Irwin Industries

National Labor Relations Board - Board Decisions

Aug 15, 1991

304 N.L.R.B. 78 (N.L.R.B. 1991)

78
304 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Assuming, arguendo, that it was lawful to recognize the Union and include
a union-security clause in the resulting contract, we adopt the judge’s finding
that Irwin violated Sec. 8(a)(2) and (3) by checking off dues pursuant to au-
thorization cards obtained by unlawful threats and doing so before the expira-
tion of 8(a)(3)’s 30-day grace period, we also adopt the judge’s finding that
Irwin’s subsequent notice to employees did not serve as an effective repudi-
ation of those unfair labor practices. In addition we adopt the judge’s findings
that the Union violated Sec. 8(b)(1)(A) by accepting checked-off dues after
being on notice that they had been deducted pursuant to coerced authorizations
and that its notice to employees likewise did not constitute an effective repudi-
ation.
2 There is no evidence as to which contractors had been providing mainte-
nance services at Texaco in July 1986, although Irwin had performed some
of the work there at various times.
Irwin Industries, Inc. and Nolan J. Detroit
International Union of Petroleum and Industrial
Workers, SIUNA, AFL–CIO and Lauraine
Louise Smith. Cases 21–CA–25437 and 21–CB–
9938
August 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On May 3, 1989, Administrative Law Judge William
J. Pannier III issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondent Union and the Respondent Employer each
filed a brief in opposition. The Respondent Union and
the Respondent Employer each filed cross-exceptions
and supporting briefs, and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order and to adopt his recommended Order
as modified and set forth in full below.
The judge dismissed complaint allegations that Re-
spondent Irwin Industries (Irwin) violated Section
8(a)(2) of the Act and the Respondent Union violated
Section 8(b)(1)(A) when Irwin granted recognition to
the Union on April 6, 1987. On the basis of those dis-
missals, the judge also dismissed the 8(a)(3) and
8(b)(1)(A) allegations concerning the Respondents’ in-
clusion of a union-security clause in their May 15,
1987 collective-bargaining agreement. For the reasons
set forth below, we find, contrary to the judge and in
agreement with the exceptions of the General Counsel,
that, because of a lack of continuity in the appropriate-
ness of the bargaining unit, a presumption of continu-
ing majority status may not be applied. Thus, the Re-
spondent Union’s failure to demonstrate that it rep-
resented a majority of Irwin’s employees in an
employerwide, multilocation refinery maintenance unit
requires us to find violations as to (1) Irwin’s grant of
recognition to the Union and the Union’s acceptance of
that recognition, and (2) the inclusion of a union-secu-
rity clause in the resulting collective-bargaining agree-
ment.1
We begin by summarizing the relevant facts in this
case as set out by the judge, supplemented by record
evidence not described in his decision. Respondent
Irwin provides maintenance services to refineries. In
July 1986, Irwin bid on contracts for Chevron’s El
Segundo refinery and Texaco’s Wilmington refinery.
At that time Irwin was already performing some of the
work at Chevron, along with contractors Stockmar, Di-
versified, and Pem West.2 Stockmar was awarded each
contract and, following a transition period during
which it picked up the employees of the other employ-
ers, it began performing under the new contracts on
October 1. At some point during or after the transition
period, Stockmar, which was party to a multiemployer
collective-bargaining agreement with the Union, ex-
tended that agreement to cover the employees at both
of its new locations.
At that point, Stockmar had maintenance contracts
covering approximately 50 refinery, industrial, and
powerplant facilities and employed approximately 800
unit employees. Approximately 10 of these facilities
were refineries. Of the approximately 700 refinery
maintenance employees, almost one-half were em-
ployed at Chevron (193) and Texaco (144). The record
is silent as to the number of employees and locations
associated with the other two employers (Bay Western
Industrial Maintenance and Northwestern Industrial
Maintenance) in the multiemployer association.
On December 10, 1986, Stockmar notified both
Chevron and Texaco that it could no longer continue
performing under the contracts. Irwin then replaced
Stockmar at each of these two facilities and began per-
forming all maintenance work on December 11, using
the same employees employed by Stockmar on the pre-
vious day. The Union, claiming to represent a majority
of Irwin’s refinery division employees, immediately
demanded recognition as the bargaining representative
for all such employees—the 337 employees at Chevron
and Texaco, as well as 228 previously unrepresented
employees working at approximately 7 other refineries
pursuant to preexisting maintenance contracts. Sixty
percent of Irwin’s total work force on December 11
consisted of former Stockmar employees. The former
Stockmar employees at Chevron and Texaco, now em-
ployed by Irwin, continued in the same job classifica-
tions at the same pay, doing the same work with the
same equipment and with the same immediate super-
vision as under Stockmar.
However, in addition to these aspects of continuity
in terms and conditions of employment, Irwin inte-
79IRWIN INDUSTRIES
3 On December 11, 1986, Irwin, asserting the absence of majority status, had
refused to recognize the Union, although it agreed to the appropriateness of
the employerwide unit. Pursuant to an unexpected notice given on December
22, 1986, Texaco replaced Irwin with another maintenance contractor on De-
cember 28. The Union filed an 8(a)(5) charge on January 28, 1987. There was
no Regional determination as to that charge. Eventually Irwin entered into a
non-Board settlement which provided for withdrawal of the charge and rec-
ognition of the Union.
4 See Stewart Granite Enterprises, 255 NLRB 569, 573 (1981)
(‘‘[S]uccessorship obligations are not defeated by the mere fact that only a
portion of a former union-represented operation is subject to the sale or trans-
fer to a new owner, so long as the employees in the conveyed portion con-
stitute a separate appropriate unit, and they comprise a majority of the unit
under the new operation.’’); Electrical Workers IUE v. NLRB, 604 F.2d 689,
695 (D.C. Cir. 1979) (‘‘A change in the size of a unit will not by itself defeat
successorship obligations as long as the union maintains majority status and
the acquired unit remains appropriate.’’); NLRB v. Fabsteel Co., 587 F.2d
689, 695 (5th Cir. 1979) (‘‘The Board, with court approval, has . . . found
a bargaining obligation though the transfer in ownership results in a division
of the bargaining unit into two or more separate units, where, as here, each
unit is independently appropriate.’’) (Emphasis added.)
grated operations at the Chevron and Texaco facilities
into its own highly centralized labor relations structure.
All hiring is done through Irwin’s central office and
final authority to fire employees is located there as
well. The former Stockmar employees received the
same employee handbook and safety manual issued to
all other new Irwin employees and they were now sub-
ject to transfer to other Irwin locations. As found by
the judge, all of Irwin’s labor relations policies are for-
mulated by management officials in the main office. In
fact, all parties to this proceeding agreed that the only
appropriate bargaining unit since Irwin took over
Stockmar’s operations is a multiplant employerwide
unit consisting of all refinery maintenance employees.
Irwin’s recognition of the Union in the requested
employerwide unit was granted on April 6, 1987.3 It
was based on the following three assumptions shared
by the parties: (1) that Irwin held ‘‘successorship’’ sta-
tus at Chevron and Texaco; (2) that the overall unit
was appropriate for collective bargaining under Section
9(b) of the Act; and (3) that on the date of the original
request for recognition, December 11, 1986, the former
Stockmar employees at Chevron and Texaco, who then
outnumbered the unrepresented employees in Irwin’s
preexisting work force, continued to be represented by
the Union.
The judge, in addressing the complaint allegation
that the Union did not, at the relevant times, represent
a majority of Irwin’s employees, phrased the ‘‘crucial
issue’’ as follows: what was the effect on the Union’s
representation rights when the maintenance employees
at the Chevron and Texaco facilities were transferred
from Stockmar’s multiemployer unit to the Irwin
employerwide unit, which included previously unrepre-
sented employees? The General Counsel argued that
this transfer terminated the Union’s right to rely on
any continuing presumption of majority status and that
accordingly the Union was obliged to affirmatively
demonstrate its majority status as of April 6, 1987. The
judge rejected this contention, citing principles of
successorship and merger of units. He accordingly dis-
missed the allegation concerning unlawful recognition.
Although we agree with the judge’s formulation of
the issue, we find merit in the General Counsel’s ex-
ceptions and accordingly find the violations alleged.
We begin with the judge’s finding that the General
Counsel did not demonstrate a basis for concluding
that Irwin was not a successor to Stockmar with re-
spect to the employees at the Chevron and Texaco fa-
cilities. In this regard we stress the importance of the
judge’s failure to appreciate the import of what he cor-
rectly termed an ‘‘undisputed’’ fact—the former
Stockmar employees, acquired from the multiemployer
unit on December 10, 1986, did not constitute, by
themselves, an appropriate unit for collective bargain-
ing between Irwin and the Union. This being so, we
find no ground on which to rest a presumption of ma-
jority status for the Union.
It is not sufficient to find, as did the judge, that the
unit in which bargaining was requested, i.e., all Irwin’s
maintenance employees (former Stockmar employees
and its existing unrepresented work force), was appro-
priate. It is well established under the Board’s
successorship doctrine that, in order to establish the
condition precedent for presuming continued majority
support, the employees acquired from a predecessor
themselves must constitute an appropriate unit.4
In particular, we disagree with the judge’s reliance
on Spruce Up Corp., 209 NLRB 194 (1974), for the
proposition that an appropriate unit can be created by
merging a smaller number of unrepresented employees
with a larger number of acquired employees who were
represented when employed by a predecessor. In
Spruce Up the successor took over 19 represented bar-
bershops which constituted an appropriate unit on the
basis of the union’s certification. The Board found that
the addition of employees from eight unrepresented
shops ‘‘did not destroy the appropriateness of the cer-
tified unit and constituted only ‘an expansion of the
bargaining unit.’’’ Id. at 196. Although in this case we
similarly have the addition of a group of unrepresented
employees to a larger group of represented employees,
we also have a critical omission–-the lack of an ana-
logue to the appropriate certified unit in Spruce Up,
i.e., a preexisting appropriate unit comprising former
Stockmar employees at the Chevron and Texaco loca-
tions. Those employees—extracted from a multiem-
ployer unit which included not only the employees of
the unit employers other than Stockmar, but also
Stockmar employees at other locations which Irwin did
not take over—did not clearly constitute an appropriate
unit on their own. Because Irwin thus did not take
over any identifiable appropriate unit, no presumption
of union majority accompanied its hiring of these em-
ployees.
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Therefore, although the new employerwide unit of
Irwin’s employees is clearly appropriate on traditional
community-of-interest grounds, the majority status of
the Union must be reexamined anew. NLRB v. U.S.
