Costal States Petrochemical Co.

National Labor Relations Board - Board Decisions

Apr 24, 1969

175 N.L.R.B. 555 (N.L.R.B. 1969)

COASTAL STATE PETROCHEMICAL CO.
Coastal States Petrochemical Company and Oil,
Chemical and Atomic Workers International
Union , AFL-CIO and The Employee Committee,
Party of Interest . Cases 23-CA-2972 and
23-RC-3075
April 24, 1969
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 27, 1968, Trial Examiner Marion
C. Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found no merit in the Union's objections to the
conduct of the election held on March 1, 1968, in
Case 23-RC-3075, and recommended that the
objections be overruled, and that the Board certify
the results of the election. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed limited cross-exceptions and a brief in support
of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions, and briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations' of the Trial
Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
IT IS ALSO ORDERED that the objections filed in
Case 23-RC-3075 be, and they hereby are,
overruled.
'No exceptions were filed to the Trial Examiner's dismissal of certain
Section 8(a)(1) allegations.
'We hereby correct the following inadvertent error in the Trial
Examiner ' s Decision- In section II, A, 3, "Conclusions ," the date referred
to in the last sentence of the second paragraph should read "September 8,"
rather than "September 6."
CERTIFICATION OF RESULTS OF
ELECTION
555
It is hereby certified that a majority of the valid
ballots has not been cast for Oil , Chemical and
Atomic Workers International Union , AFL-CIO,
and that said organization is not the exclusive
representative of the employees in the appropriate
unit , within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These cases
involve unfair labor practice charges (filed March 8, 1968, '
and timely objections to conduct alleged to affect the
results of an election (conducted on March 1, pursuant to
a petition filed December 21 and a stipulated consent
agreement signed on January 17). The cases were tried at
Corpus Christi, Texas, on July 9-11, pursuant to a
complaint issued April 29, and an order of consolidation
issued April 25.
The primary issues are whether the Respondent,
Coastal States Petrochemical Company, herein called the
Company, (a) dominated and/or unlawfully assisted the
Employee Committee, (b) eliminated an employee's
customary coffee break because of his support of Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, herein called the Union, (c) increased benefits
to induce employees to abandon the Union, and (d)
informed employees that pay raises had been withheld
because of the Union, in violation of Section 8(a)(2) and
(1) of the National Labor Relations Act, as amended, and
whether the election should be set aside.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company, a Texas corporation, is engaged in the
refining and sale of petroleum products at its Corpus
Christi, Texas, refinery from which it ships annually goods
valued in excess of $50,000 directly to points outside the
State. The Company admits, and I find , that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Employee Committee
1. Background of the committee
In 1964, soon after the Union's defeat in an earlier
election (by vote of 27 to 78, with 6 challenged ballots),
'All dates, unless otherwise indicated , are in the period from April 1967
to March 1968
175 NLRB No. 92
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company began meeting with a 4-man Employee
Committee, discussing wages, benefits, working
conditions, and complaints. The committee members,
selected by employees, often arranged for the date of the
meeting, usually held monthly.
In April 1967, the Union began its organizational
efforts again. The following month, on May 18, the
Company issued a notice, signed by General Manager
Bernard A. Paulson, entitled "Employee Committee," and
stating
In discussions with employees, it is apparent we need
wider representation in our committee.
I would like to have a representative from each of the
following areas attend a meeting at 3:00 p.m., Friday,
May 19th, to discuss the operation of the committee or
any other items of mutual interest: [ listing 10 areas or
groups in the refinery].
Each area should select the representative to attend
President Harry Brown attended the May 19 meeting
for a few minutes. According to undisputed and credited
testimony by employee Carlton L. Miller, President
Brown first "told us that it had been reported by some of
the loyal employees that the so-called OCAW union had
another organizing campaign going on in the plant and he
wanted us to know that he didn't want a union and they
would fight it to the end. " Thereafter, General
Manager Paulson suggested, and the employees agreed,
that the meetings be held regularly on the third Tuesday
in the month. It was also decided that, in addition to the
10 area representatives, anyone with "a problem" could
attend. (The charge, alleging unlawful domination and
interference with the operation of the Employee
Committee, was not filed until March 8, over 9 months
later. Therefore, this expansion of the committee, and the
Company's motivation at the time - being outside the
6-month Section 10 (b) limitation period - are not in
issue.)
