Dow Chemical Co.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 756 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dow Chemical Company, Texas Division and
Local No. 1848, International Brotherhood of
Painters and Allied Trades, AFL-CIO
The Dow Chemical Company, Texas Division and
Certain Employees of The Dow Chemical Com-
pany, Texas Division, Petitioner and Local No.
1848, International Brotherhood of Painters and
Allied Trades, AFL-CIO. Cases 23-CA-7313
and 23-RD-414
July 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 28, 1979, Administrative Law
Judge George Christensen issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel and the Union filed exceptions and sup-
porting briefs. The Employer and the Petitioner
filed briefs in support of the Administrative Law
Judge's Decision. '
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, find-
ings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent did not violate Section 8(a)(5) and (1)
of the Act by placing the unit employees on salary
and fringe benefits for unrepresented employees on
September 25, 1978, that is, 3 days after the decer-
tification election in which the Union did not re-
ceive a majority of the valid votes cast but at a
time when a Certification of Results of Election
had not yet issued. In this regard he erred. A union
ostensibly losing a decertification election remains
the established bargaining representative the until
the certification of results of election issues. The
I Subsequent to the transfer of the instant case to the Board, the Gen-
eral Counsel filed a motion to consolidate it with Case 23-CA-7079 and
Case 23-RD-412 involving the same Employer The Charging Party
filed a concurrence to the General Counsel's motion and the Employer
filed a statement opposing the General Counsel's motion to consolidate
The motion to consolidate is hereby denied inasmuch as the cases involve
different units of employees and raise issues which in view of the varying
allegations of the complaint and different factual backgrounds are best
considered separately
a The General Counsel and the Union have excepted to certain credi-
bility findings made by the Administrative Law Judge It is the Board's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence consvinces us that the resolutions are incorrect.
Standard Dry Wall Producit In:., 91 NLRB 544 (1950)) enfd 188 F 2d
362 (3d Cir 1951) We have carefully examined the record and find no
basis for reversing his findings.
250 NLRB No. 103
Presbyterian Hospital in the City of New York, 241
NLRB 996 (1979). Consequently, as Respondent
unilaterally made the changes in the terms and con-
ditions of employment before the issuance of such
certification in this proceeding, it thereby violated,
we find, Section 8(a)(5) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
In light of our findings concerning the unilateral
changes, we shall modify the Administrative Law
Judge's Conclusions of Law:
By deleting paragraphs 4 and 7, renumbering
paragraphs 5 and 6 as paragraphs 4 and 5 and
adding the following as paragraphs 6 and 7:
"6. Since on or about September 25, 1978, and
continuing to date, Respondent, by unilaterally
placing the unit employees on salary and the fringe
benefit schedule for unrepresented employees, prior
to the final resolution of the question concerning
the continued representative status of the Union
raised in Case 23-RD-414, has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act."
"7. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act."
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act by placing unit employees on
salary and the fringe benefit schedule for unrepre-
sented employees on September 25, 1978, we shall
order Respondent to cease and desist from such
conduct. Nothing herein is to be construed, howev-
er, as requiring Respondent to rescind any of the
wage increases or other benefits, the granting of
which we have found to be unlawful. As the Ad-
ministrative Law Judge inadvertently failed to rec-
ommend that the Union's objections in Case 23-
RD-414 be dismissed, we shall specifically so
order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Dow Chemical Company, Texas Division,
Freeport, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Unilaterally changing the terms and condi-
tions of employment of unit employees by placing
the represented unit employees on salary and the
fringe benefit schedule for unrepresented employ-
ees prior to the final resolution concerning any
756
THE D() CHEMICAL COMPANY
question concerning the continuing representation
of Local No. 1848, International Brotherhood of
Painters and Allied Trades, AFL-CIO, or any
other incumbent union. The appropriate unit is:
All painters, including all crew leaders. journeymen
and apprentices employed by the Dow Chemical
Company, Texas Division, at its plants located in
Freeport, Texas, excluding all other employees,
guards, watchmen, and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Post at its Freeport, Texas, plant copies of
the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
It is further ordered that in all other regards the
complaint filed herein and the objections filed in
Case 23-RD-414 be, and they hereby are, dis-
missed.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Local 1848, Interna-
tional Brotherhood of Painters and Allied Trades,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in
the unit herein involved, within the meaning of
Section 9(a) of the National Labor Relations Act,
as amended.