Banknote Corp., 541 F.2d 135, 139 (3d Cir. 1976).
The parties can be found to have effected a lawful rec-
ognition only if there is affirmative evidence that the
Union represented a majority of Irwin’s employees on
the date recognition was demanded. Because no such
evidence exists in the record before us, we find the re-
ciprocal 8(a)(2) and 8(b)(1)(A) violations as alleged.
CONCLUSIONS OF LAW
1. The Respondent Employer, Irwin Industries, Inc.
is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union, International Union of
Petroleum and Industrial Workers, SIUNA, AFL–CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By recognizing the Respondent Union on April 6,
1987, as the exclusive collective-bargaining representa-
tive of its refinery maintenance division employees,
and by executing and maintaining a collective-bargain-
ing agreement with the Respondent Union on and after
May 15, 1987, the Respondent Employer has violated
Section 8(a)(2) and (1) of the Act.
4. By maintaining and enforcing the union-security
provision of the May 15, 1987 collective-bargaining
agreement, the Respondent Employer has violated Sec-
tion 8(a)(3) of the Act.
5. By threatening employees with loss of their jobs
if they did not execute checkoff authorizations and by
relying on authorizations executed as a result of those
threats as a basis for checking off dues, the Respond-
ent Employer has violated Section 8(a)(2) and (1) of
the Act.
6. By using these coercively obtained authorizations
as a basis for checking off dues before expiration of
the 30-day grace period allowed by Section 8(a)(3) of
the Act, the Respondent Employer has violated Section
8(a)(3), (2), and (1) of the Act.
7. By accepting recognition as the exclusive collec-
tive-bargaining representative of Respondent Employ-
er’s refinery maintenance department employees and
by executing and maintaining the May 15, 1987 collec-
tive-bargaining agreement between it and the Respond-
ent Employer, the Respondent Union has violated Sec-
tion 8(b)(1)(A) of the Act.
8. By maintaining and enforcing the union-security
provision of the May 15, 1987 collective-bargaining
agreement, the Respondent Union has violated Section
8(b)(2) of the Act.
9. By accepting checked-off dues after being on no-
tice that they had been deducted as a result of coerced
authorizations, the Respondent Union has violated Sec-
tion 8(b)(1)(A) of the Act.
10. The above unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7)
of the Act.
11. The Respondents have not otherwise violated the
Act.
ORDER
The National Labor Relations Board orders that
A. Respondent Irwin Industries, Inc., Long Beach,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Recognizing and bargaining with the Inter-
national Union of Petroleum and Industrial Workers,
SIUNA, AFL–CIO as the exclusive representative of
its refinery maintenance department employees unless
and until that labor organization is certified by the
Board as the exclusive collective-bargaining represent-
ative of such employees pursuant to Section 9(c) of the
Act.
(b) Giving effect to the May 15, 1987 collective-bar-
gaining agreement executed by the Respondent Em-
ployer and the Respondent Union and any renewal, ex-
tension, or modification thereof unless and until the
Respondent Union is certified as the collective-bar-
gaining representative of such employees.
(c) Threatening to discharge or otherwise retaliate
against employees who do not execute dues-checkoff
authorizations, and deducting and paying over to the
Respondent Union dues deducted pursuant to author-
izations executed as a result of those threats.
(d) Requiring employees, through threats to force
them to execute checkoff authorizations or to take any
other action, to pay dues to the Respondent Union be-
fore the expiration of the 30-day grace period provided
for in Section 8(a)(3) of the Act.
(e) Honoring payroll deduction authorization of
union dues forms obtained from employees as a result
of coercive statements by General Foreman Keith
Crane or by any other supervisor as a result of the
same or similar unlawful threats to employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from the
Respondent Union as the exclusive collective-bargain-
ing representative of its refinery maintenance depart-
ment employees unless and until it has been duly cer-
tified as the exclusive representative of such employ-
ees.
(b) Jointly and severally with the Respondent Union
reimburse all employees for moneys illegally exacted
81IRWIN INDUSTRIES
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
6 See fn. 5, supra.
from them, with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of reimburse-
ment due under the terms of this Order.
(d) Post at its Long Beach, California office and at
all other locations and jobsites where notices to refin-
ery maintenance department employees are customarily
posted, copies of the attached notice marked ‘‘Appen-
dix A.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 21, after being signed
by the Respondent Employer’s authorized representa-
tive, shall be posted by the Respondent Employer im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Post at the same places and under the same con-
ditions as in the preceding subparagraph signed copies
of the Respondent Union’s notice to employees and
members marked ‘‘Appendix B.’’
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent International Union of Petroleum and
Industrial Workers, SIUNA, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Accepting recognition as the exclusive collec-
tive-bargaining representative of the refinery mainte-
nance division employees of the Respondent Employer
unless and until it has been so certified by the National
Labor Relations Board.
(b) Giving effect to the May 15, 1987 collective-bar-
gaining agreement between the Respondent Employer
and the Respondent Union or to any extension, re-
newal, or modification thereof.
(c) Accepting and retaining moneys deducted as
dues from employees of the Respondent Employer
with knowledge that such deductions are made pursu-
ant to coercively obtained checkoff authorizations.
(d) In any like or related manner restraining or co-
ercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Disclaim recognition as the exclusive collective-
bargaining representative of the refinery maintenance
division employees of the Respondent Employer unless
and until it has been so certified by the National Labor
Relations Board.
(b) Jointly and severally with the Respondent Em-
ployer reimburse all employees for moneys illegally
extracted from them, with interest computed in the
manner prescribed in New Horizons for the Retarded,
supra.
(c) Preserve and on request make available to the
Board and its agents, for examination and copying, all
membership, dues, and other records necessary to ana-
lyze the amount of reimbursement due under the terms
of this Order.
(d) Post at its business offices and other places
where notices to its members are customarily posted
copies of the attached notice marked ‘‘Appendix B.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed by
the Respondent Union’s authorized representative, shall
be posted by the Respondent Union immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
members are customarily posed. Reasonable steps shall
be taken by the Respondent Union to ensure that the
notices are not altered, defaced, or covered by any
other material.
(e) Furnish the Regional Director with signed copies
of the notice for posting by the Respondent Employer
at its facilities where notices to all employees are cus-
tomarily posted. Copies of the notice, to be furnished
by the Regional Director, shall be signed and forthwith
returned to the Regional Director.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Union has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT recognize or contract with Inter-
national Union of Petroleum and Industrial Workers,
SIUNA, AFL–CIO as the exclusive bargaining rep-
resentative of our refinery maintenance division em-
ployees unless and until it has been certified as such
representative by the National Labor Relations Board.
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless stated otherwise, all dates occurred in 1987.
WE WILL NOT maintain or give effect to our May
15, 1987 contract with the Petroleum Workers or to
any renewal, extension, or modification thereof.
WE WILL NOT threaten to discharge or otherwise re-
taliate against employees who do not execute dues-
checkoff authorizations and WE WILL NOT deduct and
pay over to the Petroleum Workers dues deducted pur-
suant to authorizations executed as a result of those
threats.
WE WILL NOT require employees, through threats to
force them to execute checkoff authorizations or to
take any other action, to pay dues to the Petroleum
Workers before the expiration of the 30-day grace pe-
riod provided for in Section 8(a)(3) of the Act.
WE WILL NOT honor payroll deduction authorization
of union dues forms obtained from employees as a re-
sult of coercive statements by General Foreman Keith
Crane or by any other supervisor as a result of the
same or similar unlawful threats to employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from the Petroleum Workers as the collective-bargain-
ing representative of our refinery maintenance division
employees unless and until it has been certified as such
by the National Labor Relations Board.
WE WILL, jointly and severally with the Petroleum
Workers, reimburse you for moneys illegally exacted
from you, with interest on the amounts owing.
IRWIN INDUSTRIES, INC.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT accept recognition as the exclusive
collective-bargaining representative of the refinery
maintenance division employees of Irwin Industries,
Inc., unless and until we have been so certified by the
National Labor Relations Board.
WE WILL NOT give effect to the May 15, 1987 col-
lective-bargaining agreement between Irwin Industries,
Inc. and us or to any extension, renewal, or modifica-
tion thereof.
WE WILL NOT accept and retain moneys deducted
from your pay as dues where we have knowledge that
such deductions are made pursuant to coercively ob-
tained checkoff authorizations.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of your rights under Sec-
tion 7 of the Act.
WE WILL disclaim recognition as the exclusive col-
lective-bargaining representative of the refinery main-
tenance division employees of Irwin Industries, Inc.,
unless and until we have been so certified by the Na-
tional Labor Relations Board.
WE WILL, jointly and severally with Irwin Industries,
Inc., reimburse you for moneys illegally exacted from
you, with interest on the amounts owing.
INTERNATIONAL UNION OF PETROLEUM
AND INDUSTRIAL WORKERS, SIUNA
AFL–CIO
Neil A. Warheit, Esq., for the General Counsel.
James T. Winkler, Esq. (Atkinson, Andelson, Loya, Ruud &
Romo), of San Bernardino, California, for the Respondent.
Henry M. Willis, Esq. (Schwartz, Steinsapir, Dohmann &
Sommers), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Los Angeles, California, on December 6
and 7, 1988. On August 23, 1988, the Regional Director for
Region 21 of the National Labor Relations Board (the
Board), issued an order consolidating cases, consolidated
complaint and notice of hearing, based on an unfair labor
practice charge filed on May 26, 1987,1 and amended on
June 29, in Case 21–CA–25437, alleging violations of Sec-
tion 8(a)(1), (2), and (3) of the National Labor Relations Act
29 U.S.C. § 151 et seq. (the Act); and, upon an unfair labor
practice charge filed on June 22 in Case 21–CB–9938, alleg-
ing violations of Section 8(b)(1)(A) of the Act. All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based upon the entire record, upon the briefs that
were filed, and upon my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Irwin Industries, Inc. (Respondent
Employer), has been a California corporation which operates
a facility located at 2679 Redondo Avenue, Long Beach,
California, and which has engaged, inter alia, in the business
of maintaining and repairing refineries, petrochemical plants,
and powerplants. In the course and conduct of those business
operations, Respondent Employer annually performs services
valued in excess of $50,000 for businesses located within the
State of California, each of which, in turn, annually pur-
chases and receives goods and products valued in excess of
$50,000 directly from suppliers located outside the State of
83IRWIN INDUSTRIES
California. Therefore, I conclude that at all times material,
Respondent Employer has been an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, International Union of Petroleum and
Industrial Workers, SIUNA, AFL–CIO (Respondent Union)
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The issues in this case arise from the consolidation into a
single bargaining unit of two groups of refinery maintenance
employees. The first group consists of historically unrepre-
sented ones employed by Respondent Employer at various
refineries in and near Los Angeles County. The second en-
compasses refinery maintenance employees working at two
Los Angeles County sites: at Texaco Oil Company’s Carson/
Wilmington refinery and at Chevron U.S.A. Inc.’s refinery in
El Segundo. Prior to July 1986, Respondent Employer had
been one of four refinery maintenance contractors at the
Chevron facility. There is no evidence concerning the iden-
tity of the refinery maintenance contractor(s) at Texaco prior
to July 1986, although Respondent Employer had been per-
forming some maintenance work there, for the alkylation
unit.
