Dow Chemical Co.

National Labor Relations Board - Board Decisions

Apr 11, 1975

217 N.L.R.B. 376 (N.L.R.B. 1975)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wanda Petroleum , Division of Dow Chemical Com-
pany and United Steelworkers of America,
AFL-CIO--CLC. Case 15-CA-4734
April 11, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Wanda Petroleum, Division of Dow
Chemical Company, Paincourtville, Louisiana, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
On October 31, 1974, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief. The General Counsel
filed a brief in answer to Respondent's exceptions.
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' briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The various disavowals in the concurring opinion of
our colleague do not seem relevant to the present case.
In Pocatello Bartenders' both the majority and dissent
agreed that the doubt necessary to justify an employer's
withdrawal of recognition of an incumbent union had
to be reasonably based on objective circumstances.'
This was the test applied by the Administrative Law
Judge here although he sometimes linked "good faith"
language, which we agree should be avoided, with "rea-
sonably grounded doubt" while making clear "that the
asserted doubt must be based on - objective
considerations."'
Contrary to the assertion of our colleague neither we
nor the Administrative Law Judge have applied Section
10(b) to permit prounion solicitations but not antiunion
solicitations. Both here and in Combined Container,4
the issue is whether finding a violation within the 10(b)
period depends upon finding a violation prior to that
period. Our colleague's finding of a violation within the
10(b) period without regard to the pre-10(b) conduct
seems to establish that here it is not so dependent.
I Bartenders, Hotel Motel and Restaurant Employers Bargaining Associa-
tion of Pocatello, Ohio, 213 NLRB No 74 (1974).
2 The dissent was based principally on disagreement as to whether the
facts of the case satisfied this test
3 The standard of doubt in withdrawal of recognition cases has no rele-
vance to the question of initial recognition in Linden Lumber Division,
Summer & Co., 190 NLRB 718, 721 (1971), to which our concurring col-
league refers . The Supreme Court there held that the employer may refuse
recognition without any showing of doubt of majority status Linden Lumber
Division , Summer & Co. v. NL.R.B., 419 U.S 301 (1974)
4 Paper Products and Miscellaneous Chauffeurs, Warehousemen and Help-
ers Local 27, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers ofAmerica (Combined Container Indus-
tries), 209 NLRB 883 (1974)
Member Kennedy, concurring:
I concur in the result. The Administrative Law
Judge credited the testimony that Respondent solicited
employee Guillot to sign a card to decertify the Union
and threatened him with discharge if he refused to do
so. I join in affirming the Administrative Law Judge's
ultimate finding that Respondent's withdrawal of
recognition was unlawful solely because of the threat to
Guillot.
I disavow the Administrative Law Judge's reliance
on Pocatello Bartenders (213 NLRB No. 74) in which
I dissented. I also disavow the Administrative Law
Judge's comments about Respondent's "good faith"
doubt. We have refused "to reenter the `good-faith'
thicket of Joy Silk, which we announced to the Su-
preme Court in Gissel we had `virtually abandoned
... altogether.' " See Linden Lumber Div., Summer &
Co., 190 NLRB 718, 721 (1971), enfd. 419 U.S. 301
(1974).
Finally, I disavow the Administrative Law Judge's
reliance on conduct occurring outside the 10(b) period.
If prounion solicitations are barred by Section 10(b) of
the Act, as found by my colleagues in dismissing a CB
complaint in Paper Products and Miscellaneous Chauf-
feurs, Warehousemen and Helpers, Local 27, I.B.T.
(Combined Container Industries), 209 NLRB 883, I
think we must similarly bar antiunion solicitations in
CA cases. See my dissent in Orion Corporation, 210
NLRB 633 (1974).
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at New Orleans , Louisiana, on August 28,
1974, pursuant to a charge filed on January 22, 1973, by the
United Steelworkers of America, AFL-CIO-CLC (herein
referred to as the Union), and a complaint issued on June 21,
1974, amended on June 26 and August 15, 1974, and again
at the hearing.
The amended complaint alleged that Wanda Petroleum,
Division of Dow Chemical Company (herein referred to as
the Respondent) violated Section (a)(1) and (5) of the Na-
tional Labor Relations Act, as amended (herein referred to as
the Act) by unlawfully interrogating an employee concerning
his union activities; threatening employees with discharge for
217 NLRB No. 62
WANDA PETROLEUM
engaging in union activities or for requesting time to discuss
a unilateral change with a union representative; advising em-
ployees their increased benefits would be taken away if the
Union 's unfair labor practice charge against the Respondent
was found to be meritorious; requiring employees to sign
statements admitting poor attitudes toward the Respondent
or their employment ; soliciting employees to sign cards decer-
tifying the Union and threatening them with discharge for
refusing; advising employees they would be better off to
decertify the Union and become salaried employees; remov-
ing a union notice of a meeting from a bulletin board reserved
for the Union ; narrating a slide show to employees indicating
the advisability of decertifying the Union or the likelihood it
would be decertified; unilaterally implementing without noti-
fying or consulting with the Union a salaried operations plan
for its employees; and by refusing to bargain collectively with
the Union by withdrawing recognition.
Respondent in its amended answer filed on August 26,
1974, while admitting it had withdrawn recognition of the
Union on or about December 28, 1972, denied having vi-
olated the Act.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence , to examine and cross-examine
witnesses, to argue orally on the record, and to submit briefs.
