Exxon Co.

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1193 (N.L.R.B. 1994)

1193
313 NLRB No. 209
EXXON CO.
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
Exxon Company, U.S.A., a Division of Exxon Cor-
poration and New Jersey Esso Employees Asso-
ciation and Francis Nowak and Austin Bange
Exxon Company, U.S.A., a Division of Exxon Cor-
poration and Exxon Chemical Americas, a Di-
vision of Exxon Chemical Company (a Division
of Exxon Corporation) and Standard Refinery
Union
Exxon Company, U.S.A., Bayway Refinery and
Exxon Chemical Americas, Bayway Chemical
Plant and Local Union 877, affiliated with
International Brotherhood of Teamsters1
Exxon Company, U.S.A. (a Division of Exxon Cor-
poration) Production Department, Central Di-
vision and Exxon Gas System, Inc. and Em-
ployee’s Federation of Exxon Company, U.S.A.,
Production Department, Central Division and
Exxon Gas Systems, Inc.
Exxon Company, U.S.A. (a Division of Exxon Cor-
poration), Distribution East and Penn-Exxon
Employees Association. Cases 22–CA–16791,
22–CA–16953, 22–CA–17247, 22–CA–16880,
22–CA–16642 (formerly Case 16–CA–14402),
22–CA–17221 (formerly Case 16–CA–14216–2),
and 22–CA–18134 (formerly Case 4–CA–18448)
May 9, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On May 28, 1993, Administrative Law Judge James
F. Morton issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The judge found, and we agree, that the Respondent
bargained in good faith regarding 1989 revisions to its
1987 corporatewide substance abuse policy, that a
valid impasse was reached, and that the Respondent
then lawfully implemented its revisions.
The General Counsel contends that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing
and refusing to bargain with the Charging Parties re-
garding the changes to its substance abuse policy. In
lieu of testimony, the parties submitted an 81-point
stipulation to the judge. The stipulation included in
five places the provision that, ‘‘Exxon was not willing
to give on the revisions to the 1987 Alcohol and Drug
Use Policy, but was willing to give in other areas in
order to come to an agreement.’’ The General Counsel
contends that the above-quoted provision concerns
only the 1989 revisions to the 1987 policy and the ef-
fects of those revisions on the unit employees, and not
any other issues in the bargaining. The General Coun-
sel notes that the only issue the parties were bargaining
about at the time was the Alcohol and Drug Use Pol-
icy, and the Respondent admittedly refused to ‘‘give’’
on that issue. Consequently, the General Counsel
claims that the Respondent engaged in bad-faith bar-
gaining.
The Respondent contends that the stipulation should
not be read that narrowly. Although the Respondent
admits that it would not agree to change the language
of the 1989 revisions, it argues that it was stipulated
that it was willing to ‘‘give’’ on other issues in order
to reach agreement and, therefore, did not refuse to
bargain. The Respondent argues that it engaged in
‘‘hard,’’ but good-faith bargaining.
We find that the stipulation language in dispute
broadly addresses the entire bargaining process, not
just the 1989 revisions. Thus, it states that the Re-
spondent ‘‘was willing to give in other areas in order
to come to an agreement.’’ (Emphasis added.) Since
the provision otherwise speaks of the Respondent’s not
making concessions on the 1989 revisions to the Alco-
hol and Drug Use Policy, we find that the most rea-
sonable interpretation of the words ‘‘other areas’’ is
that they refer to other issues in bargaining, apart from
the 1989 revisions. The General Counsel bears the bur-
den of proving the violation of the Act alleged in the
complaint. Based on the stipulated facts before us, we
find that the General Counsel failed to sustain that bur-
den.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Julie Kaufman, Esq., for the General Counsel.
Russell M. Guttshall III, Esq., of Houston, Texas, and John
M. Baumann Jr., Esq., of Florham Park, New Jersey, for
Respondent Exxon Company, U.S.A.
Howard A. Goldberger, Esq. (Goldberger & Finn), of
Cranford, New Jersey, for several of the Charging Parties.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. These
cases were consolidated for hearing as they all relate to
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent is comprised of Exxon Company, U.S.A., a Di-
vision of Exxon Corporation and Exxon Chemical Company, also a
Division of Exxon Corporation.
2 The appendix contains the unit descriptions and the names of
labor organizations which represent the respective unit employees.
3 The complaint also alleged that the implementation of the revised
corporatewide policy adversely affected several named employees
and that the Respondent thereby separately violated Sec. 8(a)(1) and
(5) of the Act. At the hearing, the parties stipulated that those allega-
tions were to be deferred, pending resolution of the issue framed
above and that, if merit is found as to that issue, the employees af-
fected would have a remedy available at a compliance stage of this
case.