During July 1986, Texaco and Chevron each independ-
ently let for bid the maintenance work at its refinery. In both
instances, Stockmar International, Inc. was declared the suc-
cessful bidder. At that time, Stockman was one of the con-
tractors doing refinery maintenance work at Chevron, al-
though it did not employ a majority of the overall com-
plement of maintenance workers employed by the four con-
tractors who performed refinery maintenance work at the El
Segundo refinery. Stockmar, also, was one of three contrac-
tors who were parties to a multiemployer collective-bargain-
ing contract with Respondent Union. Upon being notified
that it was the successful bidder, Stockmar began phasing in
its own personnel at Texaco and Chevron so that it was per-
forming all refinery maintenance work at the Carson/Wil-
mington and El Segundo refineries by early October 1986.
In addition, its contract with Respondent Union was extended
to encompass the maintenance workers at both refineries.
In December 10, 1986, Texaco and Chevron were each no-
tified by Stockmar that it could not continue performing the
refinery maintenance work at their refineries. Each of the pe-
troleum companies contacted Respondent Employer which
agreed to immediately replace Stockmar and which actually
commenced performing maintenance work at both refineries
on December 11, 1986. To do so, Respondent Employer used
the same employees as had been employed by Stockmar on
the preceding day. However, because of the manner in which
Respondent Employer operates, all parties to this proceeding
agree that the only appropriate bargaining unit since that date
has been an employerwide one, embracing all refinery main-
tenance employees employed by Respondent Employer. On
December 11, 1986, Respondent Union demanded recogni-
tion as the bargaining representative of the employees in
such a unit.
Initially, Respondent Employer rebuffed that demand.
However, after Respondent Union filed an unfair labor prac-
tice charge, alleging an unlawful refusal to bargain, Respond-
ent Employer reexamined its position. Ultimately, it nego-
tiated a non-Board settlement whereby the charge would be
withdrawn in return for recognition of Respondent Union.
That recognition was actually granted on April 6. By that
time, Respondent Employer had ceased performing the main-
tenance work for Texaco at the Carson/Wilmington refinery.
But, so far as can be ascertained from the employment fig-
ures provided at the hearing, at that time a majority of Re-
spondent Employer’s refinery maintenance workers were em-
ployed at the Chevron refinery in El Segundo, although less
than a majority of the overall complement of Respondent
Employer’s maintenance employees were actual members of
Respondent Union.
In essence, the General Counsel argues that because the
represented employees at Texaco and Chevron did not con-
stitute a separate appropriate unit—either in a single two-lo-
cation unit or in separate single-location units—after Re-
spondent Employer began employing them, therefore any
prior bargaining history was obliterated and normal
successorship principles cannot be applied, leaving Respond-
ent Union in the position of having to reestablish its majority
status de novo before Respondent Employer could lawfully
recognize it as the employees’ representative. Inasmuch as
Respondents concede that no new organizing campaign had
been conducted before April 6 and, further, that less than a
majority of the unit employees were actual members of Re-
spondent Union, it follows, urges the General Counsel, that
the Act was violated when recognition was granted on that
date to a representative of less than a majority of the refinery
maintenance workers in the employer-wide unit. Conversely,
Respondents argue that this case presents no more than a
standard situation where there is a successor relationship ac-
companied by an expansion of the bargaining unit whereby
represented and unrepresented employees are merged into a
single consolidated unit. Since the represented employees
outnumbered the unrepresented ones on the date of the de-
mand for recognition, Respondents contend, Respondent Em-
ployer was obliged to recognize Respondent Union and, con-
comitantly, its ultimate decision to do so cannot form the
basis for a conclusion that the Act has been violated.
Following negotiation of the collective-bargaining contract
between Respondents, Respondent Employer announced to
the formerly unrepresented employees that Respondent Union
had become their bargaining representative and, further, de-
scribed their obligations and some of the changes in their
benefits under the contract. Based principally upon its allega-
tion that recognition had unlawfully been extended to Re-
spondent Union, the General Counsel contends that those re-
marks constituted unlawful threats and rendered unlawful aid,
assistance and support to Respondent Union. Similarly, the
General Counsel argues that certain statements by Respond-
ent Union’s officials constituted unlawful threats. Finally, the
General Counsel argues that dues were unlawfully deducted
from employees’ paychecks pursuant to unlawfully obtained
checkoff authorizations. Respondents dispute each of these
allegations.
As set forth more fully post, I conclude that the only vio-
lations of the Act occurred in connection with the solicitation
of checkoff authorizations and with the collection and accept-
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 At first blush, the absence of such evidence might appear not relevant to
the issues posed by the complaint. However, as discussed in sec. III,C, infra,
the General Counsel makes at least one argument rooted in the assertion that
Respondent Union had not been representing refinery maintenance employees
at Texaco and that those employees were not members of Respondent Union
prior to Stockmar’s assumption of the maintenance work at that refinery. Yet,
the General Counsel is not free to rely on the absence of evidence to the con-
trary to support those assertions. Rather, in the context of this case, it was
the General Counsel’s burden to show that none of the maintenance workers
at the Carson/Wilmington refinery had been represented and that none were
members of Respondent Union prior to July 1986. ‘‘The burden of establishing
every element of a violation under the Act is on the General Counsel.’’ West-
ern Tug & Barge Corp., 207 NLRB 163 fn. 1 (1973).
3 That bid did not encompass the maintenance work for the alkylation unit
nor for the sulfur recovery plant. At both, Respondent Employer continued to
perform the maintenance work.
ance of dues deducted pursuant to those authorizations. Sub-
sequently, employees were told that they were not obliged to
execute checkoff authorizations, but those announcements
failed to satisfy the test for an effective repudiation, suffi-
cient to preclude the need for a remedial order.
In all other respects, a preponderance of the evidence does
not support the allegations that Respondents violated the Act.
To the contrary, to conclude that Respondents had done so
would necessitate reversal of settled precedents that have
been established over a number of years in the area of
successorship. From the viewpoint of the refinery mainte-
nance employees at Texaco and Chevron on December 11,
1986, Respondent Employer was continuing the same em-
ploying entity as Stockmar. Where there is a consolidation
into a single bargaining unit of represented and unrepre-
sented employees, it is not necessary for the incumbent rep-
resentative to reestablish de novo its support by a majority
of the employees in the consolidated unit. Rather, the incum-
bent is entitled to continued representation so long as the
number of represented employees outnumber those who pre-
viously had been unrepresented. That was the situation that
had prevailed when Respondent Union demanded recognition
on December 11, 1986. Shortly thereafter, Respondent Em-
ployer lost the refinery maintenance work at Texaco, but that
was not objectively foreseeable on December 11, 1986, when
its bargaining obligation arose, and that unforeseen subse-
quent event does not serve to obliterate the preexisting bar-
gaining obligation. Moreover, although recognition was not
granted until April 6, it was granted on that date in response
to an unfair labor practice charge alleging that Respondent
Employer had refused to observe a bargaining obligation al-
ready in existence and, consequently, was predicated upon
and related back to the situation prevailing 4 months earlier.
In any event, by April 6, the employees working at Chev-
ron’s El Segundo refinery outnumbered all other refinery
maintenance workers employed by Respondent Employer. Fi-
nally, since Respondents established a lawful bargaining rela-
tionship and lawfully negotiated a contract, there is no basis
for concluding that either of them violated the Act by an-
nouncing the existence of that relationship to employees and
by describing the obligations and benefits embodied in that
contract.
B. Evidence
In a sense, this is a story of a pea and three shells. The
pea is the refinery maintenance workers employed at the
Texaco Carson/Wilmington refinery and at the Chevron El
Segundo refinery. The shells are the successive employers of
those refinery maintenance employees. As noted above, four
contractors performed the refinery maintenance work at
Chevron prior to July 1986: Respondent Employer, Diversi-
fied, Pen West and Stockmar. Stockmar employed less than
a majority of the refinery maintenance employees working
there. It was the only one of the four contractors who had
a bargaining relationship with Respondent Union, being one
of three employers—the other two being Bay Western Indus-
trial Maintenance, Inc. and Northwestern Industrial Mainte-
nance, Inc.—who were parties to a multiemployer collective-
bargaining contract with Respondent Union, effective from
July 1, 1984, until June 30, 1987. The bargaining unit cov-
ered by that contract encompassed both industrial and refin-
ery maintenance employees. As does Respondent Employer,
Stockmar employed workers in both categories.
In contrast to the situation at Chevron, no evidence was
provided concerning the circumstances of the refinery main-
tenance work being performed at Texaco prior to July 1986.
That is, no evidence was adduced regarding the identities of
the contractors who performed the maintenance work there,
although the evidence does show that Respondent Employer
had been performing an unknown portion of that work, vary-
ing in amount over time. More important, no evidence was
presented that would support a conclusion that Respondent
Union had not been representing a majority, or at least some,
of the refinery maintenance workers at the Carson/- Wil-
mington refinery prior to July 1986. Further, there is no evi-
dence showing that less than a majority of the refinery main-
tenance employees working there were members of Respond-
ent Union prior to that time.2
Stockmar became the second shell as a result of its suc-
cessfully bids for performance of the maintenance work at
Texaco’s Carson/Wilmington3 and at Chevron’s El Segundo
refineries. Respondent Employer had submitted bids to per-
form the work at both locations, but in each instance its bid
had been the runner-up to the one submitted by Stockmar.
Because it phased in its operations at both locations,
Stockmar did not commence performing all of the refinery
maintenance work at the two refineries until October 1986.
