P.A. Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1980

248 N.L.R.B. 491 (N.L.R.B. 1980)

P. A. INCORPORATED 491
P. A. Incorporated and Oil, Chemical and Atomic
Workers Union, Local 4-586, International
Union, AFL-CIO. Case 16-CA-8203
March 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On September 14, 1979, Administrative Law
Judge Marion C. Ladwig issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, P. A. Incorpo-
rated, Odessa, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Additionaly, we are satisfied that Respondent's contention that the Ad-
ministrative Law Judge was biased is without merit. In our opinion there
is nothing in the record to suggest that his conduct at the hearing, his
resolutions of credibility, or the inferences he drew were based on either
bias or prejudice.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard before me in Odessa, Texas, on April 26-
27 and June 21, 1979. The charge was filed on Novem-
ber 27, 19781 (amended December 8), and the complaint
was issued on January 12, 1979. This proceeding primar-
ily involves a question of whether the Company, through
a new plant manager transferred from a nonunion plant,
engaged in an unlawful campaign to eliminate the Union
at the Odessa plant and promised higher wages if the
I All dates are in 1978, unless otherwise indicated
248 NLRB No. 77
plant became nonunion, before the Company broke off
negotiations with the Union and granted the employees
an average of 37 percent higher wage increases than the
Union had agreed to accept. The specific issues are
whether the Company, the Respondent, (a) unlawfully
coerced employees through promises, threats, interroga-
tion, and an overly broad no-solicitation rule, and (b) un-
lawfully refused to recognize and bargain with the Union
and unilaterally granted wage increases, in violation of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent Company, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, is engaged in
providing pipe coating and inspection services for the
drilling industry at its plant in Odessa, Texas, where it
directly supplies services valued in excess of $50,000 an-
nually to customers located outside the State. The Com-
pany admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that the International (OCAW) and its
Local 4-586, herein called the Union, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company and the Union were parties to a collec-
tive-bargaining agreement, effective from November 15,
1975, through November 15, 1978, covering a stipulated
appropriate bargaining unit of "All production and main-
tenance employees employed in the maintenance, yard,
custom and tube departments by the Company at its
plant located at 300 W. 61st Street in Odessa, Texas, ex-
cluding all other employees including administrative, es-
timating, sales, engineering, purchasing, office, technical,
payroll, quality control, inspection and reclamation em-
ployees and all foremen, guards, watchmen and supervi-
sors as defined in the Act." (The bargaining unit did not
include the inspection department, which was added
since the International's certification in 1966.) The agree-
ment provided for a wage reopener in 1977, without the
right to strike, and on November 15, 1977, the Company
and the Union agreed to a new wage scale, adopting the
wage increase formula to which the Company and an-
other OCAW local had agreed at Company's Katy Road
plant in Houston (where the union wages-and living
costs-were higher).
In addition to the two organized plants in Odessa and
Houston, the Company had nonunion plants in Oklaho-
ma City, Oklahoma; Houston, Texas; and Morgan City,
Louisiana.
There admittedly had been "very good" relations be-
tween the Company and the Union at the Odessa plant
since 1976, when John Lubke returned to the corporate
offices there as vice president of the Company's Western
P. A. INOPORATED
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zone. International Representative James Childs (who
serviced the Odessa agreement for the Union) and Lubke
had worked together in attempting to solve such trouble-
some problems as high employee turnover and a large
number of contract employees. They had settled three or
four grievances'-one settlement involving the reinstate-
ment of a union committeeman, forklift operator L. B.
Whiteside, who had been discharged at the plant.
A majority of the regular employees were union mem-
bers, who were having their dues checked off. The Com-
pany, however, refused to check off the dues of proba-
tionary employees, who had "no course" under the
agreement until they were employed 60 working days
(usually about 90 calendar days).
There is no evidence of any dissension in the Union at
the time, or of any expression of dissatisfaction by any of
the regular or probationary employees with their union
representation until the talk began in the plant about bo-
nuses and higher wages being paid if the plant were non-
union.
B. Promised Higher Wages
1. Plant manager's antiunion conduct
In June, the Company transferred Plant Manager Gary
Richardson from the nonunion Oklahoma plant to the
Odessa plant. By the third or fourth week of August,
there was talk in the plant about an "under the table
raise or promises or bonuses," and a rumor that some
employees had already been given "a 25 cent per hour
pay increase," although negotiations for new contract
and a new wage scale were not to begin for several
weeks.
