Oil, Chemical & Atomic Workers Union

National Labor Relations Board - Board Decisions

Sep 25, 1974

213 N.L.R.B. 527 (N.L.R.B. 1974)

OIL, CHEMICAL & ATOMIC WORKERS UNION
Oil, Chemical & Atomic Workers International Union,
AFL-CIO and Western Industrial Maintenance,
Inc. Case 31-CC-477
September 25 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 25, 1974, Administrative Law Judge E.
Don Wilson issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and the
briefs and has decided to affirm the Administrative
Law Judge's rulings, findings, and conclusions I and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Oil, Chemical & Atomic
Workers International Union, AFL-CIO, Torrence,
California, its officers , agents , and representatives,
shall take the action set forth in the said recommend-
ed Order.
i In his conclusions of law, the Administrative Law Judge found that an
object of the picketing by Respondent at the gate reserved for employees of
Western Industrial Maintenance , Inc., was to force or require Western Indus-
trial Maintenance , Inc, and other persons to cease doing business with Mobil
Oil Corporation at Mobil's refinery in Torrance, California. In addition, it
is fairly inferrable from the allegations of the complaint that the General
Counsel was contending that a further object of the picketing was to force
Mobil to cease doing business with Hanskill Refinery Maintenance and
Noble Construction , the employers with whom Respondent had its primary
dispute The record as a whole supports such a contention , and we so find.
527
sued a complaint and notice of hearing , dated March 19,
1974, alleging that Oil, Chemical & Atomic Workers Inter-
national Union, AFL-CIO, herein the Union , by various
acts and conduct violated Section 8(b)(4)(i ) and (ii)(B) of
the National Labor Relations Act, herein the Act. Pursuant
to due notice , a hearing in this matter was held before me
in Los Angeles , California , on April 25, 1974. The parties
fully participated . The Union and General Counsel filed
excellent briefs which have been considered.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
I WESTERN'S AND OTHER EMPLOYERS ' BUSINESSES
At all material times herein, Mobil Oil Corporation, here-
in Mobil, a New York corporation, has operated the Mobil
Oil Refinery in Torrance, California, herein the Mobil Refi-
nery, where it is engaged in the refining of petroleum prod-
ucts. In the past calendar year from the Mobil Refinery,
Mobil has sold petroleum products valued in excess of
$50,000 to customers located directly outside of the State of
California.
At all times material, Western, a California corporation,
headquartered in Paramount, California, has been engaged
as a maintenance contractor at various industries located in
Southern California, including Mobil Refinery. During the
past calendar year, Western has provided maintenance serv-
ices valued in excess of $50,000 to Mobil at the Mobil Refi-
nery.
At all material times, Hanskill Refinery Maintenance,
herein Hanskill, Noble Construction, herein Noble, and
Hydro-Vel-Services, Inc., herein Hydro-Vel, each has been
a maintenance contractor providing maintenance services
to Mobil at the Mobil Refinery.
At all times material, Mobil and Western each has been,
and is now, an employer engaged in commerce and in a
business affecting commerce within the meaning of the Act.
At all material times, Western and Mobil each has been,
and now is, a person engaged in commerce or in an industry
affecting commerce within the meaning of Section 8(b)(4)(i)
and (ii)(B) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been a labor organi-
zation within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Upon a
charge filed by Western Industrial Maintenance, Inc., here-
in Western, on January 28, 1974, and amended thereafter on
January 31 and February 13, 1974, the General Counsel of
the National Labor Relations Board, herein the Board, is-
A. The Issues
Did the Union violate Section 8(b)(4)(i) and (u)(B) of the
Act by picketing Western, a neutral employer, with the
object of forcing Western to cease doing business with Mo-
bil. In resolving this, the primary issue , there are subsidiary
issues as to whether Western at the time of the picketing was
performing "struck work" and, consequently, an ally of the
primary employers, Hanskill and Noble, and also whether
Western is an "employer" within the meaning of the Act.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
All of the work involved in this proceeding was per-
formed by maintenance employees at Mobil Refinery.
