American Oil Co. v. N.L.R.B.

• Decision Date: 26 July 1979
• Docket Number: No. 78-1821,78-1821
• Citation: 602 F.2d 184
• Parties: 101 L.R.R.M. (BNA) 2981, 86 Lab.Cas. P 11,452 AMERICAN OIL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 184

602 F.2d 184

101 L.R.R.M. (BNA) 2981, 86 Lab.Cas. P 11,452

AMERICAN OIL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 78-1821.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1979.

Decided July 26, 1979.

John J. McGirl, Jr., Doherty, Rumble & Butler, Minneapolis, Minn. (argued), Bruce C. Faulken, Minneapolis, Minn. and Robert M. O'Connell, Legal Dept., Standard Oil Co. (Indiana), Chicago, Ill., on brief for petitioner.

Joel M. Cohn, Atty., N. L. R. B., Washington, D. C. (argued), John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Washington, D. C., on brief for respondent.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, District Judge. ^*

GIBSON, Chief Judge.

American Oil Company (Amoco) petitions this court to review and set aside an order issued against it by the National Labor Relations Board (NLRB) on September 22, 1978, finding that Amoco had engaged in unfair labor practices in violation of section 8(a)(1) and (5) of the National Labor Relations Amoco operates an oil refinery in Mandan, North Dakota. The operating and maintenance employees at this plant form a bargaining unit represented by the Oil, Chemical and Atomic Workers International Union Local No. 6-10 AFL-CIO (union). The union and Amoco began their bargaining relationship in 1955, and a collective bargaining agreement which had become effective January 8, 1977, governed their relationship at the time of the alleged unfair labor practices.

Act (N.L.R.A.), 29 U.S.C. § 158(a)(1) and (5). The NLRB cross-applies for enforcement of its order.

Operations at the Mandan refinery separate into five divisions. The subject of the Board's finding of an unfair labor practice in this case was Amoco's revision, without consulting or bargaining with the union, of a work schedule in the oil movements division of the refinery. The oil movements division operates with three 8-hour shifts. Three workers man the day shift from 8 a. m. to 4 p. m., while only two workers man the evening shift from 4 p. m. to midnight and the graveyard shift from midnight to 8 a. m. In an attempt to equalize the desirability of the three shifts, Amoco pays a fifty cent per hour premium over the day rate to employees working the evening shift, and a ninety cent per hour premium to those working the graveyard shift. See Article VI of the collective bargaining agreement. Amoco assigns employees to the oil movements division on either a full-time or part-time basis. Full-time employees ordinarily work forty hours per week in the division; part-time employees work less than forty hours per week in the oil movements division and work the rest of their 40-hour week in other divisions of the refinery. The division employees man the shifts on a rotating basis pursuant to weekly schedules which notify the employees of their work times for the following week. Amoco prepares these weekly schedules and posts them in accordance with the following provisions of the collective bargaining agreement:

ARTICLE III

Hours of Work

Section 1. The workweek will fall within a period of seven (7) consecutive calendar days beginning on Monday at 12:01 a. m.

Section 2. A normal workday will be eight (8) hours and a basic workweek will be forty (40) hours. Most regular day workers will work from 8:00 a. m. to 4:30 p. m. with one-half (1/2) hour for lunch.

Schedule for hourly employees, other than regular day workers will be posted weekly. Ordinarily, they will be for five (5) eight (8) hour shifts per week with two consecutive days off. Circumstances may require some employees to work other hours, but irregular schedules will be followed only when efficient operations require it.

Additionally, since 1956, Amoco has given employees copies of a "simplified" work schedule. This schedule is also referred to as an annual master work schedule. The posted weekly schedule is generally typed from the relevant week of the simplified schedule, with any deviations penned in. Deviations are occasioned by employees trading work assignments, employee illness, and the need to accommodate overtime work. As a result of the distribution of the simplified schedule, each full-time division employee learns before January roughly the days and shifts he will be working during the year.