Upon the entire record ' in this case and from my obser-
vation of the witnesses , and after due consideration of the
briefs filed by counsels for the General Counsel and the
Respondent,2 I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, has a facility, which
is the only facility involved in this proceeding, located at
Paincourtville , Louisiana (herein referred to as the Paincourt-
ville facility), where it is engaged in the refining and produc-
tion of petroleum and related products. During the 12-month
period preceding June 21, 1974, a representative period, Re-
spondent in the course of its operations at the Paincourtville
facility purchased and received goods and materials valued in
excess of $50,000, which were shipped directly to it from
points located outside the State of Louisiana , and Respondent
sold and shipped goods and materials valued in excess of
$50,000 directly from its Paincourtville facility to points
located outside the State of Louisiana.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that the United Steelwork-
ers of America , AFL-CIO-CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
I General Counsel 's unopposed motion filed on September 16, 1974,
urging that G.C Exhs 2,3, and 4 be received in evidence is hereby granted
2 The Charging Party did not submit a brief.
- III THE UNFAIR LABOR PRACTICES
A. Background
377
Respondent since on or about June 1, 1972, has owned and
operated the Paincourtville facility . Previously it was owned
and operated by a joint venture comprised of Wanda Pe-
troleum Company, Division of Ashland Oil Company (herein
referred to as Wanda), Placid Oil Company, Dow Chemical
Company, and Getty Oil Company with Wanda designated
as the plant operator having substantial powers of control
over the facility's operations including labor relations.
On or about June 23, 1971, following a secret ballot elec-
tion conducted under the supervision of the Regional Direc-
tor of Region 15 , on July 16, 1971, in which a majority' of
Wanda 's employees designated and selected the International
Union of District 50, Allied & Technical Workers of the
United States and Canada (herein referred to as District 50)
as their representative for purposes of collective bargaining,
the Regional Director certified District 50 as the exclusive
bargaining representative of Wanda's employees in the fol-
lowing unit:
All production and maintenance employees including
lab men , employed by Employer at its Paincourtville,
Louisiana , facility ; excluding all meter men , pipeline em-
ployees, plant clerical employees, technical employees,
professional employees , watchmen and/or guards and
supervisors as defined in the Act.
Respondent informed District 50 by_ letter dated May 30,
1972, it would assume operations of the Paincourtville facility
on June 1, 1972, and would hire those employees who desired
to remain but the fringe benefit program established by
Wanda4 would be terminated. After recounting previous
meetings had been held between Respondent and District 50
to discuss wages, fringe benefits, and working conditions to
be applicable to the Paincourtville facility, the letter stated
until an agreement was reached the Respondent intended to
continue in effect the same wages and would put into effect
the insurance program , weekly accident and sickness disabil-
ity benefits, and policies concerning vacations, clothing al-
lowance, and working conditions which they had previously
discussed in addition to a retirement plan upon approval by
the Dow Retirement Board. The letter further stated Re-
spondent would not assume or recognize any contractual
obligations District 50 may have had with Wanda, as District
50 had represented , but offered to meet and bargain with
District 50 concerning the conditions of employment with
respect to the Pamcourtville facility employees.
Respondent upon assuming operations of the Paincourt-
ville facility on June 1 maintained the existing wages and put
into effect the various fringe benefits for the employees. It
also at the same time put into effect, for those unrepresented
employees employed at the Breaux Bridge facility which it
had also acquired from Wanda, its salaried operations plan.
Collective-bargaining negotiations between the Respond-
ent and Distract 50 began on June 8, 1972, and on August 3,
3 The tally of ballots disclosed out of a total of 29 eligible voters, 19 votes
were cast for District 50 and 9 votes against, with 1 challenged ballot.
4 No evidence was proffered to establish what fringe benefits the em-
ployees had previously enjoyed
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972, with no agreement having been reached,' District 50
filed an unfair labor practice charge in Case 15-CA-4595
alleging that the Respondent had violated Section 8 (a)(5) and
(1) of the Act by not bargaining in good faith. The Regional
Director of Region 15 by letter dated July 31, 1973, dismissed
the charge.6
Upon the merger of District 50 into the United Steelwork-
ers of America, AFL-CIO-CLC, about September 1972 Re-
spondent recognized the Union, as the collective -bargaining
representative of the employees in the aforementioned bar-
gaining unit . Respondent admitted , and I find , such unit
constituted a unit appropriate for the purposes of collective
' bargaining within the meaning of Section 9(b) of the Act.
B. Interference With, Restraint, and Coercion of
Respondent's Employees
Respondent's supervisory personnel at the Paincourtville
facility included Plant Superintendent C. B. Cooley, Assist-
ant Plant Superintendent Sid Barber,' and Operations Su-
perintendent Eugene Key. Tony Ekker , who was the manager
of raw materials operations for the Louisiana division of Dow
Chemical Company at Plaquemine , Louisiana, also had man-
agement and operational responsibilities for the Paincourt-
ville facility.'
General Counsel presented three witnesses, Thomas Guil-
lot, Stephen Viso, and James Strubb, who testified concerning
certain conduct engaged in by Respondent 's supervisory per-
sonnel . These witnesses were employed by the Respondent as
technicians at the Paincourtville facility and were members
of the Union's Local 14477. Viso served as president of Local
14477 and Strubb since February 1973 had held the position
of recording secretary.
