Amoco Chemicals Corp.

National Labor Relations Board - Board Decisions

Jan 3, 1979

239 N.L.R.B. 1180 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amoco Chemicals Corporation and Oil, Chemical &
Atomic Workers International Union, Local 4449.
Case 23-CA-4804
January 3, 1979
SUPPLEMENTAL DECISION
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 17, 1974, the National Labor Relations
Board issued its Decision and Order' in this pro-
ceeding finding that Respondent violated Section
8(aXI) of the National Labor Relations Act, as
amended, by threatening a cut in pay, and Section
8(a)(5) and (1) of the Act by unilaterally changing
from oral to written warnings and by unilaterally re-
ducing the hours of work. Accordingly, the Board
ordered Respondent to cease and desist therefrom
and to take certain affirmative action including the
making whole of all unit employees who suffered a
loss of wages as a result of Respondent's unilateral
reduction in hours.
On March 25, 1976, the United States Court of
Appeals for the Fifth Circuit issued a judgment 2 de-
clining to enforce the Board's Order with respect to
the 8(aX1) threats and enforcing the Board's Order
with respect to the 8(a)(5) unilateral changes except
the make-whole remedy. The court declined to en-
force the make-whole remedy on the record as it then
stood and remanded the case to the Board for further
proceedings "designed to supplement the record to
supply the necessary evidentiary basis for a monetary
award."
On July 6, 1975, the Board notified the parties in
this proceeding that it had decided to accept remand
from the court of appeals. On October 19, 1976, the
Board issued an Order remanding to the Regional
Director "for further proceedings, including the pre-
sentation of any additional evidence in support of a
monetary award, in accord with the judgment of the
United States Court of Appeals for Fifth Circuit."
Pursuant to notice, a supplemental hearing was
held before Administrative Law Judge Wellington A.
Gillis in Houston, Texas, on January 18, 1977. The
General Counsel, Respondent, and the Charging
Party were all represented at the hearing. All parties
were afforded full opportunity to be heard, to present
oral and written evidence, and to examine and cross-
examine witnesses. Thereafter, Respondent and the
1211 NLRB 618.
2 N.L. R. B. v. Amoco Chemicals Corporation, 529 F.2d 427.
General Counsel filed briefs with the Administrative
Law Judge.
On March 9, 1977, the Chief Administrative Law
Judge informed the parties that Administrative Law
Judge Wellington A. Gillis died on March 6, 1977,
and was not available to the Board within the mean-
ing of Section 554(d) of the Federal Administrative
Procedure Act (5 U.S.C. § 544(d)), and Section
102.36 of the Board's Rules and Regulations, as
amended, to issue a Decision. Subsequently, Respon-
dent filed a motion to transfer the proceeding to the
Board. By order dated April 4, 1977, the case was
transferred to the Board for issuance of a proposed
Decision and Order based on the record as made.
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.
Upon the entire record in this proceeding, includ-
ing the decision of the court of appeals, and after
consideration of the briefs filed by Respondent and
the General Counsel, the Board makes the following:
FINDINGS AND CONCLUSIONS
A. Background Facts
Respondent operated a truck transport terminal in
Texas City, Texas, from January 1972 until August
1973 when the terminal was closed for economic rea-
sons. The terminal was part of Amoco's proprietory
trucking operations performing in-house trucking to
and from Amoco's three manufacturing plants in
Texas. On April 23, 1973, the employees of the termi-
nal elected the Union as their bargaining representa-
tive, and the Union was subsequently so certified.
Shortly after the election, the terminal manager was
instructed by officials from the Chicago, Illinois,
headquarters that all employees were to be placed on
a basic 40-hour week with not more than 5 hours of
overtime. About the same time, Respondent's busi-
ness began to decline until the terminal was perma-
nently closed in August 1973. As a result, the wages
earned by the truckdrivers were substantially re-
duced. Despite the Union's attempts to raise the mat-
ter with Respondent, at no time did Respondent
agree to discuss the reduction in hours and earnings.
At the only bargaining session between Respondent
and the Union, held on June 21, 1973, Respondent
declined to discuss the reduction, citing the pending
unfair labor charges which had been filed by the
Union.
The Board concluded, and the court affirmed, that
Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally reducing employee hours and,
thus, earnings. The court, however, refused to en-
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AMOCO CHEMICALS CORPORATION
force the Board's make-whole remedy and remanded
this case to the Board for further proceedings "de-
signed to supplement the record to supply the neces-
sary evidentiary basis for a monetary award." Thus,
the sole issue before us is whether Respondent is lia-
ble for the employees' loss of earnings.
B. Supplemental Hearing
David L. Nible who was, at all material times, the
Oil, Chemical & Atomic Worker's International rep-
reseitative for the terminal employees, was the only
witness who appeared and testified at the supplemen-
tal hearing. Nible was directly involved with the ter-
minal employees from the organizational campaign,
to the attempts to negotiate with Respondent, and
through the closing of the terminal. Nible testified
that had Respondent bargained over the reduction in
hours, various proposals could have been discussed
as alternatives to the across-the-board reduction in
hours. He testified that he would have negotiated for
the movement of two or three drivers to other Texas
City, Texas, facilities of Respondent or to those of
Amoco Oil Company, which, like Respondent, is a
subsidiary of Standard Oil of Indiana. After the close
of the terminal, the ex-employees were, in fact, so
transferred. He further testified that, failing to secure
transfers, he might have induced Respondent to lay
off two or three of the less senior employees so that
the remainder could continue to maintain their previ-
ous incomes.
As to a different alternative, Nible testified that he
could have suggested, from various connections of
the employees and the Union with the trucking in-
dustry, other sources of hauling business for Respon-
dent.3 As an example of what bargaining had accom-
plished, Nible testified that, when faced with the