:3 Ill the event that Ihis Order i, enforced hy a Judgment eof a United
States Court of Appeals, the words in the notice reading 'Polecd hb
Order of Ihe Nalional l ahor Relation, !:oard" hall read "'Posled I'ursu-
anl Io a Judgment of the United Statle Court /f Appeals t lforcing anll
Order of Ihe National L ahor Relatilon HBoard"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER Of THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
We will not unilaterally change the terms
and conditions of unit employees by placing
the unit employees on salary and the fringe
benefits schedule for unrepresented employees
without notice to or bargaining with the certi-
fied Union prior to the final resolution of any
question concerning the representative status
of Local No. 1848, International Brotherhood
of Painters and Allied Trades, AFL-CIO. The
appropriate unit is:
All painters, including all crewleaders, jour-
neymen and apprentices employed by the
Dow Chemical Company, Texas Division, at
its plants located in Freeport, Texas, excluding
all other employees, guards, watchmen, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
THE Dow CHEMICAL
TEXAS DIVISION
COMPANY,
DECISION
STATEMFNNT OF THE CASE
George Christensen, Administrative Law Judge: On
April 26 and 27, 1979, an unfair labor practice charge
against the Dow Chemical Company, Texas Division,'
filed by Local No. 1848, International Brotherhood of
Painters and Allied Trades, AFL-CIO,2 was heard by
me in Angleton, Texas, and issues raised by a complaint
issued on December 1, 1978,3 and the Union's September
28 objections to an election held on September 22. Since
the complaint and election objections allege the same
Company conduct as basis therefor, they were consoli-
dated for hearing and resolution.
The complaint and election objections allege that the
Company interfered with employee exercise of a free
choice in a Board-conducted election and violated Sec-
tion 8(a)(l) of the National Labor Relations Act, as
amended (hereafter called the Act), on various dates
prior to the election by conducting meetings of the unit
employees, showing them slides, comparing their and the
Company's salaried employees' wages and fringe benefits
and implying, by the slides, by remarks of the company
Hereafter called the Climpanll
Hereafter called the Union
' Baed on it charge filed hby the :lniion on Nolemrher 15, 1978: reaid
1'978 after all lther date referencles milllng the !car
757
DECISI()NS OF NATIONAL LAIBOR RELATIONS BOARD
officials showing the slides and by a letter mailed to the
unit employees by a company official shortly before the
election, that the employees would receive the wage and
fringe benefits enjoyed by the salaried employees in the
event they voted against continued representation by the
Union. The complaint and election objections also allege
that the Company violated Section 8(a)(1) and (5) of the
Act by changing the unit employees' status from hourly
paid to salaried immediately after the election without
notice to or bargaining with the Union.
The Company conceded prior to the election that the
Company showed unit employees the slides in question,
answered employee questions concerning the wage and
benefit comparisons shown on the slides, sent the chal-
lenged letter, and placed the unit employees on salary
status shortly after the election, but denied by such con-
duct that the Company unlawfully interfered with the
employees' freedom of choice in the election or violated
the Act.
The issue before me is whether or not the Company,
by the complained of conduct, prevented the employees
from exercising a free choice in the balloting and violat-
ed the Act.
The parties appeared by counsel at the hearing and
were offered full opportunity to produce evidence, exam-
ine and cross-examine witnesses, and argue and file
briefs. Briefs have been received from the General Coun-
sel, the Union, the Company, and the Petitioners.
Based on my review of the entire record, 4 observation
of the witnesses, perusal of the briefs and research, I
enter the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
at times pertinent the Company was an employer en-
gaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning
of Section 2(2),(5), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR I.ABOR PRACTICES AND
ELECTION MISCONDUCT
A. Facts
The Company operates plants throughout the United
States; it operates two in Freeport, known as plant A
and plant B.