Stephen Viso testified in June or early July 1972 Manager
Ekker engaged him in a conversation during which Ekker
stated they would be better off without a union and said if he
were him he would get the union out . Viso's response was as
long as there was one man in the plant who wanted the Union
it would be in the plant.9
Manager Ekker described this conversation as an emo-
tional and bitter outpouring by Viso of prior management's
injustices perpetrated on the employees and a militant atti-
tude about the solution of those problems, which was unioni-
zation of that unit. Ekker claimed after Viso had brought up
the question of the Union as his solution to management's
problems his response was that his experience with Dow's
personnel orientation was such that a third party was not
5 According to Plant Superintendent C B Cooley, the last negotiating
meeting was held on July 28, 1972
6 The reasons given for dismissing the charge were there was insufficient
evidence to establish that those companies comprising the joint venture
were joint employers of those employees at the Paincourtville facility and,
even if it was to be found Wanda had entered into a collective-bargaining
agreement with District 50, Respondent would not be obligated to honor
such agreement even if it was a successor to Wanda.
7 Plant Superintendent Cooley testified Assistant Plant Superintendent
Sid Barber had resigned
8 Respondent admitted, and I find that Plant Superintendent Cooley,
Assistant Plant Superintendent Barber, Operations Superintendent Key,
and Manager Ekker were ,at all times material herein its supervisors and/or
agents within the meaning of the Act.
9 This conversation which occurred outside the 10(b) period was offered
for background purposes
really required , mentioning the working relationship with
employees. Ekker denied telling Viso to get the Union out.
I credit Viso who I find was a more credible witness than
Ekker. Apart from my observation of the witnesses not only
did Ekker testify in an evasive manner but since Respondent
had already recognized and was bargaining with District 50
at the time, his version was illogical.
Respondent's supervisors after June 1, 1972, conducted
performance appraisals with the employees in the bargaining
unit requiring them to sign their appraisal forms. Plant Su-
perintendent Cooley testified the purpose of such appraisals
which he conducted in 1972 with Manager Ekker and Opera-
tions Superintendent Key present1° was to point out to the
employees their strong and weak points so their supervisors
could help them, and after discussing the appraisal forms
with the employees they were asked to sign them in order to
show they had gone over them with the employees. Accord-
ing to Cooley appraisal reports had also been kept on Wan-
da's employees which they were required to sign. Although
the appraisal form utilized by Wanda was different than the
appraisal form used by Respondent in 1972, different forms
were also used after 1972.
James Strubb testified in August 1972 he was called into
Plant Superintendent Cooley's office where Cooley, Assistant
Plant Superintendent Barber , Operations Superintendent
Key, and Manager Ekker were present . Strubb stated after his
request to have counsel or a witness present was rejected, he
was interviewed and asked to sign his appraisal form, which
he did. Included on the appraisal was a statement that he
didn't think before he acted in his job. According to Strubb
during the interview Manager Ekker said they would be bet-
ter off decertifying the Union and going along with Dow by
not being organized . Under cross-examination Strubb also
testified Ekker told him he would not try to influence him but
he felt he would be better off under the Dow salary plan.
Manager Ekker, without relating his version of the conver-
sation with Strubb, denied telling employees they would be
better off decertifying the Union and becoming part of Re-
spondent's salaried operations program. Ekker stated his pur-
pose at the appraisals , which he placed as occurring between
July 12 and 20 , 1972, was to make sure every employee
understood that his union activity or inactivity concerning
unionization of the unit would-not be a part of his perform-
ance appraisal. Ekker further stated they told the employees
this was a free choice of theirs and whichever way the unit
went, that waTthe way they operated; and that Dow operated
both union and nonunion facilities.
Plant Superintendent Cooley did not state his version of
the appraisal interview with Strubb. While Cooley testified
the only thing Ekker said about the Union during the apprais-
als with the employees was that the appraisals were based
upon the employee's performance and had nothing to do with
any affiliation the employee may have had with the Union,
he acknowledged, as discussed infra, he could not recall what
Manager Ekker had said to Viso during the interview. Nei-
ther Assistant Plant Superintendent Barber or Operations
Superintendent Key testified.
10 Under cross-examination Cooley stated Assistant Plant Superintendent
Barber had assisted him with the 1972 appraisals.
WANDA PETROLEUM
I credit Strubb's testimony rather than Ekker,-whom I
have previously discredited. Moreover none of Respondent's
supervisors present gave their versions of the conversation or
corroborated Ekker's denial of having made such statements
to the employees.
Strubb stated during his June 1974 appraisal, upon com-
plaining to Plant Superintendent Cooley that he thought his
1972 and 1973 appraisals were unfair, Cooley agreed and tore
them up. -
Plant Superintendent Cooley denied telling Strubb his
prior appraisals were unfair but acknowledged while apprais-
ing employees in 1974 after some of them had objected to
their earlier appraisals he pointed out to them the prior ap-
praisals served no purpose, whereupon he destroyed them in
the presence of the employee.