Maintenance work is performed at Mobil by employees of
Mobil. However, Mobil also subcontracts maintenance
work to Hanskill, Noble, Hydro-Vel, and Western. The
Union's local represents the employees of Hanskill and No-
ble who perform maintenance work at Mobil. However, the
employees of Western who perform maintenance work at
Mobil are represented by International Union of Petroleum
& Industrial Workers, Seafarers International Union of
North America, AFL-CIO, while the employees of Hydro-
Vel who performed maintenance work at Mobil are not
represented by any Union.'
Since January 21, 1974,2 the Union has struck Hanskill in
connection with a labor dispute involving Hanskill employ-
ees at Mobil Refinery. From January 21 until February 10,
the Union also struck Noble in connection with a labor
dispute involving Noble employees at the Mobil Refinery.
It should be noted at the outset that at no time has Re-
spondent had a labor dispute with Mobil, Hydro-Vel, or
Western.
Beginning January 17, and since then, Mobil has provid-
ed a separate entrance for use by Western employees and
the same entrance has been maintained and used by em-
ployees of Hydro-Vel since January 24. This entrance has
been used only by employees of Western and Hydro-Vel
and Mobil has had a notice at said entrance indicating that
the entrance is to be used for entrance or exit solely by
persons on the payroll of Western or Hydro-Vel. The gate
reserved for employees of Western and Hydro-Vel is suffi-
ciently removed physically from the gate for the Hanskill
striking employees, so that it was unnecessary to interfere
with the ingress or egress of the Western and Hydro-Vel
gate , in order for the Union adequately to exercise its pick-
eting rights at the Hanskill gate.
Until enjoined by the United States District Court on
March 11, the Union picketed at the Western Industrial and
Hydro-Vel separate entrance. During such picketing, signs
were displayed. One sign read . "WESTERN INDUSTRIAL MAINTE-
NANCE UNFAIR" Another sign read: "OCAW, AFL-CIO, LOCAL 1-128
ON STRIKE AGAINST HANSKILL"
Further, from January 21 until February 12, the Union,
while picketing at the Western and Hydro-Vel gate, carried
a sign reading- "OCAW, AFL-CIO LOCAL 1-128 ON STRIKE AGAINST
NOBLE"
The Union concedes that it picketed at the separate West-
ern and Hydro-Vel entrance so as to induce and encourage
individuals to cease doing maintenance work at Mobil Refi-
nery, and to induce and encourage Mobil Refinery to cease
doing business with Western The maintenance work per-
formed at Mobil Refinery by employees of Mobil, Hanskill,
Noble, Hydro-Vel, and Western differs not in nature. In
other words, the maintenance work done by Western em-
1 Union contends that these subcontractors have no "employees " perform-
ing work at Mobil It would refer to such people merely as "persons" or
"workers" when they are referred to in conjunction with the subcontractors
and Mobil
2 Hereinafter , unless otherwise stated , all dates are 1974
ployees is not distinguished in any way from the work done
by employees of Mobil, Hanskill, Noble, or Hydro-Vel.
Mobil determines what work is to be done and assigns its
employees or employees of its subcontractors to do the
work. There is no way to distinguish who an employee
works for by the employee's job function.
Whether a man gets his paycheck from Mobil, Hanskill,
Hydro-Vel, or Western he is a maintenanceman doing
maintenance work and a maintenance worker for one em-
ployer could perform exactly the same job as a worker for
another employer, and the work is performed, at least from
time to time, on an interchangeable basis All the mainte-
nance workers perform overlapping and similar job func-
tions so that there is no objective means based on job
functions to determine whether employees from Western
are performing work that was previously performed by em-
ployees of Mobil, Hanskill, or Noble. There is no mainte-
nance job function at Mobil that was previously performed
only by Hanskill or Noble employees.
