Dow Chemical Co.

National Labor Relations Board - Board Decisions

Jul 18, 1980

250 N.L.R.B. 748 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dow Chemical Company, Texas Division and
Local Union No. 716, International Brother-
hood of Electrical Workers, AFL-CIO-CLC
The Dow Chemical Company, Texas Division and
Certain Employees of Dow Chemical Company,
Texas Division, Petitioner and Local Union No.
716, International Brotherhood of Electrical
Workers, AFL-CIO-CLC. Cases 23-CA-7079
and 23-RD-412
July 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On November 30, 1979, Administrative Law
Judge John C. Miller issued the attached Decision
in this proceeding. Thereafter, the Employer and
the Petitioner filed exceptions and supporting
briefs. General Counsel filed a brief 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 conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
I Subsequent to the transfer of the instant case to the Board. the Gen-
eral Counsel filed a motion to consolidate it with Cases 23-CA-7313 and
23-RD-414 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 dif-
ferent units of employees and raise issues which, in view of the varying
allegations of the complaint and different factual backgrounds, are best
considered separately
2 The Employer and Petitioner have excepted to certain credibility
findings made by the Administrative Law Judge It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect Stand-
ard Dry Wall Products. Inc.. 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. The Employer has requested oral argument This
request is hereby denied as the record, the exceptions, and the briefs ade-
quately present the issues and the positions of the parties.
I The Administrative Law Judge found that Respondent's unilateral
grant of wage increases and the change ofr other employee benefits of the
unit employees, implemented shortly after the decertification election,
violated Sec. 8(aXs) and (I) of the Act. We agree for the reasons set
forth by the Administrative Law Judge, and note further that even if Re-
spondent had not engaged in unfair labor practices or objectionable con-
duct requiring the election be set aside, the Union would have remained
the employees' established bargaining representative until such time as a
certification of results of election issued. The Prcibrvrian Howpital in the
City of Nerw York, 241 NL RB 996 11979). However, nothing in our Deci-
sion and Order shall be construed as requiring Respondent to rescind
these wage increases and other benefits, the granting of which we have
found unlawful
250 NLRB No. 102
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, The Dow
Chemical Company, Texas Division. Freeport,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
JOHN C. MII.I.ER, Administrative Law Judge: The
hearing in these cases was held in Angleton, Texas, on
November 6, 7, and 8, 1978. The consolidated proceed-
ings involve an unfair labor practice complaint in Case
23-CA-7079 and objections to a decertification election
conducted on April 14, 1978. The objections are identi-
cal to several allegations in the unfair labor practice
complaint. On the basis of the entire record including
briefs filed by the parties and the demeanor or the wit-
nesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with facilities
located at Freeport, Texas, where it is engaged in the
manufacture and sale of various chemical products.
During the preceding 12-months Respondent sold and
shipped goods valued in excess of $1 million to points di-
rectly outside the State of Texas from its Freeport,
Texas, facilities. The complaint alleges, the Respondent
admits, and I find that Respondent is an employer en-
gaged in commerce or an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
The complaint alleges, Respondent admits, and I find
that Local Union 716, International Brotherhood of
Electrical Workers, AFL-CIO-CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1944, the Union has represented electrical crew
leaders, journeymen, and apprentices employed by the
Respondent at its facilities in Freeport, Texas. The most
recent collective-bargaining agreement between Re-
spondent and the Union was effective from May 1975
through May 1978. On or about March 14, 1978, a peti-
tion was filed in Case 23-RD-412 seeking an election
among the employees to decertify the Union in the elec-
tricians unit previously noted. Pursuant to a stipulation
for certification upon consent, an election was set for
April 14, 1978. At the conclusion of the election the par-
ties were served with a tally of ballots reflecting that of
115 eligible voters, 52 ballots were cast for, and 63
against, the Union. On April 21, 1978, the Union filed
74X
DOW CHEMICAL CO).
objections to the election which have been consolidated
with the unfair labor practice allegations for hearing.
As my findings with respect to the unfair labor prac-
tices will be determinative of the merit of the objections
to the decertification election, I shall first discuss and
dispose of the unfair labor practice allegations and there-
after deal with the objections to the decertification elec-
tion.
The complaint alleges that the Respondent through D.
A. Rikard, vice president of operations, and other named
supervisors engaged in various conduct which is viola-
tive of either Section 8(a)(1) and (5) of the Act. As the
unfair labor practice allegations deal with conduct by
eight supervisors in addition to Rikard, I shall deal with
the allegations by type and by the individuals concerned.