Stephen Viso stated about August 1972 he was called into
Plant Superintendent Cooley's office for his appraisal. Pre-
sent besides Cooley were Manager Ekker, Assistant Plant
Superintendent Barber, and Operations Superintendent Key.
Viso stated Ekker told him he had- a weak attitude towards
the Company. Upon replying he didn't think so Ekker in-
formed him if his attitude did not change he would probably
be fired. Viso stated when Ekker asked him to sign the ap-
praisal his response was he would sign it but would not agree
to the statement made.
Manager Ekker's version was during Viso's appraisal his
attitude was discussed by Cooley whose evaluation was Viso
had a poor attitude within the plant concerning his working
activities.
Plant Superintendent Cooley, without giving his own ver-
sion of the conversation with Viso, stated he recalled Ekker
talking to Viso during the appraisal but could not recall what
was said. Again neither Assistant Plant Superintendent Bar-
ber nor Operations Superintendent Key testified.
Viso's performance appraisal dated July 13, 1972, while
reflecting his attitude was a little weak evaluated him as being
a good employee who was safety minded and showed signs
of leadership.
Similar comments made to Strubb and Viso dung the
appraisals concerning their work were also contained on the
1972 appraisal forms of other employees."
Neither Strubb or Viso could establish a definite date for
the appraisals and inasmuch as Ekker's testimony that such
appraisals occurred between July 12 and 20, 1972, was cor-
roborated by the dates on the appraisals of Viso and other
employees, I find the appraisals occurred during that period.
Since other employees had received similar comments con-
cerning their work and no evidence was offered to refute the
validity of those remarks pertaining to Strubb and Viso I do
not find they were discriminatonly motivated. Moreover,
since the appraisals had occurred more than 6 months
preceding the filing of the charge, no violation could be
found.
General Counsel contended at the hearing, although did
not allege in the amended complaint, that while during the
1972 appraisals Respondent had found some criticism with
respect to each of the employees in the bargaining unit, after
the salaried operations plan was put into effect in January
i t Those employees were John Connor, Sr , James Epperly, Roy Goudot,
Author Joffnon, Wilbur Marcantel, and Lionel Naquin
379
1973, as' discussed infra, no such critical remarks were con-
tained in their appraisals . However, contrary to the General
Counsel's assertion, an examination of the performance ap-
praisals submitted for the 23 employees12 covering both
1972 and 1973 disclosed that although all of them had re-
ceived critical remarks on their 1972 appraisals, those same
employees, with the exception of five -of them," had also re-
ceived critical remarks on their 1973 appraisals.
Stephen Viso testified during October 1972 Plant Superin-
tendent Cooley informed him he had heard from Dow Chem-
ical Company in Plaquemine that he had threatened a- man
and he ought to fire or prosecute him. Viso denied he had
threatened anybody and told him the president of the Local
had the right under the Union's bylaws to find a man and
bring him before the board. Inasmuch as no evidence was
offered to establish what incident Cooley and Viso were refer-
ring to with respect to the alleged threat, I do not find such
statement by Cooley on its face to constitute a violation of the
Act, as alleged.
Thomas Guillot testified in late November or early Decem-
ber 1972 Assistant Plant Superintendent Barber told him
Dow did not care for a union and they would be better off
without it: Barber said they were making a move to get the
Union out and needed only one more card to be signed.
Barber told Guillot he would like for it to be him since they
were good friends and he didn't want to see him get hurt.
Guillot stated when Barber asked him to help him out by
signing the card he replied he couldn't. Barber then told him
they had all the cards they needed and they didn't need his
card but stated he hated to see him get hurt. Barber told him
he just wanted him to sign the card so he would still have his
job. Barber also said Dow was going to look down on the guys
who didn't sign cards. Guillot stated he then signed the card
whereupon Barber told him it was just going to be between
Ekker, Guillot, and himself. Barber put the card in an enve-
lope and left.
Assistant Plant Superintendent Barber did not testify14
and I credit Guillot's undenied testimony and find in late
November or early December 1972 Barber solicited Guillot
to sign a card to decertify the union and threatened him with
discharge for refusing to sign the card."
The amended complaint16 , further alleged that in April
1973 Manager Ekker had narrated a slide show entitled "To-
tal Concept" which indicated to employees the advisability of
decertifying the Union and/or the likelihood the Union
would in fact be decertified.
Thomas Guillot stated Manager Ekker pointed out the
benefits of both a salaried operation and a union organization
12 Raymond Blancard, Mervin Charlet, John Connor, Sr., Joseph Daigle,
Allen Daze, Alton Dugas, Lmnwood Dugas, James Epperly, Thomas Guil-
lot, Laurence Herbert, Arthur Joffnon, Alfred Landry, Charles Landry,
Albert Leblanc, William Marcantel, John Newchurch, Jr., Benny Oliver,
Howard Ott, Joseph Poche, Rumsey Rodrique, Charles Sagona, James
Scirotino, and Stephen Viso
13 Joseph Daigle, Alton Dugas, Albert Leblanc, Rumsey Rodrique, and
Stephen Viso
14 Plant Superintendent Cooley contended Barber had been instructed not
to threaten or question employees about their union activities -
is The threat of discharge is based upon Barber's statement to Guillot he
didn't want to see him get hurt and wanted him to sign the card so he would
still have his job
16 Prior to its amendment at the hearing the amended complaint had
alleged the incident had occurred in August 1972.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and why they came out better with a salary. James Strubb
testified Ekker showed them a slide listing the operations of
Dow Chemical Company and its affiliates that had, been
decertified, which included the Paincourtville facility. Ac-
cording to Strubb, Ekker told them they were glad to see they
were members of the salaried operations plan and their bene-
fits and pay scale were better and they were better off as a
whole with the Company.
