Chevron Oil Co.

National Labor Relations Board - Board Decisions

May 15, 1970

182 N.L.R.B. 445 (N.L.R.B. 1970)

CHEYRON OIL COMPANY
Chevron Oil Company, Standard Oil Company of Texas
Division and Local 826 , International Union of Operat-
ing Engineers , AFL-CIO. Cases 16-CA-2890 and
16-CA-3221
May 15, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 26, 1968, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trail Examiner's Decision. The Trial Examiner also
found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recom-
mended dismissal of such allegations. Thereafter, the
General Counsel and Respondent filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner 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 and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the addi-
tions and the modifications set forth below.
1. We agree with the Trial Examiner that Respondent
violated Section 8(a)(1) of the Act through District Pro-
duction Superintendent Kirkvold's statements to employ-
ees on December 6, 1967. As found by the Trial Examin-
er, Kirkvold told the employees they had not received
certain benefits because of their representation by the
Union and promised them the prompt receipt of benefits
if they abandoned the Union.'
2. General Counsel excepts to the Trial Examiner's
dating of the 8(a)(5) violation only from January 31,
1967. General Counsel claims that Respondent never
engaged in good-faith bargaining with the Union and
that the violation should therefore be found proved
as of an earlier date. For reasons set out below, we
find merit in this contention.
The broad issue posed by the complaint's 8(a)(5)
allegations is whether, in negotiating with the Union,
Respondent performed the obligations Section 8(d) of
the Act imposed upon it to "meet at reasonable times
and confer in good faith with respect to wages, hours,
and other conditions of employment, or the negotiation
' It is not without significance to the good-faith issues discussed
below that these attempts to induce the Union's ouster occurred shortly
after the end of the Union's certification year
445
of an agreement, or any question arising thereunder.
. . ." Ultimate resolution of that issue, according to
well-established concepts, requires consideration of the
totality of Respondent's conduct both at and'away from
the bargaining table.2
While not always easy to apply, the guidelines for
assessing good faith, or the want of it, in situations
where, as here, the parties have met across the bargaining
table for the 'ostensible p'urposes'of bargaining, are well
established. The concept contemplates more than "pure-
ly formal meetings between management and labor while
each maintains an attitude of `take it or leave it'; it
presupposes a sincere desire td reach ultimate agreement
N.L.R.B. v. Insurance Agents' International
Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477.
To be sure, the Act's good-faith standard does not
require the yielding of positions fairly maintained. But
at the same time it does contemplate a willingness to
"approach the bargaining table with an open mind and
purpose to reach an agreement consistent with the
respective rights of the parties." Majure Transport Co.
v. N.L.R.B., 198 F.2d 735, 739 (C.A. 5). See also
Kohler Co., 148 NLRB 14334, 1444, enfd. 345 F.2d
748 (C.A.D.C.), cert. denied 382 U.S. 836; N.L.R.B.
v. Herman Sausage Co., Inc., 275 F.2d 229 (C.A. 5).
In conformity with the principles above set out, we
have taken into account all of Respondent's activities
from the time the Union came on the scene at this
plant.3 Viewed in unity, and not as separate and isolated
fragments, Respondent's objective actions support an
inference that Respondent never engaged in good-faith
collective bargaining with the Union The considerations
which impel us to that conclusion follow:
First, the events immediately preceding the conduct
of the Board's election held on October 20, 1966, estab-
lish, as the Trial Examiner found, that Respondent then
displayed to its employees an "unmistakable aversion"
to its employees' interest in being represented by the
Union.4 Respondent's effort to obtain the Union's defeat
at the polls consisted of a series of communications
to employees-oral and writtens-which, read as a
Y As was stated by Mr Justice Frankfurter , in his separate opinion
in N L R B v Insurance Agents' International Union , AFL-CIO (Pru-
dential Ins Co ), 361 U S 477, 505-506
the significance of conduct , itself apparently innocent and evident-
ly insufficient to sustain a finding of an unfair labor practice, "may
be altered by imponderable subtleties at work " Activities in
isolation may be wholly innocent , lawful and "protected " by the Act,
but that ought not to bar the Board from finding , if the record justifies
it, that the isolated parts "are bound together as the parts of a single
plan [to frustrate agreement ] The plan may make the parts unlawful
Swift & Co v United States , 196 U S 375, 396
3 We have taken into account certain facts in addition to those
set out in the Trial Examiner's Decision In so doing , we have relied
either on documentary evidence or on testimony of Respondent 's witness-
es concerning its bargaining position
' Although Respondent has a long history of bargaining with a number
of unions , including the Charging Union and/or its sister locals at
other locations , no employees in any plant of this Division of its
widespread corporate enterprise had ever been successfully organized
as of the date the Union began organizing at the plant here involved
s The Trial Examiner's recital of facts describing Respondent's pre-
election campaign is limited to Magee's October 3 speech In addition
to the speech , however, there were other communications to employees
not mentioned by the Trial Examiner
182 NLRB No. 64
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole, conveyed the following message to its employees:
that at other plants of the Company where the Union
was the established bargaining representative, it had
brought "trouble and strikes"; that the employees
should not be misled into believing that they would
fare better with the Union than they would if they
remained unrepresented; that the Company did not have
to sign a contract and agree to union demands and
"there is no law" which compelled it so to do; that
if the Company did not agree to union demands, the
"only thing" the Union could then do was to call
a strike, in which event the company was perfectly
free to hire permanent replacements"; that once a striker
is replaced during a strike "his job is lost"; that while
the Company "hoped not to have a strike or any trouble
around here" it knew its "legal rights" and was deter-
mined to use them; that it did not intend to have "any
union representative" tell it how to run its plant or
to interfere with its right to establish the number of
basic jobs; that it intended to apply its current policies
in making employee assignments and promotions to exist-
ing jobs; and that "talk" concerning the Union's ability
to negotiate changes in these policies should not be
believed. Respondent pointed out in this latter connection
that its most recent contract with this Union at another
plant contained the Union's agreement to provisions
(quoted by Respondent to the employees) which "vest-
ed" in the Company the right to determine employee
qualifications for jobs, to assign employees to jobs,
and to assign duties to employees. ,
Unlike the Trial Examiner we are unable to ignore
the Respondent's preelection statements in resolving
the issue of Respondent's good-faith performance of
its bargaining obligations., Respondent's objective con-
duct in the period following the Union's certification,
described below, contains numerous indicia of Respond-
ent's continuing hostility to the Union and of its deter-
mined intent, consistent with that suggested by Respond-
ent's preelection letters, to restrict the Union in the
performance of its representative functions.
Second, a striking aspect of this case is the inordinately
long delay of almost 3t months that intervened between
the Board's certification of the Union on October 26,
1966, and the time when face-to-face negotiation of
'' The Trial Examiner's unwillingness to give any weight to Respond-
ent's preelection statements in resolving the good-faith issue seems
to have been based, in part, upon an erroneous assumption that Johanes-
sen, (whose "personal strategy," constituted as the Trial Examiner's
notes, the "fount i of General Counsel's case") had played no part
in the Respondent's conduct of its antiunion preelection campaign
It is true that District Production Superintendent Magee's signature
appears on most of the preelection literature, and that it was Magee
who prepared and delivered the October 3 speech referred to by the
Trial Examiner However, Johanessen's testimony reveals that Magee
checked his campaign communications with Respondent's California
labor relations staff (which included Johanessen) before distributing
them According to Johanessen, the task of checking the "preelection
literature" was assigned to his assistant, Charles Lantnp-one who
also subsequently served as a member of Respondent 's negotiation
committee Johanessen also testified that, while Lantrip was "pretty
much on his own" with respect to approving the material, Lantrip
did in fact "consult" with Johanessen from time to time" before
approving the distribution of the various "literature items "
contract terms actually began. A substantial part of
the delay was attributable to Respondent's foot-dragging
in responding to the Union's bargaining and information
requests and to Respondent's lack of diligence in setting
meeting dates. The relevant facts-all undisputed-are
as follows:
On November 8, 1966, the Union wrote, asking that
a meeting be scheduled at the earliest date on or after
November 20, "so that negotiations could be swiftly
completed prior to the strike deadline in the oil industry,"
then set for December 31, 1966.7 In the same letter,
the Union, also asked for extensive information about
pensions and insurance benefits, classifications and pay
rates, and paid vacation, holiday, and leave policies
then in effect. Respondent failed to reply to the Union's
letter until November 21, and then merely said: "We
will be available for a meeting on ' either December
13, 14, or 15, 1966. At this time we can begin to
discuss the information requested in your letter of
November 8, 1966." Although Respondent thereafter,
on December 4 and 6, 1966, did supply the Union
with the wage, and certain of the other information
the Union needed to prepare its contract proposals,
it did so only after the Union had made a second
request for the information (by letter dated November
25) and had threatened to file 8(a)(5) charges if its
request was not honored promptly." Respondent did
meet with the Union on December 14. But in doing
so, it came prepared neither to engage in face-to-face
negotiations nor to do more than "accept" the Union's
bargaining proposals for future consideration and to
announce the procedural conditions under which it would
negotiate. Respondent then failed to schedule another
meeting until January 17, more than 30 days later. At
the conclusion of that session-the first at which active
discussion of contract terms occurred-Respondent
asserted it could not meet again until January 30.9
In noting the inordinate delay in the commencement
of negotiations, we are mindful of the fact that in
November and December 1966, and in the early part
As of the date of that letter, industrywide negotiations were still
in progress These negotiations covered a multiemployer unit including
Chevron employees and looked to a contract to follow the one expiring
on December 31, 1966 They were concluded sometime in January
1967, and resulted in a contract containing a larger package of wages
and benefits than that in the prior contract
8 Even then Respondent did not furnish all the information the Union
had asked for
8 It is well established that unreasonable employer delays in according
unions the opportunity to engage in face-to-face negotiations, even
though not deliberate, constitute impermissible impediments to the effec-
tive operation of the bargaining process as contemplated by the Act
The reason for this, as the relevant cases make clear, is that the
postponement of collective bargaining tends to weaken and impair the
unity and economic power of the represented group on the one hand;
and, on the other, to secure for the employer a dominant position
at the bargaining table See , for example , A H Belo Corp v N L R B.,
411 F 2d 959 (C A 5), N L R B v Exchange Parts Co , 339 F 2d
829, 832-835 (C A 5), "M" System Inc , 129 NLRB 527, 548-549,
J H Ritter Rev Mfg Co , Inc , 86 NLRB 479
The importance of prompt negotiations to a union's maintenance
of its bargaining strength is even greater where, as here, the employees
have never before been represented, and, in addition, they have in
effect been told by their employer that their selection of the union
would be a futile act
CHEVRON OIL COMPANY
of January 1967, Respondent was also a participant
in the negotiations which ultimately settled the terms
of the nationwide oil industry contract for a period
effective January 1, 1967. But, on the record before
us, we do not believe that Respondent's foot-dragging
in the handling of its relations with the Union here
was justified by its preoccupation with bargaining obliga-
tions elsewhere. The testimony of Johanessen and Lan-
trip plainly reveals that neither of them was charged
with the responsibility of representing the. Respondent
at the industrywide negotiations, and that, moreover,
they are but two of a total of eight individuals who
compose Respondent's permanent complement of labor
relations experts. Nor does Respondent's bargaining else-
where supply legitimate explanation for its failure to
reply to union bargaining , and information requests with
the same kind of promptness and courtesy which it
is reasonable to assume it would display in the conduct
of other of its important business affairs. Viewed in
the context of Respondent's earlier antiunion campaign
and of its later conduct at and away from the bargaining
table, we find that Respondent's delaying tactics supply
affirmative evidence that Respondent's hostility to the
Union survived the election and that it was unwilling
to accept and to deal with the Union in good faith.
Third, Respondent's course of conduct in the negotia-
tions, particularly when appraised with its other conduct,
elsewhere considered, reflects that it approached the
bargaining table with the attitude of an employer who
is unreconciled to his employees' choice of union repre-
sentation, who is determined not to surrender in any
material respect the full freedom'he previously enjoyed
to regulate his labor relations unilaterally, and who
has no serious desire to reach agreement through the
peaceful processes of collective bargaining, except, per-
haps, upon a basis which would subvert the Union's
bargaining status. The aspects of the Respondent's 'con-
duct at the bargaining table which we deem particularly
noteworthy are as follows:
On January 17, 1967, the first day on which active
bargaining commenced, Respondent, after ostensibly
submitting the union proposals to give-and-take discus-
sion, rejected virtually all of them.10 On January 18,
it placed on thetable a draft of the bargaining contract
terms it had previously formulated and, by the next
session , held on January 30, made clear that it would
stand firm on its proffered contract terms. Thereafter,
throughout the course of the negotiations, it continued
to insist on its contract terms without any modification
of any major item they contained.
As more fully described in the Trial Examiner's Deci-
sion, Respondent unyieldingly demanded an absolute
1" Of the approximately 25 specific demands for changes in working
conditions which the Union's initial draft proposed, Respondent
acquiesced in only two- those covering shift wage differentials and
paid holidays Both of these provided for the differentials and holidays
to which it had agreed in the industry contract However, as noted
by the Trial Examiner, practices at this plant with respect to holiday
pay rights were in fact more liberal than those at other plants where
employees were required to work 6 months before getting paid holiday
rights The Union was not aware of this fact when it made its proposals
447
right of unilateral control over most of the important
aspects of the employment relationship. As the ostensible
quid pro quo, it offered only to guarantee that unit
employees would be paid the same wage rates and
receive the same fringe benefits as those its unrepresent-
ed employees would receive under its established poli-
cies. But even with respect to such wage and benefit
rates, Respondent's contract proposal reserved to man-
agement complete discretion to alter the terms of the
fringe benefits and to decide that, because of "special"
circumstances, Respondent could pay or compensate
any employee at more than the contract's guaranteed
rate. Furthermore, in line with its preelection statement
to employees that if the Union was selected, Respondent
would not agree to union demands contemplating any
restrictions on its freedom to "run this plant" or "to
establish basic jobs" as it saw fit, Respondent's proposed
contract sought an unfettered right unilaterally to estab-
lish new job classifications; to eliminate or to merge
existing ones; to assign to employees in listed job classi-
fications any duties described in other job classifications;
to assign unit work to out-of-unit employees; to transfer
unit employees to out-of-unit jobs, and out-of-unit
employees to unit jobs; to promote, demote, or select
employees for layoff on the basis of its own judgment
of the qualifications and ability of its employees (using
seniority as a factor only if, in its judgment, other
factors were equal); to discharge or discipline employees
for such "cause" as management might define it; and
to follow or to change any existing practices or shop
rules about which the contract was silent. At the same
time, Respondent proposed a tight "zipper" clause to
preclude bargaining on these and other subjects during
the contract term. In addition, it insisted on a rigid
no-strike clause, while refusing to submit any of its
actions to any form of arbitration.
The Union refused to contract on the basis of
Respondent's terms for the expressed reason that it
and the employees whom it represented would be better
situated without any contract at all-and with reason.
For without the contract demanded by Respondent the
Union would have the statutory right to: (1) advance
consultation and bargaining concerning the mandatory
bargaining subjects as to which • Respondent insisted
upon unilateral control; and (2) grieve and engage in
strike action in the event that changes in conditions
of employment made without union consent were deemed
serious enough to warrant such economic action.
The Union did, however, make numerous attempts
to move closer to Respondent's position. As set out
more fully in the Trial Examiner's Decision, the Union
variously (but unsuccessfully) sought to compromise
by offering to accept a no-strike clause if Respondent
would agree to, arbitration; by proposing as a substitute
for Respondent's management rights clauses the manage-
ment rights provisions contained in the Union's contract
at the El Paso, Texas, plant of a sister company;"
" The El Paso contract's management rights clause was the one
referred to by the Company in its preelection literature This vested
in the Company the right of "supervision and control of all operations,
and the direction of all working forces, such as the determination
(Cont )
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and finally by indicating that it might be willing to
accept all of Respondent's proposals on these subjects
as made on the one condition that Respondent agree
to a voluntary arbitration procedure whereby if the
Union requested arbitration of a disputed issue, Respond-
ent was free to refuse, but the Union would then be
free to strike over that issue.