When Mobil chooses not to perform its maintenance
work with its own employees, it requests one of the afore-
named subcontractors to perform that job through their
employees. Such subcontractors are used interchangeably
and may be used on the same job together. Following the
beginning of the strike by the Union, and until March 10,
Western did not provide Mobil with a substantially larger
number of maintenance employees than normal. However,
after March 10, Western, at Mobil's request, provided a
larger number of maintenance employees. In approximately
mid-March, Western provided more workers to Mobil due
to a maintenance breakdown in the hydrogen plant and in
the sulfur unit. After the Union began its strike, the mainte-
nance workers provided by Western did not perform any
unusual amount of overtime work.
The work performed by the persons on the payroll of
Western was performed for the benefit of, and at the request
of, Mobil. Western receives no remuneration for work per-
formed by persons on its payroll who work at Mobil, from
Hanskill and/or Noble. The work performed by Western at
Mobil is performed at Mobil's request, and not at the re-
quest of Hanskill and/or Noble.
C. Western is an Employer Within the Meaning of the Act
Western has a contractor's license from the State of Cali-
fornia. Western has a contract with Mobil dated June 26,
1972, which, in article 3 thereof, provides that Western is an
independent contractor and neither Western nor its em-
ployees are employees of Mobil. The same article further
provides that Western assumes full responsibilities as an
"employer" for itself and all its employees and "agrees to
pay all employer taxes required under applicable laws or
regulations." Further, under the contract, Western is re-
quired to maintain insurance covering its employees at Mo-
bil Refinery with respect to any personal injuries they might
sustain.
It has heretofore been noted that Western has a collec-
tive-bargaining contract with a labor organization other
than the Union herein. This contract is effective from July
1, 1973, until June 30, 1976. Western hires all the employees
it furnishes to Mobil. They are paid by Western. Western,
OIL, CHEMICAL & ATOMIC WORKERS UNION 529
and Western only, can fire its employees who work at Mo-
bil. Western provides vacations for its employees . It further
provides its employees with holiday benefits.
Mobil has most considerable control in connection with
the performance of work at the Mobil Refinery by employ-
ees furnished to it by Western. Mobil provides Western's
employees with all tools, equipments , and materials. The
employees provided by Western are skilled and unskilled
maintenance employees . Mobil determines the number of
Western employees it will use and the classifications of
Western employees it will use . Mobil determines the job
tasks to be performed . It determines whether or not Western
employees are required to work overtime . Employees of
Western, while working at the Mobil Refinery , receive no
on-site supervision from Western other than timekeeping
Ed Sapp , general superintendent , is present in the morning
at Mobil Refinery to determine which Western employees
clock in and who do not . Mr. Sapp regularly confers with
Jim Swayne , assistant maintenance manager for Mobil, and
discusses any personnel problems relating to Western em-
ployees. Mr. Sapp is permanently stationed at Western's
headquarters . Mobil supervisors keep track of time spent by
Western employees on specific job orders . If Mobil should
be dissatisfied with the performance of an employee of
Western , Mobil may request that the employee be taken off
the job. Should such request be made, Western will comply
with such request and may place the employee at another
jobsite with another company with whom it may have a
contract . At times, Western, itself , will make such change,
or terminate an employee without prior direction from Mo-
bil, if the Western employee does not perform to the satis-
faction of Western . In the typical situation, the
determination as to satisfactory performance by a Western
employee working at the Mobil Refinery, is determined by
Mobil.
D. Concluding Findings
It has already adverted to that the Union's purpose for
picketing at the entrance reserved for Western and Hydro-
Vel was to induce and encourage Western employees to
cease doing the work at Mobil Refinery and induce and
encourage Mobil Refinery to cease doing business with
Western. I conclude that if Western was not performing
"struck work" as an "ally" of Hanskill and Noble, the pri-
mary employers, the Union violated Section 8(b)(4)(i) and
(ii)(B) of the Act.