4 Of the six units involved in this case, only Units B, E, and F
have employees in designated positions.
whether the Respondent1 in the course of negotiations con-
ducted by local bargaining committees for six employee
units2 failed to bargain in good faith respecting certain revi-
sions in its corporatewide substance abuse policy before im-
plementing those revisions for employees in these units. The
complaint alleges that the Respondent thereby has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act).3 The
Respondent contends that it bargained in good faith with
each of the labor organizations and that it implemented its
substance abuse policy revisions only after valid impasses
were reached.
I heard this case in Newark, New Jersey, on March 8,
1993. On the entire record which essentially consists of the
formal papers, an 81-point written stipulation and related ex-
hibits, and after considering the briefs filed by the General
Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION–LABOR ORGANIZATIONS
The Respondent is engaged in the exploration, production,
refining, and marketing of oil and petrochemical products
and related products. In its operations annually, it meets the
Board’s nonretail jurisdictional standard.
The respective unions listed in the appendix are labor or-
ganizations as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
In 1987 the Respondent prepared and implemented for all
employees throughout the corporation what it termed, a
‘‘Policy Statement on Employees Alcohol and Drug Use.’’ It
made certain revisions in that policy on July 5, 1989, and,
on September 1 of that year, it implemented those revisions
for 20,000 of its employees, including executives, manage-
rial, technical, and others of its employees. The revised pol-
icy was not implemented then as to the employees in the
units referred to in the appendix or to employees at other lo-
cations where the implementation of the revisions was sub-
ject to collective bargaining at the local level.
The revisions in 1989 are additions to the 1987 policy.
These state:
However, an employee who has had or is found to have
a substance abuse problem will not be permitted to
work in designated positions4 identified by management
as being critical to the safety and well-being of employ-
ees, the public, or the Company. Any employee return-
ing from rehabilitation will be required to participate in
a Company-approved after-care program. Unannounced
periodic or random testing will be conducted when an
employee meets any one of the following conditions:
has had a substance abuse problem or is working in a
designated position identified by management, a posi-
tion where testing is required by law, or a specified ex-
ecutive position. A positive test result or refusal to sub-
mit to a drug or alcohol test is grounds for disciplinary
action, including dismissal.
The Respondent conducted contract negotiations separately
with each of the unions named in the appendix. It was during
those negotiations that the question of good faith arose as to
the bargaining over the policy revisions.
The Respondent had different managers responsible for the
negotiations in each of those units. For example, the Re-
spondent’s human resources advisor at Bayway, Ronald
Kowalczyk, negotiated with officials of Local 877, Teamsters
as to Unit A, and, for Unit B at Linden, the Respondent’s
manager there, J. D. Biavaschi, negotiated with officials of
New Jersey Esso Employees Association.
The respective local bargaining representatives for the Re-
spondent did not have authority to change the wording of the
revised policy without senior management approval. Senior
management officials did not meet with the bargaining com-
mittees of any of the labor organizations involved. The Re-
spondent, in the course of discussing with the respective
labor organizations, took the position that it was not willing
to agree to changing its revised policy but was willing to
give in on other bargaining areas in order to reach an agree-
ment. In that regard, the Respondent’s first affirmative de-
fense set out in its answer states that it is ‘‘barred from bar-
gaining over the corporation-wide policy.’’
As to Unit A, the respective bargaining committees of the
Respondent and Local 877 Teamsters met seven times from
July 28 to November 8, 1989, to discuss contract issues, in-
cluding the implementation of the policy revisions among the
employees in that unit. On November 8, 1989, Local 877’s
president wrote the Respondent’s human resources advisor
there that further discussions will be fruitless in view of the
Respondent’s propensity for citing national statistics in re-
sponding to Local 877’s demands for an explanation as to
why the policy revisions sought by the Respondent should be
implemented, and in view of Local 877’s claim that the drug
policy then in affect was more than adequate, and in view
of Local 877’s assertion that the policy urged by the Re-
spondent might be illegal. The Respondent’s human re-
sources advisor at that location wrote Local 877 the next day
to say that Local 877’s statement that ‘‘further discussions
will be useless’’ when considered in conjunction with state-
ments across the bargaining table, leaves the Respondent no
alternative but to declare an impasse in negotiations. The Re-
spondent’s letter advised that the Respondent will implement
the revisions on December 15, 1989, and that, should Local
877 reconsider and decide that bargaining would not be fruit-
less, it should notify the human resources advisor before No-
vember 17, 1989. On December 15, 1989, the Respondent
implemented the revisions in Unit A.
Substantially similar negotiations took place for the em-
ployees in Units B, C, D, E, and F among the respective
1195EXXON CO.
5 The Respondent and the respective labor organizations reached
accord on the other aspects of their bargaining as is evident from
the collective-bargaining agreements covering Units A through F
which, by their terms, became effective in 1990 or later, or were re-
newed year to year.
