Occidental Petroleum Corp., 304 (1970)
Hooker Chemical Corporation, a Wholly Owned Subsidiary of Occidental Petroleum Corp. and Local 820, International Chemical Workers Union;
Local 696, International Chemical Workers Union;
Local 110, International Chemical Workers Union;
Niagara Hooker Employees' Union; Operating &,
Stationary Engineers, Local 286, International Union of Operating Engineers, AFL-CIO; Local Lodge 2112, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 7-CA-7515,7-CA-7515 (2) (formerly 9-CA-5328), 7-CA-7515 (3) (formerly 19-CA-4488), 7-CA -7515 (4) (formerly3-CA-3971), 7-CA-7515 (5) (formerly 19-CA-4609), and 7-CA-7515 (6) (formerly 3-CA-3990) October 31, 1970 DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 16, 1970, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed crossexceptions and a supporting brief. Respondent also requested oral argument.' 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 connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Examiner's rulings 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.2 ORDER
Corp., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modification:
Substitute the attached notice for the Trial Examiner's Decision.
1 In accordance with the contentions of the General Counsel , we find that employees in the Armed Services are 'employees' within the meaning of the Act. Emil Denmark, Inc. 121 NLRB 1370; Link-Belt Co., 91 NLRB 1143; and Lynch Carrier Systems, 92 NLRB 867. However, whether individuals within that status are entitled to be paid the 1969 Christmas bonus, as the General Counsel contends, depends on whether or not they would have been paid such bonus absent Respondent's unilateral action.
This matter has not been fully litigated and will be left to the compliance stage of this proceeding.
2 In accordance with the contentions of the General Counsel, we find that employees in the Armed Services are 'employees' within the meaning of the Act. Ernie Denemark, Inc., 121 NLRB 1370 (1958); Link-Belt Co., 91
NLRB 1143 (1950); and Lynch Carrier Systems, 92 NLRB 867 (1950). We also find that retirees and pensioners are 'employees' within the meaning of the Act. Pittsburgh Plate Glass, 177 NLRB No. 114. To the extent that this finding is in conflict with the decision of the U .S. Court of Appeals for the Sixth Circuit in Pittsburgh Plate Glass Co. v. N.LR.B., 427 F.2d 936, we respectfully disagree and adhere to our view until such time as the U.S.
Supreme Court has passed on the matter. However, whether individuals in either status are entitled to be paid the 1969 Christmas bonus, as the General Counsel contends , depends on whether or not they would have been paid such bonus absent Respondent's unilateral action. This matter has not been fully litigated and will be left to the compliance stage of this proceeding. Chairman Miller would find in agreement with the court that retirees and pensioners are not 'employees.' TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These consolidated cases were tried in various cities on March 23, 24, 31 and April 2, 3, and 14, 1970, pursuant to charges filed by the six above-named Unions (by Locals 110, 696, and 820, respectively, on September 4, 9, and 16,' by the Niagara Employees and Local 286, respectively, on December 11 and January 2, 1970, and by Lodge 2112 on January 12, amended January 26 and February 19, 1970), and pursuant to a consolidated complaint issued on December 18 and amended February 20, 1970.
The primary issue is whether the Respondent, Hooker Chemical Corporation, herein called the Company, violated its statutory bargaining obligation by announcing to the Unions, without prior notice or consultation, an unalterable decision to cancel the annual Christmas bonus, thereby unilaterally changing the emoluments of its employees in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended.
Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the General Counsel's memorandum and the Company's excellent brief, I make the following:
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Hooker Chemical Corporation, a wholly owned subsidiary of Occidental Petroleum FINDINGS OF FACT
THE BUSINESS OF THE COMPANY AND THE UNIONS INVOLVED
The Company, a wholly owned subsidiary of Occidental 1 All dates, unless otherwise indicated, are in 1969.
186 NLRB No. 49
Petroleum Corp., is a New York corporation, engaged in the manufacture and sale of chlorine, caustic soda, phosphorus, phosphorous compounds, and related products. At each of its plants located at Niagara Falls and North Tonawanda, New York, at Montague, Michigan, at Jeffersonville Indiana, and at Tacoma, Washington (the plants involved in this proceeding), it annually receives goods and materials valued in excess of $50,000 directly from outside the State in which the plant is located, and annually ships products valued in excess of $50,000 directly to points outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that each of the six Unions involved in this proceeding is a labor organization within the meaning of Section 2(5) of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES A. Discontinuance of Christmas Bonus In 1969, after becoming a subsidiary of Occidental Petroleum Corp., the Company began a review of the fringe benefits being provided the employees in its 28 plants. In many-but not all-of the plants, the Company had been giving both hourly and salaried employees an annual Christmas bonus (or gift) of $25-$12.50 if the employee had less than 6 months of service. (Since 1943 , when the Internal Revenue Service ruled that the 'gift' was taxable, $5 and $2.50, respectively, had been withheld for taxes.) The annual cost to the Company was about $250,000.
Rather than giving the same annual bonus to employees in the remaining plants, the Company decided to eliminate the Christmas bonus completely, to substitute $2,000 of life, accidental death, and dismemberment insurance for the salaried (unrepresented) employees, and to make the same offer of substitution to the various unions representing the hourly employees.
At the five plants involved in this proceeding, company representatives announced in August and September the discontinuance of the Christmas bonus, and offered to negotiate for a substitution of insurance . The Company did not offer to negotiate on whether or not the bonus should be eliminated. In each of the six bargaining units, the union representatives protested the Company's unilateral decision to discontinue the bonus. Two of the Unions, at the Niagara Falls and Tacoma plants, filed grievances. The Company rejected the grievances , stating that the Christmas 'gift' was given at the Company's sole discretion, and that the matter was not grievable.
The Christmas bonus was not included in the respective collective-bargaining agreements, expiring in 1970 and 1971. The $25 bonus had been given each year for over 20 years at the Niagara Falls and Tacoma plants, for 15 years at the Montague plant, and for about 10 years at the North Tonawanda and Jeffersonville plants . At the Company's Niagara Falls 'mother plant,' where the Niagara Hooker Employees' Union represents about 1 ,275 employees, the Union in 1960 used the Christmas bonus as a talking point for selling the collective-bargaining agreement to the membership. As credibly testified by Union President Oswald L. Schiavi, the union leadership 'was trying to sell the contract for the second time. . . . [T]he membership still refused to buy the package' because 'a rival . . . firm within the same locality, was at that time receiving a few cents an hour more than we were. I used the Christmas bonus of a penny and a fifth an hour to point out to the membership' that the bonus closed the gap, from 3 or 4 cents to only 1 or 2 cents an hour, and the membership ratified the agreement. Insofar as the testimony reveals, the Christmas bonus had never been mentioned in negotiations at any of the plants, except at the Niagara Falls plant where, as Schiavi also testified, the union negotiating committee took into consideration the Christmas bonus when preparing its wage packages, and mentioned the bonus at four or five negotiations. Schiavi testified that the Company 'always seemed to object to the words `Christmas bonus' at any of the negotiations tables... .
They just bypassed it and changed the subject immediately.' There was no past practice clause in any of the agreements.
The Christmas bonus was not given at any of the plants in 1969. In lieu of the bonus, the Company started providing the new insurance benefits to salaried employees on September 1, and to hourly employees at various plants whenever the bargaining...
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