The conduct alleged as unfair labor practices largely oc-
curred during the period subsequent to the receipt of the
decertification petition by the Company on March 14,
and the holding of the election on April 14. There are
also some allegations with respect to conduct occurring
after the election.
B. The Alleged Unfair Labor Practices
1. D. A. Rikard, vice president of operations
Rikard is alleged to have engaged in violations of Sec-
tion 8(a)(1) and (5) by issuing letters to approximately
115 employees in the unit with attachments thereto
which are listed as Exhibits A, B, and C. The letters in
question were dated April 3, 7, and 11.
Exhibit A attached to the complaint is a letter from D.
A. Rikard dated April 3, 1978, and addressed to Dow
electricians and their families. The opening paragraph of
the letter states that many questions have been raised by
the employees since the employee benefit presentations
were made to them the previous Thursday and Friday,
and states the attached material is being "inquoted" so
that you can study and review the information privately
with your families. It states at one point that the benefits
covered in these slides are specifically outlined in the
policies and booklets issued by the Company to all sala-
ried employees. Thereafter, the last paragraph states,
"the law prohibits us from promising these salaried bene-
fits to our Dow Electricians if they choose to decertify.
This information is being provided for you solely in re-
sponse to your questions to allow you to review the an-
swers at your convenience." In the material attached to
Exhibit A, there is a comparison of the benefits as be-
tween hourly and salaried employees with regards to life
insurance, medical coverage, time off, including the var-
ious types of leave-sick leave, educational, and personal
leave. Exhibit A and attachments are essentially a repro-
duction of the benefit presentation previously given by
slides in meetings with the employees on March 30 and
31, 1978.
Exhibit B is a letter dated April 7, 1978, from Rikard
and again addressed to Dow electricians and their fami-
lies. The closing paragraph again contains the statement
that the law prohibits us from promising these salaried
benefits to you if you choose to decertify. The earlier
portions of the letter are similar in content to the letter
of April 3, with several exceptions. Paragraph 3 states:
You will note that retirement formula on slide 13 is
exactly the same for both hourly and salary. Hosw-
ever. I would like to point out that the key variable
is that the higher the annual earnings. the higher the
monthly retirement benefits. In fact, all of the bene-
fits outlined on slide 13 are based on annual earn-
ings. The higher the earnings, the higher the bene-
fits.
Another paragraph of the April 7 letter discusses the
availability of the medical insurance for the families of
the salaried employees who die while employed by
Dow. The paragraph also contains this comment:
This is excellent medical coverage that has proved
to be very comforting to spouses and their families.
Attached to Exhibit B are comparisons of the pay scale
of hourly and salaried employees and includes such mat-
ters as overtime pay, holiday pay, education refund,
Dow loan scholarship, retirement, stock benefit plans,
Dow investment benefit plan, and employee stock pur-
chase plan. On another page of Exhibit B there is a com-
parison of retirement insurance, e.g., as to life and medi-
cal, how much insurance is paid up, and the amount of
contribution by the hourly and salaried employees with
respect to life and medical insurance.
Exhibit C dated April 11, 1978, contains no attachment
but is simply a letter which contains approximately six
paragraphs which stresses the fact that employees had a
serious decision to make with respect to whether to de-
certify the Union. Several paragraphs of the letter should
be noted, and paragraph 4 states:
During the campaign we talked about other Dow"
locations where the employees have chosen to de-
certify, as well as the three groups right here within
the Texas Division. I believe it is very significant
that not one of these groups has chosen to revert
back to union status. It illustrates to me that these
employees are being treated fairly and are well sat-
isfied with their compensation and benefits.
The final paragraph of the April 11 letter also deserves
review:
I am very well pleased that you will have the op-
portunity to freely express your choice in privacy
by secret-ballot. When you analyze the information
you have received, I feel that you will know within
your heart and mind that the only answer on Friday
is a "no" vote. I earnestly seek your expression of
confidence in me as well as yourself by voting "no"
vote. A "no" (X) is a vote for a better way for
yourself and your family.