At some point, it applied its multiemployer collective-bar-
gaining contract to its maintenance employees working at the
two refineries, thereby extending recognition to Respondent
Union as their bargaining representative. No evidence was
presented that, at that time, Respondent Union had not rep-
resented a majority of the maintenance workers employed by
Stockmar at each location. Nor was evidence presented that,
before extending recognition to it, Stockmar had not verified
the majority status of Respondent Union at both Texaco and
Chevron.
The second shell was replaced by the third one on Decem-
ber 11, 1986. On the previous day, Respondent Employer
was contacted by officials of Chevron and, then, by officials
of Texaco. In both instances, the same message was con-
veyed: that Stockmar was unable to continue performing its
maintenance contract and, as the runner-up in the bidding 5
months earlier for that work, that Respondent Employer was
requested to start performing it. Chevron’s request con-
templated an ongoing arrangement for the work at the El
Segundo refinery. However, Texaco’s local officials lacked
authority to enter into so expensive a contract as was con-
templated by the replacement of Stockmar.
85IRWIN INDUSTRIES
4 In January, Respondent Employer added a site superintendent at Chevron.
However, there is no evidence that it had contemplated making that addition
at the time that it had begun performing maintenance work at the El Segundo
refinery. To the contrary, only after it discerned that a supervisor with greater
maturity was needed at that location did it decide to superimpose an added
level of onsite supervision there.
5 The most accurate employment figures for the various sites are those com-
piled on Wednesday of each week. On that day, Respondent Employer con-
ducts a staff meeting at which it calculated the exact number of employees
working at each refinery for which it has a maintenance contract.
Accordingly, Respondent Employer’s officials were told
that the maintenance contract for the Carson/Wilmington re-
finery again was going to have to be let for bid. But, accord-
ing to Texaco’s manager of maintenance, ‘‘that wouldn’t
transpire for ninety days, at least.’’ In the meantime, as a
stopgap measure, Texaco and Respondent Employer agreed
that the latter’s contract for the alkylation unit would be ex-
tended to the entire refinery.
Respondent Employer became the maintenance contractor
for the Carson/Wilmington and El Segundo refineries on De-
cember 11, 1986. On that date, it employed 228 unrepre-
sented employees at other refineries pursuant to preexisting
maintenance contracts. It hired and employed all 193 mainte-
nance employees who had been working for Stockmar at the
El Segundo refinery and all 144 maintenance employees who
had been working for Stockmar the previous day at the
Carson/Wilmington refinery. The maintenance employees at
these two refineries continued to be employed in the same
job classifications and at the same rates of pay, doing the
same work with the same tools and equipment as when
Stockmar had been the maintenance contractor for Texaco
and Chevron. Moreover, the same individuals continued to
provide immediate supervision of those employees.4
While there was no change in the manner and method of
maintenance work at Texaco and Chevron, Respondent Em-
ployer did merge operations at their sites into its overall
labor relations structure. Thus, it assigned a code number to
each newly hired maintenance employee and each of them
was provided with a copy of the same employee handbook
and safety manual as is given by Respondent Employer to
all newly hired employees, regardless of work location. Fur-
ther, the newly hired maintenance employees were subject to
transfer to other sites where Respondent Employer is the
maintenance contractor and, as time passed, several of them
were transferred. Indeed, Respondent Employer’s labor rela-
tions are highly centralized. All hiring is done at its Redondo
Avenue main office. Site supervisors lack authority to fire
employees. Whenever that course of action is desired by a
site supervisor, or by site safety personnel in appropriate sit-
uations, the matter must be referred to the main office where
a final determination is made. Moreover, based on conversa-
tions with clients, site supervision ascertains maintenance
personnel requirements and, then, relates that information to
the main office from which the necessary action is taken to
transfer specific maintenance employees to or from various
locations. All labor relations policies are formulated by main
office personnel; none of these policies are formulated by
site supervisors.
By letter to Respondent Employer’s president, dated De-
cember 11, 1986, Respondent Union’s International sec-
retary-treasurer asserted, ‘‘that we represent the majority of
your employees working in your refinery division,’’ and de-
manded recognition as the bargaining representative of all
those employees. However, prior to dispatch of that letter, no
organizing campaign had been conducted among those em-
ployees. Nor is there evidence regarding the number of those
employees who may have been members of Respondent
Union. Rather, the latter’s representation claim was based ex-
clusively on its belief that Respondent Employer had become
a successor-employer to Stockmar at Chevron and Texaco
and, further, on the fact that the represented employees at El
Segundo and Carson/Wilmington outnumbered its unrepre-
sented refinery maintenance employees on December 11,
1986.
Respondent Employer rejected the demand for recognition.
As a result, on January 28 Respondent Union filed an unfair
labor practice charge, docketed as Case 21–CA–25198, alleg-
ing that Respondent Employer was unlawfully refusing to
recognize and bargain. By that time, Respondent Employer
no longer possessed all of the pea. For, on December 22,
1986, Texaco unexpectedly gave notice that it had located
another contractor to perform the maintenance work that had
been taken over from Stockmar by Respondent Employer.
Despite its protests concerning what it regarded as high-
handed and perfidious treatment, Respondent Employer was
obliged to cease performing that work 6 days later, on De-
cember 28, 1986.
Cessation of the Texaco maintenance work initially did not
alter the fact that employees absorbed from Stockmar, now
confined to Chevron’s El Segundo refinery, were a majority
of Respondent Employer’s overall refinery maintenance com-
plement. Thus, on Wednesday, January 7,5 it employed 225
maintenance employees at Chevron and 219 to 222 mainte-
nance employees at all other locations. However, by the fol-
lowing Wednesday, January 14, an additional 281 mainte-
nance employees had been hired and assigned to Shell Oil
Company’s refinery. Largely as a consequence of that fact,
Respondent Employer employed a total of 714 to 717 refin-
ery maintenance employees, of whom but 211 were em-
ployed at Chevron. During the succeeding weeks and
months, refinery maintenance employees employed at Chev-
ron continued to constitute a minority of Respondent Em-
ployer’s overall refinery maintenance employee complement.
For example, on January 28, when the charge in Case 21–
CA–25198 was filed, 197 employees were working at Chev-
ron, while 385 to 388 refinery maintenance employees were
working elsewhere for Respondent Employer.
Not until April 1 did the maintenance complement at
Chevron again constitute a majority of Respondent Employ-
er’s overall refinery maintenance complement: 207 employ-
ees at Chevron and 196 to 199 employees at all other loca-
tions. That majority proportion prevailed on the following
Wednesday, April 8: of 462 to 465 refinery maintenance em-
ployees, 247 were working at Chevron. But by April 15, the
number of maintenance employees assigned to all other re-
fineries again outnumbered those working at Chevron. Yet,
for all of the month of May, save for 1 week, and for every
Wednesday from June 3, until October 7, maintenance em-
ployees working at Chevron outnumbered those employed by
Respondent Employer at all other locations.
Meanwhile, confronted with the charge in Case 21–CA–
25198 and advised by counsel that it might not prevail in a
formal proceeding based on that charge, Respondent Em-
ployer decided to negotiate a settlement with Respondent
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union. These negotiations were fruitful. As a result, Re-
spondent Union requested withdrawal of its charge in Case
21–CA–25198, a request approved by the Regional Director
on March 18. On April 6, Respondent Union was recognized
formally as the representative of all refinery maintenance di-
vision employees of Respondent Employer. No organizing
campaign had been conducted among those employees and
no effort was made to ascertain if Respondent Union actually
represented a majority of them. Rather, recognition was
based exclusively on Respondent Employer’s successorship
status at Texaco and Chevron and, further, on the fact that
Respondent Union had been representing a majority of the
employees in the overall, employeewide bargaining unit at
the time that it had made its recognition demand on Decem-
ber 11, 1986.
On May 15, the parties entered into a collective-bargaining
contract. That contract included a union-security clause
whereby, as a condition of employment, refinery mainte-
nance employees were required to become and remain mem-
bers of Respondent Union after 30 days of employment by
Respondent Employer or 30 days after the effective date of
the contract, whichever occurred later. In addition, the con-
tract contained certain provisions that constituted reductions
in some benefits that unrepresented employees had been re-
ceiving from Respondent Employer. For example, the num-
ber of annual paid holidays was reduced and, further, over-
time hours were excluded in calculating the number of hours
needed to qualify for certain benefits. However, it is not dis-
puted that, prior to recognizing Respondent Union, Respond-
ent Employer had planned even more drastic reductions so
that resulting lower costs would enhance its competitive po-
sition. Although Respondent Union was not able to totally
prevent reductions, it was able to persuade Respondent Em-
ployer to agree to ones that were less severe.
Thereafter, Respondent Employer’s officials began notify-
ing formerly unrepresented employees that recognition had
been granted to, and a contract had been negotiated with, Re-
spondent Union. For example, on May 18, General Foreman
Keith Crane reported to maintenance employees working at
the Texaco Sulfur Recovery Plant that, during a meeting on
the preceding Saturday, supervisors had been informed of
those facts. Crane added that recognition would benefit Re-
spondent Employer by making it easier to win other mainte-
nance contracts and, also, recited at least some of the
changes in benefits that would result from the terms of the
contract. Similarly, at the Mobile Oil refinery, General Fore-
man Jerry Jacobs announced that Respondent Employer’s
employees were now represented by Respondent Union and
that he would be providing them with literature pertaining to
that subject. As had Crane, Jacobs described the benefits
changes that would be occurring due to the terms of the
newly negotiated contract. In separate conversations with
then-employee Lauraine Smith, Jacobs and Foreman Steve
Lloyd described the announcement of recognition that had
been made at the Saturday supervisors’ meeting. Lloyd relat-
ed to Smith that when he had protested the recognition, he
had been told to sit down and shut up. On May 20, Respond-
ent Employer distributed a letter to all employees, announc-
ing that, ‘‘we have reached a Successor Collective Bargain-
ing Agreement with [Respondent Union].’’
During his above-noted conversation with Lauraine Smith,
Jacobs also mentioned that employees would be obliged to
join Respondent Union and pay dues to it, or they would be
terminated. These conversations with Jacobs and Lloyd led
Smith to contact Vice President of Operations John Donald-
son. In a vague and ambiguous fashion, she testified that,
during a telephone conversation, Donaldson had,
said that, I guess it would be the Union would deter-
mine if we get laid off or whatever, if we don’t pay
our Union dues as it is, within a Union, and that—I
asked him about the benefits or something similar to
that. I don’t really remember right now, but he said that
we wouldn’t lose our benefits if we joined the Union.