Neither Strubb or Guillot identified the title of the slide
presentation.
Manager Ekker, who denied Respondent had a slide show
entitled "Total Concept," testified that about May 28, 1973,
he had narrated a slide presentation to the employees of the
Paincourtville facility which was a factual history of Dow
Chemical Company's management experience concerning
the salaried operations program since 1957. Under cross-
examination Ekker stated he talked about the advantages
under the salaried operations plan and what they had to look
to under the union situation and acknowledged showing
those operations that had been decertified, which included
the Paincourtville facility.
Inasmuch as this incident occurred after the Respondent
had already withdrawn recognition of the Union and placed
the employees under its salaried operations plan, as discussed
infra, I do not find such conduct violated the Act as alleged.
Rather, such statements, as opposed to advising employees
about why the Union should be decertified, were merely ex-
tolling their present status.
C. Respondent's Withdrawal of Recognition of the Union
and the Unilateral Changes
On or about November 30, 1972 , a bargaining unit em-
ployee filed a petition with Region 15 to decertify the Union;
however, this petition was subsequently withdrawn about
January 2, 1973. A representative of Region 15 had notified
Respondent's counsel on December 11, 1972, that the pend-
ing unfair labor practice charge in Case 15-CA-4595 had
blocked action on the petition.
On December 21, 1972, Respondent posted a notice in-
forming the employees no action could be taken on the peti-
tion until the unfair labor practice charge had been resolved
but informed them if the Union agreed the Board could pro-
ceed with an election on their petition.
On or about December 28, 1972, Respondent received
from a number of members of the bargaining unit cards
signed by 17 of the 31 employees in the bargaining unit which
stated they did not wish to be represented by Local 14477 or
any other union."
Manager Ekker by letter dated December 28, 1972, noti-
fied the Union's Staff Representative John Courtney that a
majority of the employees had notified them in writing they
no longer wished to be represented by the Union or any other
union and that the continued recognition of the Union would
be unlawful, whereupon Respondent must withdraw recogni-
tion of the Union as their bargaining representative.
The following day Plant Superintendent Cooley notified
each employee in the bargaining unit that a majority of em-
17 Manager Ekker testified the cards which were not offered as evidence
were given to John Harvey, who was the personnel industrial relations
manager for the Plaquemine unit.
ployees had advised the Respondent they no longer wished to
be represented by the Union.
Thomas Guillot testified that on December 29, 1972, he
was called into Plant Superintendent Cooley's office where
Cooley, Assistant Plant Superintendent Barber, and Manager
Ekker were present, and informed they were going to become
salaried rather than hourly paid employees. Guillot stated he
was told if the decision came down in the Union's favor those
benefits would end and they would renegotiate for different
benefits. Guillot was unable to identify which of the three
supervisors had made the remark."
Stephen Viso stated upon being called into the office that
same day Plant Superintendent Cooley informed him since
the majority of the cards had been signed and the Union no
longer represented them, they were going to put the salaried
operations plan into effect. Cooley further stated if the deci-
sion came down in the Union's favor all of the benefits would
go back to where they were.
Plant Superintendent Cooley without giving his version of
the conversation with Guillot19 denied having informed em-
ployees, and specifically Viso, if the Union's unfair labor
practice charge in Case 15-CA-4595 was found to be
meritorious by the Board all increased benefits would be
taken away from the employees.
Cooley's version of his conversation with Viso on Decem-
ber 29, 1972, was that he told Viso the majority of employees
had signed cards they didn't want to be represented by the
Union. When Viso questioned his statement he assured him
the cards were in the Company's hands and as a result they
were putting into effect a salaried operations plan informing
Viso what his salary would be. Cooley stated he told Viso if
there was an election and it went in favor of the Union then
they would go back to negotiating with the Union.
Since Guillot was unable to identify who made the state-
ments to him about benefits and Cooley denied having made
such statements, I credit Cooley's denial. Further, inasmuch
as Cooley impressed me as a more credible witness than Viso,
I credit Cooley's version of their conversation.20 Moreover,
even assuming Viso's version was credited I am not per-
suaded such remarks addressed to the president of the
Union's Local about the possible effects of an adverse deci-
sion, would constitute a violation of the Act.
Stephen Viso stated about the end of November or begin-
ning of December 1972 he posted a notice of a union meeting
on the bulletin board in Respondent's control room. Accord-
ing to Viso each month for at least 9 months he had been
posting notices there and part of the bulletin board had been
given to them for union notices. Later that day Plant Superin-
tendent Cooley told him to take the union notice down. When
Viso replied he wouldn't Cooley informed him he was going
to fire him. Viso then asked if he could call a union represen-
tative, Silas Gonzales, whereupon Cooley, after replying he
could not, went to the control room and took the notice
down.
18 The amended complaint only alleged Plant Superintendent Cooley had
engaged in such conduct.
19 Assistant Plant Superintendent Barber did not testify and Manager
Ekker did not give his version of the conversation with Guillot.