The reasons for Respondent's adamant insistence on
its broad restrictive proposals, as expressed at the bar-
gaining table, and by its negotiators at the hearing,
were clearly not related to any present or then anticipated
business needs of the Company. Nor did Respondent
seek to justify its demands on that basis. Its position
seemed to be, simply, that so long as the Union would
not or could not strike its operations, Respondent risked
nothing by insisting that the Union waive its rights
to bargain in the broad areas above described as a
condition of obtaining any contract at all.12
As legal justification for its bargaining attitude and
conduct, Respondent relies heavily upon the Supreme
Court's holding in American National Insurance Co.
v. N.L.R.B., 343 U.S. 395, that "management rights"
proposals are among the appropriate subjects of collec-
tive bargaining. But the Court in that case also made
clear that the right to negotiate for the inclusion of
management rights proposals in a contract is not unqual-
ified, but, as in the case of all other proposals covering
bargainable matters, remains subject to the application
of good-faith bargaining standards. See 343 U.S. at
page 409. In the instant case, the extreme breadth of
the management rights provisions demanded by Respond-
ent, viewed in context with the other considerations
of the size of the work force, the right to hire, suspend, discipline
and discharge for just cause, the establishment of work rules, the
assignment of employees to jobs and assignment of duties to employees,"
all subject to a provision that "the Company will not exercise these
rights for the purpose of violating the terms of this agreement " In
addition, although that contract contained a no-strike clause, it also
provided for arbitration
ii We note in this connection Johanessen's testimonial explanations
of the reasons for Respondent's adamant stand on the clauses which
would have stringently restricted the Union's exercise of its representa-
tive functions As noted by the Trial Examiner, Johanessen testified,
inter alia, that up to January 30, he would have considered offering
th Union "some form of arbitration" and a "better contract" but
then decided not to because of his certainty as of that date that
the Union could not or would not take strike action Based in part
upon his unsupported assumption that Johanessen played no part in
the Respondent' s preelection campaign , the Trial Examiner concluded
from the above-described testimony that Johanessen was prepared at
the outset of negotiations to discuss and to consider the bargainable
issues in good faith We do not adopt this conclusion Indeed, and
bearing in mind Respondent 's announcements during the preelection
period, we believe Johanessen's overall testimony plainly reveals that
Respondent's proposals were not framed or advanced with any business
objectives in mind, but that they were formulated, rather, with a view
toward demonstrating to the unit employees the "truth" of Respondent's
preelection statements as to Respondent's ability and intent to frustrate
union attempts to obtain any effective voice in establishing or maintaining
work and job conditions
In any event, and to the extent that Johanessen's testimony might
be viewed as an averment of his good-faith approach to the collective-
bargaining process, we view that testimony at best as a self-serving
declaration having no probative value sufficient to overcome Respond-
ent's manifestations of bad faith as revealed by its objective conduct
both before and after January 31
to which we have adverted, satisfies us that Respondent's
insistence on such provisions was guided primarily by
a purpose to bypass and undermine the status, authority,
and prestige of the Union as an employee representa-
tive-a purpose which we find antithetical to the concept
of good-faith bargaining. 13 American National Insurance
therefore provides no sanctuary for Respondent.
In light of its long experience in bargaining with
unions in all parts of its extensive operations, to which
Respondent proudly points, Respondent should be well
aware that its mere willingness to meet with the Union
and to proffer it a contract does not alone suffice as
a fulfillment of its good-faith bargaining duty. Even
in regard to meeting with the Union, Respondent seemed
determined to control the number and the frequency
of the meetings and to bring the bargaining to a state
of deadlock soon after it commenced. And in regard
to the specifics of its contract proposals , it is not without
significance that of the many contracts between Respond-
ent and other unions representing its employees, none
contained provisions so restrictive of union representa-
tive functions as the one which the Respondent adamant-
ly here proposed.
To summarize: The cumulative force of all the relevant
circumstances supports an inference that Respondent
never approached the bargaining table with a bona fide
intent to strive for a mutually satisfactory agreement.
On the contrary, and without giving conclusive weight
to any separate element in this case, we are convinced
and find that all times here relevant, Respondent was
committed to, and utilized, a purposeful bargaining strat-
egy designed to hamper the Union's performance of
its representative functions and to undermine the Union
in the eyes of its employees as an effective collective-
bargaining agent. The factors to which we attach particu-
lar significance include: (1) Respondent's display of hos-
tility to the Union during the preelection period; (2)
its delays immediately after the election in scheduling
bargaining meetings and in furnishing relevant bargaining
information to, and in otherwise conducting its business
with, the Union; (3) its refusal to consider any contract
which did not contain onerous restrictions on union
rights as evidenced by its insistence upon the combined
inclusion of "management rights" provisions, a rigid
no-strike clause, and no resort to arbitration; (4) the
lack of any demonstrated business justification for its
insisting on such stringent contractual restrictions on
the Union's exercise of its representative functions;
(5) the fact that Respondent has no contract with any
other union with such wide-ranging and onerous restric-
tions on union rights; (6) Respondent's systematic oppo-
sition in the course of more than 1 year of bargaining
to practically every proposal of the Union looking to
better noncost employee conditions and to the modifica-
tion of the broad waivers of bargaining rights Respondent
demanded as a condition of contract; and (7) its unlawful
attempts to have employees abandon the Union. On
the basis of the record evidence, we are persuaded
" Cf Indiana Metal Products, A Textron, Inc , 180 NLRB No
96, Stuart Radiator Core Manufacturing Co , 173 NLRB 125
CHEVRON OIL COMPANY
and find that, in its dealings with the Union at all
times on and after December 14, 1966, Respondent
failed and refused to negotiate in good faith and thereby
violated Section 8(a)(5)'and (1) of the Act. 14
3. The General Counsel has, also excepted to the
Trial Examiner's failure to find violative of the Act,
and to provide an appropriate compensatory remedy
for, Respondent's conduct in withholding from the unit
employees here involved,'during the period from January
1, 1967, to May 16, 1967, and on and after January
1, 1968, wage increases and improved benefits that it
granted other employees.'' We find merit in these excep-
tions.
As appears from the Trial Examiner's . Decision,
Respondent as a matter of normal, policy follows the
most recently negotiated industrywide contract in deter-
mining the wage and benefit ,increases to be granted
its unrepresented employees, and at plants not covered
by that contract, to be offered to organized employees.
The industrywide contract negotiated in late 1966 provid-
ed for a 14-cent hourly wage increase plus certain fringe
benefit increments to be effective January 1, 1968.
Respondent placed these wage benefit increases into
effect for its unrepresented employees as of the sched-
uled dates, and at its organized facilities not covered
by the industrywide agreement included them in its
proposals to the affected unions when their contracts
were opened for negotiation. This wage benefit package
was offered the Union here involved at the first formal
bargaining meeting held on January 17, 1967. In the
subsequent negotiations, as the Trial Examiner found,
both parties understood that the Union had no serious
objection to the amount of the wage benefit package
so offered. The bargaining impasse which occurred on
January 31, 1967, and was never thereafter resolved,
resulted, not from any basic disagreement over economic
terms, but from Respondent's adamant insistence, found
to have been in bad faith, upon the inclusion in the
contract of broad " management rights" and related pro-
visions which, if accepted, would have largely eviscerat-
ed the Union's role as a statutory representative.
To avoid prejudice to the unit employees on an item
not in issue, the Union, following the impasse, sought
to have Respondent put into effect retroactively for
these employees, without a contract, the wage-benefit
increases it had earlier granted its unrepresented employ-
ees and offered the union. Respondent refused to do
so. Its wage benefit offer, it explained, was conditioned
on consummation of a full collective-bargaining agree-
ment , and it wanted to hold, back, the, increases as
a "club" or "leverage" to force the Union to yield
to Respondent' s bargaining position. On May 16, 1967,
Respondent relented partially from its earlier stand by
" Although we are satisfied that Respondent's violation of its bargain'
mg duty may properly be found as of the date of the Union"s certification,
the General Counsel's exceptions ask only that the violation be dated
as beginning on December 14, 1966, and that its earlier conduct be
viewed only as background evidence of Respondent's failure to conduct
its negotiations in good faith Our findings accord with this request
The aforesaid conduct was alleged to be violative of Sec 8(a)(I)
and (3), as well as part of the alleged 8(a)(5) violation
449
putting into effect for unit employees, without a contract,
the first phase 14-cent hourly increase it had granted
other employees at the beginning of that year. But
it made that increase effective only from the May 16
date. The denial of retroactivity thus stood as a reminder
to the unit employees that they would have fared better
had they remained unrepresented. Respondent did not-
at least up to the date of the close of the hearing
in this case-place in effect for unit employees the
second phase 4-0ercent wage increase called for by
the industrywide" contract, although this increase was
made effective for'all its other employees, both represent-
ed and unrepresented, as of its January 1, 1968, sched-
uled date.ts Respondent rejected the Union's request
to have this increase extended to unit employees as
well. The reason it gave the Union for this withholding
was the same as for the earlier one. However, other
evidence reveals that Respondent intended the withhold-
ing to serve a broader purpose-to impose economic
pressure on the unit employees to induce them to get
rid of-the Union. 17
The Trial Examiner dismissed the complaint's 8(a)(1)
and (3) allegations- predicated on Respondent's wage
benefit withholdings. In his view, Respondent's conduct
amounted to no more than an exertion of "economic
pressure at the bargaining table" which had neither
the purpose nor' the effect of coercing employees in
the exercise of their bargaining rights or of discouraging
their desire for membership in the Union. In arriving
at that conclusion, the Trial Examiner-as his analysis
of this issue shows-evaluated Respondent's withholding
action in isolation,' without relating it to Respondent's
unlawful course of bargaining and to the 8(a)(1) violation
that he found. In this respect we believe the Trial
Examiner erred, `and therefore erred, as well in the
conclusion he reached.
Were it -not for the unfair labor practice setting in
which the withholding action occurred, we would have
had no hesitancy in adopting the Trial Examiner's finding.
It has long been an established Board principle that,
in a context of good-faith bargaining, and absent other
proof of unlawful motive, an employer is privileged
to withhold from organized employees wage increases
granted to unorganized employees or to condition their
grant upon final contract settlement. Shell Oil Co., 77
NLRB 130. As-the Supreme Court made clear in Ameri-
can Ship Building Co. v. N.L.R.B., 380 U.S. 300, the
Act accords employees no right to insist upon their
bargaining demands free from economic disadvantages,
and an ' employer's use of economic pressures solely
"' In the , case of represented employees this was in accordance with
contracts earlier made,
" Thus, as found by the Trial Examiner , Respondent , through District
Superintendent Kirkvold , in a conversation with certain unit employees,
attributed "the absence of benefits ' to the fact that the employees
were represented by, Local 826, and [promised] that there would be
additional benefits if the employees would forego such representation."
This conversation occurred on December 6,,1967 A meeting had been
scheduled for the following day to consider , inter, alia, the Union's
request that the second phase increase be made effective for unit
employees on its scheduled date
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in support of a bargaining position cannot be held unlaw-
ful for that reason alone.
In Shell Oil, however, the Board was careful to restrict
the principle it there declared to situations where an
employer was engaged in good-faith bargaining. And,
similarly in American Ship Building, the Supreme Court,
in upholding the legality of the lockout involved in
that case, thought it important to stress the employer's
"legitimate" bargaining position and to observe that
in the case before it there was
no allegation that the employer used the lockout
in the service of designs inimical to the process
of collective bargaining. There was no evidence
and no finding that the employer was hostile to
his employees' banding together for collective bar-
gaining or that the lockout was designed to discipline
them for doing so."
The Court also specifically distinguished cases "where
the Board has concluded on the basis of substantial
evidence that the employer has used a lockout as a
means to injure a labor organization or to evade his
duty to bargain collectively." 380 U.S. at 308.
In a case subsequently decided, American Store Pack-
ing Co., 158 NLRB 620, the Board pointed to this
distinction in holding a lockout by an employer to be
unlawful under Section 8(a)(1) and (3), where an impasse
had resulted not from a good-faith disagreement over
economic matters, but from the employer's refusal to
negotiate in a lawful manner. The Board found that,
as the lockout was in support of a bargaining position
taken and maintained in bad faith, it was without "legiti-
mate" economic justification.
Although the economic pressure imposed on the unit
employees in this case took the form of a wage benefit
withholding rather than a lockout, we believe that, the
distinction drawn in American Store Packing and the
principle there applied are equally applicable here. It
is apparent to us that the wage benefit withholding
in the instant case, like the lockout in the last cited
case, was used by Respondent "in the service of designs
inimical to the process of collective bargaining." The
foreseeable and clearly intended effect of the withholding
was to confront the Union with a Hobson's choice:
The Union could either capitulate to Respondent's bad-
faith bargaining position, and thereby abdicate in large
measure its statutory role as an employee representative,
or it could remain without any contract at all while
the unit employees continued to suffer the loss of benefits
being enjoyed by other employees and which would
have been theirs also had they not voted in the Union.
Whichever path the Union chose, it could only lead
to undermining it in the eyes of employees as an effectual
employee representative. As the Respondent's withhold-
ing action was thus an integral part of its unlawful
course of conduct,'" it must also be viewed as repugnant
to statutory policy, and therefore cannot be justified
as conduct serving legitimate interests of Respondent.
" See 380 U S at 308-309
" That course of conduct, as our findings elsewhere reflect, began
before the start of the negotiations `^
In our judgment, the record in this case establishes
all the elements necessary to support the complaint's
8(a)(l) and (3) allegations relating to the wage benefit
withholdings. Clearly there were discrimination in the
sense of economic injury, both because the unit employ-
ees were being denied benefits granted others, and
because they were being deprived of benefits they would
have enjoyed had they remained unrepresented. As the
injury thus imposed was a direct outgrowth of the
employee's selection of the Union and the Union's
frustrated effort to bargain on their behalf, the discrimi-
nation had a natural tendency and foreseeable effect
of reducing employee desires for continued union repre-
sentation. We have already found that the withholding
action may not in the circumstances of this case be
viewed as a "legitimate" use of economic pressure
to obtain a favorable contract. There remains, then,
only the question of unlawful motivation. We believe
that this element is adequately satisfied by the finding
of Respondent's unlawful bargaining, which the with-
holding served to implement and of which it was part
and parcel. But if more specific proof of unlawful purpos-
es in the withholding itself is deemed necessary, it
is supplied by the findings based on Kirkvold's December
6, 1967, coercive statements to employees to which
we made reference above.
For the reasons expressed, we find that Respondent's
withholding of the wage benefit package was, as alleged
in the complaint, violative of Section 8(a)(1) and (3),
as well as an integral part of its 8(a)(5) conduct. We
shall therefore provide the usual remedy therefor, includ-
ing a direction that the unit employees be made whole
for the losses they thereby sustained.20
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and hereby orders that Respond-
ent, Chevron Oil Company, Standard Oil Company of
Texas Division, Snyder, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the
following addition:
1. Insert the following as paragraph 2(b) of the Order,
and renumber the remaining paragraphs now contained
in the Trial Examiner's Decision accordingly:
"Make whole the employees in the unit found
appropriate herein for any monetary losses they have
2 We believe, moreover, that even in the absence of an 8(a)(l)
and (3) finding, such a make whole remedy for the 8(a)(5) violation
is warranted Respondent in its contract proposal conceded in effect
that the unit employees were due the increased wages it offered. It
is reasonable to conclude that but for Respondent's unlawful bargaining
an agreement would have been reached prior to the January 31, 1967,
impasse, and would have included the increases offered by Respondent
as a very minimum. The amount in question is clear, definite, and
certain, and not a matter for speculation In these circumstances, it
appears to us that such a remedy is clearly justified in this case
on the basis of existing Board precedent See Petrolane Gas Service
Co. 174 NLRB No 88
CHEVRON OIL COMPANY
suffered as a result of the Respondent's failure to make
applicable to such employees the increased wages and
benefits generally granted by Respondent to its unrepre-
sented employees as of January 1, 1967, and again
as of January 1, 1968, together with interest at the
rate of 6 percent per annum."
2. Footnote 57 second sentence should be amended
to read as follows:
"In the event this Order is enforced by a judgment
of the United States Court of Appeals, the words in
the notice reading `Posted by Order of the National
Labor Relations Board' shall read 'Posted pursuant to
a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations
Board.' "
3. Add the following paragraph as the last indented
paragraph on the notice which Respondent is required
to post under the provisions of this Order:
WE WILL reimburse the production and mainte-
nance employees represented by the above-named
Union at our North Snyder, Texas, gas plant, for
any monetary losses they have suffered as a result
of our failure to make applicable to such employees
the increased wages and benefits we generally grant-
ed to our unrepresented employees as of January
1, 1967, and as of January 1, 1968, together with
interest at the rate of 6 percent per annum
TRIAL EXAMINER'S DECISION
HAROLD X. SUMMERS, Trial Examiner: This matter
was first heard on the complaint' of the General Counsel
of the National Labor Relations Board (herein called
the General Counsel and the Board, respectively), alleg-
ing that "Standard Oil Company of Texas" had engaged
in and was engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act): The answer to the com-
plaint admitted some of its allegations, denied some,
disclaimed knowledge as to others, and pleaded affirma-
tively; in effect, it denied the commission of any unfair
labor practices. Pursuant to notice, a hearing on the
issues was held before me at Snyder, Texas, on 7
days between August 29 and September 14, 1967, inclu-
sive. On the first day of hearing, the name of the
party respondent was corrected to that which appears
in the caption of this case (herein called Respondent);
the complaint was amended by the addition of further
allegations of violations of Section 8(a)(5) and (1) of
the Act; and the answer to the complaint, as amended,
again denied the commission of any unfair labor prac-
tices.
After the hearing on the original complaint had ended,
but before any decision thereon was issued, a second
complaint was issued,2 alleging that Respondent had,
been and was engaging in unfair labor practices within
' The original complaint (Case 16-CA-2890) was issued April 24,
1967, the charge initiating the proceeding was filed on February 9,
1967
2 In Case 16-CA-3221, on March 29 , 1968 The charge initiating
the new complaint was filed on February 7, 1968
451
the meaning of Section 8(a)(1), (3), and (5) of the Act.
Respondent's answer admitted some of the allegations
of the new complaint, denied others, and disclaimed
knowledge as to others; in effect, it denied the commis-
sion of any unfair labor practices.