E. Western was not Performing Struck Work While the
Union was Picketing the Gate Reserved for it and
Hydro-Vel
Mobil. Their work was performed exclusively for the benefit
of Mobil. The work of the Western employees was not in
any way, shape, or form performed for the benefit of either
Hanskill or Noble. The work of the Western employees was
performed solely at the request of Mobil and pursuant to
contract between Western and Mobil. The mere fact the
work performed by employees of Western, Hydro-Vel,
Hanskill, and Noble was interchangeable does not lead me
to the conclusion that the work performed by the employees
of Western during the course of the strike was "struck
work." Neither Hanskill nor Noble transferred any work to
Western or Western's employees. Western was not in any
manner involved in a plan or conspiracy or agreement
whereby performance of the work by Western employees
would benefit Hanskill or Noble Western's employees sim-
ply continued to perform their work at Mobil Refinery as
provided by Western's contract with Mobil.
F. Western is an Employer Within the Meaning of the Act
It is manifestly clear that Western is a "person engaged
in commerce." Such satisfies the requirements of Section
8(b)(4) of the Act. Moreover, I find that Western is an
employer within the meaning of Section 2(2) of the Act. It
is Western who hires the employees involved and fires them
and pays them and gives them vacations and perhaps other
benefits. As a licensed contractor, Western controls the
working conditions of its employees pursuant to a contract
with the employees' Union. Certainly, as Webster has used
the word "employ," Western has used and engaged the
services of maintenance workers and it has provided them
with jobs that pay wages or salaries Those employees of
Western who work at Mobil, under the direct supervision of
Mobil, are nonetheless employed, for wages or salaries, by
Western. I find no need for deciding in this case, whether,
in another case, I might find Mobil also to be an employer
of the Western employees. Suffice it to say, that here I find
Mobil merely exercises supervisory control over the func-
tions of Western employees when they were performing
work at the Mobil Refinery pursuant to Western's contract
with Mobil.
The Union's argument, in its brief, that because Mobil
has not joined Western as a Charging Party "there is no
valid employer with standing before the Board to maintain
the charge," I find to be specious. Further, I find its argu-
ment that Mobil is in violation of some contract with a labor
organization is immaterial to any issue before me. I con-
clude that General Counsel has established by a preponder-
ance of the probative and substantial evidence that the
Union, by its picketing activities at the gate reserved for
Western and Hydro-Vel employees, violated Section
8(b)(4)(i) and (u)(B) of the Act as alleged in the complaint.
Neither Hanskill nor Noble in any way arranged for
Western to perform the work it had long before contracted
with Mobil to do. Neither did Hanskill nor Noble arrange,
in any way, to pay Western employees for performing their
work during the course of the strike. I realize that the main-
tenance work performed by employees of Mobil, Western,
Hydro-Vel, Hanskill, and Noble differed not at all and was
interchangeable. Such does not alter the fact that the work
performed by Western employees was assigned to them by
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Union's activities set forth in section III, above, oc-
curring in connection with the operations of the Union
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
530
merce.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
Having found that the Union has engaged in certain un-
fair labor practices, I shall recommend that it cease and
desist therefrom and that certain affirmative action, de-
signed to effectuate the policies of the Act, be taken by it.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. At all material times, Western and Mobil have been
employers engaged in commerce within the meaning of the
Act.
2. At all material times, Western, Mobil, Hydro-Vel,
Hanskill, and Noble have been persons engaged in com-
merce or in an industry affecting commerce within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
3. At all material times, the Union has been a labor orga-
nization within the meaning of the Act.
4. At no time material has the Union been certified as the
collective-bargaining representative of any of Western's em-
ployees.
5. At no material time has Respondent had a labor dis-
pute with Western at the Mobil Refinery or elsewhere.