20 The decertification petition, which was still pending at the time of their
conversation, would account for the remark about an election
WANDA PETROLEUM
Viso was unable to recall the date of this incident but
estimated the date on the basis that he usually put his notice
up 2 weeks before the union meeting.21
Plant Superintendent Cooley placed the incidenf as occur-
ring on December 29, 1972, after he had talked to the em-
ployees about withdrawing recognition of the Union and ac-
knowledged that he had taken a notice about a union meeting
down from the bulletin board. Cooley, without denying part
of the bulletin board had been reserved for the Union's use,
stated he told Viso since the Union wasn't representing the
employees anymore there should not be any union activity on
the board. Viso's response was he didn't think a majority of
employees had signed cards.
Again I credit Cooley rather than Viso. Besides the reason
previously given, Viso, unlike Cooley, was uncertain of the
date and Cooley's version is consistent with the withdrawal
of recognition.
Based upon Cooley's own testimony I find that he had
removed a union notice of a meeting from the bulletin board
reserved for the Union's use on December 29, 1972, after the
Respondent had withdrawn recognition of the Union. Al-
though Viso was not credited, his own version of the conver-
sation failed to establish as alleged in the amended complaint
that Cooley had threatened him with discharge for requesting
time to discuss the change with a union representative since
the alleged threat had occurred prior to his request to speak
with a representative.
The parties stipulated and I find that the Respondent on
January 1, 1973, without consulting with the Union, unilater-
ally changed the existing wage rates and other terms and
conditions of the employees in the bargaining unit by institut-
ing a salaried operations plan covering them.
D. Analysis and Conclusions
The General Counsel contended while Respondent denied
that the Respondent violated Section 8(a)(1) and (5) of the
Act:` By unlawfully interrogating , threatening, soliciting,
advising, or instructing its employees with respect to their
union activities ; requiring them to sign statements about their
attitudes ; narrating a slide show pertaining to decertification
of the Union ; removing a union notice of a meeting from a
bulletin board ; unilaterally implementing a salaried opera-
tions plan; and by withdrawing recognition of the Union.
Based upon my findings , supra, disposing of the various
other alleged violations of Section 8(a)(1) of the Act, for those
reasons stated, I have found Assistant Plant Superintendent
Barber in late November or early December 1972 solicited
employee Guillot to sign a card to decertify the union and
threatened him with discharge for refusing to sign the card.
I hereby find such conduct interfered with, restrained, and
coerced Guillot in the exercise of his rights guaranteed in
Section 7 of the Act and thereby violated Section 8(a)(1) of
the Act.
21 While Viso stated union meetings were held the second Thursday of
each month , no date was established for that particular meeting.
22 Sec 8(a)(1) of the Act prohibits an employer from interfering with,
restraining , or coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act, while Sec. 8 (a)(5) prohibits an employer from
refusing "to bargain collectively with the representative of his employees"
designated by a majority of them in an appropriate unit.
381
The remaining issues to be decided are whether Respond-
ent violated Section 8(a)(5) of the Act23 by refusing to bar-
gain collectively with-the Union by withdrawing recognition
of the Union ; removing a union notice of a meeting from the
bulletin board reserved for the Union's use; and unilaterally
implementing without notifying or consulting with the Union
a salaried operations plan for its employees in the bargaining
unit. Since the resolution of the latter issues is dependent
upon whether the withdrawal of the recognition was unlawful
that issue will be discussed first.
The Board in a recent decision reiterated those legal princi-
ples applicable to situations where an employer, as here, seeks
to withdraw recognition from an established bargaining rep-
resentative. Bartenders, Hotel, Motel and Restaurant Employ-
ers Bargaining Association of Pocatello, Ohio, 213 NLRB No.
74. Those principles enunciated, with the authorities and
citations relied upon omitted, are as follows:
It is well settled that a certified union, upon expiration
of the first year following its certification, enjoys a rebut-
table presumption that its majority representative status
continues . This presumption is designed to promote sta-
bility in collective-bargaining relationships , without im-
pairing the free choice of employees. Accordingly, once
the presumption is shown to be operative, a prima facie
case is established that an employer is obligated to bar-
gain and that its refusal to do so would be unlawful. The
prima facie case may be rebutted if the employer affirma-
tively establishes either (1) that at the time of the refusal
the union in fact no longer enjoyed majority representa-
tive status; or (2) that the employer's refusal was predi-
cated on a good-faith and reasonably grounded doubt of
the union 's continued majority status . As to the second
of those, i.e., "good-faith doubt," two prerequisites for
sustaining the defense are that the asserted doubt must
be based on objective considerations and it must not
have been advanced for the purpose of gaining time in
which to undermine the union . This second point means,
in effect, the assertion of doubt must be raised "in a
context free of unfair labor practices."
An employer in asserting its good -faith doubt of a union's
continued majority status may not rely upon employee defec-
tions from that union resulting from its own misconduct. See
Daisy's Originals, Inc., of Miami, 187 NLRB 251, 256 (1970),
enfd. as modified 468 F.2d 493 (C.A. 5, 1972); Fremont News-
papers. Inc., 179 NLRB 390 (1969), enfd. as modified 436
F.2d 665 (C.A. 8, 1970); and Boren Clay Products Company,
174 NLRB 895 (1969), enfd. 419 F.2d 385 (C.A. 14, 1970).
Upon applying those principles to the instant case the evi-
dence established District 50 was certified as the bargaining
representative of the employees in the bargaining unit in-
volved here less than a year prior to the change in ownership.