If I were to view the informational meetings with em-
ployees (including the slide presentations on wvages and
benefits) and Exhibits A. B, and C which were mailed to
employees detailing the same material--in isolation, there
would be a strong argument that the Company was cor-
rectly detailing the existing facts to employees in order
that they could make an informed decision in the elec-
749
DECISI()NS ()F NA IO()NAL LABIOR RELA [IONS BOARD
lion. Carrying this argument further, the mere fact that
wages and benefits to salaried workers were in some re-
spects better than that presently given unit employees
does not amount to a violation of the Act as a promise of
benefits in light of the Company's disclaimer that it
could not promise to give them these salaried benefits
and in view of the fact it was a factual review of existing
salary and hourly wage and benefits. However, I find it
unnecessary to consider whether the Company's "dis-
claimer" that it could not promise that employees would
receive these salaried benefits was said "tongue in cheek"
because both employees and supervisors acknowledged
that, if the union were decertified, the employees in-
volved would become salaried based on past practice
and the fact that the Company had only two classes of
employees, hourly represented and salaried unrepresent-
ed. Because of comments made by supervisors in such in-
formational meetings and in individual meetings with em-
ployees in which employees were told, inter alia, that
they would receive better wages and fringe benefits, and
would fare better as salaried employees, discussed at
length hereafter, and in light of a systematic campaign of
interrogation of employees, I find that the dissemination
of benefits via slides and individual mailings to employ-
ees to be part and parcel of the Company's effort to woo
the employees from the Union and, in this context, con-
stitutes a promise of benefits and is violative of Section
8(a)(1) of the Act.'
In addition to the three letters (and attachments) dis-
cussed, paragraph 24 of the amended complaint alleges
that on or about April 13, 1978, Rikard interrogated em-
ployees as to the manner in which they would vote in
the election of April 14, 1978. In support of such allega-
tion, employee George Rab credibly testified that Vice
President Don Rikard and Foreman Williamson came to
see him and that Rikard stated that the election was the
next day and he wanted Rab to vote the right way. Rab
told Rikard that he did not know how he was going to
vote. I find that Rikard's statement was not coercive in
this context and it was within the bounds of lawful cam-
paigning. In fact, the testimony does not establish direct
inquiry as to how Rab was going to vote.2 I find the tes-
timony ambiguous and insufficient to support the allega-
tion and I recommend that it be dismissed.
2. Allegations involving Charlie Goff, Jr.
The complaint (pars. 18, 19(a), (b), and (c)) alleges that
Charlie Goff, Jr., engaged in conduct violative of Sec-
tion 8(a)(1) of the Act. Each of the allegations will be
discussed separately, hereafter.
(a) Goff is alleged to have told employees at a meeting
on March 30, 1978, that the reason employees in the unit
were not receiving greater salary benefits was because
Respondent had to deal with a third party and had in-
In view of my 8(a)(1) findings. I find it unnecessary to decide a heth-
er the meetings and dissemination of materials also constituted violations
of Sec. 8(a)(5).
: I recognize the possible argument that Rikard's statement that he
wanted Rab to vote the right wa) ma) hase been designed Io elicit from
Rab how he w.as going to vote In vsiew, of the fact that this ;asi the only
incident alleging interrogation hb Rikard and Rab's answer was noncom-
minlal. I am not persuaded that this incident is violative ofe Sec 8(al(I)
curred additional expenses as a result and that there
would be additional money paid to employees if the
Union were not involved.
Calvin Long credibly testified that at a meeting at
plant A on March 30, 1978, slides were shown compar-
ing the differences in hourly and salaried employees'
benefits. One of the electricians asked why they [union
members] could not get them benefits before and Goff
replied that the company has to deal with a third party.
And if they did not have to deal with this third party,
they would not have to process grievances or have arbi-
tration or negotiation. They would not need "a Labor
Relations"; they would have more money to spend on
the Dow employees.
Marshall LeBouef testified that Goff replied "that the
cost of labor relations and negotiations and grievances
and the fact that it was stated in the contract that they
were limited to the amount that was in the contract."
Both Long and LeBouefs testimony was consistent on
the point that Goff emphasized the cost of labor rela-
tions. It is logical and I credit Long's additional testimo-
ny that Goff also said that without a third party, they
would have more money to spend on the employees.
Goff did not deny Long's testimony. I find Goffs state-
ment a clear indication that, without the Union, employ-
ees would get more money. This constitutes a promise of
benefit and is violative of Section 8(a)(1) of the Act.
(b) Goff is alleged to have told employees at a meeting
on or about April 4, 1978, that salaried employees not
represented by any union received more money than em-
ployees in the unit and that the lowest paid nonrepre-
sented carpenter made more than the highest paid repre-
sented electrician. It is further alleged that employees
were told that other craft employees who had previously
voted for decertification went immediately on a salary
basis and received additional monetary benefits.