Prior to the opening of the hearing on the second
complaint, the General Counsel, representing that the
purposes of the Act would be effectuated and that
unnecessary costs or delay would be avoided thereby,
moved that the record based on the original complaint
be reopened and that the two complaint proceedings
be consolidated. The motion was granted and, pursuant
to notice, a further hearing on the consolidated proceed-
ings was held before me at Snyder, Texas, on May
21 and 22, 1968. At the resumed hearing, the new
complaint was amended in certain respects; and
Respondent's answer to the amended allegations, made
at the hearing, still constituted, in effect, a denial of
the commission of any unfair labor practices.
During each of the series of hearing sessions, all
parties were afforded full opportunity to call and examine
and to cross-examine witnesses, to argue orally, and
thereafter to submit briefs.3
The points at issue are (1) whether Respondent,
through an agent, interfered with, restrained, or coerced
employees in the exercise of their self-organizational
rights (a) by promising benefits and threatening the loss
of benefits to induce them to forego union representation
and (b) by withholding from employees certain increased
wage benefits during each of two periods of time; (2)
whether Respondent, by the withholding of benefits
referred to in (1), (b), supra, discouraged membership
in Local 826 by discrimination with respect to working
conditions; and (3) whether Respondent, through agents,
refused to bargain with Local 826 within the meaning
of the Act (a) by making the promises and threats
alluded to in (1), (a), supra, in that this conduct was
designed to undermine the union and to destroy its
majority status, (b) by withholding the benefits referred
to in (1), (b), supra, in that this conduct was designed
to undermine the union and to destroy its majority
status, (c) by bargaining directly with employees over
working conditions, thereby derogating from the exclu-
sive bargaining representation status of Local 826, and
(d) in view of the facts revealed by the evidence sur-
rounding the above issues and under the circumstances
of its overall negotiations with Local 826, by merely
going through the pretense of bargaining, thereby failing
to discharge its obligation to bargain in good faith.
Upon the entire record4 in the case, including my
' At the close of the first series, pursuant to permission granted,
Respondent filed a reply brief and the General Counsel filed a counterre-
ply brief
' On or about October 12, 1967, the General Counsel filed a motion
to correct the transcript of the hearing up to that date, and, on May
10, 1968, 1 issued an Order To Show Cause why the transcript should
not be corrected in specified respects, some but not all of which
corrections were contemplated by the General Counsel's motion No
good cause to the contrary having been shown, the corrections indicated
in the Order To Show Cause (which is received in the record as
Tx Exh 1) are hereby ordered made The General Counsel's motion
to correct the transcript is hereby granted to the extent it seeks correc-
(Cont )
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evaluation of the reliability of witnesses based upon
the evidence and my observation of their demeanor
I make the following
FINDINGS OF FACT
I COMMERCE
Standard Oil Company of Texas is a division of
Chevron Oil Company, a California corporation wholly
owned by Standard Oil Company of California, also
a California corporation,5 a division which with its
914 employees, is primarily engaged in the exploration
and drilling for and the extraction and processing of
gas and liquid hydrocarbons The division, at all times
material herein, has maintained its principal office and
place of business at Houston, Texas and, among other
facilities, has operated a plant at Snyder, Texas (some
times called the North Snyder gas plant), where it is
engaged in the production of gasoline and related prod-
ucts During the 12 months preceding April 24, 1967,
Respondent sold, and transported and shipped directly
from points within the State of Texas to points outside
the State of Texas products valued at in excess of
$50,000
Respondent is an employer engaged in commerce
within the meaning of the Act
II THE UNION
The charging party, Local 826, International Union
of Operating Engineers , AFL-CIO (herein , Local 826),
is a labor organization within the meaning of the Act
III THE ALI EGED UNFAIR LABOR PRACTICES
A Background and Setting
The North Snyder gas plant is engaged in the stripping
of liquid petroleum from raw gas, the heavier compounds
are drawn out and sold (at wholesale) in liquid form,
while the gas is sent out in pipelines
During the period relevant hereto 18 nonsupervisory
employees worked at the North Snyder plant This group
constituted all of Respondent's nonsupervisory produc-
tion and maintenance employees at this plant, which
group (specifically excluding guards, office clerical and
professional employees, and supervisors as defined in
the Act) I find to be a unit appropriate for purposes
of collective bargaining
Prior to the fall of 1966, no employees of Respondent
had been organized for bargaining purposes'' On October
20, 1966, in a Board proceeding and pursuant to the
agreement of all parties, a vote among the employees
in the instant bargaining unit was conducted by the
Lions which hive been mide by this order in other respects it is
denied
Not a p irty hereto
Respondents p Trent Stand ird Oil Company of California itself
or through other iffilvites de ilt with 28 different unions-including
Loc,il 826- it 70 loc ttions
Regional Director for Region 16 in which a majority
designated Local 826 as their representative for bargain-
ing purposes, and, on October 28, the Regional Director
certified that local as the exclusive bargaining representa-
tive of the employees in the unit I find that, on and
after October 20, 1966, including all times pertinent
hereto, Local 826 has been and is the exclusive represent
ative of all employees in said unit for purposes of
collective bargaining over working conditions
I find further that, at least since November 8, 1966,
and at all pertinent times thereafter, Local 826 has
requested and is requesting that Respondent bargain
with it over the working conditions of the employees
in the unit
B Chronology of Events
I The preelection conduct
As requested by the General Counsel, I find that,
on or about October 3, 1966-shortly prior to the holding
of the representation election alluded to in the subsection
immediately preceding this one-Mr D T Magee, then
Respondent's production superintendent for the District
which included the North Snyder plant, delivered a
speech to the employees who were eligible to vote
purporting to express "the company's position," he
displayed an unmistakable aversion to unions, presented
strong arguments against the employees' voting for repre-
sentation by Local 826, and, among other things, said,
"There is no law that forces the company to agree
with the views and demands of the union, even if
the union should win an election here ' I find, on
the other hand, that Edward Johannessen assistant man
ager in the labor relations department of Respondent's
parent corporation, Standard Oil of California-and the
individual whose personal "strategy," the General Coun-
sel here argues, established Respondent's "intransi
gence" in its subsequent bargaining conduct-played
no part in the preparation or in the delivery of the
speech
2 The opening of negotiations-The first session
(December 14 1966)
As noted earlier, Local 826 won the election and
was certified as the affected employees' bargaining agent
on October 20, 1966 By letter dated November 8,
from Frank Parker, business manager of the local, to
Magee, Local 826 asked for certain information, gave
the names of those on its plant "workmen's committee,"
noted its readiness to begin negotiations after November
20, and asked to be advised of dates available for
meetings On November 21, Magee wrote Parker that
company representatives would be available for a meet
ing on December 13, 14, or 15, at which time, also,
they would be ready to discuss the information requested
in the letter of November 8 Parker by letter of Novem-
ber 28, suggested that the first meeting be held on
December 14, responding, Magee assented only noting
CHEVRON OIL COMPANY
that the meeting be held at the District offices instead
of at the plant
Before the date scheduled for the meeting, Parker
protested the failure of Respondent to have submitted
the information requested by him in his letter of Novem-
ber 8 In a letter sent on December 2, he stated, In
your letter of November 21, 1966, you said that we
would discuss [the requested information ] at our negotia
tions meeting on December 14th This is not satisfac-
tory " He stated that Local 826 intended to submit
a complete contract proposal on December 14, and
that the information was necessary for its preparation
"If I do not receive this information shortly," the letter
continued , " I shall be obliged to file a refusal to bargain
charge with the NLRB " In his letter , Parker also noted
that Respondent had made certain "policy changes"
since the election , which changes, he suggested, ought
to be discussed with the union s employee representa-
tives whose names had been furnished earlier He closed
with the hope that negotiations could be swiftly complet-
ed-"prior to the strike deadline in the oil industry,"
then set for December 31, 1966
Magee responded on December 6 His letter, with
attachments , gave certain of the requested information
and purported to explain why the rest of it would
require discussion at the meeting set for December
14 As for the "policy changes" mentioned in Parker's
letter , Magee disclaimed any knowledge
The first negotiating meeting between Respondent and
Local 826 was held at Respondent ' s District offices
on December 14 Each was represented by a group
of individuals, for whom Edward Johannessen and Frank
Parker were the respective principal spokesmen
The meeting started at 9 a in At the outset, Parker
mentioned some matters which Local 826 regarded as
`grievances ," and company representatives said these
matters would be looked into
Parker presented a comprehensive contract proposal
on behalf of Local 826 He noted that progress was
being made on industrywide wage negotiations then going
on" and that a new wage pattern would undoubtedly
emerge before the year ended, he hoped that the parties
here would have as many meetings as possible in Decem-
ber, so that there would be ` no problem" about the
wage increase Johannessen agreed that time was of
the essence , but said he did not believe that a contract
could be consummated by the end of December, he
called attention to the tightness of Respondent ' s repre-
sentatives schedules , pending negotiations with other
unions, and the imminence of the holiday season Among
other things, he alluded to the possibility that manage-
ment might be faced with an industrywide strike, Parker's
response ` Well, you might have one here, too '
As a point of procedure , Johannessen said that
Respondent would not finally agree on any changes
of substance in contract language at the bargaining table
With few changes-where relevant noted below-the same groups
attended subsequent meetings and the same persons acted as spokesmen
" These negotiations involved a number of labor organizations and
a number of companies including Respondent
453
in each case, he said, a recess would be necessary
"for full consideration ' Moreover he said , all company
proposals or counterproposals would be in writing Local
826 objected to the delay involved, but Respondent
said that it wanted no misunderstandings , and the union
went along with the suggested procedure P
In this and in the subsequent meetings, I find, it
was understood by both parties that agreement on indi-
vidual items was dependent upon eventual agreement
on all items
The parties went over Local 826's proposals, but
not in depth They were read , and, occasionally, clarifica-
tion was requested and given At the end of the meeting-
which lasted about 2 hours-Johannessen said that the
proposed contract was the best he had seen from a
union standpoint and that Respondent intended to submit
one equally as good from a company standpoint at
the next session
At meeting ' s end , no date was fixed for a second
meeting Company representatives remarked that they
were engaged in many contract negotiations , perhaps,
they said, they could meet between Christmas and New
Year's Day-they would write or communicate by tele-
phone
On December 19, by notice posted on a company
bulletin board at the North Snyder plant , Respondent
informed its employees that the initial bargaining meeting
had been held, that Local 826 had presented its demands,
and that, after studying them , Respondent planned to
advise the union of its position at the next meeting
3 Respondent installs the industrywide benefits-The
second bargaining session (January 17 and 18, 1967)
By letter dated December 27, Magee notified Parker
of company representatives ' availibility for a 2-day meet
ing commencing at 10 a in on January 10 "' These
meeting dates were confirmed by Parker, who noted,
however, that Local 826 hart hoped to meet sooner
On or about January 4 Magee telephoned Parker
He said that despite prior arrangements , company repre
sentatives would not be available to meet on January
10 or 11 there were various conflicts in schedules,
besides, he (Magee) was being replaced by one Charles
F Kirkvold, who would be unable to be present at
that time He suggested a 1-week postponement of the
2 day session Parker protested the delay-the industry-
wide wage benefit pattern had already been arrived
at, he had heard that it was in effect at the other
company installations , and, therefore, he felt that any
delay was costly to members of Local 826-but under
" Rather loose language by witnesses for all parties could be interpreted
as meaning that Respondent would not only not bind itself to specific
language on any item agreed upon at a given bargaining session but
also that it would not come to agreement in principle upon the item
at that session The contextual use of the language as well as the
occurrences at later bargaining meetings recited below have led me
to make the findings I have just recited
"' Unless the contrary is indicated all dates referred to hereinafter
fall within the year 1967
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances, he said, he had no alternative except
to agree
On or about January 9, Respondent posted a notice
to its classified employees (i e , those entitled to overtime
pay under the Fair Labor Standards Act) to the effect
that as of January 1 1967, those of them who were
"unrepresented" were being given wage increases of
14 cents per hour ($24 50 per month for monthly paid
employees) increased shift differentials, from 8 cents
and 16 cents for the evening and night shifts, respec-
tively, to 10 cents and 20 cents, and an increase of
$3 50 per month to be contributed by Respondent toward
the premium for hospital coverage for dependents of
each such employee I find, as a fact, that these new
working conditions, resulting from the industrywide wage
bargaining referred to earlier herein," were put into
effect on or about January 1, 1967, for all such employ-
ees, and that they were not, at that time, put into
effect, at any installation of Respondent (or of its parent
corporation, Standard Oil Company of California, or
of any other subsidiary of Standard of California) at
which the employees were represented by a union
Pursuant to their latest arrangements, Respondent
and Local 826 resumed negotiations at 10 a in on January
17
The morning was occupied with a discussion of the
proposals which had been made by the union Respond-
ent accepted the shift wage differentials as proposed
(they were the same as those which formed a part
of the wage benefit package already reached in the
industrywide bargaining) and the proposal for eight paid
holidays It rejected other of Local 826's proposals
for example, that there be no job changes except by
mutual agreement, that all existing benefits not changed
by the present contract were to remain unchanged for
the life of the contract, that no hours be added to
the workweek except by mutual agreement , that there
be no work on Sundays, that there be 5 hours' advance
notice of overtime, that transportation home be furnished
to employees after overtime work, that no "unit work"
be assigned to other than unit employees except in
emergency situations, that there be no contracting out
of routine maintenance work, and that construction work
be contracted out, if possible, to AFL-CIO building
trades, that double time be credited for the seventh
consecutive day or for time beyond 16 consecutive
hours of work, that, in the case of promotions, there
be a pay increase as of the first day, that overtime
be equally distributed, that the seniority area to be
used be that of employees in the North Snyder plant
only, that vacancies be posted, that there be severance
pay, and that the grievance procedure terminate in arbi-
tration Finally, Respondent agreed to look into and/
or submit counterproposals on a number of these or
still other items
At or about this point , Respondent orally offered
the same wage benefit package which had been arrived
at in industrywide bargaining and which had already
" Herein'ifter for convenience sake this collection of benefits will
be referred to is the wige benefit package or the 1967 increase
been given to Respondent's unrepresented employees
Although Local 826 had been asking for a greater hourly
increase-23 cents-and although no final agreement
was reached on the point at this time , it was understood
(I find) that, from this point forward no one had serious
objection to the size of the wage benefit package as
thus offered
Just before the luncheon recess on the 17th, Respond-
ent presented a comprehensive set of written proposals
for a contract, and it was arranged that the parties
return at I p m for a discussion of these proposals
The afternoon resumption was delayed somewhat by
the tardy arrival of Kirkvold His assumption of the
position of District production superintendent succeeding
Magee had become effective on January 1, but he did
not actually report for his regular duties until March
3 or 4 Meanwhile, he attended negotiation meetings
starting with this afternoon of January 17 Still, as
before, Johannessen acted as a principal spokesman
for Respondent
In its written proposals, Respondent offered the same
wage benefit package which it had orally offered earlier
In effect, as I have said, this package was acceptable
to Local 826 at this time, but there was no instant
agreement as to the date of effectuation I find that,
insofar as both parties to the negotiations were con
cerned, the date of implementation, and any retroactivi
ty, would await further negotiations
Early in the afternoon session, the parties began
to compare and to discuss Local 826's and Respondent's
proposals A few areas of agreement were found for
example, the definition of the basic workday and the
workweek (except that Respondent did not agree that
changes were to be made only by mutual agreement),
and the amounts of the shift differentials And Respond-
ent, at this time, took a firm position on at least one
issue it rejected Local 826's proposal that there be
no layoffs in the event of a temporary shutdown
Also, other items were discussed at this session
Respondent had proposed that, at its option, it be permit-
ted to pay individual employees more than the minimum
rates listed in the contract Local 826 objected, asking
for reconsideration of the proposal, and Johannessen
said Respondent would "look into" it Likewise, with
respect to Local 826 s proposal that overtime rates be
paid for time worked over 8 hours in a 24-hour period
and over 40 hours in a workweek, Johannessen said
Respondent would study the problem, and he said the
same about the union's demand that overtime rates
apply for any employee working outside of his regularly
scheduled hours And, at or about this point, Respondent
agreed to give overtime pay for any work done on
the sixth day worked in any workweek
Respondent reiterated that it would not pay double
time for the seventh consecutive day of work in a
workweek or for time worked in excess of 16 consecutive
hours With respect to Local 826's demand that an
employee temporarily promoted immediately begin
receiving the higher rate of pay for the first hour of
work but that, on the other hand, there be no reduction
in normal pay in the case of a temporary demotion,
CHEVRON OIL COMPANY
the parties agreed that , although the language of their
respective proposals differed, they were in essential
agreement that this be the case
Respondent said that it would not agree to the proposal
that overtime be equally distributed among employees
As for the union's proposal that meals be furnished
in connection with certain overtime , Johannessen repeat-
ed his earlier statement that Respondent would come
up with a counterproposal
On seniority , the company at this time proposed com-
panywide seniority (Johannessen said Respondent did
not want to "build a fence " around the North Snyder
plant He argued that , from the standpoint of flexibility,
it would be unfair to the company and , from the stand-
point of promotional possibilities , it would be unfair
to employees ) Parker requested a list of all people
Respondent considered to be covered by its seniority
proposal with dates of hire, and Johannessen asked
whether , if the list were furnished , Local 826 would
accept the proposal When Parker refused to give him
that assurance , Johannessen said that Respondent would
consider whether it was legally required to furnish such
a list-if so, it would do so
The session resumed the next morning , the 18th
Respondent submitted several revisions of its propos-
als of the day before-either crystallizing agreements
reached or making changes or additions in items upon
which agreement had not been reached
As for Local 826's proposal for severance pay,
Respondent stated that it intended to continue to give
or not to give severance pay on an individual basis-
and that it did not propose to put anything into the
contract on the subject
Respondent objected that Local 826's definition of
a grievance-which included violations of Federal and
State law-was too broad Local 826, in turn , objected
to Respondent 's proposal that individual employees or
groups of employees should have the right to present
grievances to management and that such grievances
might be adjusted without Local 826's intervention, even
though the proposal provided that such adjustment must
not be inconsistent with the terms of the agreement
and that a representative of the union be given an
opportunity to be present , Parker questioned the "lawful-
ness" of the proposed provision
There was some , but not extended , discussion of
arbitration at this time (In its original proposals the
union had asked for it , during the session of the previous
morning, as I have noted, the company had rejected
the request , and, in its own set of counterproposals,
Respondent had offered a grievance procedure the sec-
ond and last step of which was an appeal to Respondent's
District production superintendent ) Johannessen, in
effect , said that whether or not the company granted
arbitration depended on ` the kind of contract" it got
(On the credited testimony , I find that Johannessen
was accurately describing the company's arbitration-
position at the time, that, at the outset of the negotiations,
company officials had determined and were prepared
to give Local 826 "some form of arbitration ," dependent
upon appropriate concessions by that organization )
455
Local 826 ' s demand for clothing allowances was dis-
cussed Respondent said it was already doing most of
the things required by the clause and that "this did
not appear to be any great problem "
At one point in the session , Johannessen reminded
everyone present of Respondent's policy of recessing
and considering rather than attempting to formulate final
language at the bargaining table
The first subject of postluncheon discussion was the
"management rights" provision in the company's pro-
posal 12 Parker said that Local 826 had proposed no
management rights clause because it felt that all problems
arising during the term of the contract should be resolved
by mutual agreement , he said , though , that the union
would agree to a management rights clause but one
not nearly so broad as that proposed by Respondent-
that proposal , he said , took away any rights that Local
826 or the employees might gain under the contract
Johannessen , in rejoinder , said that Respondent had
had every right to run its business by itself until Local
826 came into the picture and that , by means of this
clause , it intended to keep all rights except those which
were actually bargained away Parker said, in effect,
that the union would be better off without a contract
than one containing the management rights clause pro
posed Johannessen expressed disagreement he said
that Local 826 by having this contract, might give up
certain things but would gain others The problem was
not resolved at this meeting
Local 826 accepted the proposal by Respondent that
an employee absent because of jury service must return
to work immediately after completing such service or
suffer a deduction in his pay, but it did not agree
that employees who failed to return immediately should
be subject to disciplinary action
Local 826 objected to the " work jurisdiction " clause
in Respondent ' s proposal on the ground that it gave
Respondent authority to make whatever work assign
ments it wished , in disregard of seniority , and to assign
out unit work within its own discretion Johannessen
said that Respondent wanted to assure itself that employ
ees were not going to "quibble " about this or that
12 The provision stated in part Section 4 The company reserves
and retains solely and exclusively all of the rights to manage the
business as such rights existed prior to the execution of this Agreement
It is expressly recognized that such rights powers authorities and
functions include but are not limited to the full and exclusive control
management and operation of the business the determination of the
scope of its activities products to be manufactured or processed and
methods pertaining thereto the determination of starting and quitting
times schedules of work production schedules and standards the
establishment or elimination of classifications the establishment change
elimination or consolidation of jobs the fixing of wage rates of new
jobs and classifications the introduction of new or improved procedures
methods processes machinery or facilities the maintenance of order
and efficiency the contracting or subcontracting of work the determma
tion of the location size and number of its plants the closedown
or sale of the plant or any part thereof the making and enforcement
of plant rules the determination of the size of the work force and
the assignment of duties to employees and employees to jobs and
the hiring suspension layoff recall scheduling assignment discharge
promotion retirement demotion or transfer of employees
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job assignment, and it was not going to agree to any
contract prohibiting its assignment of work.