Lauraine Smith was not the only employee with whom
Donaldson spoke regarding Respondent Union. Director of
Manpower Bill May had told the Sulfur Recovery Plant
maintenance employees that Respondent Employer had been
compelled to recognize Respondent Union as a result of a
lawsuit arising from acquisition of the Stockmar contracts,
that the employees would benefit as recognition would create
more opportunities to obtain work for them in the field, and
that the employees would have to join Respondent Union or
they would be unable to continue working for Respondent
Employer. Because of his perception that some of May’s
statements were inaccurate, Donaldson subsequently met with
the same group of employees. He explained that Respondent
Employer had not actually been sued, but that proceedings
had been initiated before the Board because the unrepre-
sented employees had been outnumbered by the represented
ones hired at Texaco and Chevron. Given the cost of litiga-
tion and the lack of certainty by its attorneys about prevail-
ing before the Board, continued Donaldson, Respondent Em-
ployer had decided to extend recognition to Respondent
Union. He said that this course would be beneficial to the
employees since Respondent Employer would be more com-
petitive and, thus, better able to secure contracts for refinery
maintenance work. Donaldson then described the changes in
employee benefits resulting from the newly negotiated con-
tract.
Welder/pipefitter James Ellison testified that, during the
meeting, Donaldson had, ‘‘said that he would guaranty [sic]
if we got [Respondent] Union decertified that within a year,
we wouldn’t get but three holidays.’’ However, then-crafts-
man Nolan Detroit gave a more complete account of
Donaldson’s remarks in this regard, testifying that Donaldson
had, ‘‘said if they didn’t have a Union, we wouldn’t have
the holiday benefits at all. We’d have about three holidays
and that was it. We wouldn’t have no benefits at all.’’
Of greater consequence, in the context of the ultimate dis-
position of this case, were certain undisputed remarks that
accompanied the subsequent distribution of checkoff author-
ization cards to employees. When handing Detroit a card,
Crane said, ‘‘that if we didn’t sign the card, we would be
terminated.’’ Similarly, as he handed out cards to employees
during their lunchbreak at the Sulfur Recovery Plant, Crane
said that they, ‘‘had to sign those cards in order—and join
the Union in order to work for Irwin.’’ When one of them
inquired what would happen if the card was not signed,
Crane retorted that, ‘‘It wasn’t up to to him, but if you didn’t
87IRWIN INDUSTRIES
6 By contrast, crane operator Robert H. Smith testified, ultimately, that Ja-
cobs had told the employees at Mobil that they had to begin paying dues by
July 1 and that if they wanted to, they could sign a dues authorization card,
but that, ‘‘he didn’t give a damn if we signed them or not.’’
sign the card that the Union could go to the company and
say you don’t work.’’6
Neither Detroit nor Lauraine Smith had been satisfied with
the statements of Respondent Employer’s officials. Following
her telephone conversation with Donaldson, Smith tele-
phoned Respondent Union’s office and spoke with Inter-
national Representative Jim Keith. He did not appear as a
witness. Her description of the conversation was as vague
and disjointed as was her account of what had been said to
her by Donaldson. She testified that she, ‘‘asked him why
we’d have to join the Union, also asked him if it was an
open or closed shop,’’ and that, ‘‘He said it was a closed
shop.’’ Asked pointedly if there had been, ‘‘any discussion
about what would happen if you chose not to sign the card,’’
Smith responded: ‘‘We would choose not to work for
Irwin.’’ At another point, she was asked if she had under-
stood, as a result of her telephone conversation with Keith,
that she had 30 days to join Respondent Union. She an-
swered,
Yes, that’s—he was, I believe—it might have been him
telling me that the extension was up until like July 1st,
because I made some kind of a statement I didn’t
know, you know, we had a deadline. Could have been
him.
Asked next if Keith had told her that there had been an ex-
tension beyond July 1, she replied: ‘‘No, I don’t think so.
I don’t remember if he did, but I don’t believe he did.’’
On June 15, Detroit and Ellison went to Respondent
Union’s hall where they spoke with Secretary-Treasurer
Thomas Walsh. In recounting the conversation that ensued,
Ellison testified only that Detroit had said that he did not
‘‘like them taking his money,’’ to which Walsh retorted that
he was not taking Detroit’s money, but rather that it was Re-
spondent Employer that was doing go, and, further, that De-
troit ‘‘had thirty days to withdraw from the Union, but he
could not work for [Respondent Employer] after that, be-
cause it was a closed shop Union.’’
Detroit gave a more complete, but not necessarily inter-
nally consistent, account of what had been said that day.
During direct examination, he testified that when he pro-
tested about paying dues, Walsh had responded that he had
nothing to do with dues and that, at that time, Respondent
Union had not seen any dues as it was only Respondent Em-
ployer that had been deducting them from the employees’
paychecks. Detroit testified that when he asked what would
happen if he canceled the checkoff authorizations, Walsh had
replied that, ‘‘if we did, we’d be taken out,’’ since ‘‘it was
a closed Union and that we had to belong to that Union. If
we did not, there would be a letter sent to the company re-
questing that we be terminated.’’ However, during cross-ex-
amination, Detroit conceded that he also had been told by
Walsh that he (Detroit), ‘‘had the alternative to come in and
pay your dues instead of signing a card[.]’’
This answer sparked the following question and answer:
Q. Okay. So, he said, ‘‘You got to either sign the
card or come in and pay your dues, either.’’
A. Yes, but at the same time, if you didn’t pay the
dues, you didn’t work.
During redirect, Detroit reiterated that Walsh had said,
‘‘that if we canceled the card, we could not work because
it was a closed Union. And that they would send a letter to
the company, requesting that we be terminated.’’ But during
recross, he agreed that after having made that statement,
Walsh had said that, as an alternative to signing a checkoff
authorization card, Detroit had the right to come in and pay
dues directly to Respondent Union.
Respondent Employer began deducting dues from employ-
ees’ paychecks issued on June 12 for the pay period of June
7. However, during the week of July 20, after the charges
in this case had been filed, Respondent Employer distributed,
and posted on its bulletin boards, a notice advising the em-
ployees that they were not required to execute checkoff au-
thorizations and that it would not take any action against em-
ployees who did not do go. The notice further stated that the
collective-bargaining contract required that employees be-
come members of Respondent Union following the 30-day
grace period and that Respondent Union could request the
discharge of employees who failed to comply with that re-
quirement. However, continued the notice, employees were
free to pay dues directly and checkoff was merely a conven-
ience. The notice concluded with the following statements:
If you did not want to sign an authorization form,
please contact the Personnel Department to revoke the
document as soon as possible. Any monies improperly
deducted by Irwin Industries, Inc. will be returned to
you. Any obligations you have to the union for pay-
ment of dues will then be handled directly between you
and the union.
If Irwin Industries, Inc. has not heard from you with-
in 30 days, Irwin will assume absent unusual cir-
cumstances, that any dues deduction form that Irwin
holds on your behalf remains with Irwin voluntarily.
However, there is no evidence that Respondent Employer
made any further effort to reimburse employees whose dues
had been deducted improperly.
Similarly, on September 1, Respondent Union issued its
own notice, reciting that it was not true that employees had
to execute checkoff authorizations, offering to cancel those
signed by employees who did not want dues deducted, and
pointing out that employees could pay dues directly, but that
they could be fired if their dues were not paid after expira-
tion of the 30-day grace period.
C. Analysis
The crucial issue in this case, from which resolution of
most others follow, is the effect on Respondent Union’s rep-
resentation rights of the Chevron and Texaco refinery main-
tenance employees’ transfer from a multiemployer bargaining
unit, when they were employed by Stockmar, to an em-
ployer-wide unit, when they became employed by Respond-
ent Employer, that included previously unrepresented em-
ployees, as well. The General Counsel argues that this trans-
fer obliterated Respondent Union’s representation rights and,
accordingly, that Respondent Union was obliged to prove its
majority status anew before it lawfully could accept recogni-
tion, and before Respondent Employer lawfully could extend
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recognition to it, as the representative of the employees in
the employer-wide unit. However, that argument is not con-
sistent with the approach followed by the Board and by the
courts, including by the Supreme Court. Rather, a two-stage
analysis must be pursued, applying principles both of
successorship and of merger or consolidation.
The first step in this case is to assess whether the change
in employer so affected the job situations of the Chevron and
Texaco refinery maintenance employees that it can be in-
ferred that they likely would have changed their attitudes
about being represented. ‘‘In the successorship situation the
events must be viewed from the employees’ perspective, i.e.,
whether their job situation has so changed that they would
change their attitudes about being represented.’’ Derby Refin-
ing Co., 292 NLRB 1018 (1989). ‘‘This emphasis on the em-
ployees’ perspective furthers the Act’s policy of industrial
peace.’’ Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987). Here the General Counsel has failed to show that the
change in employment, from Stockmar to Respondent Em-
ployer, was of such a nature that it likely changed the atti-
tudes of the refinery maintenance employees at Chevron and
Texaco and, accordingly, that it can be inferred that they
would no longer want to be represented by Respondent
Union.
For the most part, on December 11, 1986, those same em-
ployees continued to be employed by an employer operating
in the same industry, at the same locations, performing the
same work, in the same job classifications, at the same pay
rates, using the same tools and equipment, and subject to im-
mediate site supervision by the identical individuals who had
supervised them when employed by Stockmar prior to that
date. So far as the record discloses, any changes that did
occur—such as being assigned Respondent Employer’s code
numbers and being provided with copies of Respondent Em-
ployer’s employee handbook and safety manual—‘‘were
minor, and did not transform the essential nature of the
[maintenance] operations,’’ NLRB v. South Harlan Coal Co.,
844 F.2d 380 (6th Cir. 1988).
There is evidence that some maintenance employees at
Chevron and Texaco were transferred to work at other loca-
tions on December 11, 1986. Similar transfers occurred dur-
ing the days and months that followed. Yet, there is no evi-
dence that such transfers are not common in the refinery
maintenance industry nor, more specifically, that transfers of
that type had not occurred when Stockmar had employed
those employees. As pointed out in footnote 2, supra, it is
the General Counsel who bears the burden of establishing
every element needed to show that the bargaining relation-
ship between Respondents was unlawfully established. In
light of the foregoing factors establishing continuity of the
job situations at El Segundo and at Carson/Wilmington be-
fore and after December 11, 1986, the General Counsel has
failed to show that, from the perspective of the refinery
maintenance employees, there had been a change in their
jobs at those two locations—has failed to show that Re-
spondent Employer was not a successor to Stockmar for the
refinery maintenance employees who worked at Chevron and
Texaco.