Calvin Long credibly testified that in the course of a
meeting at plant A in which Company Representative
Kessler displayed slides showing comparisons on retire-
ment, vacation, and stocks, one employee asked how
much money the Company was talking about. Goff re-
sponded that he could not tell anything about the
amount of money but the lowest paid carpenter made
more than the highest paid electrician. Goff acknowl-
edged making such a statement. The direct comparison
between the wages of the nonrepresented carpenters and
the represented electricians indicated to employees the
benefits of nonrepresentation approximately a week
before the decertification election was held. I find the
direct comparison constitutes a promise of benefit and an
inducement to vote against the Union and such statement
is violative of Section 8(a)(1).
(c) On or about April 5, 1978, Goff allegedly stated
that because they were represented by a union, Respond-
ent could not always pay its employees as much as it
would like to.
In support of this allegation electrician James Tomlin
testified that at a meeting on April 6 or 7, 1978, Charles
Goff stated that because the electricians were represent-
ed by a union, Dow could not always pay them what
they would like to. Employee electrician Salinas testified
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DOW CHEMICAL CO.
similarly that Goff stated he would like to pay the elec-
tricians more then what "they were worth" [sic] but he
could not because they belonged to the Union. Goff
denied making the explicit statement attributed to him by
Tomlin and stated that if it occurred it was in a discus-
sion about the reason for the difference in pay between
represented and nonrepresented employees. As to Sali-
nas' testimony Goff also denied making the statement
noted.
Despite his denials, Goff stated that he contacted Jim
Serta, a Hispanic, and asked him to go with him to talk
to Salinas to see if he had any questions about the decer-
tification election. In the process Serta told Salinas that
as a carpenter he had faced the same decertification
question and said that, from his experience, he was
pleased with the way his career had gone. Thus manage-
ment through Goff was seeking out employees in an
effort to get them to vote to decertify the Union and was
not merely responding to questions raised by employees
but was in substance campaigning to win the decertifica-
tion election. Serta, accompanied by Goff, became an
agent of the Respondent, and pointed out the benefits of
decertification, and, in particular. the medical benefits of
being salaried. Serta was in effect recruited to assist in
this process and did not make these comments to Salinas
in casual conversation, but in the presence of Goff and at
his behest.
In the light of this background and the fact that Goff
admitted making contacts in meetings or individually
with many of the electricians, I believe the recollection
and testimony of Tomlin and Salinas and credit them
over Goff. The clear message Goff conveyed was that
the Respondent would like to pay employees more but
could not do so because they were represented by the
Union. I find such comments to be promises of benefit if
they voted to decertify the Union and they are violative
of Section 8(a)(1) of the Act.
(d) On or about April 6 or 7, Goff allegedly told em-
ployees that nonunion salaried employees were treated
better than employees covered by a union contract and
gave an example of an apprentice who would have to be
fired under the terms of the contract but would not be
fired if the employee was salaried rather than represent-
ed by the Union.
James Allen, an apprentice electrician, testified credi-
bly that at a April 4, 1978, meeting of apprentice electri-
cians, a question was asked what would happen to
Hutchins, an apprentice who had recently failed his jour-
neyman's examination. Goff responded that if Hutchens
were salaried that the Company would have more
leeway as to what to do with him but under the existing
labor union contract that he was washed out. Goff also
responded that to his knowledge neither carpenters nor
instrument men were required to take examinations. I
credit Allen and find that Goff was pointing out that
management would be more lenient with apprentices if
they were unrepresented, and thereby violated Section
8(a)(l) of the Act.
Thus in all the incidents discussed, Goff did more than
point out factual material, he also made the conclusions
for the electricians. For example-stating the lowest paid
carpenter made more than the highest paid electrician in
a context where carpenters were known to be unrepre-
sented.
(e) Goff allegedly, on or about April 10, 1978, asked
employees how they felt about the decertification elec-
tion.
Salinas credibly testified that on April 10, 1978, he was
taken into the electric shop where Charlie Goff and a
carpenter employee, Salazar3 began a conversation with
him by asking where he was from. In the ensuing con-
versation, Goff asked Salinas what he thought about the
decertification and Salinas simply responded that, either
way, it would affect his family. I find that Goffs inquiry,
although slightly at variance from the allegation, was de-
signed to elicit from Salinas how he felt or how he was
going to vote in the forthcoming election. I find Goffs
inquiry coercive and violative of Section 8(a)(1) of the
Act.