Local 826 expressed agreement with Respondent's
proposed provision with respect to plant access for
union representatives. With respect to Respondent's pro-
posal that there be one union representative, Local
826 asked that, there be two. This, the company said,
would be taken under advisement.
As for a proposal by the company that the recognition
clause not be interpreted to limit its right to contract
out work or to transfer it to nbnunit employees, Parker
said that the implementation of this clause could com-
pletely wipe out the bargaining unit without any recourse
by the union. Johannessen conceded that this could
happen but said that there .vas no intention of achieving
this result. Local 826 suggested, at the most, that the
company be permitted to contract out work for which
it did not have the'men and equipment available. No
agreement was reached.
There was a discussion of future meeting dates.
Respondent suggested a resumption on January 30 and
31, the earliest dates available for its representatives.
Parker, deploring the fact that employees at the North
Snyder plant were losing the industry pay increase,
objected to the delay. He reminded the company that
the same wage benefit package covering the El Paso
plant-a plant of a sister-company whose employees
were represented by Local 826-was to be effective
immediately if accepted by the union before January
28,13 but, again , company representatives said they could
not meet before January 30. This was the next date
set as the meeting ended, at or about 2:50 plm.
4. The third session (January 30 and 31, 1967)
The next meeting of the parties began at 9 a.m.
on January 30.
(I find that, meanwhile, at some point between the
end of the second session and the beginning of this
one, Respondent's general bargaining position took on
a new dimension. Because, in his judgment, Local 826-
due to "weakness" or for other reasons-would take
no steps toward exerting economic pressure, Johannes-
sen decided that the' company would "give less" than
it might otherwise have done.)
At an early point in the session, agreement was
reached on the recognition clause as now presented.14
on access to the plant by union representatives; and
on the number of in-plant representatives (two) Local
826 could have., Agreement was not reached on the
company proposal that no union activity be conducted
by employees on working time or that the recognition
" I have noted that the wage benefit package had been installed
as of January I, for those employees of Respondent and its affiliates
who were not represented by unions Thereafter, as agreement was
reached with their respective bargaining agents, the package was extend-
ed to one or another union-represented bargaining unit, as of varying
dates on or after January I
" During the discussions of the respective issues during this day,
Respondent presented, in writing and on a piecemeal basis, a number
of new or revised proposals
clause not be interpreted to limit Respondent's right
to contract or transfer work to outsiders. Tentative
agreement was reached on the company proposal that
employees not suffer loss of pay while discussing griev-
ances.
Local 826 acceded to Respondent 's proposal as to
the tenure of the contract- one year and from year
to year'thereafter unless terminated on an anniversary-
but sought the insertion of a wage reopener as of Decem-
ber 31, 1967. Countering, Respondent asked if Local
826 would sign a 2-year contract. No agreement was
reached on these points.
The parties agreed on provisions with respect tot all
aspects of overtime work except that Local 826 wanted,
and Respondent refused to assure, equal overtime to
employees.,
IThe parties discussed and reaffirmed their prior tenta-
tive agreement as to shift differentials, and, once again,
the parties expressed their understanding that the ulti-
mate wage benefit package presented no real problem.
Local 826 (again) objected to the fact that the employer
retained the right to pay individual employees more
than the minimum wage rates, arguing that this presented
an opportunity to discriminate between employees.
Respondent insisted that this was not its purpose; it
merely wanted to take into consideration "any extenuat-
ing circumstances."
At the same meeting, Respondent agreed to delete
from its proposals the statement that the discipline or
discharge of an employee for violation( of a no-strike
agreement would not be subject to the grievance proce-
dure. Again, however, Local 826 stated that it could
not agree to a no-strike clause without arbitration. Also,
it pointed out, the company's no-strike proposal would
make the union liable' for any violation even though
it had not authorized a strike. Going further, Parker
stated that Respondent' s insistence upon a no,strike
clause without arbitration "was a violation of the law,"
and he again said that Local 826 would agree to a
no-strike clause only if Respondent would grant arbitra-
tion. Respondent, leaving aside for the moment Local
826's argument that it would be liable for strike action
even though unauthorized,'' defended its insistence on
no-strike-yet-no-arbitration; Johannessen said he did not
want to leave to a third party' decisions which should
be made by the parties themselves.
In partial response to the union's objections to
Respondent's seniority proposal presented on January
17, Respondent presented a new one. The probationary
period for a new employee was changed from 1 year
to 6 months, and it was provided that a copy of a
current seniority list be furnished to a union representa-
tive upon request; but the proposed basis for seniority
was still. companywide, The union objected to the provi-
sion in the new proposal that a probationary employee
might be terminated for any reason; it asked that the
phrase, "except for union activity," be 'added, and
this the company agreed to take under consideration.
" Subsequently, Respondent dropped its demand that Local 826 be
considered liable for unauthorized strike action
CHEVRON OIL COMPANY 457
Then, once again, Local 826 asked for a list of the
employees who comprised the seniority setup which
Respondent was proposing; when Respondent-for the
second time-questioned that it was obligated to furnish
such a list, Parker cited authority in support of its
position, and Johannessen said he would check into
the matter further. Local 826 did agree,to Respondent's
proposals as to the basis for a break in seniority and
as to the continuing maintenance of a seniority list.
Respondent now submitted a revised proposal with
respect to its article VIII (Promotions, Demotions,
Layoffs, Recall, and Transfers), but no agreement was
reached on the matter. ,
As for the grievance machinery, Respondent did not,
at this meeting, submit any revision of its prior proposal.
Instead, Johannessen said that the proposal submitted
on January 17-which provided that the final step of
the grievance procedure would be a consultation with
the District production superintendent-was the compa-
ny's final position. The union offered to drop its demand
for arbitration as the terminal step if the no-strike clause
be eliminated; this suggestion was rejected by the compa-
ny.
(I find that, at or shortly before this point in time,
Respondent made a new decision with respect to whether
arbitration would or would not finally be granted to
Local 826: Because he concluded that Union Business
Manager Parker was a "nitpicker" who "acted legalisti-
cally" and, therefore, might be expected to press an
undue number of unfounded grievances to the terminal
point of the grievance machinery, Johannessen, on behalf
of the company, , , was now determined not to yield on
the issue of arbitration.)
The company submitted a new vacation proposal con-
taining a number of concessions a proposal which was
acceptable to the union. Also, the union accepted the
proposal now made by the company (slightly altering
its past proposal) with respect to eligibility for holiday
pay.
The company presented no new proposal with respect
to employee leaves of absence; its position as of January
17 remained unchanged. Now, Local 826 argued that
that position did not cover funeral leave, that the giving
of civic leave was "not really pinned down;" and that
there was no provision for leave on union business;
in response, Johannessen said that Respondent's position
of January 17 was its final position.
The company's proposal on absences for jury duty,
and on the necessity of reporting for work during the
scheduled workday when not actually serving as a juror,
remained unchanged; and Local 826 did not agree to
this proposal at the January 30 meeting.
Respondent presented a new provision on "work juris-
diction." Whereas, originally,, it had sought to retain
all rights to make job assignments, these rights were
now limited to assignments other than those "expressly
modified by a specific provision of this agreement."
This was still considered not satisfactory by the union,
although Parker said that "it helped the proposal, to
some extent." Local 826 continued to object to the
breath of the assignment power given to Respondent
as well as the fact 'that outsiders could be called in
to do unit work; it asked for a provision whereby
outsiders could not be transferred in or, if they were,
current bargaining unit employees would not be laid
off or otherwise disadvantaged as a result. Johannessen
denied any intention on the part of the company to
bring in people for the purpose of laying off employees
in the unit, but conceded that, under the company
proposal, this could occur.
Once again , Respondent ' s proposal on management
rights was discussed briefly: (It had brought in no revi-
sion.) The parties adhered to their previous positions.
There was a short discussion on the "safety" proposal
offered by the company. No agreement was reached.
The union requested the company to turn over a list
of the existing safety and health rules now existing,
and Johannessen said that the employee-representatives
would be furnished with copies of the company's safety
manuals.
Among Respondent's "miscellaneous" January 17
proposals had been one to the effect that any employee
violating company rules and regulations would be subject
to discharge or such other discipline as the company
considered advisable. The union, at this meeting, asked
for a list of these rules. Johannessen said that "every-
body knew the rules," but Parker persisted. Johannessen
agreed that the company would produce a list.
In its proposals of January 17, Respondent had stated
that its disciplining of.employees for the violations of
company rules would not be subject to the grievance
procedure. Now, retreating from this position, it eliminat-
ed the "non-grievability" language . Nevertheless, Parker
charged (1) that, in the absence of more affirmative
assurance, the right to grieve on the subject was unclear,
and, (2) more important, under the wording of Respond-
ent's proposal as to its authority in the event of rule
violations-e.g , that Respondent could initiate action
"for cause" and that rule violations would result in
such action "[as] the company considers advisable"-
and in view of the absence of arbitration as a terminal
point, the right to grieve on the subject was "meaning-
less."-
Respondent, on'January 17, had submitted a proposal
with respect to the "fringe" benefits enjoyed by the
employees. The proposed provision had called for the
continuation of the existing published "benefit plans"-
e.g.; relating to stock participation , sickness-accident,
and annuities-but gave the employer the right unilateral-
ly to amend any such plan. Local 826 had objected;
'it wanted the right to bargain on changes. At this meeting
there was a short discussion, but the positions of the
parties remained unchanged.
There was an adjournment from 11 a in. to 1 p.m.
In the afternoon the arbitration/no-strike-clause ques-
tion was again discussed. No agreement was reached.
At this afternoon session, in response to Local 826's
prior requests for a seniority list keyed to Respondent's
seniority proposal, Respondent submitted a list of the
73 employees at Respondent's eight gasoline processing,
cycling, and repressurization plants, including those at
North Snyder. In effect, this amounted to a change
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in company position-from companywide seniority to
that among the employees of the company's so-called
gas plants. Parker said that the list did not give "much"
information-it did not show work classifications or
work locations. He argued also that it was impossible
to check the accuracy of the list. Moreover-he contin-
ued-Local 826 had no knowledge of the efficiency
and ability of the non-North Snyder employees; in effect,
it was being required to bargain for these employees
although it could not legally represent them. In sum,
the union did not feel that gas plantwide seniority would
be workable without more information. Johannessen
insisted that the list gave whatever information was
necessary, and he offered to notify Local 826 of transfers
or promotions after they were made. Local 826 objected
to this as well; if a person had been transferred several
hundred miles, it would be too late to persuade the
company to change its mind
Some time before the January 30 meeting closed,
Johannessen said that if the parties could reach an
agreement as proposed by the company, he would make
a proposal as to a dues checkoff. (Prior to this, although
it had appeared in Local 826's original proposal, the
subject was not treated in Respondent's proposals, and
there had been very little discussion of it.) The union
stated it could not agree to the contract as offered
by Respondent unless "some changes" were made;
hence, no progress was made on dues checkoff.
The parties met for 3 hours the morning of January
31. at the outset, Respondent presented a number of
revisions of earlier proposals, which revisions were dis-
cussed one by one.
One of the subjects dealt with was Respondent's
seniority proposal, as revised on the previous day. Repre-
sentatives of Local 826, having gone over the employee
list previously given them, said that they would agree
to gas plant seniority providing that procedures could
be set up giving the union some control and information
with respect to transfers into and out of the North
Snyder gas plant. Parker explained that if there was
some way for the union to know of vacancies in this
and in the other plants, something could be worked
out; however, he did not feel that, the list furnished
gave enough information. The company declined to give
any more information on the ground, that it did not
believe there was any necessity therefor.
But-as of this meeting, at least-the real basis of
disagreement as to seniority, I find, was not its scope.
I am convinced that both parties were persuaded that,
once further details were worked out, multi-gas-plant
seniority, with reasonable safeguards, was feasible. But,
at this time, the road to agreement was blocked by
the parties' respective positions on the effect of seniority.
Local 826's objection to Respondent's proposal in this
respect had to do with the "sole discretion" given
the company to make transfers. In effect, it believed,
this eliminated seniority as a factor; also, it believed
that the provision as it now stood enabled the company
to transfer people into the bargaining unit and to create
a surplus which in turn could bring about layoffs, and
(Parker argued) even if layoffs were subject to the
grievance procedure, there was nothing the union could
do about a complete depletion of the unit. Johannessen
conceded that this was a possibility but said that Local
826 could grieve if it happened and could bargain on
the subject when the contract expired if it believed
that Respondent was taking unfair advantage.
A similar situation existed with respect to the "work
assignment" aspect of the company's proposals, a sub-
ject also discussed at this meeting. Parker argued that,
for all practical purposes, it eliminated seniority as a
factor in the assignment of jobs. Johannessen justified
the proposal by saying that the company did not want
employees arguing about who was going to work with
a given set of tools or on a given work schedule.
As for its proposal on "personnel actions" (promo-
tions, demotions, layoffs, recalls, and transfers),
Respondent stated that its latest revision constituted
its final position. Among other things, it insisted that
the company had the right to determine an employee's
qualifications and ability, a provision which-Parker
argued-took the matter out of the grievance procedure.
Johannessen, contending that the company was in the
best position to determine an employee's qualifications,
again said that Local 826 could grieve and that it could
reraise the subject at the expiration of the contract
if it thought Respondent had acted unfairly in this
respect.