6 Copies of the collective-bargaining agreements for these units are
in evidence.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
local bargaining committees of the Respondent and the
Union, resulting in declarations by the Respondent that im-
passe was reached and the implementation of the revisions.5
The respective dates thereof are:
Unit Declaration of Impasse Implementation of Revi-sions
B February 5, 1990 February 16, 1990
C & D January 30, 1990 February 15, 1990
E June 20, 1990 July 9, 1990
F October 30, 1989 November 15, 1990
ANALYSIS
It is undisputed that the implementation of the revisions to
the policy constituted a material change in the terms and
conditions of employment of the employees in Units A
through F. Bargaining thereon was mandatory. Johnson-Bate-
man Co., 295 NLRB 180, 182 (1989).
The General Counsel contends that there was no valid im-
passe in any of the units, A through F, because the Respond-
ent had bargained in bad-faith before declaring impasse in
each. The Respondent asserts that it engaged in hard bargain-
ing to obtain agreement as to its policy revisions.
The General Counsel cites three factors to support the alle-
gation of bad-faith bargaining—the failure of the Respondent
to vest its local managers with full authority to change the
policy revisions, the fact that the Respondent’s senior man-
agement officials never met with any of the union representa-
tives concerning these revisions, and the Respondent’s ‘‘bla-
tant unwillingness’’ to agree to any change in those revi-
sions.
It is fairly obvious, to paraphrase an observation made by
then Trial Examiner Leff in Shell Oil Co., 194 NLRB 988,
992 (1972), that the employer’s managers, in conducting the
negotiations, were expected to conform to centrally arrived
at decisions with respect to companywide benefit plans. A
refusal to make any change in a particular plan or policy,
where there has been bargaining on all other terms and con-
ditions of employment, is not a violation of an employer’s
duty to bargain collectively under Section 8(a)(5) of the Act.
See John S. Swift Co., 124 NLRB 394 (1959). Also, cf. Shell
Oil, supra, where the employer’s insistence on maintaining
corporatewide benefit plans was, implicitly, a valid bargain-
ing position.
That the bargaining representatives of the Respondent
could not, on their own, change the 1989 revisions, is not
dispositive of the issue of good-faith bargaining. The author-
ity given to a bargaining representative by an employer is but
one of the factors to be weighed in determining whether it
bargained in bad faith. Cf. Fitzgerald Mills Corp., 133
NLRB 877, 881 (1961), and cases cited therein at fn. 14. In
Fitzgerald, the employer’s representative was not empowered
to modify any part of its complete counterproposal; that
broad limitation and other factors were sufficient for the
Board to find that there was a failure to bargain collectively.
The facts in Fitzgerald differ vastly from those in the case
before me. Here, the Respondent’s representatives were free
to make concessions on all aspects of bargaining, other than
the 1989 revisions. The General Counsel’s brief cites Wycoff
Steel, Inc., 303 NLRB 517 (1991), as precedent to be fol-
lowed; the employer’s representative in that case was found
to have ‘‘no authority to negotiate in any meaningful way.’’
Wycoff Steel is factually inapposite.
I find that there had been good-faith bargaining during the
respective contract negotiations for the employees in Unit A
through F,6 that a valid bargaining impasse had been reached
during the course thereof as to the revisions, and that the Re-
spondent then lawfully implemented those revisions for the
employees in Units A through F.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Unions named in the appendix are labor organiza-
tions defined in Section 2(5) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The complaint is dismissed.
APPENDIX
(A) BAYWAY UNIT
All operating, mechanical and maintenance employees
in the Bayway Refinery and Bayway Chemical Plant of
the Companies, excluding office and plant clerical em-
ployees, watchpersons, guards, professional employees,
technical employees, metal inspectors, gas testers,
measurement persons and supervisors, as defined in the
Act.
UNION: LOCAL UNION 877, a/w INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA.
(B) LINDEN UNIT
All drivers, helpers, checkers, mechanics, watchmen,
plant clerical employees and other employees employed
by Respondent in the State of New Jersey as described
in the collective-bargaining agreement between Re-
spondent Linden and NJEEA.
UNION: NEW JERSEY ESSO EMPLOYEES AS-
SOCIATION.
(C & D) BAYONNE UNITS
All operating, mechanical and maintenance employees
at Respondent’s Bayonne facility, excluding all clerical
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees, professional and technical employees, all
laboratory technicians and all executives and super-
visors as defined in the Act.
All ‘‘Marine services’’ employees employed in salary
jobs at Respondent’s Bayonne facility, but excluding
confidential, professional, technical, executive, manage-
rial and supervisory employees.
UNION: STANDARD REFINERY UNION
(E) HOUSTON UNIT
All production and maintenance employees in Exxon’s
Central Division of the Production Department and
Exxon Gas System, Inc., excluding supervisors,
confidental, managerial, professional and technical em-
ployees.
UNION: EMPLOYEES’ FEDERATION
(E) PENNSYLVANIA UNIT
[Employees employed in the unit described in Part 112
and 211 of the collective-bargaining agreement between
the Union named below and the Respondent.]
UNION: PENN-EXXON EMPLOYEES’ ASSOCIA-
TION