Respondent upon assuming operations recognized, and bar-
gained with District 50 as the representative of the employees
in the bargaining unit and following the merger of District 50
into the Union shortly after the certification year had expired
it then recognized the Union as their bargaining rerpresenta-
tive. Under these circumstances, I find that at the time the
23 The amended complaint did not allege such conduct also violated Sec.
8(a)(1) of the Act.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent questioned the Union's majority status, a rebut-
table presumption existed that the Union represented a
majority of the employees in the bargaining unit admitted by
Respondent to be an appropriate unit.
Having shown a presumption of the Union's majority
status existed, a prima facie case was established that Re-
spondent was therefore legally obligated to recognize and
bargain with the Union and its refusal to do so would be
unlawful, unless such prima facie case was affirmatively
rebutted by the Respondent.
Respondent contended, in reliance upon the receipt of
cards signed by a majority of its employees in the bargaining
unit stating that they no longer desired union representation,
that its withdrawal of recognition of the Union on December
28, 1972, was lawful. General Counsel, however, contended
because of certain conduct engaged in by the Respondent it
did not have a good-faith doubt of the Union's majority status
and its withdrawal of recognition was unlawful.
The findings, supra, established in June or early July 1972
Manager Ekker informed employee Viso that they would be
better off without a union and if he were Viso he would get
the Union out; about the middle of July 1972 Manager Ekker
told employee Strubb they would be better off decertifying
the'Union and going along with Dow by not being organized
and would be better off under Dow's salaried plan; and in late
November or early December 1972 Assistant Plant Superin-
tendent Barber violated Section 8(a)(1) of the Act by solicit-
ing employee Guillot to sign a card to decertify the Union and
threatened him with discharge for refusing to sign a card.
While Section 10(b) of the Act24 precludes finding Manager
Ekker's statements to Viso and Strubb, which occurred more
than 6 months preceding the filing of the charge, to constitute
a violation of the Act, such statements may be considered for
the purpose of shedding light on whether Respondent's with-
drawal of recognition of the Union which occurred within the
6-month period preceding the filing of the charge constituted
an unfair labor practice case. See Local Lodge No. 1424,
International Association of Machinists, AFL-CIO, et al.
[Bryan Manufacturing Company], v. N.L.R.B., 362 U.S. 411,
416 (1959).25
This conduct not only established Respondent implanted
the idea with employees in the bargaining unit of decertifying
the Union but it actively engaged in the decertification pro-
cess by soliciting an employee under threat of discharge to
sign a card to decertify the Union. Contrary to Respondent's
24 Sec 10(b) of the Act contains a proviso which provides in part "That
no complaint shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board and made
the service of a copy thereof upon the person against whom such charge is
made .
25 General Counsel's argument that Respondent's implementation of dif-
ferent wages and benefits between those employees represented by the
Union at the Paincourtville facility and the unrepresented employees at the
Breaux Bridge facility was discriminatory is rejected. Not only does the
evidence fail to establish what wages and benefits the unrepresented em-
ployees at the Breaux Bridge facility had previously enjoyed but to now
consider whether Respondent upon taking over the Paincourtville facility
and continuing in effect the existing wages and implementing those fringe
benefits which had been discussed with the Union thereby discriminated
against those employees would in effect circumvent the dismissal of the
refusal to bargain charge which District 50 had filed against the Respondent,
inasmuch as such wages and benefits were put into effect at both facilities
at the time Respondent assumed operation
argument the incident involving Assistant Plant Superintend-
ent Barber's solicitation of Guillot to sign a card was isolated,
Barber further had informed Guillot at the time he solicited
the card that they were making a move to get the Union out
and had all the cards they needed except one card. Clearly the
implication of Barber's conduct and his remarks were suffi-
cient to establish that he was actively engaged in the move to
decertify the Union and as such this incident, unrefuted,
could not be considered isolated.
Thus, 'Respondent having engaged in such conduct de-
signed and aimed at causing employee disaffection from the
Union, all of which occurred prior to the receipt of the cards
upon which it had relied in withdrawing recognition of the
Union and before or about the time the decertification peti-
tion, later withdrawn, was filed,26 I find the Union did not
lose its majority status27 and the Respondent did not have a
good-faith doubt of the Union's majority status.
Therefore, I find that the Respondent by withdrawing
recognition of the Union as the exclusive bargaining represen-
tative of the employees in the aforementioned unit violated
Section 8(a)(5) of the Act.
Having found that Respondent's withdrawal of recognition
was unlawful, and therefore it was obligated to recognize and
bargain with the Union, I further find that the Respondent
by removing the union notice of a meeting from a bulletin
board reserved for the Union's use and by unilaterally imple-
menting without notifying or consulting with the Union a
salaried operations plan for its employees in the aforemen-
tioned unit violated Section 8(a)(5) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above,
found to constitute unfair labor practices occurring in con-
nection with the operations of Respondent described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Wanda Petroleum, Division of Dow Chemical Com-
pany , is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees including
lab men , employed by Employer at its Paincourtville , Louisi-
ana, facility ; excluding all meter men , pipeline employees,
plant clerical employees, technical employees , professional
employees, watchmen and/or guards, and supervisors as de-
fined in the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of
the Act.