2. Operation of the committee
General Manager Paulson , and other management
officials, continued to meet with the Employee Committee
each month until the March 1, 1968, election and
thereafter. In practice, General Manager Paulson presided
at the meetings , which began about 3:15 p.m., and lasted
up to 55 minutes. Paulson's secretary usually telephoned
the various areas, to give reminders of the meetings.
Except at the January and February meetings, when
Paulson announced that wages and benefits would not be
discussed, the committee members were permitted to
discuss any matters they wished. There was no agenda.
The participants continued to discuss wages, benefits,
working conditions, and complaints. The Company paid
the employees and employee representatives for the time
spent in the meetings - at the overtime rate of time and
one-half, unless the employee was on straight time, within
8 hours a day and 40 hours a week. (Employees were paid
in the same way for attending safety meetings, meetings to
discuss benefits, and fire training.)
The Employee Committee had no formal organization,
no meetings except with management, and no dues or
expenses. The employee members were selected by the
employees in the various areas. The Company took no
part in the selection, and provided no bulletin board,
stationery, secretarial help, or private meeting place for
the committee. No joint minutes of the meetings with
management were taken or posted. Employees received no
special rights or privileges for membership on the
committee
3 Conclusions
The General Counsel contends that the Employee
Committee is a labor organization within the meaning of
Section 2(5) of the Act, in that it exists for the purpose of
dealing with the Company concerning wages, hours, and
conditions of employment. I agree. (The Company
assumes, "for purposes of argument," that the committee
"technically" is, although formally denying it )
Going outside the 10(b) period (beginning September
8), the General Counsel argues in his brief that the
Company "dominated and assisted the Committee," citing
the fact that General Manager "Paulson set up the
expanded Committee [in May], designated departments to
be represented, and set the time, place and day for all
meetings." There is no evidence of such dictation, or
control over the committee's operations, during the
6-month limitation period. By September, these matters
had been settled by mutual agreement. There is no
evidence that after September 6, the committee was
"foisted" upon the employees, that the Company coerced
any employee to attend a committee meeting, determined
the term of office or participated in any way in the
selection of employee representatives, or that the
Company dictated how the representatives would function
inside or outside the meetings.
The only evidence of any financial support given to the
Employee Committee by the Company is the
compensation given employees for attending the meetings
- usually at the overtime rate. However, in the absence
of any domination or other interference with the
administration of the Committee, I find that the payment
for meeting time, in the same manner as for working
time, cannot alone be the basis for a finding of unlawful
support of the committee. I therefore grant the
Company's motion to dismiss the Section 8(a)(2)
allegations in the complaint.
B. Alleged Elimination of Coffee Break
Machinist Carlton L. Miller had been a union observer
at the 1964 election, and had taken an active part in
organizing for the Union in 1967. Area Operating
Superintendent Earl McMannis admitted knowledge that
Miller was "interested" in the Union, and credibly
testified that General Manager Paulson instructed the
supervisors in November or December to report to
Paulson any union activity at the plant.
On January 2-4, machinist Miller was working on a
pump near the FCC control room. In connection with this
work, it was necessary for Miller to enter the control
room occasionally, to speak to Unit Supervisor Eugene
Hodge, the operator, or boardman James R. Wendland.
He had no business to perform in the control room at the
Alkylation unit. Superintendent McMannis (who was over
both the FCC and Alkylation units) credibly testified that
he saw machinist Miller talking to boardman Wendland in
the FCC control room on January 3 or 4, and again on
January 4. The second time, he asked Unit Supervisor
Hodge what Miller was doing there, and Hodge replied
that Miller was still working on the pump. McMannis
said, "I do not want anybody congregating in this control
room. And if he hangs around here tell him to get out."
COASTAL STATE PETROCHEMICAL CO. 557
Then Superintendent McMannis went to the Alkylation
control room, where the operator "told me that Miller
had been by there talking to them about the Union, trying
to explain it to them, trying to get them to sign a card."
As instructed, McMannis reported this to General
Manager Paulson.
After a few minutes, General Manager Paulson and
Maintenance Manager Bob Adams spoke to Miller in an
office at the machine shop. As credibly testified by Miller,
Paulson said he had a report that Miller was spending too
much time in the control rooms, upsetting the personnel,
and interfering with their work; that "What you do about
this union business outside the plant" is your business,
"but I will not tolerate it on the job." (I discredit
Paulson's denial that the Union was mentioned. Paulson
impressed me as being somewhat less than candid.) Miller
responded that he had not intended to violate any rules,
that he had not upset any personnel, and that he drank
coffee in the control rooms but "I didn't think anything
about it as to my knowledge it was a common practice."