Collective-bargaining relations between the Company
and a number of unions representing various units of its
Freeport employees have existed since 1944. 5 By 1969 a
total of nine unions represented various units of the
Company's Freeport employees (there were also a sub-
stantial number of unrepresented employees); the Operat-
ing Engineers (hereafter called OE) represented the pro-
duction employees, the Teamsters (hereafter called IBT)
represented material handlers/warehousemen, the Car-
penters represented Carpenters, the Plumbers and Pipe-
' The parties jointly moved to cLorrect the transcript; their motion is
granted.
5 The Union began to represent painters employed by the Company at
Freeport that year and continued until the 1978 events described herein
fitters Union (hereafter called UA) represented pipefit-
ters, the Boilermakers (hereafter called IBB) represented
boilermakers, the Machinists (hereafter called IAM) rep-
resented machinists, the Bricklayers represented bricklay-
ers, the Asbestos Workers represented insulators, the
Painters represented painters, and the Electrical Workers
(hereafter called IBEW) represented electricians. The
latter eight unions bargained with the Company through
a local Metal Trades Council. Traditionally the unrepre-
sented employees are salaried and receive a standard set
of fringe benefits, while the union-represented employees
are hourly rated and paid and receive fringe benefits set
out in the respective collective-bargaining agreements.
This pattern extends beyond Freeport; it is followed by
the Company in all its operations. The fringe benefits of
the salaried employees at Freeport for some time have
been superior to those contained in the various company-
union contracts; while Metal Trades Council has sought
to secure fringe benefits for the craft employees its affili-
ated unions represent equal or superior to those of the
salaried employees at Freeport, it has not been success-
ful.
In the year 1969 the IBT-represented employees peti-
tioned and voted to decertify the IBT as their collective-
bargaining representative; immediately after the vote, the
Company placed those employees on salaried status and
the fringe benefit schedule enjoyed by all other unrepre-
sented employees. In 1972 the Carpenter-represented em-
ployees petitioned and voted to decertify the Carpenters
as their collective-bargaining representative, with the
same result. In 1975 Painters-represented employees peti-
tioned to decertify the Painters as their collective-bar-
gaining representative, the painters voted to retain the
Painters as their collective-bargaining representative.
In March 1978 IBEW-represented and Painters-repre-
sented employees petitioned to decertify their respective
collective-bargaining representatives; the former petition
was filed on March 14,6 a stipulation for consent election
was approved on March 28, and an election was held on
April 14 at which a majority of the electricians voted to
decertify the IBEW as their collective-bargaining repre-
sentative. Following its usual practice, the Company
placed the electricians on salaried status and the fringe
benefit schedule enjoyed by the unrepresented Freeport
employees immediately after the election. This time,
however, the IBEW filed charges (on May 22) and elec-
tion objections (on April 21) based on company conduct
in many respects similar to that involved in this proceed-
ing. On October 13 the Regional Office issued a com-
plaint based on the IBEW charges and on November 8
Administrative Law Judge John S. Miller completed a
hearing on the issues raised by that complaint and elec-
tion objections. 7 On March 16 painters Victor Huntsman
and Johnie Segler filed a petition to decertify the Paint-
ers as the collective-bargaining representative of the
Freeport painters; on April 21 the Regional Director for
Region 23 dismissed the petition on the ground Hunts-
man was a managerial employee; on August 25 the
Board reversed the Regional Director and directed an
" Case 23-RD-412
7 Case 23 CA 7313. consolidated with Case 23-RD-412
758
THE DO() CHEMICAI COMPANY
election; and on September 22 the election was held. re-
sulting in a majority vote to decertify the Painters as the
collective-bargaining representative of the painters.
It is undisputed that long before Huntsman filed the
March 16 petition the painters employed at Freeport
knew a majority vote for decertification meant they
would be placed on salary status and the fringe benefit
schedule for unrepresented employees. Several painters
so testified; further testifying it was common knowledge
among all the employees that the employees formerly
represented by IBT, the Carpenters, and IBEW were
placed on salaried status and the accompanying fringe
benefit schedule immediately after voting to decertify
those three organizations as their collective-bargaining
representatives and that historically there were only two
compensation systems at Freeport: salaries and a
common fringe benefit schedule for unrepresented em-
ployees and hourly rated pay and fringe benefits set out
in company-union contracts for represented employees.