3. Allegations involving Supervisor Avon
Williamson
Paragraph 20 of the complaint alleges that Supervisor
Avon Williamson told employees during the week of
April 3, 1978, that if they voted to decertify the Union
and become salaried employees they would receive
greater financial benefits. Further that on or about April
10, he stated that if they were decertified, they would be
able to take afternoons off.
The record does not disclose any evidentiary support
that Williamson told employees if they voted to decertify
they would receive greater financial benefits. Therefore,
that allegation is dismissed.
Employee James Allen credibly testified that about a
week before the election, Supervisor Avon Williamson
told him that if the electricians voted to decertify that
Allen possibly could go fishing. Williamson's remark was
made in response to Allen's statement that it was a pretty
day and he would like to go fishing. On cross-examina-
tion Allen stated that half-days off were permissable for
salaried employees. I find Williamson's comment a hold-
ing out of a possible benefit if Allen voted to decertify
the Union which I find violative of Section 8(a)(l) of the
Act.
4. Allegations involving Supervisor James T.
Hargrove
Hargrove is alleged to have: (a) interrogated employ-
ees as to the manner in which they planned to vote ap-
proximately a week before the April 14, 1978, election;
(b) told employees in the week before the election that
they would receive greater benefits if they voted to de-
certify the Union and become salaried.
As to (a), Aniceto Hernandez, Jr., credibly testified
that in a discussion he and fellow electrician Gary had
with Hargrove 4 or 5 days before the election, Hargrove
asked them how they were going to vote and when
Gary stated he was going to vote "yes": i.e., for the
:' Goff referred to the individual involved as Serta v hile Salinas re.
ferred to him as Salazar While I assume ii Awas the same individual. Ihe
idenlification is not crucial inasmuch as the leslimonial version, were oth-
erwise substantially in accord and only GolT's comments are alleged to be
a violation
751
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
Union, Hargrove stated that insurance benefits were
better and employees would have a better opportunity
going salaried. In his testimony Hargrove denied asking
them how they were going to vote but admitted he
asked what was their feelings on the election and how
did they think the election would go. Hargrove admitted
that he told them that in his opinion they would fare
better if they voted to decertify. In part because of Har-
grove's testimony, I credit Hernandez and find that by
interrogating employees and stating they would have
better insurance benefits and would fare better without
the Union, Hargrove engaged in unlawful interrogation
and promises of benefits, both of which constitute sepa-
rate violations of Section 8(a)(1) of the Act.
5. Allegations involving Supervisor S. O. McGee
McGee is alleged to have told employees they would
better their future and their security if they voted to de-
certify the Union.
Charles Johnson credibly testified that on or about
April 13, 1978, S. O. McGee came to his shop area and
stated that he heard that Johnson was against decertifica-
tion, that he thought the electricians would be better off
salaried, and that a guy "would be dumb or stupid not to
vote to decertify or to go salaried."
LeBouef testified credibly that Foreman McGee told
him it would be better for his future and security if em-
ployees voted to decertify the Union. McGee admitted
that he probably did say it would be better for the future
and security of the electricians to go salaried. In view of
McGee's admission, I credit the testimony of both John-
son and LeBouef and find such statements by McGee are
an unlawful inducement to vote for decertification and a
violation of Section 8(a)(1) of the Act.
6. Allegations involving Supervisor Robert C.
Walker
On or about April 12, 1978, Walker is alleged to have
(a) interrogated employees about their voting intentions;
and (b) told employees that it would be beneficial to
them on retirement if they voted to decertify and
become salaried.
Kenneth Elliott credibly testified that prior to the de-
certification election Robert Walker asked him what his
feelings were about the election and he responded that
he did not feel he would be there today if it were not for
the Union. Walker told him that on account of his age
and service it would be beneficial to him if the electri-
cians went salaried. Walker admitted that he went to see
Elliott for the purpose of discussing the upcoming elec-
tion but denied asking him how he felt about the elec-
tion. I credit Elliott and find that, by interrogating El-
liott and indicating it would be beneficial to him if he
voted to decertify, Respondent engaged in conduct vio-
lative of Section 8(a)(1).
7. Allegations involving Supervisor Wayne J.
Oswald
Oswald is alleged to have told employees to vote to
decertify the Union because Respondent could not
reward its employees for their excellent job as long as
the Union represented the employees.
George Rab credibly testified that Electrical Foreman
Wayne Oswald discussed the forthcoming election with
him during the week of March 27, 1978, and Oswald
stated he wished the electricians would decertify be-
cause, if they did, they could do a lot more for them like
take them to supper and reward them for a good job.