Of course, the employees at Chevron and Texaco were but
a portion of the multiemployer unit of which Stockmar had
been a member. However, ‘‘diminution in unit size is insuffi-
cient to rebut the presumption of continued majority status.’’
Nazareth Regional High School v. NLRB, 549 F.2d 873, 879
(2d Cir. 1979). Rather, a change in scale of operations must
be extreme before it will alter a finding of successorship.’’
Mondovi Foods Corp., 235 NLRB 1080, 1082 (1978). In
fact, to support that particular proposition, the Board pointed
to a case in which a successor-relationship was established
even though the new employer took over but one of 16 oper-
ations and only 18 of the seller’s 800 production and mainte-
nance employees. Ranch-Way, Inc., 183 NLRB 1168, 1169
(1970). Here, the General Counsel has introduced no evi-
dence regarding the number of employees covered by the
multiemployer unit in which Stockmar’s employees were in-
cluded. Accordingly, there is no basis for concluding that the
number of refinery maintenance employees at Chevron and
Texaco was so much smaller than the total number of em-
ployees in the multiemployer unit that the disparity was ex-
treme, thereby defeating the expectation that the transferred
refinery maintenance employees desired continued represen-
tation by Respondent Union.
Instead, the General Counsel advances an argument that,
he urges, effectively puts in issue the question of whether it
can be said that the refinery maintenance employees at Chev-
ron and Texaco ever had an interest in representation by Re-
spondent Union. In so doing, he relies on Atlantic Technical
Services Corp., 202 NLRB 169 (1973), affd. 498 F.2d 680
(D.C. Cir. 1974), in which the Board was unwilling to con-
clude that successorship had been established, in part because
of the circumstances under which the employees initially had
come to be represented:
Lastly, the validity of the presumption of the continuing
majority status of the Union is especially put in ques-
tion where, as here, the portion of the former unit taken
over by the new employer was originally accreted to
the larger unit, and there is no showing that a separate
and independent majority status in the smaller unit was
established at the time of the accretion.
However, this was but one of four factors which formed the
basis for the result reached in that case: (1) the transferred
operation was but a small fraction of the overall operations
of the putative predecessor which employed 1,100 employees
in all of its operation, but only 41 employees in the trans-
ferred operation: (2) only 27 of the 41 employees employed
by the putative successor had worked for the previous em-
ployer and, in consequence, the former unit ‘‘became doubly
diluted’’ ibid.; and (3) the putative predecessor was a large
nationwide firm, engaged in a multiplicity of operations and
regulated under the Railway Labor Act, whereas the respond-
ent was a small, recently established firm engaged primarily
in performing a single operation and subject to regulation
under the Act.
In this case, the evidence adduced shows that two of the
four Atlantic Technical Services factors are not present. In
addition, the General Counsel has failed to present evidence
that would establish the existence of the other two factors.
Respondent Employer and Stockmar are competing firms
and, so far as the record discloses, both are engaged in the
same operations. Certainly, both were engaged in refinery
maintenance service, which is the operation involved in this
proceeding. Moreover, Respondent Employer hired the entire
work force of maintenance employees that Stockmar had
89IRWIN INDUSTRIES
been employing at the Chevron and Texaco refineries prior
to December 11, 1986. Accordingly, the factor of double di-
lution is not present here. Furthermore, as pointed out above,
by not providing evidence of the number of employees en-
compassed by the multiemployer bargaining unit in which
Stockmar’s employees were included, the General Counsel
has failed to provide evidence from which it can be con-
cluded that there had been an ‘‘extreme’’ change in oper-
ations when Respondent Employer took over the mainte-
nance work at Chevron and Texaco. ‘‘[S]uccessorship obliga-
tions are not defeated by the mere fact that only a portion
of a former union-represented operation is subject to the sale
or transfer to a new owner.’’ Stewart Granite Enterprises,
255 NLRB 569, 573 (1981).
Nor is the record sufficient to support a finding that refin-
ery maintenance employees at Chevron and Texaco were
accreted to the multiemployer unit without a prior showing
that, at that time, Respondent Union had represented a major-
ity of them at each of those locations. It is clear that there
was no representation election, leading to certification,
among those employees. But, ‘‘a successor’s obligation to
bargain is not limited to a situation where the union in ques-
tion has been recently certified.’’ Fall River Dyeing v. NLRB,
supra. ‘‘Voluntary recognition is a favored element of na-
tional labor policy.’’ NLRB v. Broadmoor Lumber Co., 578
F.2d 238, 241 (9th Cir. 1978). Here, other than showing that
the Chevron- and Texaco-based employees had been accreted
to that unit, there is no evidence whatsoever regarding the
circumstances that generated the agreement for their accre-
tion. Consequently, the General Counsel has failed to estab-
lish that there had not been a prior showing that Respondent
Union had represented a majority of the refinery maintenance
employees working at Chevron and Texaco prior to the time
that those employees were accreted to the multiemployer
unit.
Of course, Respondent Union had been serving as the rep-
resentative of those employees for but a few months when
Respondent Employer became their employer. Yet, the
successorship doctrine is not limited to situations where the
predecessor’s bargaining relationship has existed for more
than a minimum period. To do so would be to reduce to sec-
ond-class status employees whose representation had not ex-
isted for a sufficient period of time to satisfy an arbitrary
minimum standard. Employees in that category would be
subjected ‘‘to the vagaries of an enterprise’s transformation.
This feeling is not conducive to industrial peace.’’ Fall River
Dyeing Corp. v. NLRB, supra. Indeed, such a result would
be contrary to the more basic doctrine that requires a reason-
able time to elapse before recognition can be withdrawn from
a voluntarily recognized representative. Keller Plastics East-
ern, 157 NLRB 583, 587 (1966). For, were a minimum time
standard to be adopted, a successor would be permitted to
accomplish that which the recognizing employer would not
be allowed to do.
Furthermore, the General Counsel has adduced no evi-
dence showing that, on December 11, 1986, objective factors
were present that should have alerted Respondent Employer
that a majority of the former Stockmar employees no longer
desired representation by Respondent Union. Although then-
unrepresented employees of Respondent Employer testified
to their own dissatisfaction with representation by Respond-
ent Union, not a single former Stockmar employee appeared
and so testified. In these circumstances, there is no basis for
depriving Respondent Union of its representation rights, and
the employees of their statutory right to representation, mere-
ly because of the relatively short bargaining history for refin-
ery maintenance employees working at the Chevron and the
Texaco refineries.
Since there is no basis for concluding that Respondent
Employer was not the successor-employer of the former
Stockmar maintenance employees, the next question is the
effect of the undisputed fact that, following the change in
employer, the refinery maintenance employees at Chevron
and Texaco did not possess separate identity for unit pur-
poses—that the only appropriate unit was an employer-wide
one encompassing all refinery maintenance employees em-
ployed by Respondent Employer. In situations where rep-
resented and unrepresented employees are combined into a
single unit, the Board has held that this constitutes a merger.
Such a merger is treated as a normal expansion of the unit.
The incumbent’s representation rights are extended to the en-
tire consolidated unit if the represented employees constitute
a majority of the unit following the merger. ‘‘In fact the
Board has effectively found valid accretions in cases involv-
ing approximately equal size groups even when the rep-
resented employees barely constituted a majority of the com-
bined work force.’’ Central Sova Co., 281 NLRB 1308, 1309
(1986), enfd. per curiam 867 F.2d 1245 (10th Cir. 1988).
Under this approach, as the Board pointed out in Geo. V.
Hamilton, Inc., 289 NLRB 1335 (1988):
the balance between the sometimes conflicting goals of
(1) assuring employees their choice of whether and by
whom to be represented, and (2) fostering established
bargaining relationships, should be struck in that case
in favor of the existing bargaining relationships cover-
ing the represented employees.
Since the parties agreed that Respondent Employer’s rep-
resented and unrepresented refinery maintenance employees
were merged into a single unit on and after December 11,
1986, the only viable issue is whether, ‘‘the employees in the
represented group outnumber the employees in the unrepre-
sented group.’’ Id. at fn. 9.
Closely related to how the majority is calculated is the
issue of when the majority is calculated. A successor’s duty
to bargain ‘‘is triggered only when the union has made a bar-
gaining demand.’’ Fall River Dyeing Corp. v. NLRB, 482
U.S. 27 (1987). That occurred here on December 11, 1986,
the same date on which Respondent Employer commenced
performing the maintenance work at the Chevron and Texaco
refineries. To do so, it hired all of the employees who had
been employed by Stockmar at the two refineries. Moreover,
there is no evidence that Respondent Employer hired or as-
signed any additional employees to perform maintenance
work at either refinery at that time. The General Counsel has
not contended that Respondent Employer’s maintenance
complement at refineries where its employees worked was
not substantial and representative on December 11, 1986.
Nor is there evidence showing the maintenance complement
at either refinery was not substantial and representative on
that date. Consequently, it follows that the date on which Re-
spondent Union’s majority status should be calculated was
December 11, 1986. Id.
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Similarly, when a merger occurs, the determination of
whether represented employees constitute a majority of the
consolidated work force is made when the merger is com-
pleted. See Harte & Co., 278 NLRB 947, 949 (1986). Here,
the parties agree that, due to the nature of Respondent Em-
ployer’s method of operation, the represented refinery main-
tenance employees at Chevron and Texaco were merged into
a single, employerwide unit with Respondent Employer’s un-
represented employees. There is no evidence that this was
not true on December 11, 1986. That is, there is no evidence
that Respondent Employer’s operations were any different on
that date than on later dates. Nor is there evidence that the
employees at Chevron and Texaco were any the less inte-
grated into the overall unit on that date than on later dates.
To the contrary, Respondent Employer assigned code num-
bers to each of the former Stockmar employees and issued
employee handbooks and safety manuals to each of them.
Moreover, a few were transferred to other locations. Con-
sequently, the merger of represented and unrepresented em-
ployees had been completed by December 11, 1986, the
same date on which Respondent Employer employed sub-
stantial and representative complements of refinery mainte-
nance employees and, also, the date on which Respondent
Union demanded recognition as the representative of all re-
finery maintenance employees employed by Respondent Em-
ployer.
On that date, Respondent Employer employed a total of
565 refinery maintenance employees. Of that number, 337
were former Stockmar employees. Consequently, on Decem-
ber 11, 1986, a majority of Respondent Employer’s refinery
maintenance employees were represented employees. There-
fore, under the foregoing principles, it had been obliged to
recognize and bargain with Respondent Union as the rep-
resentative of all refinery maintenance employees employed
by Respondent Employer.