26 The petition was filed on November 30, 1972, and Assistant Plant
Superintendent Barber's solicitation and threat to Guillot occurred in late
November or early December 1972
27 Under these circumstances I do not find the cards are a reliable basis
upon which the true intentions of their signers can be measured
WANDA PETROLEUM
4. At all times material herein the Union has been, and is
now, the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By soliciting an employee to sign a card to decertify the
union and threatening the employee with discharge for refus-
ing to sign the card, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act and has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act.
6. By refusing to recognize the Union as the exclusive
bargaining representative of the employees in the aforesaid
appropriate unit Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
7. By removing the Union's notice of a meeting from a
bulletin board reserved for the Union's use and by unilater-
ally implementing without notifying or consulting with the
Union a salaried operations plan for its employees in the
aforementioned appropriate unit Respondent has engaged in
and is engaging in unfair labor pratices within the meaning
of Section 8(a)(5) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
To remedy Respondent's unlawful withdrawal of recogni-
tion of the Union, I shall recommend that the Respondent
recognize the Union and upon request bargain collectively
with the Union as the exclusive representative of all of the
employees in the aforesaid appropriate unit and if an under-
standing is reached embody such understanding in a signed
agreement.
With respect to those unilateral changes made in the use
of the bulletin board and the implementation of the salaried
operations plan, I shall recommend that the Union's right to
the use of the bulletin board be restored and that the Re-
spondent upon request bargain with the Union concerning
the continued application of the salaried operations plan to
the employees in the aforesaid appropriate unit.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER28
Wanda Petroleum, Division of Dow Chemical Company,
its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
28 In the event no exceptions are filed as provided 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.
383
(a) Refusing to recognize and bargain collectively with the
United Steelworkers of America, AFL-CIO-CLC, as the ex-
clusive bargaining representative of its employees in the fol-
lowing appropriate unit concerning wages, hours, rates of
pay, and other terms and conditions of employment:
All production and maintenance employees including
lab men, employed by Employer at its Paincourtville,
Louisiana, facility; excluding all meter men , pipeline em-
ployees, plant clerical employees, technical employees,
professional employees, watchmen and/or guards, and
supervisors as defined in the Act.
(b) Making unilateral changes in the wages, hours, rates of
pay, and other terms and conditions of employment, includ-
ing the Union's use of the bulletin board, without first con-
sulting and bargaining with the Union as the exclusive bar-
gaining representative of its employees in the aforesaid
appropriate unit.
(c) Interfering with, restraining, or coercing its employees
by soliciting them to sign cards to decertify the Union as their
exclusive bargaining representative and threatening them
with discharge for refusing to sign such cards.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Recognize and, upon request, bargain with the United
Steelworkers of America, AFL-CIO-CLC, as the exclusive
bargaining representative of the employees in the aforesaid
appropriate unit with respect to wages, hours, rates of pay,
and other terms and conditions of employment and, if an
understanding is reached, embody the terms of such under-
standing in a written agreement.
(b) Upon request bargain with the Union concerning the
continued application of the salaried operations plan to the
employees in the aforesaid appropriate unit.
(c) Restore to the Union the right to use the bulletin board
as such right existed prior to the withdrawal of recognition
of the Union.
(d) Post at its facilities located at Paincourtville, Louisiana,
copies of the attached notice marked "Appendix."29 Copies
of said notices, on forms furnished by the Regional Director
for Region 15, shall, after being duly signed by Respondent's
authorized representative, be posted immediately upon re-
ceipt thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 15, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
29 In the event the Board's Order is enforced by a Judgment of the 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."
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the amended complaint be and
it hereby is dismissed insofar as it alleged unfair labor prac-
tices not specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain collec-
tively concerning rates of pay, wages, hours and other
terms and conditions of employment with United Steel-
workers-of America; AFL-CIO-CLC, as the exclusive
bargaining representative of the employees in the bar-
gaining unit described below.
WE WILL NOT make unilateral changes in the wages,
hours, rates of pay, and other terms and conditions of
employment, including the Union's use of the bulletin
board, of our employees in- the bargaining unit described
below.
WE WILL NOT solicit our employees to sign cards to
decertify the Union as their exclusive bargaining repre-
sentative or threaten them with discharge for refusing to
sign such cards.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL recognize and upon request bargain with the
United Steelworkers of America, AFL-CIO-CLC, as
the exclusive representative of all employees in the bar-
gaining unit described below with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining
unit is:
All production and maintenance employees including
lab men, employed by Employer at its Paincourtville,
Louisiana, facility; excluding all meter men, pipeline
employees, plant clerical employees, technical em-
ployees, professional employees, watchmen and/or
guards and supervisors as defined in the Act.
WE WILL upon request bargain with the Union con-
cerning the continued application of the salaried opera-
tions plan to those employees in the aforesaid appropri-
ate unit.
WE WILL restore to the Union the right to use the
bulletin board as such right existed prior to the with-
drawal of recognition of the Union.
WANDA PETROLEUM, DIVISION OF Dow
CHEMICAL COMPANY