Oswald did not recall making such a statement but stated
it was very possible that he had made such a remark.
While an inducement of taking them "to supper" seems
almost innocuous, it does, nevertheless, continue a trend
of promising employees "rewards" if they decertified the
Union. I find such comment violative of Section 8(a)(l)
of the Act.
8. Allegations involving Supervisor John Soos
Soos is alleged to have interrogated employees as to
the manner in which they would vote during the weeks
in April preceding the election of April 14.
Benigno Rivera credibly testified that he had several
conversations with his supervisory foreman, John Soos,
and that the last conversation occurred on the morning
of the election. Soos approached him in the shop area
and asked him "how do you think the election's going to
come out?" Rivera responded that he hoped the Union
would win but was doubtful. Soos stated that the electri-
cians could try going salaried and if they did not like it
after a year they could go back union. The evidence
does not support the allegation that there was an inquiry
as to how Rivera would vote but simply a general in-
quiry as to the general outcome of the election. Accord-
ingly, I recommend this allegation be dismissed.
9. Allegations involving Supervisor Harry St. Clair
St. Clair is alleged to have told employees that things
would be better if they voted to decertify because they
would have better benefits and make more money.
Employee Calvin Long credibly testified that St. Clair
picked him up in his pickup truck about a week before
the decertification election and in an ensuing conversa-
tion told him he believed that they (the electricians)
would be better off going salaried. Again, on or about
April 10, 1978, St. Clair called him into his office and
told him they would be better off decertified, and they
would have better benefits and make more money. Em-
ployee Clyde Henderson credibly testified that on or
about April 2, 1978, St. Clair told him that he knew he
was strong union but wanted to talk to him about the
election. St. Clair told him he thought the electricians
would be better off financially and in benefits by going
salaried-decertifying.
St. Clair admitted telling Long that it was his honest
personal opinion that he (Long) would be better off if
the Union were decertified. As to Henderson, he ad-
mitted having a conversation with him and telling him as
a friend that he would be better off if the union were de-
certified. He denied telling him he would receive a wage
increase or anything like that. To the extent there is a
discrepancy between the testimony of St. Clair and em-
ployees Long and Henderson, I credit Long and Hender-
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DOW CHEMICAL CO.
son. St. Clair made the overtures to the employees and
conceded the generalities if not the specifics. According-
ly, I find that St. Clair's comments to employees Long
and Henderson constituted promises of benefits if they
voted to decertify the Union and such conduct is viola-
tive of Section 8(a)(1) of the Act.
10. Allegations involving postelection conduct
The complaint alleges and Respondent admits: 4 that
electrician employees were advised of a $50-a-month in-
crease on April 17, 1978, the first working day after the
election, retroactive to 4 p.m., April 14, 1978; that also
on April 17, electrician employees in the unit were ad-
vised they were being converted to salaried employees
with all the benefits of salaried employees as set forth in
the salaried employee handbook; that on or about May
18, 1978, electrician employees with the exception of cer-
tain electrician trainees received a second wage increase
ranging from $140 to $150 a month. Respondent admits
the raises were made on said dates and noted that many
benefits between hourly and salaried employees were
identical, and that some but not all electrician trainees
were raised to a salary of $1,520 a month.
The above conduct (raises and changing employees to
a salaried basis) admittedly occurred. The only issue
before me is whether such conduct is lawful. Since such
actions were taken both before and after timely objec-
tions to the election were made, the Employer made
such changes at its peril. As I have found that the Re-
spondent's conduct in the period prior to the decertifica-
tion election is violative of Section 8(a)(1), and as found
hereafter, also constitutes objectionable conduct to the
election, I find that the unilateral granting of the raises
and changes of employee status, done while the validity
of the election was still in doubt, constitutes a violation
of Section 8(a)(5) and (1) of the Act.5
111. THE OBJECTIONABLE CONDUCT
On April 21, 1978, the Union filed timely objections to
the conduct of the election or conduct affecting the re-
sults of the election. The objections were:
1. On various occasions prior to the election which
was conducted on April 14, 1978, the Employer, through
its agents and representatives, informed employees that
they would receive an increase in wages and/or im-
proved benefits in the event they voted against the
Union in the upcoming election.
2. On various occasions prior to the election which
was conducted on April 14, 1978, the Petitioner, through
its agents and representatives, informed employees that
they would receive an increase in wages and/or benefits
in the event they voted against the Union in the upcom-
ing election.