Plant Manager Richardson had been talking about his
former practice in the Oklahoma City plant of paying a
$250 bonus to some of the employees. In an apparent
effort to turn one of the union committeemen against the
Union, Richardson told Committeeman Keith Eddings
about this. As Eddings credibly testified:
Richardson had just got down here from Oklahoma
City and he was telling me about the operations up
there, that it was nonunion and they were allowed
to give on-the-spot bonuses to employees. He told
me that if it was nonunion down here that they could
also do the same, give on-the-spot bonuses to the em-
ployees. [Emphasis supplied.]
Eddings recalled that this was "a month or two" after
Richardson arrived in Odessa. At the time of the conver-
sation, Richardson was riding on the ladder of Eddings'
forklift. Richardson said that such a bonus was given to
the "good worker." (From his demeanor on the stand,
Eddings impressed me as being an honest witness, at-
tempting to give an accurate account of what happened.
I credit his testimony, and discredit Richardson's den-
ials.) I find that Richardson's statement to Eddings was
at least an implied promise of employee bonuses if the
Odessa plant were nonunion. I therefore find that it was
coercive and violated Section 8(a)(1) of the Act.
Although Plant Manager Richardson denied this con-
versation with Eddings, he admitted having a conversa-
tion with employee Larry Flax, "in front of a group of
employees," about spot bonuses at Oklahoma City, and
admitted telling Flax that the Oklahoma plant was not a
union shop (before Flax tranferred to that plant). Rich-
ardson admitted that in the conversation in front of other
employees, "we went into detail on how they pay spot
bonus and what a spot bonus was."
It was "probably the mid part or the late part of
August" when plant Manager Richardson admittedly
heard talk in the plant about a pay raise. A foreman re-
ported to Richardson that employee Lee Shearman "was
very upset, that he had found out that the Company had
given a 25 cent an hour pay increase" to shop employees
but not to yard employees. Richardson and Area Man-
ager Bill Anderson checked out the rumor and found
that Shearman and another employee, Lucius, were
"very upset." Richardson testified that Lucius, doing
most of the talking, "said he damn sure didn't want to
see any of this under the table raise or promise or bonuses
[emphasis supplied], or whatever. That if anybody
should get a raise or a bonus or whatever that he . . .
should be involved, that he was a very hard worker."
(Employer John Washington, who later signed an antiun-
ion petition, denied telling them that tube shop employ-
ees had been given the wage increases.)
When asked at the hearing "Did you ever say any-
thing to any employee at the plant to indicate whether
you were for or against the Union," Plant Manager
Richardson denied saying so, "yea or nea," but admitted,
"I probably made a statement that we was going to run
it right by the book, you know, by the union book, and
we did have some grievances filed on me when I was
there."
It was in this context-of Plant Manager Richardson
attempting to turn a union committeeman against the
Union, stating to the committeeman that the Company
could give employee bonuses if the plant were nonunion,
publicizing among the employees the fact that such bo-
nuses were given at the nonunion Oklahoma City plant,
and stating that he was going to run the (organized)
Odessa plant "by the book"-that Bill Park, a former
union committeeman occupying a special status at the
plant, "headed up" the signing of an antiunion petition
and promised employees that the Company would give
them higher wages if te Union were out.
2. Petition to oust the Union
a. Bill Park's status
General operator Bill Parks was in a special status
which tended to give weight to his promises that the
Company would give the employees higher wages if the
Union were out. Although a member of the bargaining
unit, he was working at the time as a "walking general,"
or walking leadman, who no longer ran finish and power
guns but "walked around and made sure everything was
running right" and the employees were working. He and
other "walking generals" substituted for absent shift fore-
men or supervisors and signed the personnel action P-86
form as the "Immediate Supervisor" when "stepped-up"
temporarily replacing them. The agreement provided
(art. XIV. sec. 2), "The terms 'supervisory employees'
P. A INCORPORATED 493
does not include 'leadmen,' who are classified as oper-
ation or maintenance employees despite the fact that they
may be vested with a limited amount of authority for a
specific job or in an emergency." (Emphasis supplied.)
When substituting for a supervisor (as Park did on a reg-
ular basis beginning October 1, shortly after he turned in
the antiunion petition the second time), the leadman is
paid an additional 20 cents an hour as a "special rate."
b. Plant manager's participation
Leadman Bill Park denied that "anybody with influ-
ence" said "that Oklahoma did not have a union and it
was a better place," and denied being in any discussion
or meeting where somebody brought up the fact that the
Company might pay more if they were nonunion. Ac-
cording to him, there were about four or five of the em-
ployees who "started talking about the Union" and "de-
cided to get out." So I went to Gary [Richardson] and
asked him how could we vote the Union out. And he
said he's find out.... And he got back with me a day
or so later and told me how." (Emphasis supplied.) Thus,
Park was indicating that Plant Manager Richardson did
not influence the employees in their decision to leave the
Union, and indicated that he had a private meeting with
Richardson to ask for information, and another private
meeting to receive the information on how to vote out
the Union.