On August 15, 1977, Amoco implemented a new simplified schedule, replacing the previous schedule that had been in use since 1971. The 1971 schedule was designed to accommodate nine full-time division employees, whereas the new schedule was designed for a group of only eight full-time employees. Since the manpower requirement of the division remained stable, the change required greater use of part-time employees within the division. ¹ The new schedule assigned the part-time employees more frequently to the day shift than to the evening and graveyard shifts.

On August 10, 1977, the union president, James Gerl, reacting to rumors of the impending schedule change, contacted Alan Symonais, Amoco's manager of employee relations and accounting services. Symonais stated that he had heard of the change but had not seen a new schedule. Gerl then informed him that he believed that the proposed change was an issue for bargaining, and requested that no change be put into effect until the union had been given an opportunity to bargain over it. The next day, an employee in the oil movements division informed Gerl that the new schedule was being prepared. Gerl then called Mr. Symonais, who confirmed that the new schedule was going into effect. On August 15, 1977, the new schedule was implemented.

The union filed with the Board an unfair labor practice charge on August 15, 1977. Thereafter, the Board general counsel issued a complaint on January 31, 1978, alleging that Amoco had violated section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain over the change in the simplified work schedule. A hearing was held on March 16, 1978, in Bismarck, North Dakota, before an administrative law judge, who issued an order on June 30, 1978, finding that Amoco had violated section 8(a)(1) and (5) of the N.L.R.A. On September 22, 1978, the Board affirmed the rulings, findings of fact, and conclusions of law of the administrative law judge and adopted his recommended order. Amoco petitions for review in this court pursuant to section 10(f) of the N.L.R.A., 29 U.S.C. § 160(f). The Board cross-applies for enforcement of its order.

Since Amoco admits that it did not consult the union before implementing the change in the simplified schedule of the oil movements division, the issue presented is whether Amoco had a duty to bargain with the union over the proposed change in the simplified schedule before putting it into effect.

Amoco posits two defenses. First, it argues that it did not have a duty to bargain with the union over the proposed revision because the change did not have a "significant or material" impact upon the terms and conditions of employment. Section 8(a)(5) of the N.L.R.A., 29 U.S.C. § 158(a)(5), states that "it shall be an unfair labor practice for an employer (5) to refuse to bargain collectively with representatives of his employees * * *." Section 8(d), 29 U.S.C. § 158(d), defines the phrase "to bargain collectively" as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, * * *."

Amoco admitted at oral argument that hours are mandatory subjects of bargaining; indeed it would be sophomoric to contend otherwise in the face of the clear and plain statutory language that has been supported by a lengthy history and practice. See NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 348-49, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). It is also established that the term "hours" refers to more than merely the quantity of hours worked. In Local Union No. 189, Amalgamated Meat Cutters & Butcher Workmen v. Jewel Tea Co., Inc., 381 U.S. 676, 691, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965), Justice White stated in an opinion joined by two other members of the Court, that "we think that the particular hours of the day and the particular days of the week during which employees shall be required to work are subjects well within the realm of 'wages, hours, and other terms and conditions of employment' about which employers and unions must bargain." See also 381 U.S. at 699-700, 85 S.Ct. at 1602 (opinion of Goldberg, J., accepting the rationale of Justice White's remarks). Cf. 381 U.S. at 737-38, 85 S.Ct. 1596 (Douglas J., dissenting); Mackey v. National Football League, 543 F.2d 606, 615 (8th Cir. 1976), Cert. denied, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977); International Woodworkers Local 3-10 v. NLRB, 127 U.S.App.D.C. 81, 82-83, 380 F.2d 628, 629-30 (1967).

Amoco, however, contends, citing the standard in Allied Chemical & Alkali Workers Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), that the change in the simplified schedule did not "vitally affect" the terms and conditions of employment. The United States Supreme Court has recently addressed this argument in an opinion that we find dispositive of the issue of whether the proposed schedule change involved a mandatory subject of bargaining. In Ford Motor Co. v. NLRB, --- U.S. ----, ----, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979), the Court clarified the use of the Pittsburgh Plate Glass standard, that subjects must "vitally affect" the terms and conditions of employment in order to qualify as mandatory bargaining subjects. The Court clearly relegated the use of this standard only to matters also...