3. Based on conduct of various individuals, including
representatives and agents of the Employer and/or Peti-
4 Respondent's admission was with reservations and clarifications. Re-
spondent admitted the S50-a-month increase retroactive to 4 p.m on
April 14. 1978, and further admitted that a second raise was granted on
or about May 18, 1978, hut that not all electrician trainees received it
Those modifications have been incorporated above
s Turbodyne Corporation Gas Turbine Division. 226 NLRB 522 (1976).
Felsenthal Plastics, Inc. d/b/a Grede Plastics. 224 NLRB 1312 (1976)
tioner, the election on April 14, 1978. wras conducted
with full knowledge by all employees that decertification
of the Union would result in an immediate and substan-
tial wage increase, along with other improved benefits.
Such atmosphere destroyed the conditions necessary for
the conduct of a fair election.
4. By other acts and conduct not specifically set forth
herein, the Employer has interfered with, restrained, and
coerced employees in the exercise of the Section 7 rights
with the result that a free and fair election was not possi-
ble.
On the basis of the above objections, the Union re-
quests the election be set aside.
From my prior findings it is clear that Respondent did
more than merely inform employees what other nonre-
presented employees were making, they told them in
various ways that salaried workers had better medical
benefits, and that it would be more beneficial to them in
terms of benefits and wages, to vote to decertify. As
noted previously, supervisors made systematic efforts to
persuade employees that they would be better off in
terms of financial benefits if they voted to decertify.
While espousing the view that they could not promise
the employees anything, they continued to inform the
employees of the benefits available to salaried workers. I
find that both the Respondent, its supervisors, and the
employee-electricians were aware that Respondent had
only two types of employees. Those represented by
unions who had contracts with the employer and those
who were unrepresented who were salaried. From prior
experience at this plant (the carpenters voted to decertify
and immediately became salaried employees about 1972)
and the fact that the Company had throughout its system
only two categories of employees, it is clear and I find
that it was understood by employees and supervisors
alike that if the Union were decertified they would
become salaried employees.
In defending against the 8(a)(1) and (5) allegations and
the objectionable conduct noted previously, Respondent
in its answer claimed that it has been denied due process
because certain allegations were vague and did not in-
clude the names of employees toward whom certain con-
duct was directed. Secondly, it claims that some or all of
the statements and letters referred to in paragraphs 16
through 30 of the amended complaint constitute an exer-
cise of Respondent's free speech either under Section
8(c) of the Act or the first amendment of the Constitu-
tion or both and cannot constitute violations of the Act.
Granted, there is often a fine line between the exercise
of freedom of speech under Section 8(c) and violations
of Section 8(a)(l) of the Act where statements and con-
duct involve threats or promise of benefit. With certain
exceptions (e.g., medical benefits), I have found no ex-
plicit promises to raise wages a certain amount. Howev-
er, numerous supervisors did more than supply informa-
tion to employees, they systematically contacted electri-
cian employees in the unit and, inter alia, urged them to
decertify the Union stating that medical benefits ,were
better, that they would be stupid not to decertify, that
they would fare better on benefits as salaried employees,
that the Company would pay them more but for the
75si
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, that the lowest paid carpenter (salaried-unrepre-
sented) received more than the highest paid electrician,
etc.
In light of my prior findings with respect to the unfair
labor practice allegations which are similar to the objec-
tions filed to the election, I find the objections have
merit and recommend that the election in Case 23-RD-
412 be set aside.6
Summary and Conclusions
I am aware of and have not disregarded Respondent's
principal contention that Section 8(c) (and its related
First Amendment claim) grants Respondent freedom to
express its views, and particularly here, where all Re-
spondent had to do was point out existing wage and
benefit scales for salaried employees. In this case, the
anomaly exists that wages and benefits for salaried em-
ployees were in fact better in some respects than wages
and benefits being paid hourly represented electricians.