A substantial number of the painters from time to time
had been placed on salary and the accompanying fringe
benefit schedule while serving as Paint Inspectors outside
the unit, and, thus, were conversant not only with the
practice but the salary scales and fringe benefit levels of
unrepresented employees. On September 8 the Company
invited the painters to a meeting to advise them of the
Board's August 25 Direction of Election, the scheduling
of the election for September 22, and proper election
procedures. The Company conducted two meetings at
each plant, at different times, to reach as many painters
as possible. Attendance was voluntary. At those meetings
several painters asked details of the fringe benefits of un-
represented employees. John Landry, the Company's
manager of Magnesium Products Environmental Services
and Central Maintenance,8 stated the meetings were only
intended to advise the employees of the election and
would see that further meetings were scheduled with the
Company's benefits expert, who could better supply the
requested information.
The Company subsequently scheduled two meetings in
Plant A and two meetings in Plant B, at different times,
on September 12; two meetings in Plant B and three
meetings in Plant A on September 18; one meeting in
Plant B on September 19; one meeting in Plant A and
one in Plant B on September 21, and a single meeting
(for apprentice painters) on September 14.
The meetings were conducted primarily by Roger L.
Kesseler, the Company's comptroller and employee rela-
tions manager.9 Kesseler used slides to set out the details
of all fringe benefits currently enjoyed by the Company's
unrepresented employees at Freeport, set against the cur-
rent schedule of fringe benefits the painters were receiv-
ing under the terms of the Company-Painters contract.
As and when questions were asked concerning various
benefits, Kesseler placed the appropriate slide back on
the screen and explained the material set forth, until all
# The complaint alleged. the answer admitted, and I find at all times
material Landry was a supervisor and agent of the Company acting on its
Behalf
" The complaint alleged, the answer admitted, and I find al all material
limes Kesseler was a supers'lor and agent ,r the Company acling io it
behalf
questions were answered. It is undisputed that Kesseler's
presentation was completely factual, accurate, and truth-
ful.
September 19 H. H. McClure. the Company's general
manager.°i sent all the painters the follos ing letter:
September 19. 1978
Mr. T. L. Poehl
203 Magnolie
Lake Jackson, TX 77566
Dear T. L.:
As the election campaign draws to a close, I want
to thank you for your willingness to listen to our
point of view in this question of union or no union.
I understand that during the meetings the past
couple of weeks, there were many thoughtful ques-
tions raised. I hope we have been able to answer
most of these questions to your satisfaction.
On Friday as you are preparing to make your deci-
sion, consider the welfare of you and your family,
both as an active employee as well as during your
retirement years. This is a decision you should make
only after careful consideration of all the facts.
Vote the way you believe will be the best for you
and your family. The election will be conducted by
an agent of the National Labor Relations Board. It
is a secret ballot election and very well supervised
by the agent. You can rest assured that unless you
choose to tell how you voted, no one will ever know.
From a practical standpoint, the opportunity you
now have may not occur again for several years.
On the other hand, should you elect to become non-
union at this election' your right to return to union
representation after a one year period is freely avail-
able.
A number of Painters have expressed a concern
about whether they will have job security if the
election results in a non-union operation. To me, the
real source of job security is the motivation, satis-
faction, and productivity of our people and the
health and growth potential of our business. People
who are treated with fairness, dignity, and chal-
lenge will always respond with increased satisfac-
tion, enthusiasm, and pride in their jobs. When this
happens, its effect cannot help but be reflected in
the efficiency and health of our business. To me,
this is the real basis for achievements of our non-
union operations and for the real security of all our
people. In my opinion, the non-union Material Han-
dlers, Carpenters, and Electricians have maximum
job security.
In closing, just let me say that I believe when you
seriously consider all the facts and analyze the in-
formation you have received, you will know within
your heart and mind that the only answer is "no
union." I earnestly seek your expression of confi-
0O The complaini alleged, the answer admitted. and I find at all materi-
al Ilmes McClure kas, a supers',or and agent of the Compan) acting on
its behalf
I)LECISI()NS OF NATIONAL LABOR RELATIONS BOARD
dence in me and yourself by voting NO/X/ on elec-
tion day.