The parties turned to Respondent's "management
rights" proposal. Parker said that the union would agree
to a "normal" management rights clause but he did
not feel that this should include the elimination and
consolidation of jobs and classifications, the fixing of
wage rates for new jobs and classifications, or the sub-
contracting and contracting of work; or, likewise, the
suspension, layoff, recall, scheduling, discharging, pro-
motion, demotion, or transfer of 'employees. These,
Parker said, were normally handled bilaterally-in fact
there were "numerous places" in Respondent's complete
proposal at which it was provided that they be handled
bilaterally. Indeed, he charged, the article was in conflict
with other provisions of the company-proposed contract
giving the employees or the union "positive" rights. ,
Respondent said that the management rights proposal
was its final word on the subject; it might be willing
to change a word here and there or to alter the punctua-
tion, but otherwise the offer was final. Before the parties
went on to other issues, Local 826 offered to accept
a management rights clause such as that which was
contained in the current contract between Local 826
and the El Paso refinery of Respondent's sister-compa-
ny."' The proposal was considered by Johannessen for
less than one-half minute, then was rejected.
The last part of the meeting was devoted to a bit-
by-bit discussion of Respondent's proposals as revised.
In essence, the parties compared notes on major items
to confirm agreement or disagreement.
They came to Respondent's latest no-strike/no-lockout
clause. Parker, for Local 826, said that there was no
"' California Oil Company, Western Division, d/b/a Standard Oil
Company of Texas (Not a party hereto )
CHEVRON OIL COMPANY
objection to the specific language , provided there could
be arbitration or "some method [by which grievances]
could be properly settled ." Johannessen said the compa-
ny was insisting upon a no-strike clause without arbitra-
tion ; it had decided , that this was a lawful position
and was going to stick to it. The Texas Coca-Cola
Bottling case , cited by Parker , was discussed; Johannes-
sen said he would "check it out " with counsel . ( Subse-
quently, he said that he had done so-and that, in
his opinion , the case was completely distinguishable
from the instant situation .) In the ensuing conversation-
consuming 15 to 20 minutes-the Supreme Court decision
in American National (infra) also came in for discussion.
Finally (and once again ) Parker said that if Respondent
agreed to eliminate the no-strike clause , Local 826 would
be agreeable to dropping its demand for arbitration.
This suggestion was rejected by Johannessen ; he said
that the one thing that an employer could get out of
a collective bargaining agreement was a commitment
from a union that there would be no strikes during
the term of the contract and Respondent certainly would
not sign a contract which did not contain this commit-
ment.
I have mentioned a remark about the possibility of
a strike voiced by Parker at an earlier meeting. Now,
toward this meeting ' s end , he reraised the subject of
economic pressure . Specifically , he referred to a "possi-
ble boycott" of Respondent 's products.
The January 31 meeting drew to a close . Before
it ended , Johannessen said that the parties had agreed
in December to try to reach a contract as quickly as
possible and that the Respondent had now put its final
positions on the table ; it might be willing to change
some words here or there, but "nothing substantial."
He concluded that since no agreement had been reached,
the parties had reached an impasse , a conclusion with
which Parker agreed."
No arrangements were made for a future session.
Johannessen said that if the union wanted another meet-
ing, its representatives should communicate with Mr.
E. W. McCants, Kirkvold 's standin for the next month-
plus.
On February 2, by posted notice , Respondent told
its employees of the January 30-31 bargaining session:
it said that no agreement had been reached, the "main
areas of disagreement [being ] Rates of Pay, Prohibition
of Strikes and Lockouts, Grievance Procedure, [and]
Management Rights"; it noted that "negotiations ended
in a stalemate with both the Company and the Union
indicating they had no further proposals to offer"; and
it stated that "the Union has threatened the possibility
of strike action and other economic activity, such as
boycotts. "
(On February 9, Local 826 filed the unfair labor
practice charge initiating the instant proceeding.)
17 I make this finding despite irrelevant dispute as to whether the
words " impasse" or " stalemate " were used in the discussion
5. The fourth session (March 23, 1967)
459
For some time , there was no further communication
between Respondent and Local 826. In mid-February,
Local 826 reactivated the matter through the Federal
Mediation and Conciliation Service, and a meeting was
set up for March 14. Subsequently, pursuant to contacts
between Commissioner Walter White of the Mediation
Service and representatives of the parties , the date
of the meeting was changed to March 23.
Meanwhile , on March 13, Parker sent Johannessen
the remnants of 100 "Chevron" credit cards , each cut
into many pieces . The accompanying letter "promised"
that the writer would bring about the issuance of 200
new cards "if we are able to reach an honorable agree-
ment " or would submit 1 ,000 more destroyed cards
within 90 days should agreement not be reached.
The March 23 session took place at Respondent's
offices in Snyder. Although it was scheduled to start
at 9 a.m ., Local 826 representatives were kept waiting
in the outer office at that time . At 9:30, Kirkvold came
out and said that Commissioner White had not yet
arrived. Parker told him that White had anticipated
being delayed and had left word with him (Parker)
that the parties should go ahead without him. Checking
with Johannessen and the other company negotiators,
Kirkvold reported that, while Respondent ' s representa-
tives did not refuse to meet without Mr. White, they
would prefer to wait until he arrived since he had
called the meeting . The parties did wait.
White arrived at 10:45 a.m. and the meeting started.
For the first 70 minutes, the parties were separated,
with White going back and forth between them. At
11:55, they were brought face to face.
White briefly summarized the situation . He said that
Respondent had told him that it had given its last propos-
als and final positions to the union and was not ready
to make changes ; also, that it had declined to put into
effect the wage benefit package at this time . Johannessen
confirmed that this was a correct statement of Respond-
ent's position . White then said that Local 826 was willing
to give in on such items as management rights and
other items , but only if Respondent would make conces-
sions. Parker verified this . Johannessen then stated that
when negotiations began , the parties had agreed not
to play games; therefore , the company had put its final
proposals on the table as soon as possible-by January
31. Further, he stated that , no matter what the union
did, Respondent would make no further concessions;
it was unwilling to give away rights it had possessed
prior to the advent of the union ; finally-he continued-
one could not "put everything into a contract ." White
asked Johannessen if he would agree to put language
into the contract agreeing to maintain conditions which
were existing practices , to which Johannessen answered,
"No, we will continue them but we will change, them
if we want to . . . . We do not propose to change
our proposal."
When one of the employee -negotiators pointed out
that employees in the plant now had certain rights which,
under the company's proposals , could be taken away
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Respondent ' s option , Johannessen repeated that "You
just [can 't] put everything in a contract."
Parker pointed out that the company had offered
even less than was already in effect . For example,
he said , he had learned that , prior to these negotiations,
employees would receive holiday pay immediately upon
being hired ; now, since the negotiations had begun,
an employee had to be on the company ' s payroll for
6 months. He accused the company of taking advantage
of this recently: i.e., using a new man to work on
the holiday to save premium pay for an older employee.'
Respondent ' s answer (given after a luncheon break)
was that it would give an extra Saturday's employment
to the employee who had been deprived of holiday
work . Also, from this point forward , I find, Respondent
no longer insisted on a 6-month period of employment
as a condition for the receipt of holiday pay.
The question of wages was next discussed . (It has
been noted that the wage benefit package had been
in effect for all other employees of Respondent"as
well as the nonunion -represented employees of sister-
companies since January 1, 1967, and , . in accordance
with agreements reached with various unions, for certain
represented employees of these companies since dates
on and after January 1 .) Parker asked Respondent's
representatives why, in view of the fact that an impasse
in their bargaining had been reached on, January 31,.
the company did not put into effect the package at
North Snyder . Johannessen said, that this was the "lever-
age" or "club" with which Respondent hoped to force
Local 826 to sign a contract-it did not intend to put
the wage benefit package into effect otherwise. When
Parker suggested that the union might drop the wage
issue if the wage benefit package were effectuated, leav-
ing all other matters to subsequent negotiations , Johan-
nessen said he did not have authority to agree to this;
he said , however , that Respondent would put the package
into effect immediately if all elements of a contract
were agreed upon by the parties . In passing , someone
mentioned the possibility that , agreement or no,
Respondent might install the package ; Johannessen asked
what Local 826's position would be if Respondent should
so proceed to install it ; and he was told that a unilateral
installation might be considered an unfair labor practice
by Local 826.
At the same time, Parker accused Respondent of
"discriminatory conduct " in withholding the 1967
increase from the North Snyder plant employees, and
he threatened to file unfair labor practice charges about
this with the Board . Johannessen , unimpressed, said
" Just under 900 in number
" My findings in this respect do hot completely accord with the
mutually contradictory testimony of either Parker or Johannessen, I
believe that each was distorting to a degree , and I find that which
most comports with the plausible Johannessen , in his testimony , charac-
terized the exchange as a firm offer by Respondent , and a refusal
by Local 826 , that the wage benefit package be put into effect in
full settlement of the wage issue In context I find that it was not
a firm offer , on the other hand , I find that Respondent did make
the offer at least by April 13, by letter-see infra
that the institution of increased wage benefits must
await the full agreement of the parties.
During the March 23 meeting-and at other times-
Johannessen conceded that Respondent ' s contract pro-
posal was definitely management -oriented-it would be
the best contract that Standard Oil, had . Parker said
that Local 826 would be better off with no contract
at all than with the contract proposed by Respondent;
he said that the union would be giving away some
of the employees ' rights now enjoyed , and he asked
Johannessen how Local 826 would benefit from the
signing of the contract . Johannessen pointed to the
fact that a contract might contain a dues checkoff clause
and also to the fact that, at the very least , the union
would be party to an enforceable contract . Finally,
however , he did say that he "could understand " Parker's
predicament .211
Another reference was made at this time to Local
826's efforts to develop a boycott of Respondent's prod-
ucts. (The subject was not raised thereafter during the
negotiations.)
The meeting ended with Commissioner White ' s state-
ment that he would be in touch with the parties; mean-
while, he invited either of them to take the initiative
with respect to setting up a bargaining session without
waiting for him to act.
On March 27 , Respondent (once again) made a report
to the North Snyder employees:
The [parties ] met . . . on March 23, with the Federal
Mediation and Conciliation Service Representative
in attendance . . . . No progress was made . . .
the parties-agreed they are at an impasse. . . .
6. The fifth session (May 16, 1967)
By letter dated April 5, 1967, Parker, for Local 826,
requested that Respondent put into effect the 1967 wage
benefit package , and he expressed the opinion that the
company's failure thus far to do so and to make it
retroactive to January 1 constituted discrimination.
McCants, temporarily acting in place of' Kirkvold,
answered on April 13 : After reviewing the wage negotia-
tions as he saw them , he said that the company felt
that the employees should not "continue to lose their
pay increase ' because of the failure of the parties
to arrive at a complete contract ; therefore , for Respond-
ent, he was ready to agree that the wage benefit package
become effective as of the date of the receipt of written
agreement to this effect by Local 826, the agreement
to constitute an end to bargaining on wage benefits
for one year thereafter; other contract items, McCants
said, would not be affected. In response, on April 17,
Parker expresses opposition to the proposed effective
date ; he `pointed out that other employees of Respondent
had received the wage benefit package as of January
"" I do not credit Parker ' s testimony that on this and other occasions,
Johannessen openly conceded that Local 826 would be better off with
no contract at all I find- infra-that Johannessen felt this way, but-
being the experienced negotiator he was-I credit his testimony that,
at most , he expressed an "understanding " of the union's position
CHEVRON OIL COMPANY
1, 1967, that unions other than Local 826 dealing with
sister-companies had been given until the end of January
to accept the offer of the wage benefit package effective
January 1, 1967, and that the employees represented
by some unions who did not accept the offer until
late in March' were given the wage benefit package
as of February 1, 1967; and he termed the proposal
and the action of Respondent in this matter to be in
retaliation for their voting for a union. Concluding,
he expressed the "agreement" of Local 826 to the
installation of the wage benefit package, provided only
that it be made effective as of January 1, 1967.
This is where the matter rested until May 16, 1967.21
A meeting for that day was set up as a result of efforts
of Local 826, again acting through the Mediation and
Conciliation Service.
As the first item of business, the union again proposed
that the wage benefit package be put into effect as
of January 1, 1967. Respondent declined; instead, it
renewed its proposal made in McCants' letter of April
13-again, the effectuation date'to be the date of accept-
ance'by Local 826. Parker pointed out that the package
had already been put into effect elsewhere and that
he knew of no installation of Respondent or its affiliates
at which it had not gone into effect by February 1
at the latest. Once again, he charged "discrimination,"
and insisted that any implementation of the package
be effective January 1 or, at least, not later than February
1. Respondent confirmed that the package had gone
into effect in other locations of Respondent but, absent
Local 826's acquiescence to the latest proposal, did
not then agree that it should go into effect retroactively
at North Snyder. The subject was dropped-until later
in the meeting.
The conversation turned to arbitration. Local 826
proposed that there be voluntary arbitration: In the
event that the company declined to arbitrate an issue
in dispute, then the union would be free to strike over
that issue. Johannessen, considering the proposal no
more than 15 seconds, rejected it; under no circum-
stances, he said, would Respondent agree to any type
of arbitration although it would continue to insist upon
a no-strike clause.
Local 826 brought up a problem alleged to be a
change of a past practice in the plant. Previously,
Respondent had posted work schedules 3 weeks in
advance; however, since the March 23 meeting, the
schedules had been posted but one week in advance.
Johannessen, checking into the matter, agreed to rein-
state the policy of posting schedules for 3 weeks.
Next, the parties discussed seniority. Respondent pre-
sented in writing its latest position-affording seniority
rights to those employed in Respondent's gas processing,
cycling, or repressurization plants, including North Sny-
der. Acceptance of this proposal, Johannessen argued,
21 Meanwhile , on April 24, an amended unfair labor practice charge
(repeating the allegations of the original charge, in more technical
language ) was filed by Local 826, and the instant original complaint
was issued by an Acting Regional Director for the Board A formal
hearing on the allegations of the complaint was set for July I I
461
would be of advantage to the unit employees,' since
it would keep open to them a broad field'for promotion.
Local 826 objected ( again) because outside people with
greater seniority could be transferred into the North
Snyder plant, creating a surplus and causing unit employ-'
ees with 25 - or 30 years' seniority to be laid ' off. It
was noted that the January seniority list previously
presented would have to be augmented from time to
time, and Parker suggested that no future hires at other
plants be included in the seniority group. No agreement
was reached:
The union asked that the probationary period for
new employees be 3 rather than the proposed 6 months
and that if an employee were laid off during his probation-
ary period for lack of work he would be considered
for reemployment when work was available. No agree-
ment was reached on this.
The parties now turned to Respondent's proposals
with respect to its authority to effectuate personnel
actions. Up to this date, Respondent, in its proposals,
had reserved to itself the exclusive right to determine
the employees's qualifications, and Local 826 had contin-
ued to voice objections to this feature. Now, after
a discussion, Respondent presented a new proposal,
limiting its right by requiring that it not 'act "unreason-
ably." Parker's comment on this "restriction" was that,
in effect, it meant nothing; the requirement upon the
company-to act reasonably-was "useless" in a con-
tractual situation containing a no-strike clause but no
arbitration clause. Johannessen, in words or substance,
conceded that this was so, but he would not eliminate
the proposal. He said that if the union felt that the
company acted unfairly it could take up the matter
again on the renegotiation of the contract. He did not
say that discharges were not subject to the grievance
procedure;22 but he conceded that recourse to the griev-
ance procedure would not be very effective in the
absence of arbitration as the terminal point.
Local 826 had previously objected to the requirement
that a recalled employee report within 72 hours, citing
the delay in Texas mail deliveries; it suggested that
the period be extended to 10 days. Respondent submitted
a revised proposal, lengthening the period to 5 days.
Once again, there was a discussion of the company's
proposed seniority provision. Local 826 desired to limit
transfers from outside plants to jobs for which the
proposed transferee was qualified and for which he
had "plant" seniority; Parker pointed out that, under
its proposal, Respondent could completely deplete the
bargaining unit. Johannessen rejected Local 826's coun-
terproposal, and he did not offer any revision of Respond-
ent's proposal as it now stood.
As has been noted, Respondent, in its proposed griev-
ance procedure, had provided that an individual employ-
ee have the right to grieve without the intervention
of the union, as long as any adjustment of the grievance
was not inconsistent with the collective bargaining agree-
ment and as long as a representative, of Local 826
22 In so finding, I credit Johannessen's testimony, as against several
contrary implications in Parker's
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was given an opportunity to be present at the adjustment.
Now, Parker urged that a Local 826 representative should
have "something to say" about the settlement of any
such grievance, because, otherwise, "bad precedents"
might be set. Respondent agreed to reexamine its propos-
al in this respect.
The union said that it accepted the company's proposal
that the processing of grievances or complaints should
not interfere with operations.
In its original proposal, Respondent had described
a grievance as a complaint filed by an individual employ-
ee. Local 826 had objected to this limited definition,
and Johannessen had said that the company would look
into the matter. Now, on May 16, Respondent broadened
the definition to include any complaint filed by Local
826 as well as by an employee, thereby removing one
of Local 826's objections.
(On my reading of the credible testimony, I find
that none of the items to which Local 826 raised objec-
tions in connection with the company's proposed griev-
ance procedure would have been real hurdles if the
company had been willing to "give" arbitration. I find
further that Parker, in effect, communicated this to
Johannessen at this meeting and at subsequent meetings.)