In essence it can be argued that by telling the facts the
Respondent was automatically engaging in a promise of
benefits. I have attempted to reconcile the right of em-
ployees to be informed and the right of the employer to
express his views under Section 8(c) with existing law
that prohibits an employer from making threats or prom-
ises of benefits in violation of Section 8(a)(1) or constitut-
ing objectionable conduct prior to an election. I have
concluded that on the basis of the record as a whole Re-
spondent did more than inform the employees of benefits
currently enjoyed by salaried employees. It systematical-
ly interrogated employees as to their views on the decer-
tification election and made the judgment that their
wages and benefits would be better and attempted to
"sell" that judgment to employees and thereby induce
them to reject their existing union representation. It can
be argued, of course, that if the Respondent is entitled to
inform the employees of existing wage and benefit scales
for salaried employees, why is it not entitled to use such
factual material in campaigning to reject the Union? I
have found that employees and supervisors alike were
aware that decertification meant that employees would
become salaried. In light of this, the Respondent went
too far when it made the judgment that decertification
meant better and increased wages and benefits and told
the employees that. By so doing, the Respondent ad-
vanced into a forbidden area of promising employees
benefits if they voted to reject the Union.
While I have uniformly credited employees testifying
on behalf of the Charging Party, I have done so in part
because the Respondent's foreman and supervisors sub-
stantially conceded or admitted many of the allegations
herein, and in part based on the demeanor of the wit-
nesses involved.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent, by interrogating employees how
they intended to vote or how they felt about the forth-
6 Monroe Auto Equipment Company. 230 NLRB 742, 747
coming election, engaged in conduct violative of Section
8(a)( 1) of the Act.
3. The Respondent, by informing electrician employees
of the wages and benefits given to salaried employees
through the display of slides and dissemination of similar
material in conjunction with informing employees that
they would be paid more if they did not have a union;
that they would have better medical benefits if they
voted to decertify the Union; that the lowest paid car-
penter employee (unrepresented) made more than the
highest paid electrician; that their wages and benefits
would be better if they were salaried, and by similar con-
duct, the Respondent engaged in conduct violative of
Section 8(a)(1) of the Act.
4. The Respondent, by informing employees they were
being placed on salary and by granting raises on April 17
and on May 18, 1978, retroactive to 4 p.m. on April 14,
1978, while the validity of the election conducted on
April 14, 1978, was still undecided, engaged in conduct
violative of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Except as specifically found herein, the Respondent
has not engaged in violations of Section 8(a)(1) and (5)
of the Act.
THE RI-ME DY
In view of the fact that Respondent immediately
granted its electrician employees salaried status and
granted them raises, merely setting the election aside
would not be an effective remedy despite the fact that
over a year has transpired since the election. I agree
with the General Counsel's contention that a fair election
at this time would not be possible.7 Accordingly, I rec-
ommend that the Respondent be ordered to bargain with
the Union for a reasonable period of time, and if an
agreement is reached, incorporate such agreement, if re-
quested, into a written contract. This order is not to be
construed as requiring a recission of the benefits granted
subsequent to the election.
ORDER 8
The Respondent, Dow Chemical Company, Texas Di-
vision, of Freeport, Texas, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees how they feel or how
they would vote in any Board election.
(b) Displaying through the use of slides or disseminat-
ed material, the wages and benefits of salaried employees
and in conjunction therewith, telling employees that they
would be paid more if they did not have a union or that
N.L.R.B. v Gissel Packing Co., Inc.. 395 U.S 575 at 614 (1969). See
also Automated Business Systemv, 205 NLRB 532 (19731) Westminster
Community Hospital, In.. 221 NLRB 185 (1975); -elsenthal Plastics, Inc.,
224 NLRB 1312 (1976).
' 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 find-
ings, 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 Ihereto
shall be deemed waived foir all purposes.
754
DOW CHEMICAL CO.
they would have better medical benefits if they voted to
decertify the Union, or that the lowest paid carpenter
(who was unrepresented) made more than the highest
paid electrician, or that wages and benefits would be
better if they were salaried or in any like or similar
matter, promising employees benefits if they voted to
reject the Union
(c) Granting any further raises or increase of benefits
without bargaining with the certified Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Bargain, upon request, with the duly certified
Union about wages, hours, and working conditions of
employees in the unit of electricians.
(b) Post at its Freeport, Texas, plant copies of the at-
tached notice marked "Appendix. " 9 Copies of said
I In the event that this Order is enforced bh a Judgment of the L'nited
States Court of Appeals. the words in the notice reading "Posted by
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's au-
thorized 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 Respondent to insure that said notices are not altered,
defaced or covered by any other material.
Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order. what
steps the Respondent has taken to comply herewith.
IT IS FURrTHER RECOMMENFNDEID that the election in
Case 23-RD-412 be set aside.
Order of the National Labor Relations Hoard" hall read "Psted P'ursu
-
ani to, a Judgment of the United States Court of Appeal, cnfolrcilig an
Order of the National Labor Relatlon, Board"
755