INDEPENDENT OIL WORKERS U., LOCAL 117 v. American Oil Co.

• Decision Date: 14 February 1969
• Docket Number: No. W-3589.,W-3589.
• Citation: 296 F. Supp. 650
• Parties: INDEPENDENT OIL WORKERS UNION, LOCAL 117, Plaintiff, v. AMERICAN OIL COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

296 F. Supp. 650

INDEPENDENT OIL WORKERS UNION, LOCAL 117, Plaintiff, v. AMERICAN OIL COMPANY, Defendant.

No. W-3589.

United States District Court D. Kansas.

February 14, 1969.

COPYRIGHT MATERIAL OMITTED

Frank Hylton, Wichita, Kan., Green, Powers, Belshaw & Danko, Whiting, Ind., for plaintiff.

Lilleston, Spradling, Gott, Stallwitz & Hope, Wichita, Kan., Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., Donald L. Hastings, Chicago, Ill., for defendant.

OPINION OF THE COURT WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

THEIS, District Judge.

This is an action brought by plaintiff labor union against defendant company under Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, to compel arbitration under the provisions of a collective bargaining agreement in existence between the two parties. The matter is now before this Court upon the pleadings, a pre-trial order, the evidence after trial before the Court, and arguments of the parties both at the close of the trial and later at the time of submission of final briefs of the parties.

FINDINGS OF FACT

1. The plaintiff, Independent Oil Workers Union, Local 117, is an unincorporated labor organization and is engaged in representing employee members in collective bargaining with the defendant, American Oil Company, a Maryland corporation, conceded to be an employer in an industry affecting commerce, as defined in Section 301 of the Labor Management Relations Act, as amended. The defendant owns and operates a refinery located in Neodesha, Kansas, where members of plaintiff union are employed.

2. The plaintiff and defendant are parties to a contract (Plaintiff's Exhibit 4) executed on October 22, 1965, which was in effect on November 1, 1965, and at all times material to this action, relating to hours, wages and other conditions of employment of employees within the collective bargaining unit represented by the union.

3. Article II of the contract establishes a "Grievance Procedure" covering each "question upon which an employee wants consideration through the union * * *." Article II of the contract provides for "negotiations" of the "question" between union and company representatives at ascending levels of authority. Section 2.10 of Article II of the contract provides that "if a question as defined in Section 2.11 of this Article" is not settled as a result of these negotiations, the parties "may refer the subject for arbitration * * *." Section 2.11 of Article II of the contract provides:

"Section 2.11:

"A. Questions which may be referred to arbitration shall be limited to:

1. Questions directly involving or arising from applications, interpretations, or alleged violations of the terms of this agreement.

2. Questions directly involving or arising from applications, interpretations, or alleged violations of the terms of arbitration awards and written agreements not incorporated in this Agreement.

3. Questions or applications, or interpretations of or alleged noncompliance with past policies, practices, customs or usages relative to working conditions and grievances, arising from:

a. The modification by the Company of said policies, practices, customs and usages.

b. The discontinuance by the Company of any of said policies, practices, customs and usages.

c. The establishment by the Company of new policies, practices, customs or usages during the term of this Agreement.

"B. Grievances or disputes relating to new classifications, rates of pay, hours of employment, and other conditions of employment not expressly provided for by this Agreement or any written side agreement or arbitration award shall be subject to bargaining by the parties during the term of this Agreement, but either party shall have the right to refuse to submit to arbitration any grievance or dispute not covered by Paragraph A, of this Section 2.11. In the event of a refusal by the Company to arbitrate an issue under the terms of this paragraph, Article XI, Stoppage of Work, of this Agreement, shall be suspended with respect to that issue only, beginning on a date thirty (30) days subsequent to the date of such refusal. Said suspension shall continue for a period of sixty (60) days, or if a work stoppage actually commences within the period during which Article XI, Stoppage of Work, is suspended then the suspension shall continue until a settlement of that issue is reached.

"C. It is understood and agreed, however, that proposals to add to or change this Agreement shall not be arbitrable and that no proposal to modify, amend, or terminate this Agreement and no matter or subject arising out of or in conjunction with any such proposal, may be referred to arbitration under this Section 2.11."