Of course, Respondent Employer ceased performing main-
tenance work at the Texaco refinery 17 days later, on De-
cember 28, 1986. Yet, this had not been anticipated on De-
cember 11, 1986, so far as the record discloses. To the con-
trary, as set forth in section III,B, supra, before it had begun
performing maintenance work at the Carson/Wilmington re-
finery, Respondent Employer had been told, by Texaco offi-
cials, that it would be at least 90 days before the mainte-
nance contract was let for bid. Further, as the runner-up to
Stockmar in the bidding just 5 months earlier, there was
every indication that Respondent Employer could become the
successful bidder in a new round of bidding. Accordingly,
viewed from the perspective of the date of Respondent
Union’s recognition demand, there was no objective basis for
Respondents to believe that continued performance of the
maintenance work at Texaco was in jeopardy, nor to believe
that the maintenance work there likely would be of only brief
duration. Moreover, as also set forth in section III,B, supra,
even after culmination of maintenance work at Texaco’s re-
finery, represented employees remained a majority of Re-
spondent Employer’s overall complement of refinery mainte-
nance employees. Thus, on January 7, the first Wednesday
for which reliable figures are available following termination
of the maintenance work at Texaco, Respondent Employer
employed 225 represented employees at Chevron and 219 to
222 refinery maintenance employees at its other locations.
‘‘In fact, the Board has effectively found valid accretions in
cases involving approximately equal size groups even when
the represented employees barely constituted a majority of
the combined work force.’’ Central Soya Co., supra.
As the comparative employment figures for succeeding
weeks show, the proportion of represented to unrepresented
employees fluctuated over time, with the latter becoming the
majority by January 14 and remaining the majority until
April 1, when the Chevron refinery maintenance employees
again became a majority of Respondent Employer’s overall
complement of refinery maintenance employees. Thereafter,
those employees remained the majority until October 7, ex-
cept for brief periods during the latter half of April and dur-
ing 1 week in May. Yet, that very fluctuation demonstrates
the wisdom of a rule based on straightforward criteria: the
date of demand, the date when a substantial and representa-
tive complement has been hired, the date on which a merger
has been completed. In a case such as this, to delay deter-
minations of bargaining obligations until there is absolute
certainty concerning the proportion of represented to unrepre-
sented employees would be to disregard, ‘‘the significant in-
terest of employees in being represented as soon as pos-
sible.’’ Fall River Dyeing Corp. v. NLRB, supra. Indeed, it
might mean that the employees could never obtain represen-
tation where employment fluctuated weekly in a particular
industry or in the ordinary course of business of a particular
firm. Accordingly, the employment fluctuation during 1987
is not a basis for concluding that a determination concerning
the propriety of recognition should be deferred to a date later
than December 11, 1986.
Nor is that conclusion altered by the fact that recognition
was not actually granted until April 6. In the first place, by
that date, refinery maintenance employees at Chevron again
outnumbered those employed by Respondent Employer at
other locations. Beyond that, Respondent Employer chose to
grant recognition to Respondent Union on the basis of an un-
fair labor practice charge alleging an unlawful refusal to have
done so in December 1986, and based on its own counsel’s
advice of but a 50/50 chance of prevailing if Respondent
Employer chose to contest that allegation. In fact, as the
foregoing analysis demonstrates, counsel’s advice was not
without adequate basis. Respondent Employer was a succes-
sor to Stockmar at Chevron and Texaco. Further, the rep-
resented employees at those two locations outnumbered all
other refinery maintenance employees employed by Respond-
ent Employer when Respondent Union demanded recogni-
tion. As a result, in granting recognition, Respondent Em-
ployer did not contravene any policy of the Act, but rather
promoted a favored element of national labor policy by vol-
untarily recognizing Respondent Union. NLRB v. Broadmoor
Lumber Co., supra.
In voluntarily settling the charge, Respondents promoted
the Board’s ‘‘policy of encouraging the peaceful, nonlitigious
resolution of disputes.’’ Independent Stave Co., 287 NLRB
740 (1987). Although recognition was not actually granted,
and accepted, until April 6, because it resolved allegedly un-
lawful conduct that had occurred on December 11, 1986, it
related back to that date. To require Respondent Union to es-
tablish anew its majority status on April 6, in the context of
settlement of a charge, would mean that no refusal to bargain
could be settled without reestablishment of majority status by
the representative to whom recognition had earlier arguably
been unlawfully denied. Such a result hardly promotes the
91IRWIN INDUSTRIES
policies of the Act. Thus, the majority status of Respondent
Union on April 6 is of no consequence in the context of this
case.
At first blush, this case appears to present a novel situation
in that an employer employing unrepresented employees be-
comes the successor employer of a larger group of rep-
resented employees and, then, that employer’s historically
unrepresented employees are accreted to a bargaining unit
based on the representation of the newly acquired group.
That is, ordinarily, the situation posed is one where an em-
ployer with represented employees acquires a smaller group
of unrepresented employees and they become represented by
the bargaining agent with whom that employer already has
a bargaining relationship.
Yet, the situation presented here is not unprecedented. In
Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiam
529 F.2d 516 (4th Cir. 1975), an employer with unrepre-
sented employees became the successor employer of a much
larger group of represented employees. In concluding that a
bargaining relationship came into existence for the unrepre-
sented and represented employees in a single unit, the Board
pointed out that,
had the predecessor acquired the contract to operate
these eight additional shops, we would have treated the
addition of these like facilities and similarly classified
employees as an accretion to the certified unit. It seems
reasonable to apply the same doctrine to the successor.
Indeed, the underlying policy of ensuring industrial peace by
fostering established bargaining relationships is no less appli-
cable to the one situation than to the other. Nor, from the
perspective of the represented employees, is there a dif-
ference between being employed continuously by the same
employer and being employed successively by a predecessor
and, then, by a successor. In both situations, the interests
protected by the Act are the same and only a feat of ‘‘lin-
guistic prestidigitation’’—as Justice Brennan phrased it in
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750
(1988)—could find a meaningful distinction between them
under the Act.
Therefore, a preponderance of the evidence does not sup-
port the General Counsel’s allegation that Respondent Em-
ployer violated the Act by granting recognition to Respond-
ent Union as the representative of the refinery maintenance
employees. Nor did Respondent Union violate the Act by ac-
cepting that recognition. This, then, leaves for consideration
the allegedly unlawful statements attributed to various offi-
cials of Respondents.
Since the Act was not violated by the extension and the
acceptance of recognition, it was not unlawful for Respond-
ents to inform the employees of those facts. Nor was it an
unfair labor practice to describe to employees the changes in
their employment terms resulting from the collective-bargain-
ing contract negotiated by the parties. By the time that Re-
spondents’ officials had spoken to any of the employees, rec-
ognition had occurred and the contract already had been ne-
gotiated. Consequently, there was no causal connection be-
tween those events and any future activity protected by Sec-
tion 7 of the Act in which the refinery maintenance employ-
ees might choose to engage. See, e.g., Certified Industries,
272 NLRB 1138 fn. 1 (1984). Rather, those statements to
employees constituted no more than descriptions of existing
conditions—‘‘statement[s] of fact protected by Section 8(c)
of the Act.’’ Storall Mfg. Co., 275 NLRB 220 (1985).
Of course, such a causal connection does appear to have
existed in the testimony of Ellison, who claimed that Donald-
son had said that employees would get no more than three
holidays and no benefits if they decertified Respondent
Union, and, by implication, in that of Lauraine Smith, who
testified that Donaldson had said that, ‘‘we wouldn’t lose our
benefits if we joined the Union.’’ Yet, neither Ellison nor
Smith appeared to be a reliable witness.
When he testified, it did not appear that Ellison remem-
bered completely what had been said by Donaldson nor, for
that matter, what had been said in his subsequent conversa-
tion with Walsh. This was best illustrated by comparing
Ellison’s brief descriptions of these two conversations with
the more complete accounts of them furnished by Detroit,
who had been present during both conversations. Further,
Ellison’s description of the words assertedly spoken by Don-
aldson was not corroborated by Detroit. Thus, while Ellison
claimed that Donaldson had said that refinery maintenance
employees would lose their benefits if they decertified Re-
spondent Union, Detroit made no mention of decertification
when he described Donaldson’s words. Nor did Detroit relate
that Donaldson had made any statements pertaining to other
types of future employee action intended to terminate rep-
resentation by Respondent Union. Similarly, Ellison testified
that Walsh had said flatly that Detroit could not work for Re-
spondent Employer if he ‘‘withdrew from the Union.’’ But,
Detroit acknowledged, ultimately, that Walsh had said only
that employees could pay their dues directly, instead of hav-
ing them checked off, and that discharge of Detroit would
be sought only if he did not pay his dues at all, as opposed
to paying them through the checkoff procedure. In sum,
given Ellison’s seeming uncertainty regarding his accounts of
Donaldson’s and Walsh’s remarks, his sketchy and incom-
plete accounts of what those two officials had said, when
compared to the more complete descriptions of Detroit, and
the absence of corroboration by Detroit for the comments de-
scribed by him, I do not credit Ellison’s testimony about
what assertedly had been said by Donaldson and by Walsh.
Nor do I credit Lauraine Smith’s accounts of what purport-
edly had been said to her by Donaldson and, later, by Inter-
national Representative Heath. As pointed out in section
III,B, supra, her testimony concerning those two conversa-
tions was provided in a vague and disjointed fashion. She re-
peatedly acknowledged her lack of recollection regarding
what had been said to her. For example, she prefaced her tes-
timony about Donaldson’s purported statement—regarding
employees not losing benefits if they joined Respondent
Union—with the prefatory comment, ‘‘I don’t really remem-
ber right now. ’’ Her lack of certainty was further illustrated
by her resort to qualifying words such as ‘‘believe,’’ ‘‘Could
have been,’’ ‘‘might’’ and ‘‘think’’ when describing what
Keith purportedly had said to her during their telephone con-
versation. Given her demeanor while testifying and her ad-
missions of uncertainty regarding the words actually spoken,
I conclude that her testimony is too unreliable to provide a
basis for concluding that Donaldson impliedly threatened that
employees would lose benefits if they did not join Respond-
ent Union.
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel’s arguments are not enhanced by the
evidence that Respondent Employer’s officials told employ-
ees that they would benefit as a result of recognition of Re-
spondent Union, nor by statements that benefits would have
been reduced even further had Respondent Union not been
serving as their bargaining representative. Regarding the lat-
ter, as pointed out in section III,B, supra, it is uncontroverted
that Respondent Employer had planned to make reductions in
employees’ benefits. But, ultimately, those reductions had
been less severe than planned due to Respondent Union’s ef-
forts through negotiations. By the time that statements about
that situation had been made to employees, the contract ex-
isted and the reductions were a fact. Consequently, state-
ments that benefits would have been reduced even further
without Respondent Union were ones of fact about events
that already had occurred, rather than statements concerning
events that might occur in response to possible future pro-
tected conduct by refinery maintenance employees.