As for holiday pay-an item which was already a
subject of agreement between the parties-Respondent
assured Local 826 that they had not intended to take
away any of the existing employees' rights and that
their current offer was meant to be at least equivalent
to past practices in the plant .13
At this point, Kirkvold reraised the subject of the
wage benefit package. He said that Respondent was
willing to put the wage benefit package into effect imme-
diately with no strings attached-i.e., without prejudice
to Local 826's right to bargain on retroactivity or any
other provision of the contract. After a brief recess
for consideration of the offer, the committee representing
Local 826 voiced acceptance.
(The installation of the package which shortly followed
was the last such installation at any of Respondent's
installations.)
Someone raised the subject of a future wage increase.
Taking note of the fact that one of the points of agree-
ment reached in the recent industrywide bargaining called
for a further 4-percent increase on January 1, 1968,
Johannessen remarked that, if other of Respondent's
employees got this increase, the North Snyder employees
would "probably" get it as well. However, the state
of these negotiations on other matters-for example,
the current wage increase-was such that (I find) there
was no substantial discussion on this point between
the parties at this meeting.
23 But I find, as a fact, that, in this respect, at least, Respondent's
original proposal-that employees' holiday pay rights be subject to
a requirement of 6 months' employment- wns a step "backward" for
this plant I find that, in making the proposal, Respondent was seeking
to bring the practice in line with that at its other plants And I find
that Local 826, in accepting Respondent's original proposal, had been
unaware of the existing practice at North Snyder
Next, Respondent presented a revised management
rights clause, and, at or about the same time, it presented
a new recognition clause. To the extent that there were
changes (from prior proposals) in the former clause,
Parker argued that company prerogatives given up were
merely moved to the latter clause: Respondent still
retained exclusive jurisdiction to assign work to anyone,
including outsiders. The new management rights clause
did obligate Respondent to bargain over the wage rates
for any newly created job classification and, it did limit
the powers of management to effectuate personnel
actions to those "for cause," but these changes did
not satisfy the union. Also, several items to which
Local 826 had objected in the original management
rights proposal were, in its May 16 proposal, altered
somewhat; however, Parker argued, the alterations were
in form rather than in substance. The proposal was
still objectionable to the union.
The latest company proposal on seniority was dis-
cussed. I have noted that agreement in principle had
been reached but that formal details had not been worked
out. There was no progress at this meeting.
Respondent's proposal on "personnel actions" was
discussed. (Since it referred to seniority, the "agree-
ment" on seniority-previously noted- was in fact
subject to agreement on this provision.) Local 826 agreed
to write up some language on this item.
Respondent submitted in writing the language of the
holiday provision which had been agreed upon that
morning-in effect, an adoption of the plant's existing
practices in this regard. The union agreed that the lan-
guage submitted accurately recorded the agreement
reached.
Respondent presented new language with respect to
its provision as to individual deviations from established
pay scales. There had been dispute as to whether
Respondent could, at its option, pay any employee more
than the minimum rates. Now, it was proposing that
it might pay additional compensation "in special situa-
tions." While this did not completely satisfy the union's
objections, the parties went on to the next subject
after a short discussion.
It was at this meeting that Respondent offered a
checkoff of union dues upon employee authorizations.
Also, Respondent submitted a revised set of "miscella-
neous" provisions. The revision omitted the provision
that an employee who violated a company rule or regula-
tion would be subject to discharge or other discipline
"as considered advisable" by the company, a feature
to which Local 826 had objected. With this omission,
Local 826 was agreeable to the "miscellaneous" provi-
sions.
I find that, as the meeting moved toward adjournment,
the parties agreed that some progress had been made.
The meeting ended with Local 826's agreement to bring
back certain counterproposals and the agreement of
Respondent again to consider the points of disagreement.
It was tentatively decided that the parties would meet
again on June 6.
CHEVRON OIL COMPANY
7. The sixth session (June 7, 1967)
Subsequently, at the request of company representa-
tives, the next meeting was rescheduled from June 6
to June 7.
The entire morning of June 7 was spent in individual
meetings between Federal mediators and the respective
parties, so that the two mediators present, new to the
situation, could fully acquaint themselves with the state
of bargaining. During this period, Respondent presented
a complete contract proposal, as most recently revised,
in writing.
When the parties came together, Kirkvold, speaking
for Respondent, said that the company had presented
a final proposal on January 31, had made changes since
then, and had no intention of making any more changes.
At this time, Local 826 submitted another written propos-
al with respect to seniority and the effectuation of person-
nel actions, a proposal which was rejected by the employ-
er as amounting to no real change from the union's
original unacceptable proposal.
Johannessen said that, bargaining unit people would
be considered for any promotions outside the plant
(within the seniority group) and that Local 826 would
be notified of any promotions which were made; but
he rejected Parker's request that Local 826 be notified
in advance of vacancies.
In connection with a discussion of the term of the
contract, Local 826 proposed that the January 1, 1968,
4-percent wage increase negotiated on an industrywide
basis be written into the present contract, to be effective
on the same date. Respondent declined. As a substitute,
Parker asked for a wage reopening clause, to which
Johannessen queried, "Do you mean a strikeable or
a non-strikeable wage reopener?" Parker said that he
was talking about a strikeable wage reopener "because
otherwise the right to reopen would be meaningless."
Johannessen rejected the request.
After a mid-day recess, Respondent presented a newly
revised grievance procedure. Added were two levels
of grievance handling: appeal to the Division production
superintendent and appeal to the vice president in charge
of production. Although the union conceded that these
were additions to the previous proposal of the company,
it did not regard them as changes; Parker expressed
the opinion that the two new. levels added nothing to
the grievance procedure. He suggested that Respondent
consider some type of arbitration, even if the arbitrator
be someone within the company complex who was famil-
iar with labor relations. Among other things, he men-
tioned the name of Johannessen himself as one who
might fit the description. Johannesen rejected the sugges-
tion. He said that Respondent would not take the final
decision away from itself-officials of the type Local
826 was suggesting as arbitrators were "outside the
corporate setup."
With respect to the retroactivity of the wage benefit
package-which had been installed as of May 16-Johan-
nessen offered to make it retroactive to May 1 if full
agreement could be reached, and there was discussion
about a lump sum to be paid in lieu of retroactivity.
463
It was Local 826's position, expressed by Parker, that
the wage benefit package should go back to February
I at least. No agreement was reached.
In the course of the afternoon, Parker expressed
the opinion that no legitimate union would sign a proposal
such as that which had been presented by Respondent;
he said he knew of no contracts anywhere involving
Respondent or any of its affiliates "as bad" from a
union's point of view as this one would be; and he
asked if Johannessen did not agree. Johannessen, careful-
ly weighing his words, said that he "could understand"
Parker's position. He said that, if it would help arrive
at a contract, he would make "another approach to
the company" on the retroactivity of the wage benefit
package. Parker said that this was not the sole remaining
issue, but that, if Johannessen could get "something
more," it might help settle the problem; however, he
pointed out, his union members were more concerned
with the management rights clause than with money.
Other dates for retroactivity prior to May 1, were men-
tioned. Johannessen mentioned the "possibility" of an
April 15 date, if agreement could be reached on the
total contract. Again, Parker said that the employees
were not as concerned with money as they were with
job rights and job security.
The meeting of June 7 closed with no arrangement
made for a future bargaining session.
8. The seventh session (June 21, 1967)
On June 14, there was a telephone conversation
between Kirkvold and Parker. Kirkvold asked if an
April 1 retroactivity date on the wage package benefit
would' persuade Local 826 to accept the company's
"last offer." Parker said that it would not, that the
issues of management rights and the lack of arbitration
were more important; he did suggest that February
I was a more appropriate date, but, he repeated, this
was not the sole issue. During the conversation, a further
bargaining meeting was scheduled for June 21.
At the opening of the June 21 meeting, Johannessen
asked whether Local 826 was ready to sign the company's
last proposal. An employee member of the negotiating
committee announced that a secret ballot had been taken
among Local 826's members on the company's last
proposed package, and that the package had been turned
down 14-0;24 he explained that, while money was impor-
tant, it was not the most important thing-the employees
felt that they should have some rights under the contract
and also should have arbitration. Parker asked whether
Respondent was willing to accept the union's last set
of proposals. Johannessen said it was not. Parker then
reviewed the items in dispute: seniority and its effect
on personnel actions, a wage reopener, overtime meals,
the retroactivity of the wage benefit package, manage-
ment rights, and arbitration. Johannessen said that
Respondent would stand on its last set of proposals
but was willing to make the wage benefit package retroac-
tive to March 16 "if that would help."
21 Apparently , only the employees who belonged to Local 826 voted
464 DECISIONS OF NATIONAL LABOR REI ATIONS BOARD
Parker made clear Local 826's dissatisfaction with
the contract as last proposed by Respondent He was
particularly resentful of the management rights clause,
and he said that no amount of retroactivity on the
wage benefit package would "buy" this contract Local
826 he said would be better off without a contract
since it would be free to strike and, if necessary, to
file unfair labor practice charges if Respondent acted
unilaterally
Toward the end of the meeting, Johannessen intimated
that he could understand Local 826's reluctance to accept
the company's proposal, he could understand, he said,
that, in accepting Respondent's management rights pro-
posal Local 826 might be giving up the right to bargain
over certain items He suggested, however that the
local ought to take it to its members for their consider-
ation, and he said that the offer of retroactivity to
March 16 would be held open for 5 days Upon this
note, the June 21 meeting ended with no arrangements
for a later session
9 The eighth session (August 22, 1967)
On July 6, the Board' s Regional Director issued an
order rescheduling the hearing on the outstanding com-
plaint from July 11 to August 29
On August 14, 1967, Local 826, by letter, requested
a negotiating session to take place at anytime between
August 18 and 23 Kirkvold, upon receipt of the letter,
called Parker and asked the purpose of the meeting,
he ' wondered" if Local 826 was ready to sign Respond-
ent s last proposal Parker said that a meeting was
called for because Local 826 wished to discuss some
reported changes in practices, some safety problems,
and other "plant items " Kirkvold said he would check
with Johannessen as to a satisfactory date, and, next
day, by letter, he notified Parker that Respondent would
meet with Local 826 on August 22
The August 22 meeting, which consumed 2 hours,
began at 9 a in Basically, it was confined to a discussion
of the number of current problems rather than to contract
negotiations, since it became clear at an early point
that neither party had changed any of its bargaining
positions One of the items discussed was a recent
change by Respondent in the time allowed for one
operator to turn over the shift to another Kirkvold
explained that the change was made to avoid problems
under the Fair Labor Standards Act Local 826 then
raised a question of safety, in view of the fact that
this was the snake season, it asked that the company
cut the weeds in certain areas of the plant Respondent
agreed Next, the union raised the question of the inabili
ty of some employees to attend company safety meet-
ings, and Kirkvold said that something would be done
to remedy this Finally, Parker asked Johannessen to
put into effect an overtime meal provision in view
of the fact that, at other installations, meals were fur
nished to employees working overtime, Local 826 wanted
them for employees at the North Snyder plant After
some consideration, Johannessen rejected the proposal,
he said that, if this were an obstacle to a contract
he was sure he could "do something about it"-mean-
while, Respondent would continue its practice of furnish-
ing meals on some occasions but not on others Upon
this note, the meeting-and, for some time all contract
negotiations-terminated 2'
10 Respondent bargains with its "employees"
At or about this period , Respondent , through its Dis
trict Production Superintendent Kirkvold, engaged in
a series of contacts with employees which have become
an issue herein
At all times pertinent , the North Snyder gas plant
was operating 24 hours a day, 7 days a week During
the midnight tours, or shifts, every day and during
one additional tour on Sundays , the plant has been
manned by a single employee , a so-called plant operator
During the first of the negotiating meetings between
Respondent and Local 826-in December 1966-there
had been a passing reference by union representatives
to the need of assistance for plant operators-presuma-
bly, those on the one-man tours-but nothing further
on the subject developed at that time
The matter again arose at a company safety awards
dinner held on July 27, 1967 Among those in attendance
were Kirkvold and 10 or 12 employees , including Hous-
ton Buchanan , employee chairman of Local 826's "work
men's committee " and a member of the union negotiating
committee who had been present at all contract negotiat
ing sessions In the course of a general discussion of
safety items, note was taken25 of the undue responsibili
ties imposed on the plant operator on the one-man
tour After the general discussion was terminated,
Kirkvold and Buchanan , in a private conversation,
agreed that the subject should be reraised at a future
safety meeting-i e , one of a series of meetings between
management and employees concerned with maintaining
safe conditions
A safety meeting was held on August 10 27 Buchanan
and Sims, secretary of the workmen ' s committee (and
the other employee -member of the union negotiating
committee ), were among those present After a number
of items were discussed , Kirkvold expressed concern
that there be periods in which one man was responsible
for the plant and its operation , a sentiment echoed,
in relevant respect ,28 by the employees , speaking through
two of their number who had been selected to organize
2 Between the date of this meeting and the opening of the instant
hearing one week later certain conversations took place between
the parties Details however are lacking Respondent counsel s objec
lions to the receipt of testimony thereon based on the argument that
these events constituted settlement attempts were sustained and the
testimony was rejected
" There is immaterial dispute as to who raised the subject
' There is confusion rather than contradiction as to the precise
dates of this and the following related events My findings are greatly
guided in this respect by the plausibility inherent in the chronology
'" There is some indication that in this matter the objectives of
management and of the employees differed In the context of the
proposals and counterproposals which followed I find that the company s
real concern was that the capacity for production be increased (a
concern fed by the current Suez Canal crisis) while the involved
employees were thinking in terms of expanding areas for promotion
CHEVRON OIL COMPANY
the arguments on the occasion . No agreements were
consummated and no action was taken on what became
known as, and will here be referred to as, the "manpower
shortage."
During the third week in August, Kirkvold summoned
Buchanan to the plant office . (Also called was one
Newman , the only plant operator on duty at the time.)
Kirkvold broached the subject of increasing the total
plant complement by two men . Except for noting that
a reorganization would insure that at least two employees
would be on duty at all times, he did not go into
detail ; he said he would like Buchanan to get the reaction
of the employees29 and, thereafter, to discuss a more
detailed proposal at a meeting . Buchanan agreed.
During the next few days , Buchanan and Newman
transmitted Kirkvold's ideas to "the employees"-not'
further identified-who attended a meeting held in the
West Texas Bank community room in Snyder, where
Local 826's membership had met in the past. At that
meeting , the pros and cons of Kirkvold' s plan were
discussed; but, in the absence of formal details, those
in attendance felt under no compulsion to take a firm
position on the plan.
Buchanan , accompanied by Sims, next met with
Kirkvold on September 7.30 At that time, Kirkvold pre-
sented a written proposal for the reorganization of the
production personnel , a reorganization which would elim-
inate the jobs of the three loaders in the plant , establish
four jobs in a new classification to be known as loader-
operator , and increase the number of roustabouts from
five to six. The net effect would be to increase the
staff by two, provide a loader-operator along with the
plant operator on the one -man tours, and increase the
plant ' s production capacity ; the wage rate for the new
classification of loader -operator, it was proposed, would
be "open to bargaining ." The only reaction expressed
was Sims' tentative observation that the unpredictability
of the workload would render difficult the two-man
tour being proposed in its present form.
At this meeting , I find , Kirkvold referred to Buchanan
as the "union steward " and, in words or substance,
suggested that Buchanan and Sims feel free to consult
with Local 826 Business Manager Parker.
Next day, a "union meeting"-Buchanan 's term-
was held at the West Texas Bank. Buchanan presided
and Sims took notes ; present were 12 to 14 employees
and Frank Parker. A number of matters were discussed,
including Kirkvold ' s manpower -shortage proposal. Dis-
approval of the proposal was unanimous , and the details
of a counterproposal were established. The counterpro-
posal , like Kirkvold' s plan , increased the staff by two,
2V Thus, I do not credit Kirkvold ' s testimony , denied by Buchanan,
that he said he would like to discuss the subject with the "union
committee " (As will be seen , I find that Kirkvold regarded Buchanan
as the employees ' " union representative ", under the circumstances,
for him to have considered it necessary pointedly to assert that he
was speaking to, or wished to speak to, the union committee strikes
me as implausible ) On the other hand, I do not credit Buchanan's
testimony , denied by Kirkvold , that Kirkvold said "the union had
nothing to do with this "
"' Meanwhile , the instant hearing had begun , on August 29
465
but it differed in details; and , most importantly , it con-
templated filling all new vacancies above those in the
roustabout classification from within the North Snyder
plant.
The counterproposal having been reduced to writing,
it was presented to Kirkvold by Buchanan on September
11. Within the next 10 days,31 Kirkvold conveyed the
company's rejection of the employees ' counterproposal.
The reasons, as given by him: (1) the employees' pro-
posed reorganization was "topheavy " at the "operation-
al" end and unduly light in the roustabout (labor) area,
and (2 ) the company ' s acceptance of the principal of
in-plant seniority in this area would undercut Respond-
ent's general position on seniority which was being
maintained in the current contract negotiations.
There the matter lay, except that on a number of
occasions up to and including February 6, 1968, Kirkvold
asked Buchanan if the employees still felt the same
about the company's proposal. On each such occasion,
Buchanan answered in the affirmative . No organizational
changes have been made.