Respectfully,
McC.
H. H. McClure
General Manager
inc
P. S. See you at the barbecue Thursday night!
At the September 22 election, all 44 painters eligible to
vote cast ballots; 18 voted for continued Painters repre-
sentation; 29 voted against continued representation.
On September 25 the Company placed all its painters
on salary and the unrepresented employees' fringe benefit
schedule. The conversion from hourly to salaried status
increased the crewleader rate (on an hourly basis, based
on 173.3 hours per month) from $9.22 to $10.03, the
journeyman rate from $8.97 to $9.74 and the apprentice
rate from $7.53-8.79 to $8.72-9.10. The changes were ef-
fected without prior notice to or bargaining with the
Union.
B. Analysis and Conclusions
The General Counsel and the Union contend that tne
Company prevented the painters from exercising a free
choice in the election and violated Section 8(a)(1) of the
Act by showing the painters under previous and current
practice the specific details of their fringe benefits in the
event a majority of them voted to decertify the Union as
their representative. I do not agree. Section 8(c) of the
Act is completely devoid of meaning unless it permits an
employer to clearly portray its practices with respect to
its unrepresented employees so they could decide wheth-
er they wanted to secure unrepresented status. It is not
unreasonable to presume the Union stressed in its pree-
lection campaign the protection it provided by contract
against layoff, arbitrary discipline, etc. The Company
was not promising to grant the benefits in question; it
had no need to do so, since the Company's practices
were common knowledge. All the Company did was fur-
nish specific details and comparisons so the voters were
completely informed of what they would gain in material
benefits by abandoning union representation, as surely
the Union informed them of what they would gain by
continued representation. The General Counsel also
seeks an order not only requiring the Company to
resume recognizing the Union as the painters' collective-
bargaining representative and to bargain with the Union
at its request, but that the Painters retain the benefits the
Union was unable to secure through bargaining.
I find the General Counsel and Union's contentions
without merit and will recommend dismissal of the
Union's election objections and those portions of the
complaint alleging the slide showings and accompanying
responses to questions violated of the Act.
With respect to the September 19 letter, I find it nei-
ther contains promises of benefits for voting against con-
tinued union representation nor threats of reprisal for
voting for continued union representation; I therefore
shall recommend dismissal of the union election objec-
tions and those portions of the complaint alleging its
publication to the painters violated of the Act.
Inasmuch as I have held the slide showings and ac-
companying remarks did not interfere with employee ex-
ercise of free choice in the election nor violate the Act, I
find the Company's grant of increased wages and im-
proved benefits following the September 22 majority
vote against continued union representation without
prior notice or bargaining was not violative of the Act
and will recommend dismissal of those portions of the
complaint so alleging.
CONCL USIONS OF LAW
1. At all times material the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization within the mean-
ing of Section 2(2), (5), (6), and (7) of the Act.
2. At all times material John V. Landry, H. H. Mc-
Clure, and Roger L. Kesseler were supervisors and
agents of the Company acting on its behalf within the
meaning of Section 2 of the Act.
3. All painters, including all crewleaders, journeymen
and apprentices employed by the Company at its plants
located in Freeport, Texas, excluding all other employ-
ees, guards,watchmen and supervisors as defined in the
Act, at all times material constituted a unit appropriate
for the purposes of collective bargaining within the
meaning of the Act.
4. Since September 22, 1978, the Union has not repre-
sented a majority of the Company's employees within
the above unit.
5. The Company did not prevent the unit employees
from exercising a free choice in the September 22 elec-
tion nor violate Section 8(a)(1) of the Act by virtue of
showing the unit employees slides comparing the fringe
benefits of its represented and unrepresented employees,
and answering questions concerning the details thereof.
6. The Company did not prevent the unit employees
from exercising a free choice in the September 22 elec-
tion nor violate Section 8(a)(l) of the Act by the Sep-
tember 19 letter sent by H.H. McClure to the unit em-
ployees.
7. The Company did not violate Section 8(a)(l) and (5)
of the Act by placing the unit employees on salary and
the fringe benefit schedule for unrepresented employees
on September 25.
[Recommended Order for dismissal omitted from pub-
lication.]
7h60