Then Paulson told him not to drink coffee in the control
rooms, but drink his coffee in the machine shop (which
Miller thereafter did).
The next day, January 5, Maintenance Manager Adams
gave Miller his first written reprimand, confirming the
conversation about excessive time in the control rooms,
instructing him "to limit your time spent there to the
minimum," and stating, "Coffee breaks, as discussed, are
provided at specific times in the shop areas for all
maintenance personnel."
The General Counsel contends that the undisputed
evidence is that other persons who did not work in the
control room were allowed to drink coffee in the area of
the control room both before and after Miller's
reprimand , and that "the singling out of Miller , a known
union adherent," violated Section 8(a)(1). However, I
agree with the Company that the oral and written
reprimand did not eliminate Miller's customary coffee
break, as alleged in the complaint, and that the reprimand
legitimately required him to follow existing rules for
taking coffee breaks. I grant the Company's `motion to
dismiss this allegation in the complaint.
C. Increased Benefits
Union, as alleged in the complaint. I shall therefore grant
the Company's motion to dismiss this Section 8(a)(1)
allegation.
D. Withholding Wage Increase
Each year, from 1965 through 1968, the Company gave
the employees a general pay raise in April. On January 30
(before the election on March I), the Union distributed a
"newsletter" to the employees, comparing the Company's
wages with higher wages at a unionized competitor.
A sharp dispute arose at the trial, concerning what
Assistant Maintenance Supervisor C. A. Harlan told
mechanic Marvin C. Whitney sometime in February.
According to Whitney, he had a conversation with Harlan
during a coffee break in the pipe shop coffee area, within
the hearing of two or three other employees. Whitney
asked, "Say, when are we going to get a raise?" Harlan
answered, "You would have had a raise if you hadn't
petitioned for the election." Whitney asked why, and
Harlan said, "I saw the letter that authorized you a raise,
4 or 4 1/2 percent raise." Harlan, on the other hand,
testified that he was telling Whitney about a
memorandum recently distributed to the supervisors,
concerning the Union's newsletter about wages, and
comparing the Company's wages if the recent industry
increase were first added. According to Harlan, Whitney
asked "when are we going to get a raise?" Harlan said he
did not know, and Whitney said, "Well, all the other
companies around . . . have had a raise since January 1."
Then (in Harlan's words), "I said I had seen a letter or
memorandum letter - and I said if we granted a 4 or 5
percent raise, how would that compare with it?" Whitney
said, "Well, we sure ought to get a raise," to which
Harlan respondend, "Well, I wouldn't doubt that, but I
don't know."
The Company contends that Whitney's version should
not be credited, that Whitney was mistaken in his
recollection, that nobody corroborated his version, and
that no mention was made at any of the captive-audience
meetings about withholding a wage increase. I agree. I
discredit Whitney's version, and dismiss also this Section
8(a)(1) allegation in the complaint.
During the 1967 union organizing campaign, the
Company's parent corporation was considering changes in
the Employee Stock Purchase Plan. In early December,
before the Union filed its petition for an election on
December 21, the proposed changes were taken to the
Executive Committee of the parent corporation. Late in
January (about 5 weeks before the election), the parent
corporation announced in a publication to its 1,200 (all
nonunion ) employees, including about 230 employees
working for the Company, the several changes - without
making any reference to the upcoming election at the
Company.
The changes included four additional subsidiaries under
the stock purchase plan, changed the vesting from 10 to 5
years (immediately affecting 38 employees at the
Company), and other improvements in the plan.
Although the timing of these benefits may cause ground
for suspicion, I find that the General Counsel has failed to
prove that the benefits, made effective throughout the
parent corporation, were unlawfully motivated to induce
company employees to abandon their support of the
111. OBJECTIONS TO THE ELECTION
In the March 1 election, the employees voted 120 to 36
against union representation, with 33 challenged ballots.
On March 7, the Union filed timely objections, which
were timely amended on March 8, alleging election
interference and intimidation. At the trial, there was no
evidence in support of the objections, apart from the
evidence offered to prove the alleged unfair labor
practices. Having considered all this evidence, I find no
basis for setting aside the election.
I therefore recommend that the objections be overruled,
and that an order be entered in Case No. 23-RC-3075,
certifying the results of the election.
CONCLUSIONS OF LAW
The General Counsel has failed to prove that the
Company violated Section 8(a)(1) or (2) of the Act.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly , on the basis of the foregoing findings and
conclusions , and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
ORDER
The complaint is hereby dismissed in its entirety.