In a like vein, no unfair labor practices occurred when em-
ployees were told that they would benefit from recognition
of Respondent Union because Respondent Employer’s com-
petitive position would be enhanced and, consequently, it
might be able to secure additional refinery maintenance con-
tracts. There is no evidence that this had been Respondent
Employer’s purpose for recognizing Respondent Union. To
the contrary, the former had resisted granting recognition to
the latter for 4 months and had done so only when con-
fronted with an unfair labor practice proceeding that its attor-
neys predicted could well be lost. Nor are the accounts of
what had been said in this regard sufficient to support the
conclusion that supervisors portrayed recognition of Re-
spondent Union as having been motivated by an intention to
improve Respondent Employer’s competitive position. Rath-
er, taken in context, the statements appear to portray no more
than an incidental consequence of recognition, voiced in an
effort to minimize objections of formerly unrepresented em-
ployees to the lawful recognition of Respondent Union. At
best, those statements were opinions protected by Section
8(c) of the Act.
Nor is the General Counsel’s position strengthened by the
remarks to employees that Respondent Employer had been
obliged by law to recognize Respondent Union. Those re-
marks were not inaccurate, given the principles of law per-
taining to successor and merger bargaining obligations set
forth supra. Accordingly, they were, at best, statements of
fact or, at least, opinions. In either instance, they were pro-
tected by Section 8(c) of the Act. Similarly, the Act was not
violated when Lloyd related to Lauraine Smith that he had
been told, during the course of a supervisory meeting, to sit
down and shut up when he objected to recognition of Re-
spondent Union. Lloyd did not claim that, in doing so, he
had been objecting to recognition of Respondent Union be-
cause it was somehow unlawful. Rather, he simply objected
to recognizing Respondent Union. Inasmuch as it was not
unlawful for Respondent Employer to have done so, there is
no basis for concluding that Lloyd inferentially was relating
to an employee that he had protested commission of an un-
fair labor practice, but had been silenced by his employer for
doing so.
A contrary conclusion is warranted with respect to General
Foreman Crane’s undisputed statements to the Sulfur Recov-
ery Plant refinery maintenance employee: that checkoff au-
thorization cards had to be signed in order to work for Re-
spondent Employer and, in addition, that if the employees
did not sign them, Respondent Union could insist that those
employees not be allowed to work. ‘‘An employee has a
Section 7 right to refuse to sign a checkoff authorization as
a method of fulfilling his membership obligation under a
lawful union-security agreement.’’ IBC Housing Corp., 245
NLRB 1281, 1283 (1979). Consequently, by telling employ-
ees that their jobs would, or could, be lost if they declined
to sign checkoff authorizations, Crane unlawfully required
employees to execute dues-checkoff authorizations in favor
of Respondent Union, thereby violating Section 8(a)(2) and
(1) of the Act. Furthermore, not only were dues deducted
pursuant to those coerced authorizations, but they were de-
ducted as early as June 12 from paychecks for the pay period
of June 7. By doing the latter, Respondent Employer also de-
prived its refinery maintenance employees of their 30-day
contractual grace period to decide whether or not to join Re-
spondent Union. By this conduct, Respondent Employer vio-
lated Section 8(a)(3), (2), and (1) of the Act.
Of course, as set forth in section III,B, supra, ultimately
Respondents each issued notices advising employees that
they were not required to have their dues checked off and
that they were free to elect to pay dues directly to Respond-
ent Union. However, those notices do not serve as effective
repudiations of the unfair labor practices committed by Re-
spondent Employer, under the standards enunciated in
Passavant Memorial Hospital, 237 NLRB 138 (1978). Re-
spondent Employer did not issue its notice until the week of
July 20 and Respondent Union’s notice was not issued until
September 1. Yet, Crane’s remarks had been made approxi-
mately 6 weeks before the earlier of the notices and over 30
days had elapsed between commencement of actual dues
checkoff and issuance of that notice. Accordingly, it can
hardly be argued that the notices were timely in relation to
commission of the unfair labor practices. Furthermore, there
is no evidence that the prematurely checked off dues were
returned to the formerly unrepresented employees from
whose pay the deductions had been made. Since there is no
evidence that those employees had been charged an initiation
fee to join Respondent Union, those formerly unrepresented
employees were entitled to have the prematurely deducted
dues returned to them. See, e.g., Campbell Soup Co., 152
NLRB 1645 (1965), enfd. 378 F.2d 259 (9th Cir. 1967), and
Mode O’Day Co., 290 NLRB 1234 (1988). There is no evi-
dence that this was done and, accordingly, it cannot be said
that those employees have received the full remedy to which
they are entitled. Therefore, Respondents’ notices did not
serve to effectively repudiate the unfair labor practices that
I conclude have been committed.
Unlike Respondent Employer, there is no credible evi-
dence that Respondent Union’s officials had made unlawful
threats to employees regarding what would happen if they
did not execute checkoff authorizations. True, uncontradicted
was Lauraine Smith’s testimony that International Represent-
ative Heath had said that employees who chose not to sign
checkoff authorizations ‘‘would choose not to work for [Re-
spondent Employer].’’ Yet, ‘‘where the testimony of a disin-
terested witness is not directly contradicted, but such testi-
mony is clouded with uncertainty, the trier of fact is not
bound to accept it.’’ Woods v. U.S., 724 F.2d 1444, 1452
(9th Cir. 1984). Similarly, ‘‘the Board may decline to credit
93IRWIN INDUSTRIES
7 Under New Horizons, interest is computed at the ‘‘short-term Federal rate’’
for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621.
the testimony of interested witnesses even though such testi-
mony is not contradicted.’’ Plasterers Local 394 (Burnham
Bros.), 207 NLRB 147 fn. 2 (1973). As set forth above,
Lauraine Smith was not a reliable witness, because she did
not appear to remember accurately the words spoken to her
by Respondents’ officials. Indeed, several illustrations of her
lack of precise recall occurred in connection with her attempt
to describe what Heath had said during the very telephone
conversation in which he assertedly made the above-quoted
remark. Therefore, I do not credit her testimony that Heath
said that employees who declined to sign checkoff authoriza-
tions would be choosing not to work for Respondent Em-
ployer.
Similarly, I do not credit Ellison and Detroit’s testimony
that Secretary-Treasurer Walsh had said that if they withdrew
their checkoff authorization, they would not be allowed to
work for Respondent Employer. As concluded supra, Ellison
was not a reliable witness and I do not credit his accounts
of statements that he attributed to Respondents’ officials. Ini-
tially, Detroit also claimed that Walsh had said that dues had
to be paid through checkoff if employees wished to keep
their jobs. However, as described in section III,B, supra, dur-
ing cross- and recross-examinations, when his attention was
focused on Walsh’s specific remarks, Detroit agreed that
Walsh had said that direct payment to Respondent Union
would be an acceptable alternative method of paying dues.
More significantly, Detroit acknowledged that Walsh had
said that discharge of employees would be sought if no dues
were paid at all, as opposed to if they were paid in some
fashion other than being checked off.
In sum, a preponderance of the credible evidence does not
support the allegations that Respondent Union’s officials
made any threats of adverse consequences to employees if
they did not execute checkoff authorization cards as a means
of paying their dues. However, Ellison’s and Detroit’s meet-
ing with Walsh, as well as Lauraine Smith’s telephone con-
versation with Heath, clearly did put Respondent Union on
notice that at least some of Respondent Employer’s employ-
ees were being compelled to execute checkoff authorizations.
Further, despite what Walsh may have said to Detroit and
Ellison about Respondent Union not having seen any dues at
that point in time, Respondent Union did not contend that it
had not ultimately received the dues that Respondent Em-
ployer had checked off from employees’ paychecks begin-
ning in June. Inasmuch as Respondent Union was aware of
what had occurred and benefitted from receipt of dues
checked off pursuant to coerced checkoff authorizations, I
conclude that by not acting to prevent dues from being
checked off pursuant to coerced authorizations and by not re-
turning dues that were prematurely collected from employ-
ees, Respondent Union violated Section 8(b)(1)(A) of the
Act. Campbell Soup Co., supra.
CONCLUSIONS OF LAW
By threatening that employees would lose their jobs if
they did not execute checkoff authorizations and by relying
on authorizations executed as a result of those threats as a
basis for checking off dues, Irwin Industries, Inc. committed
unfair labor practices in violation of Section 8(a)(2) and (1)
of the Act. Moreover, by using those coercively obtained au-
thorizations as the basis for checking off dues before expira-
tion of the 30-day grace period allowed by Section 8(a)(3)
of the Act, it also violated 8(a)(3), (2), and (1) of the Act.
Furthermore, by accepting checked off dues that it was on
notice had been deducted as a result of coerced authoriza-
tions, International Union of Petroleum and Industrial Work-
ers, SIUNA, AFL–CIO committed unfair labor practices in
violation of Section 8(b)(1)(A) of the Act. These unfair labor
practices affected commerce within the meaning of Section
2(6) and (7) of the Act. However, neither Irwin Industries,
Inc. nor International Union of Petroleum and Industrial
Workers, SIUNA, AFL–CIO violated the Act in any other
manner alleged in the complaint.
REMEDY
Having found that Irwin Industries, Inc. and International
Union of Petroleum and Industrial Workers, SIUNA, AFL–
CIO engaged in certain unfair labor practices, I shall rec-
ommend that they be ordered to cease and desist therefrom.
In addition, each of them shall be ordered to take certain af-
firmative action to effectuate the policies of the Act. In this
regard, since there is no evidence that initiation fees had to
be paid to join International Union of Petroleum and Indus-
trial Workers, SIUNA, AFL–CIO, it and Irwin Industries,
Inc., jointly and severally, shall be ordered to reimburse to
employees dues collected for periods prior to expiration of
the 30-day contractual grace period and, further, that all pay-
roll deduction authorization of union dues forms obtained as
a result of coercive statements by General Foreman Keith
Crane, or by any other supervisors as a result of the same
or similar unlawful threats, shall not be honored. See Camp-
bell Soup Co., supra; Mode O’Day Co., supra. Interest shall
be paid on the amounts owing as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).7
[Recommended Order omitted from publication.]