. The Ingalls
Shipbuilding Corporation, 143 NLRB 712, 718.
111 have carefully considered other arguments made, and other cases particular, General Aniline and Film Corporation, 124 NLRB 1217, cannot
cited, by Respondent in its brief, and find the arguments without merit, and control here, because the crucial studies in that case did not discuss or
the cases either inapposite on the facts or not mconsistent with the authori- recommend personnel changes
ties cited above on which I have based my final findings and conclusions In
150 DECISIONS OF NATIONAL
RECOMMENDED ORDER
On the foregoing findings of fact, conclusions of
law, and the entire record in the case, and pursuant
to Section 10(c) of the Act, I hereby recommend
that Texaco, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with Lockport Local 7-222, Oil, Chemical and
Atomic Workers International Union, AFL-CIO, as
bargaining representative of its employees in the
unit found above, by refusing to furnish the Union,
upon request, detailed and basic data from its 1964
TERP studies of the LHC and FCCU departments
in its Lockport, Illinois, refinery, containing exact
dates and work shifts when such studies were made,
the names of workers therein observed, exact con-
dition of such workers if other than normal, the
weather and unit operating conditions at time of
the, studies, the data, instructions, and procedures
from TERP manuals, and other instructions or
procedures used by TERP teams in such studies
which specified their manner of observation and
consideration of physical and operating conditions,
and the safety, efficiency, and personnel conditions
and factors to be considered in making the studies,
and the actual weight and importance given by
Respondent to any or all such conditions and fac-
tors in making manpower revisions on the basis of
such studies.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights guaranteed to them by Section 7
of the Act.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Bargain collectively with the Union by
furnishing it, upon request, all of the specific data
and types of data from its 1964 TERP studies
aforesaid as set forth in paragraph 1(a), above.
(b) Post at its refinery in Lockport, Illinois, co-
pies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 13, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be 'maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify said Regional Director, in writing,
within 20 days from date of receipt of this Decision,
what steps have been taken by Respondent to
comply herewith.ts
15 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
LABOR RELATIONS BOARD
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
ifi In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with Lockport Local 7-222, Oil, Chemical and
Atomic Workers International Union,
AFL-CIO, as bargaining representative of our
employees in the appropriate unit described
below, by refusing to give said Union, upon
request, certain data and information
described below from our 1964 TERP studies
of the LHC and FCCU departments in our
Lockport, Illinois, refinery, nor in any like or
related manner interfere with, restrain, or
coerce our employees in said unit in the exer-
cise of any rights guaranteed to them by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL bargain collectively with the above-
named Union as bargaining representative of
our employees in the unit described below, by
furnishing to said Union,, upon request,
detailed and basic data from our 1964 TERP
studies of the LHC and FCCU departments
containing exact dates and work shifts when
those studies were made , the names of workers
in those departments who were observed, the
exact condition of such workers if other than
normal, the weather and operating conditions
of said departments when the studies were
made, the data, instructions, and procedures
from TERP manuals and other instructions and
procedures used by the TERP teams in their
studies which specified their manner of obser-
vation and consideration of physical and
operating conditions, and the safety, efficiency,
and personnel conditions and factors to be
considered in making the studies, and the ac-
tual weight and importance given by us to any
or all such conditions and factors in making
manpower revisions on the basis of those stu-
dies. The appropriate unit is: all employees at
our Lockport, Illinois, refinery, excluding of-
TEXACO, INC 151
fice clerical employees , technical employees, This notice must remain posted for 60 consecu-
and all supervisors as defined in the Act. tive days from the date of posting, and must not be
altered, defaced, or covered by any other material.
TEXACO , INC. If employees have any question concerning this
(Employer) notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Dated By Office, 881 U.S. Courthouse and Federal Office
Building , 219 South Dearborn Street, Chicago, Il-
( Representative ) (Title) linois 60604, Telephone 828-7570.