11. The service awards dinner of December 6, 1967
The last contract bargaining meeting had taken place
on August 22 , 1967, and the latest session of this hearing
had been held on September 14. Except to the extent
that it might be found in the conversations on the
manpower shortage the details of which are contained
in the last preceding subsection hereof , contact between
Respondent and Local 826 had been broken . And now,
the end of the year was approaching. The significance
of the yearend, it will be remembered, was that this
would be the occasion for a reraising of the question
of the additional 4 -percent wage increase which had
been agreed upon in the industrywide bargaining which
took place a year earlier.32
On November 15, Parker, for Local 826, wrote to
Kirkvold, asking for a negotiating session with the com-
pany "in an attempt to reach an agreement and also
to propose another wage increase , as will be due in
the industry January 1, 1968." By letter dated November
20, Kirkvold informed Parker that company representa-
tives would be available for a meeting on December
7, one of the dates suggested by Parker.
On the evening before the scheduled meeting, the
company sponsored a dinner at the Snyder Country
Club. The occasion was the presentation of several
service award pins ; in attendance were several members
of management , including Kirkvold , and 12 or 13 employ-
ees, of whom 5 were from the North Snyder plant.
Predinner drinks were served to those who wished them
and, after dinner, there was a "happy hour."
During the postprandial period , Kirkvold and employ-
ee union representative Sims had a conversation. John
" Meanwhile , the instant hearing went on At the hearing sessions
of September 12, 13, and 14, there was no mention by any of the
parties of the item now being discussed
12 It will be remembered that Local 826 had raised the subject of
a January I, 1968, wage increase at the bargaining meetings of May
16 and June 7
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grinslade, also a North Snyder plant employee, was
not a participant, but he was nearby, in a position
to hear most, if not all, the pertinent remarks
Kirkvold said that the company "was compelled to
take" a `hard-nosed" or "tough" attitude during the
bargaining period and that, if the union were not in
the picture, some changes would be made Sims, taking
this to be a suggestion to "vote the union out," said
that the employees' voting to get rid of the union was
tantamount to their voting to lose their jobs Kirkvold
denied this, he said he would provide a written guarantee
that no jobs would be lost if the union were ousted
Sims, in apparent reference to the requirements of the
Act, said that Kirkvold could not make such a statement
in writing, an observation with which Kirkvold on reflec
tion, agreed "
The ninth negotiating session (December 7, 1967)
Pursuant to arrangements previously made, represent-
atives of Respondent and of Local 826 met at 9 a m
on December 7, 1967 Johannessen was not present,
in his place was his assistant, Charles Lantrip, who
had attended all but two of the previous sessions but
had not taken on active speaking part At this meeting,
Lantrip and Kirkvold spoke for the company
Parker, for the union, opened by suggesting that the
4-percent wage increase scheduled to go into effect
in the industry on January 1, 1968, be given to the
employees in the unit on that date without prejudice
to the current bargaining on any issue At the same
time, he raised the matter of an employee's not having
received "funeral pay" which was coming to him, and
he requested data as to the overtime hours and the
`relief" persons' hours worked in the recent past
Respondent said that the requested information would
be made available, but it rejected the proposal as to
the 4-percent increase
At this time, Lantrip asked if the union had any
additional proposals or complaints it wished to place
on the table Parker's answer was in the negative, he
said, in effect, that Local 826 was "not unhappy with"
the existing situation-"Maybe we are better off without
a contract " (I find that he was referring to the contract
offered by the company, which, in his opinion, constitut-
ed a surrender by Local 826 of certain rights secured
by the Act, and I find further that Respondent's repre-
sentatives were aware of the meaning of his statement )
Lantrip's response "Well, the company would like to
a have a contract " (I find, it should go without saying,
that the reference was to a contract in terms of the
proposal last placed on the bargaining table by Respon-
dent )
" In these findings I have generally credited the testimony of Sims
as corroborated in substance by Grinslade Kirkvold in testifying
did not violently disagree his slant differed to some extent-I credit
his explanation that by his allusion to a tough policy he meant
that Respondent could not afford to establish new working practices
which would undercut its birgammg positions-and he was more vague
(Both he Ind Grinslade hid been drinking at the dinner Sims had
not )
After a short recess Kirkvold made a wage offer
on behalf of the company He offered not only the
4-percent increase, but, in addition, upward "wage
adjustments" in several job classifications which were
being given at other of Respondent's locations, the
whole "to become effective January 1, 1968 provided
agreement is reached on the contract by January 1,
1968 If no agreement is reached by January 1, 1968,
the above wage rates will become effective on the date
agreement is reached on a contract " Parker said that
the proposal, tied as it was to the company's last contract
proposal, was unacceptable 34 He pointed out that, as
for the differences between the parties '31 Local 826
was willing to make changes in its various positions
if Respondent assumed a like attitude Lantrip said
that the company was not ready to retreat, in any
substantial sense, from its latest position
Lantrip urged that Parker not act precipitously on
the company's wage offer-that the offer be taken to
the employees for their consideration He was told that
the committee would present the matter to the employees
but would recommend against its acceptance, if Respond-
ent was given no word to the contrary within 5 days,
Parker said, it could assume that the employees had
rejected the offer
The meeting ended well before noon Before it was
concluded, the parties discussed the matter of whether
(unlike the past) the employee-members of the union
committee might not report for work following a bargain-
ing session lasting less than a half day, and it was
agreed that, henceforth, they could go to work
13 Respondent installs the industrywide 1968 benefits-
The tenth session (January 10, 1968)
On November 30, 1967, in a notice posted at the
North Snyder plant, Respondent's president had
announced that the company's unrepresented classified
employees would be given a 4-percent general wage
increase effective January 1, 1968 At the parties' bar-
gaining session of December 7, as noted earlier, company
representatives had agreed to make the package (plus
several wage adjustments) applicable to North Snyder
employees if the union agreed to all other aspects of
Respondent's proposed contract Now, by letter of
December 26, Local 826 formally rejected Respondent's
offer In the letter, Parker stated that the 15 union
members in the unit had unanimously turned down the
offer (1) because the wage-adjustment aspect of the
offer was "discriminatory" since its benefits would basi
cally inure to employees of the unit who were not
members of Local 826 and (2) because the conditioning
of the offer on the union's acquiescence in the company's
last proposed contract was considered to be "illegal "
14 Among other things he counterproposed that additional ciassifica
tions be given adjustments The company turned down the counterpro
posal
' Once again it was agreed that the major items still in dispute
were seniority arbitration and the strike prohibition management rights
and the extent of managements right to transfer into and out of
the unit
CHEVRON OIL COMPANY
Continuing, he asked for information as to any other
wage-adjustments made outside the unit; he proposed
that the 1968 increase, including the adjustments offered
by Respondent, be put into effect without prejudice
to further bargaining on the contract; and he suggested
that the parties again meet on the subject if this sugges-
tion was not satisfactory
As of January 1, 1968, the 4-percent, including adjust-
ments,31 was put into effect for classified employees
of Respondent who were not represented by unions.37
The employees in the instant bargaining unit did not
receive-and at least by the close of this hearing on
May 22, 1968, had not received-the 1968 increase;
they were the only group of the company's classified
employees who did not. The reason for Respondent's
withholding of the increase from this unit-I find on
the basis of Lantrip's credited testimony-was that it
sought to "use" the holdback of benefits given elsewhere
as "leverage" to force Local 826 to sign a contract
as favorable as possible from the company's standpoint.
On January 3, Kirkvold answered Parker's letter of
December 26. He gave the requested information as
to wage adjustments and he rejected the union's wage
proposal contained in the letter; he "again" asked wheth-
er Local 826 had any counterproposals; and he noted
that company representatives would be available on
January 9, 10, or 11 "if you feel that a further meeting
would be beneficial."
Pursuant to arrangements thereupon made, the parties
came together at 9 a.m. on January 10.
At the outset, the union presented a set of nine
changes in the items listed in the company's written
whole contract proposal put on the table 7 months
earlier. Particularity here would not add to the cogency
of this discussion. Suffice it to say that the parties,
in an effort to provide a measure of the company's
reaction of these counterproposals, offered extensive
testimony on and devoted extended argument to the
question of whether the union's counterproposals consti-
tuted any real deviations/concessions from positions
taken by Local 826 in the past; and, suffice it to say
on this point that (I find) the union, in presenting the
counterproposals, (1) offered nothing which had not
already, in the same or similar form, been offered for
consideration by Respondent, but (2) in a situation which,
in my opinion, had deteriorated due to a lack of the
tangible crystallization of respective positions, was at
least putting forth concepts in writing which, although
brought out before, had been treated only orally and
in fleeting detail.
After the union's proposal had been discussed point
by point, Respondent requested a recess. The recess
began between 10:30 and 11 a.m., and, including a
luncheon break of I hour, lasted until 1:15.
"' The whole sometimes referred to here as the 1968 package
37 Also among those who received the increase were the Local 826-
represented employees of Respondent's affiliate at El Paso, Texas (provi-
sion for which had been included in the 1967-68 contract covering
them), as well as other union-represented employees (where agreement
between company and union was reached on the increase)
467
After lunch, Lantrip stated that Respondent had seri-
ously considered each of the union's proposals and
was ready to accept several of them: it was agreeable
to a change in the effective tenure of the contract
from that proposed by Respondent 7 months earlier,
and to the increase of the period in which an employee
recalled from layoff might report, from 5 days to 10
days; parts of the union's proposals on seniority and
on personnel actions were acceptable (full agreement,
however, being conditioned on mutual agreement on
related provisions); and "something could be worked
out" as to the union's proposals for an advance posting
of work schedules and the equalization of overtime
assignments. In all other respects, Lantrip said, the
company adhered to its previous positions, and he make
no new proposals on behalf of Respondent.
As the meeting came to a close, Parker once again
asked Respondent to consider installing the 4-percent
increase, this time without prejudice to further bargaining
on the wage "adjustments" as well as on all other
issues of the contract being negotiated. Lantrip said
the company would consider this and would convery
its response in writing.
This was the last meeting between the parties.
By letter dated January 15, 1968, Respondent, through
Kirkvold, rejected Parker's latest proposal that the 4-
percent increase be installed as of January 1 and that
the parties thereafter continue to bargain on any individ-
ual classification wage adjustments and all other aspects
of a contract. The letter stated, however, that the compa-
ny's proposal of December 7-the installation of the
1968 increase, including adjustments-still stood. In
reply, Parker asked whether this meant that the compa-
ny's offer in this respect was no longer contingent upon
union agreement to Respondent's last proposed contract.
Kirkvold, clarifying by letter on February 6, noted that
its offer was contingent upon arrival at a contract.
(Upon receipt of this last letter, Local 826 filed the
charge in Case 16-CA-3221.)
IV. DISCUSSION-CONCLUSIONS
The General Counsel contends, first, that the evidence
in this record supports the finding that Respondent,
through an agent, made promises and threats to induce
employees to forego union representation, thereby inter-
fering with, restraining, or coercing them in the exercise
of their self-organizational rights. The reference is to
the statements made by Respondent's District Production
Superintendent Charles Kirkvold to employee Robert
Sims, in the presence of employee John Grinslade, at
the service awards dinner on December 6, 1967. My
findings with respect to this incident appear at section
III, B, 11, supra, and they will not be repeated in
detail here. With respect to Kirkvold's statement that
the company "was compelled to take" a "hard-nosed"
or "tough" attitude during the bargaining period, it
might be argued that he was saying merely that Respond-
ent, in its best economic interests, was engaged in
"hard" but not "illegal" bargaining. His statement takes
on additional meaning, however, in view of the facts
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that (1) (as found hereinbelow) Respondent was indeed
engaged in an unlawful course of bargaining conduct
and (2) more importantly, Kirkvold simultaneously
asserted that "if the union were not in the picture,
some changes would be made." And what he was saying
was made crystal clear when he added that he would
provide a written guarantee that no jobs would be lost
if Local 826 were ousted as bargaining representative.
On the basis of the preponderance of the evidence,
I find that Respondent, through Kirkvold; did indeed
attribute the absence of benefits to the fact that the
employees were represented by Local 826 and did indeed
promise that there would be additional benefits if the
employees would forego such representation.
Next, the General Counsel takes the position that
the failure of Respondent to give its, North Snyder
plant employees the 1967 wage benefit package between
January 1 and May 16, 1967, and the additional 4-
percent increase on and after January 1, 1968, constituted
both an interference with, and restraint and coercion
of employees in the exercise of their self-organizational
rights, and a discouragement of membership in Local
826 by discrimination with respect to working conditions.
Respondent, through its testimony and its arguments,
candidly concedes-and I have found-that the company
held back the benefits in question as "leverage" to
force Local 826 to sign as favorable as possible a contract
from the company's standpoint; in other words, it was
exerting economic pressure at the bargaining table. But
I cannot find, on this record'38 that Respondent's conduct
in this respect either was designed, to coerce or had
the necessary effect of coercing employees in the exer-
cise of their self-organizational rights or with respect
to their desire to belong to Local 826.
The remainder of the General Counsel's attack is
concerned with what he conceives to the Respondent's
failure to discharge its bargaining obligation as required
by the Act. -
First, he argues that the promises/threats-of-loss of
benefits and the withholding of wage increases discussed
above, whatever else they may have amounted to, consti-
tuted per se violations of Respondent's obligation to
bargain collectively with Local 826.3"
I have already found that the Kirkvold's statements
of December 6, attributable to Respondent, did interfere
with, coerce, and restrain employees in'the exercise
of their self-organization rights. In context, however,
38
I note particularly that the company or one or another pf its
affiliates took like action with respect to all union-represented employees,,
and that' it ceased withholding these benefits from any unit of such
employees upon reaching an appropriate agreement with their bargaining
representative
31 In argument, counsel for the General Counsel eschews any per
se approach to his refusal-to-bargain allegations He only urges me
to look at the "total picture"-including the incidents here under discus-
sion-to measure Respondent's course-of-bargaining conduct But a
careful reading of the complaint, as amended, reveals that, in these
several respects at least, the General Counsel does believe that Respond-
ent separately violated Sec 8(a)(5) of the Act At any rate, leaving
for later treatment their effect upon` any finding as to Respondent's
general good faith in bargaining, I here pass upon the lawfulness of
these aspects of Respondent's conduct, standing alone
I would not find his statements, themselves, to constitute
direct dealing with employees or any other form of
bargaining in derogation of Local 826's exclusive bargain-
ing status. Kirkvold was acting coercively but (I find)
he was not "bargaining" or "failing to bargain" in
any meaningful sense .411
As for the withholding of benefits on two occasions,
I have already found that the incidents constituted neither
interference-with/restraint-of/coercion-re the self-organi-
zational rights of Respondent's employees nor discour-
agement of their union membership. Although the ration-
ale for the per se violation of the bargaining obligation
is nowhere articulated, I gather that the General Counsel
seeks to persuade me that Respondent was unilaterally
setting a working 'condition when it withheld from the
Local 826-represented employees a benefit given other
employees. The argument is unconvincing. Since I
believe that Respondent correctly construed the matter
to be a subject of the pending negotiations, and since
it did engage in bargaining over this along with other
subjects, it follows that I find no independent refusal
to bargain in its refusal to install the benefits absent
agreement between the bargaining parties.
Next, the General Counsel contends that, in derogation
of its obligation to deal exclusively with Local 826,
their bargaining agent, Respondent, through its agent,
Kirkvold, bargained directly with employees of the
affected bargaining unit over the "manpower shortage."
(For details, see the subsection herein entitled "Respond-
ent.bargains with its `employees,' " supra.) The short
answer is that, Kirkvold was speaking to the employees
through Buchanan and Sims, spokesmen for Local 826.41
There is no substantial evidence of an attempt to avoid
dealing with the employees' bargaining representative.
Finally, the General Counsel impugns Respondent's
overall motivation at the bargaining table, denominating
its "bargaining" as a sham and a delusion and charging
that it had no intention of arriving at a contract with
Local 826. It is in connection with the determination
of the validity of this contention that I have set forth
in extended detail the occurrences from November 1966
to date.
I find the General Counsel's contention well taken.
At the outset of these negotiations, I am convinced,
Respondent was prepared to bargain in good faith with
"' But I do consider these statements as bearing upon the good
faith of Respondent in bargaining, discussed infra See the Trial Examin-
er's Decision in the B F Diamond Constriction Company case, as
affirmed by the Board in 163 NLRB 161
" On the evidence in this record, it is clear and I find that Local
826-by letter from Frank Parker dated December 2, 1966-informed
Respondent that a "workmen's committee" was specifically authorized
"to meet with management in an effort to settle any problem that
may arise in the plant from now until our contract is complete",
that Kirkvold was dealing with members of the workmen's committee,
that, in addition', Kirkvold gratuitously suggested that the committeemen
should feel free to discuss the matter with Local 826 Business Manager
Parker, and that, in fact, Parker was aware of the discussions going
on and voiced no disapproval Indeed, I regard it as passing strange
that in view of Parker's awareness of the situation at that time, details
were not aired 'at the sessions of this hearing occurring on September
12, 13, and 14, 1966
CHEVRON OIL COMPANY
Local 826.42 Its early positions and proposals were no
more extreme than were Local 826's, and there was
no indication that it was not prepared to enter into
the give-and-take discussions which would lead to a
contract.43
But, sometime between January 18 and 31, Respond-
ent's bargaining attitude took on a new look. On the
18th, in a discussion of the issue of management rights,
Johannessen, for Respondent, said that his principal,
under its proposal, sought to retain the freedom to
act which it enjoyed before Local 826 entered the picture;
and, his attention called to the possibility that the compa-
ny could "wipe out" the bargaining unit under its con-
tracting-out-work proposal, he merely said that this was
"not Respondent's intention," moreover-as I have
already found-on or prior to the 30th, Respondent,
(1) having concluded that Local 826 would not take
overt steps to force the issue of the contents of the
contract, decided to be more forceful on its own part,
and (2) having concluded that the union's spokesman
would make undue use of the arbitration process because
he was a "nitpicker" who acted "legalistically,"44 decid-
ed, contrary to its original (upublicized) position, not
to give in on the issue of arbitration in any respect.