6. From January 21 until March 11, Union picketed the
Western/Hydro-Vel separate entrance with picket signs
reading: "WESTERN INDUSTRIAL MAINTENANCE UNFAIR" and
"OCAW AFL-CIO LOCAL 1-128 ON STRIKE AGAINST HANSKILL " Further,
from January 21 until February 12, Respondent picketed
the Western/Hydro-Vel separate entrance with a picket sign
reading: "OCAW AFL-CIO LOCAL 1-128 ON STRIKE AGAINST NOBLE"
7. By picketing, as above, Respondent has engaged in,
and has induced and encouraged individuals, or an individ-
ual, employed by Western and other persons engaged in
commerce or in an industry affecting commerce, to engage
in a strike or refusal in the course of their or his employment
to use, manufacture, process, transport, or otherwise handle
or work on goods, articles, materials, or commodities or to
perform services; and has threatened, coerced, and re-
strained Western and other persons engaged in commerce
or in an industry affecting commerce.
An object of the picketing at the Western/Hydro-Vel
gate, was to force or require Western and other persons
engaged in commerce or in an industry affecting commerce
to cease doing business with Mobil at the Mobil Refinery.
By each of the acts of the Union set forth above, in the
circumstances described above, and for the object set forth
above, Union has been engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
Act.
8. Union's unfair labor practices, set forth above, affect
commerce within the meaning of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, I recommend that the
Board issue the following:
ORDER3
Oil, Chemical & Atomic Workers International Union,
AFL-CIO, Terrence, California, its officers, agents , succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Picketing the reserved gate maintained for use by
employees of Western at the Mobil Refinery where the ob-
ject is to force or require Western or any other person to
cease doing business with Mobil or the object is that de-
scribed in (b)(1), immediately following.
(b) In any like or related manner (1) engage in, or in-
duce or encourage any individual employed by Western,
and its suppliers or any individual employed by any other
person engaged in commerce or in an industry affecting
commerce, to engage in a strike or refusal in the course of
their or his employment, to use, manufacture, process,
transport, or otherwise handle or work on any goods, arti-
cles, materials , or commodities or to perform any services;
or (2) threatening, coercing, or restraining Western and its
suppliers or any other person where an object is to force or
require Western or any other person to cease doing busi-
ness with Mobil.
2. Take the following affirmative action, necessary to
effectuate the policies of the Act:
(a)The Union will post at its business offices and meet-
ing halls, in conspicuous places, and at other places where
notices to members are customarily posted, copies of the
attached notice marked "Appendix."4 Copies of said notice,
to be furnished by the Regional Director for Region 31,
shall, after being duly signed by an authorized representa-
tive of Union, be posted by the Union immediately upon
receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter. Reasonable steps shall be taken
by the Union to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Promptly mail to said Regional Director signed cop-
ies of the notice for posting, Western or Mobil being willing,
at their jobsites.
(c) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
the Union has taken to comply herewith.
3 In the event no exceptions are filed as pros ided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes
4 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
OIL, CHEMICAL & ATOMIC WORKERS UNION
WE WILL NOT engage in or induce or encourage any
individual employed by any person engaged in com-
merce or in an industry affecting commerce , and par-
ticularly Western Industrial Maintenance , Inc., or its
suppliers , to engage in a strike or a refusal in the course
of his employment to use , manufacture , process, trans-
port, or otherwise handle or work on any goods, arti-
cles, materials , or commodities , or to perform any
services; or threaten , coerce , or restrain any person
engaged- in commerce or an industry affecting com-
merce , and particularly Western Industrial Mainte-
nance , Inc., where in either case , an object thereof is
forcing or requiring Western Industrial Maintenance,
Inc., or any other person , including Western's sup-
pliers, to cease doing business with Mobil Refinery.
Dated By
531
OiL, CHEMICAL & ATOMIC
WORKERS INTERNATIONAL
UNION, AFL-CIO
(Union)
(Representative (Title)
This is an official notice and must not be defaced by
anyone.
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 . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Federal Building , Room 12100,
11000 Wilshire Blvd., Los Angeles, California 90024, Tele-
phone 415-556-0335.