Section 11.1 of Article XI of the Contract provides:

"Section 11.1

"The Company agrees that during the life of this Agreement, and/or any period of negotiation for amendment or renewal, there shall be no lockouts of employees, and the union agrees that there shall be no strikes, slowdowns or stoppages of work while this Agreement is in effect, and/or during any period of negotiations for amendment or renewal thereof subject to the provisions of Section 2.11 of Article II, * * *"

4. On November 5, 1965, the plaintiff filed and presented to the defendant a grievance, which stated:

"On November 1, 1965, the Company started using 3 men per shift at the Fluid Cracking unit instead of the usual 4 men per shift which is in direct violation of past practice at the Neodesha refinery.

"The Union, therefore, requests that the Company refrain from the practice of using 3 men per shift and reassign 4 men per shift at the Fluid Cracking unit and that the eligible Labor Department Employees be properly compensated."

5. The plaintiff and defendant negotiated with respect to the question presented by the plaintiff's grievance at each step of the grievance procedure, as provided for in the collective bargaining contract, but the question was not settled as a result of these negotiations. On November 18, 1965, the plaintiff filed with the defendant its notice to arbitrate the matter. The defendant refused to arbitrate. The present action was initiated on February 28, 1966, following defendant's refusal.

6. Before the execution of the 1953 collective bargaining contract, there was no clause calling for arbitration of policies, practices, customs or usages, but, instead, a relatively broad grievance procedure which resulted in arbitration of virtually every dispute between management and labor. It is agreed between the parties that the language of the 1953 contract, relative to the use of arbitration as a device for settlement of disputes, put a limitation on what disputes might be resolved by the arbitral process.

7. The provisions of Section 2.11 have appeared in substantially that form and wording in every contract between the parties beginning with the contract executed by them on May 22, 1953.

8. The provisions of Section 2.11 have also appeared in substantially that form and language in every contract between defendant company and Independent Petroleum Workers of America, Inc., Local 1, another local union of the same national union of the plaintiff-union here, covering a similar collective bargaining unit of employees at the Company's Whiting, Indiana, refinery, beginning with a collective bargaining agreement executed on August 30, 1952. In fact, the provisions of Section 2.11 here before the Court were copied from that August 30, 1952 contract at Whiting, Indiana.

9. Essentially, the use of four non-supervisory employees per eight-hour shift in a three-shift day on the fluid catalytic unit, popularly known as the "cat cracker," began at the Neodesha refinery in 1953 and continued until November 1, 1965, when the change in crew size complained of by plaintiff occurred.

10. The uncontroverted physical description of the size of the "cat cracker" unit by witness Gibson, one of the crew, was to the effect that it was a large, complex, chemical-reaction unit eleven stories high, of which one of the cooling towers was 200 yards from the control house, covering an area of 100 yards by 75 yards, which caused the crew to operate over a large horizontal ground-level area as well as vertical areas with multi-level horizontal working areas. The "cat cracker" unit uses large vessels, fractionating columns, many pumps, exchanges and auxiliary systems, including a hydraulic system to operate slide valves, pumps and compressors with its auxiliary equipment. Plaintiff's Exhibits 5, 6, 7 and 8 are pictures of various parts of the "cat cracker" unit.

11. The purpose and operation of the "cat cracker" unit in the refining process of petroleum was described as taking the heavy crude oil from the crude unit, and by using a catalyst through a chemical reaction or distillation known as "cracking," separating the crude oil product into gasolines, gases and heater oils suitable as marketable products. The products are combustible and in the refining process of this unit are subjected to tremendous pressures and very high temperatures running up to 1200 degrees.

12. The general responsibilities and duties of the employees on a "cat cracker" unit were described as:

"Well, each man had a lot of instruments to catch. Temperatures. Pressures. Levels. And, charts, and these instruments to read and record. Well, on these slide valves we had to watch those closely, and differential pressures. In other words, you constantly had to be watching your instruments and your controls. (Tr. 42)

"* * * and periodically have other duties to do, such as drawing water on things manually. They have to, on these instruments we have, to watch for high temperatures. If we get our temperature out of range possibly five degrees it can make quite a difference in the products." (Tr. 45)

Such an error could cost the company several hundred dollars a day. The unit operates continually twenty-four hours a day and is never stopped other than...