Also on the 30th, in connection with discussions of
certain company proposals Johannessen said that, while
Respondent had no intention of using the powers it
reserved to itself under these proposals to the disadvan-
tage of the employees or to jeopardize the bargaining
unit, he would give no written assurances thereof; also,
he said that if the union felt the company was taking
undue advantage in any of these areas, it could grieve
(under a grievance procedure the terminal point of which
was a decision by a company official) or it could take
up the matter again come next contract negotiation
time.
By the close of the January 30-31 negotiating session,
the discussions were confined to the acceptability or
non-acceptability of the company's offers on the various
issues, for, although the union had expressed a willing-
ness to yield on certain of its own proposals if it were
given concessions, Respondent took the position that
its latest proposals, to all intents and purposes, were
its final ones. And, since Local 826 would not acquiesce
in these proposals, the parties agreed-and I find-
that an impasse had been reached.
Among Respondent's proposals in impasse were the
following: The company could, without restriction, pay
12 I make this finding in the face of the General Counsel's insinuations
to the contrary Granted that Respondent, to a degree, displayed a
preelection attitude favoring rejection of Local 826 as its employees'
bargaining agent, the available evidence does not indicate that, the
election results announced, it was not prepared to accept and to deal
with Local 826 as the employees' agent
4' I have found, for example, that despite its stated position on
the point, Respondent was originally prepared to grant some form
of arbitration as the final determinant of employee grievances
44 I have carefully considered the company's basis for this evaluation
of Frank Parker, as revealed by Johannessen's testimony at the instant
hearing I can only conclude that it believed that Parker too militantly
pursued the union's objectives-in negotiations, "bargained hard," and,
in any arbitration machinery which might be available, would press
any grievance which had a 50-50 chance of victory
469
employees compensation in addition to the wage rates
fixed; for purposes of deciding upon personnel actions,
Respondent would be the one to decide upon employees'
qualifications and abilities; the right to make job-assign-
ments was to be reserved to the company, and out-
of-unit employees could be assigned to perform unit
work; employee violations of plant rules would be cause
for discharge or such other disciplinary action as the
company deemed advisable; existing employee benefit
plans would be subject to change by the company;
and-under Respondent's management rights clause-
all rights "to manage the business" as they previously
existed were reserved exclusively to Respondent-rights
which included the establishment of starting and quitting
times and work schedules, the establishment or elimina-
tion of work classifications and the establishment,
change, elimination, or consolidation of jobs, the fixing
of wage rates of new jobs and classifications, the con-
tracting or subcontracting of work, the making and
enforcement of plant rules, the determination of the
size of the work force, the assignment of duties to
employees and of employees to jobs, and the hire,
suspension, layoff, recall, scheduling, assignment, dis-
charge, promotion, retirement, demotion, or transfer
of employees.
Over the next 11-plus months, seven more bargaining
sessions were held. During this period-as during the
period covered by the first three sessions-Respondent
made concessions with respect to a number of its propos-
als but, on the points in dispute above noted, it remained
basically firmed. In essence, it still insisted on the right
to assign unit work to outsiders; on the right to pay
employees additional compensation "in special situa-
tions"; on the right of transfer-in and transfer-out-of
the unit at the company's "sole discretion"; on the
exclusive right to determine an employee's qualifications
and ability for purposes of deciding upon personnel
actions provided the right be not "unreasonably" exer-
cised;4i and on the right unilaterally to exercise the
"management rights" functions previously listed46-all
subject to grievance under a procedure the terminal
step of which was the decision of an official of Respond-
ent and in the context of a no-strike commitment by
Local 826. Moreover, its insistence on the right unilater-
ally to amend any of the existing employee benefit
plans was unaltered.
On a number of occasions during the period in ques-
tion, Parker, for the union, indicated a willingness to
move closer to the company's positions if the company
would be more flexible; and, on a number of occasions,
Johannessen or his successor-negotiator, Lantrip, for
the company, indicated that Respondent had gone as
far as it would. Respondent's position is epitomized
by Johannessen's statements (made on March 23) to
the effect that, no matter what Local 826 did, the compa-
ny would make no further concessions; it was unwilling
31
The proviso was offered by Respondent subsequent to January
In this respect, a notable concession by Respondent subsequent
to January 31 was its abandonment of insistence on unilaterally setting
pay rates for new operations
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to give away rights 'it had possessed prior to the advent
of the union; and, with respect to existing working
conditions not otherwise treated in its proposals, it
reserved the right to alter them during the life of the
contract. I
I have already noted that, at the January 30-31 session,
Johannessen took the position, with respect to Local
826's objections, that it would have no real recourse
if Respondent misused the powers which it had reserved
to itself with respect to certain working conditions,
that if Respondent so acted, the questions could be
again raised at renegotiation time. And he said essentially
the same thing again on May 16. In the absence of
any evidence indicating a change in attitude, I find
that one of Respondent's continuing objectives was to
postpone to another day the yielding to Local 826 of
the rights of full participation in the determination of
working conditions at the North Snyder,plant
I have found that, on January 30, Johannessen-
in connection with a discussion of the company's job
assignment privileges under his proposal-had stated
that unit-erosion was not within Respondent's intention
but had refused to give any written assurance to this
effect. Subsequently, on March 23-in the midst of
his summary of Respondent's current position-he said
that one could not "put everything into a contract";
asked if he would include in a contract a commitment
to maintain existing working conditions, he refused;
and-in answer to an employee-negotiator's suggestion
that Respondent's proposed contract made it possible
for the company, at its option, to wipe out certain
employee rights now enjoyed without a contract-Johan-
nessen merely repeated, "You just [can't] put everything
in a contract." I find and conclude that part of Respond-
ent's objective in this series of negotiating sessions
was to avoid, to the extent it could avoid, the inclusion
of written' assurances in any contract which might be
executed.
On January 31, as noted, Respondent had determined
upon and was insisting upon a two-step grievance proce-
dure without arbitration and in connection with a no-
strike commitment by Local 826. On May 16, Johannes-
sen, after a 15-second consideration, rejected a union
proposal that, with respect to any particular grievance,
at the company's option, ,either arbitration be made
available or the no-strike commitment be inapplicable.
On June 7, Johannessen added two levels to its proposed
grievance procedure; the terminal point was now
Respondent's vice president in charge of production.
Regarding, this as no true change, Parker placed on
the table a variation: what would Johannessen's reaction
be-he asked-to the final decision on a grievance resting
in a company official familiar with labor relations, in
Johannessen himself, for example? Johannessen rejected
the idea, insisting that company officials of the sort
suggested were "outside the corporate setup." I find
that Respondent's negotiators believed that the grievance
procedure offered by the company was, under the cir-
cumstances, an ineffective one from the union's stand-
point;47' and, on this record, I find and conclude that
they were determined not to offer an effective one.
Finally, I find, on this record, that (1) Local 826
believed that its becoming party to a contract containing
the provisions last proposed by Respondent would place
it in a position more disadvantageous than having no
contract at all '41 (2) Respondent was aware of this
belief'49 and (3) Respondent shared the belief."" Nor
was the belief ill-founded. Acceptance of Respondent's
latest proposed contract would involve a substantial
surrender by Local 826 of the right, to participate in
decisions as to the fixing and installation, the continued
maintenance, and the alteration of the working conditions
of the employees it represented,-"' as well as an abandon-
ment of the right to take strike action which it might
lawfully take in the absence of a contract.
In sum, we have here an employer who, as of a
critical moment in its negotiations with the bargaining
representative of its employees-at or about January
31, 1967-had decided, because of its evaluation of
the relative strength of the parties to the negotiations,
to take a "hard line"; who, because it believed that
the spokesman for the bargaining representative was
prone himself to take strong positions, had decided
to abandon its former willingness to give some form
of arbitration as the terminal point of a grievance machin-
ery; who had been proposing that the bargaining repre-
sentative surrender the right to participate in determina-
tions as to the content and/or the continued maintenance
of a substantial number of important working conditions;
who, its attention called to the potential for the destruc-
tion of employee bargaining rights inherent in certain
of its proposals, had conceded the prospect but, denying
any such intentions, (1) nevertheless had refused to
give written assurances thereof and (2) had insisted
that-if what was feared should occur-the bargaining
representative (a) could resort to the grievance machinery
which should eventually be adopted or (b) could reraise
the subject at the next period for negotiating a contract;
and who had proposed that employees' grievances be
settled by means of machinery which-it was aware-
was ineffective. And we have here an employer who,,
thereafter, refused to budge to any substantial degree,
from the positions just noted despite the willingness
of the bargaining representative to engage in give-and-
take discussions; and who continued adamantly to insist
upon terms and conditions of a collective bargaining
contract which, if adopted by the parties, would arrogate
to the employer the unilateral determination of a substan-
" To all intents and purposes, Johannessen verified this at the bargain-
ing table-on May 16-and in testifying at the instant hearing
°N Parker made this clear at meetings held on March 23, June 7
and 21, and December 7
"' Each time the matter came up, company spokesmen expressed
an understanding of the union's position
'" Johannessen regarded the last contract proposed by Respondent
as management-oriented and the best of those to which Respondent
or any of its affiliates was a party
'' But I am not persuaded, as argued by the General Counsel, that
the working conditions prescribed by the proposed contract constituted
a "step backward" from practices currently existing at the North Snyder
plant
CHEVRON OIL COMPANY
tial number of working conditions in which-under the
Act and absent any contract whatsoever-the bargaining
representative would have had a voice.
In N.L.R.B. v. Herman Sausage Company, Inc.,52
the United States Court of Appeals for the Fifth Circuit,
after taking note of the fact that the Board may not
compel bargaining concessions or otherwise sit in judg-
ment upon the substantive terms of collective bargaining
agreements,"' went on to say:
On the other hand while the employer is insured
these valuable rights, he may not use them as
a cloak. In approaching it from this vantage, one
must recognize as well that bad faith is prohibited
though done with sophistication and finesse. Conse-
quently, to sit at a bargaining table, or to sit almost
forever or to make concessions here and there,
could be the very means by which to conceal
a purposeful strategy to make bargaining futile or
fail. Hence, we have said in more colorful language
it takes more than mere "surface bargaining," or
"shadow boxing to a draw," or "giving the union
a runaround while purporting to be meeting with
the union for the purpose of collective bargain-
ing. "54 1
I have neither the desire nor the authority to compel
Respondent here to make concessions or to sit in judg-
ment upon the contractual provisions which it insists
upon including in this contract. But I am convinced
that, in its adamant insistence upon terms and conditions
the acceptance of which, in effect, would serve to relieve
itself of a substantial part of its bargaining obligations
under the Act, in the context which I have described
above, Respondent was not truly bargaining collectively,
as the term is defined in Section 8(d) of the Act. In
my opinion, the nature of the proposals to which
Respondent so vigorously adhered and the bargaining
conduct of its negotiators denoted something more than
"hard bargaining"; the preponderating evidence warrants
the conclusion that Respondent was "surface bargain-
ing"-that is, it did not approach the bargaining table
with an open mind and purpose to reach an agreement
consistent with the respective rights of the parties 55
on the contrary, it was going through the motions with
no real intention of arriving at a mutually acceptable
contract.
On the latter point, a recent Board'decision is particu-
larly pertinent. In Stuart Radiator Core Manufacturing
Co., Inc., 173 NLRB No. 27, the Board, agreeing with
the Trial Examiner that the employer there had engaged
in surface bargaining to avoid reaching a meaningful
agreement with its employees' bargaining agent, said:
This effort to undermine the Union was clearly
mainifested by the nature of the contract proposals
offered by Respondent at the bargaining table. Thus,
Respondent insisted on a broad and extremely
275 F 2d 229, rehearing denied 277 F 2d,793
Citing N L R B v American National Insurance Co , 343 U S
395, 402, 404-a case also cited by Respondent herein
N L R B v Herman Sausage Co , supra, 232 Citations omitted
See Mature Transport Compans v N L R B , 198 F 2d 735, 739
(C A 5)
471
detailed management rights clause which reserved
to Respondent absolute unilateral control over virtu-
ally every significant term and condition of employ-
ment.. . .
While it is well established that an employer's
insistence upon a management rights clause does
not itself violate Section 8(a)(5), the nature of an
employer's proposals on management, rights and
other subjects are material factors in assessing its
motivation in approaching negotiations. Thus, rigid
adherence to proposals which are predictably unac-
ceptable to the Union may indicate a predetermina-
tion not to reach agreement, or a desire to produce
a stalemate, in order to frustrate bargaining and
undermine the statutory representative.
An evaluation of all Respondent's proposals here-
in indicates that Respondent was determined to
force the Union to abandon its right to be consulted
regarding practically all disputes that might arise
during the term of the contract relating to terms
and conditions of employment; i.e., to waive its
statutory right to bargain collectively. Such propos-
als indicate more than hard bargaining. Since the
Respondent could not have offered them with any
reasonable expectation that they would be accepta-
ble to the Union, we can only conclude that
Respondent did not approach negotiations in good
faith and with the intent of reaching an agreement.
We thus find that Respondent's approach to negotia-
tions was superficial and completely inconsistent
with the principle of good-faith bargaining. [Foot-
notes omitted.]
Having compared the facts in the Stuart Radiator case
with those in the instant situation, I am of the opinion
that the quotation applies even more strongly here.`,`
For the reasons given above, on what I believe to
be a fair preponderance of the evidence, I find and
conclude that Respondent failed and refused to bargain
collectively with the bargaining representative of its
employees in an appropriate bargaining unit on and
after January 31, 1967.
Upon the foregoing factual findings and conclusions,
I come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 826 is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees in
Respondent's North Synder (Texas) gasoline plant,
excluding guards, office clerical, professional employees
and supervisors as defined in the Act, constitute and
at all times material herein constituted a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Also, see N L R B v Reed & Prince Mfg Co , 205 F 2d 131,
139-140 (C A 1), cert denied 346 U S 887
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Local 826, on and since October 20, 1966, has
been and is the exclusive representative of all employees
in the aforesaid bargaining unit within the meaning of
Section 9(a) of the Act.
5. At least on and since November 6, 1966, Local
826 has requested Respondent to bargain with it `over
the working conditions of the employees in the aforesaid
bargaining unit.
6. On and since January 31, 1967, Respondent has
refused to bargain with 'Local 826 as the exclusive
representative of the employees in the afbresaid bargain-
ing unit, thereby engaging in unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
7. By the foregoing conduct, by telling employees
that the absence of benefits was attributable' to their
being representated by Local 826 and by promising
them additional benefits should they forego such repre-
sentation, Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed them in Section 7 of the Act, in violation
of Section 8(a)(1) thereof.
8. The aforesaid unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of
the Act.
9. Except for the foregoing, Respondent has commit-
ted no unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist there-
from and to take certain affirmative action in order
to effectuate the policies of the Act.
As the unfair labor practices committed by Respondent
are of a character striking at the roots of employee
rights safeguarded by the Act, I shall also recommend
that Respondent cease and desist from infringing in
any manner on the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following:
RECOMMENDED ORDER
Chevron Oil Company, Standard Oil Company of
Texas Division , of Snyder , Texas, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 826,
International Union of Operating Engineers , AFL-CIO,
as the exclusive representative of its employees in a
bargaining unit consisting of the production and mainte-
nance employees at its North Synder (Texas ) gasoline
plant , exluding office clerical , professional employees
and supervisors as defined in the Act.
(b) Attributing the lack of employee benefits to their
representation by Local 826 and promising additional
benefits if employees are no longer represented by Local
826.
(c) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their right
to self-organization, to form labor organizations, to join
or assist any labor organization, to bargain collectively
through representatives of their own choosing, to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any and all such activities.
2.' Take the following affirmative' action which I find
will effectuate the purposes of the Act''
(a) Upon request, bargain collectively with said labor
organization as the exclusive bargaining representative
of the employees in the above-described unit.
(b) Post at its North Synder (Texas) gas plant copies
of the attached notice marked "Appendix."57 Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent's authorized representative, shall be posted
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to Respond-
ent's employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'"
IT IS FURTHER RECOMMENDED that the complaint
herein be dismissed insofar as it alleges violations of
the Act not specifically found herein.
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 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 16, 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 Exam-
iner 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, upon request, bargain collectively with
Local 826, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive bargaining repre-
sentative of the nonsupervisory production and
CHEVRON OIL COMPANY
maintenance employees in our North Snyder, Tex-
as, gas plant
WE WILL NOT attribute the lack of employee
benefits to their representation by Local 826, and
WE WILL NOT promise additional benefits if employ-
ees are no longer represented by Local 826
WE WILL NOT, in any manner, interfere with,
restrain, or coerce our employees in the exercise
of their rights to organize, to form, join, or assist
a labor organization, to bargain collectively through
a bargaining representative chosen by themselves,
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection, or to refrain from any such activities
Dated By
473
CHEVRON OIL COMPANY,
STANDARD OIL COMPANY
OF TEXAS DIVISION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 8A24,
Federal Office Building , 819 Taylor Street, Forth Worth,
Texas 76102, Telephone 817-334-2921