imminent closing of a truck terminal of another com-
pany, the Union had been able to reach an agree-
ment permitting a phaseout of the operations on the
3In the initial proceeding. Russell C. Williams testified that there was a
demand for hauling dry cargo which continued after May but that Respon-
dent did not undertake that business because the dry-haul equipment had
been removed. There is some conflict in the testimony as to when such
equipment was removed. Employee Felix D. Crisp testified that dry-haul
equipment was present during May 1973, although Williams. at least bs
implication, indicated it was not, and the terminal manager told potential
customers that such equipment was not available. However. the record
shows that, prior to May. Williams had decided to remove the equipment
In any event, it is clear that Respondent made no great effort to seek out
customers.
On the other hand, one of the major purposes of the terminal was to haul
propylene. The record shows that in 1972 over 90 percent of Respondent's
business was the transport of two petrochemicals propylene and stsrene.
In December 1972. a pipeline for transporting propylene was completed and
the terminals hauling it were phased out. finally closing in March 1973
Thus, the terminal lost a major and relatively predictable source of its busi-
ness. The loss of propylene haulage was a determinant leading to Respon-
dent's close of business at the terminal
basis that whenever equipment broke down the jun-
ior driver would be laid off. Nible knew of one other
instance when this has happened.
The only other evidence introduced at the supple-
mental hearing is a summary comparing the wages
earned by truckdrivers before and after the reduction
in hours (G.C. Exh. 16). The summary is based on
Respondent's payroll records (previously introduced
as G.C. Exh. 2) and was appended to General Coun-
sel's brief to the Administrative Law Judge in the
earlier proceeding. The summary, which uses May i,
1973, as the dividing point, shows that the average
earnings (which do not incorporate earnings of em-
ployees who did not work regularly throughout the
period) dropped from $944.34 to $757.15.4 The sum-
mary also shows by pay period (every 2 weeks) the
earnings of each truckdriver employed at the termi-
nal from January through August 1973.
C. Discussion
The record has always been clear that the truck-
drivers suffered a loss of earnings as a result of Re-
spondent's unilateral reduction of hours.5 Thus, the
court stated, at 529 F.2d 432, "As a result [of the
reduction in hours and declining business], the
driver's actual earnings progressively decreased
.... ' The issue, however, as framed by the court is
whether the loss was a result of Respondent's failure
to bargain. The court stated:
However, on the record before us, we are unable
to conclude that a monetary award was an ap-
propriate device to remedy Amoco's failure to
bargain about a reduction in work hours. Nei-
ther the Administrative Law Judge nor the
Board made findings sufficient to demonstrate
that the employees suffered any economic loss
as a result of Amoco's failure to consult the Union
before acting. [Emphasis supplied.]
More succinctly the court stated, "On the present
record it is hard to perceive how bargaining would
have altered the result or ameliorated the employees'
loss."
At the supplemental hearing, the only new evi-
dence was Nible's testimony that he could, or would,
have presented alternatives had Respondent bar-
4 Truckdrivers were paid twice on a time and mileage basis. subject to a
monthly guarantee of $700. Because of the difficulties in companng month-
ly to biweekly pay. certain distortion has been built into the averages (In
June. these were three pas periods; in other months, certain employees
received the S700 minimum guarantee) Nevertheless, an examination of
each employee's earnings shows that the average closely represents the ex-
tent of lost pas.
In his original Decision. the Administrative Law Judge stated. In fn. 6.
"Thus. (Company records reflect that during May. June. and July. 1973.
immediatels follow itg the elecllon, average employee earnings were consid-
erahls' helow the average earnings for the first four months of the year"
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gained about the reduction in hours. Yet the Board,
in the underlying Decision and Order, noted that al-
ternate proposals could have been made, stating,
"Here the Union could have agreed to layoffs or
transfers to other operations of the parent corpora-
tion, or to implement some other proposal." The
court not only quoted from the above, but further
stated, "negotiations could have produced several
possible solutions. Under one the Union could have
insisted that the available work be spread out less
evenly, preferring to have senior drivers benefit at
the expense of the newer employees. Another equally
plausible negotiation could produce the very across-
the-board reduction which actually resulted."
Neither the Board nor the court referred to the
other alternative proposed by Nible-to help Re-
spondent get new business. However, this proposal
related as much to the closing of the terminal, which
is not alleged to have been unlawful, as it does to the
reduction in hours. In this connection, we are faced
with the fact that a reason for the terminal's exis-
tence, hauling propylene, had ceased because of the
pipeline's completion. More important to our consid-
erations herein, Nible testified that he could not
think of any specific proposals that he would have
made. Thus, because of the speculative nature of this
alternative, the proposal falls under the court's ad-
monition, "However, for this court to engage in any
such 'reconstruction' of events to approve what the
Board may order is to compound speculation."
Having accepted remand in this case, we are
bound by the decision of the court. The only evi-
dence produced at the supplemental hearing, which
was designed to "supply the necessary evidentiary
basis for a monetary award," was evidence which
had been specifically, and by implication, considered
and rejected by the court. In these circumstances in
this case, we are accordingly compelled to find that
the record does not support a make-whole remedy
for the employees' loss of earnings.
Conclusion
For the reasons set forth above, we find that the
employees of Amoco Chemicals Corporation at its
Texas City, Texas, trucking terminal are not entitled
to be made whole for the losses of earnings resulting
from Respondent's unilateral reduction in work-
hours.
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