Richardson also denied that he made the employees
any promises, but testified that he met with two employ-
ees (Bill Park and Joe Wheeler) around September 19,
when they asked how they could get up a petition to
vote out the Union, and later met with a group of people
when he gave them the information. He testified that
around September 26 or 27, he took a piece of paper
which Area Manager Anderson had given him on "the
legal way they could do it," that he "just random picked
whoever was standing around" to come in, and that he
read off the instructions to them. He admitted that he in-
vited into the meeting, with Bill and David Park, em-
ployees Charles Murray and Carl Carter (both of whom
later signed the petition but had nothing to do with the
solicitation), as well as Shift Foreman Joe Slovack. Thus,
instead of giving the information privately to Bill Park
and Joe Wheeler, and leaving it to them to prepare and
circulate the petition without giving other employees the
impression that the Company was encouraging and spon-
soring the petition, Richardson publicized the matter to
other employees. (Cf. Poly Ultra Plastics, Inc., 231 NLRB
787, 790 (1977), where the company official's assistance
to the employees in phrasing the petition "was not wit-
nessed by other employees, nor does it appear that this
fact was communicated to any other employees.") Rich-
ardson claimed that after repeatedly reading off the
instructions for wording the petition, and reading how
the employees could circulate it, he discarded the
instructions. (Vice President Patrick Donnelly testified
that he had instructed Anderson that the Company could
not provide the employees even paper or pencil for the
petition, and that the petition signing would have to take
place without company assistance "during breaks" or
after work, and not on company time.)
One copy of the petition read, "We the undersigned
employees of P.A. no longer wish for OCAW local 4-
586 to represent us for purposes of collective bargain-
ing." The other copy (which continued on a second
page) read, "We the undersigned employees of P.A. do
not wish to be represented by OCAW 4-598 for wages
and other bargaining matter."
Only three employees testified how the petition was
circulated. Forklift operator Harrison Stewart (who im-
pressed me by his demeanor on the stand as being an
honest, forthright witness) credibly testified that Bill
Park explained to him that the petition "was to get the
Union out." When he answered that he was prounion,
Park said "did I know that if the Union was out that we
would get a bigger raise than the Union was prepared to
give us." (Emphasis supplied.) Stewart also credibly tes-
tified that he overheard Park speaking to employees
about the petition "a number of times," something like
"six, seven, eight" times, and that the only thing said
"was that Park, wanted them to sign that Petition to do
away with the Union and if the Union was away . . . the
Company was prepared to give them larger wages than the
Union." (Emphasis supplied.) Stewart also observed Park
talking to still other employees about the petition, but he
could not overhear what was said. After a 2-month delay
in the hearing, Stewart again credibly testified that he
overheard Park tell employees that "if the union was out,
that the company would give us a bigger raise than the union
was prepared to give us." (Emphasis supplied.) He also
recalled hearing Park say, "Let's try to get the union out;
if it doesn't work out, we can always vote it back in."
Union Committeeman Eddings credibly testified that
one morning, during working time, employee Billy
Dirden asked him if he would sign a petition to disband
the Union, that he asked Dirden why, and that Dirden
"told me that he thought we would get a bigger raise out of
it if we was nonunion." (Emphasis supplied.)
Bill Park, the third person who testified about the so-
licitation, denied promising anybody anything. (At one
point, he testified that "Nothing" was said about wages if
they did not have the Union, but then added that the ar-
gument was made that "the Company is going to give us
just as good of rates as the Union probably anyway.")
Although admitting being in the plant both before and
after his regular shift, Park endeavored to belittle his
participation in the solicitation. He claimed that he per-
sonally solicited signatures on only the first copy of the
petition and that other employees, not he, passed around
the second copy (which contained most of the signa-
tures). However, I note that in the September 29 letter
transmitting the petition to counsel, Area Manager An-
derson acknowledged his "understanding that Mr. Bill
Park was the employee who headed up this petition,"
and Park himself testified that he personally solicited the
signature of nonunit employee Q. B. Agnew, whose sig-
nature is No. 12 on the second copy. (Park did not im-
press me as being a candid witness.)
During the circulation of the petition, Plant Manager
Richardson indicated his interest by speaking to Commit-
teeman Eddings about it. As Eddings credibly testified,
Richardson asked him at the pipe straightening rack "if I
P. A INCORPORATED 93
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had heard of a petition being circulated to disband the
union." Eddings answered no, he had not. (It was the
next morning when employee Dirden asked him to sign
it.) Richardson admitted talking to Eddings about a peti-
tion, but claimed that it was several days later that he
had overheard a rumor that another union committee-
man was circulating a petition, that Eddings said "there
was some type of unofficial looking piece of paper going
around, a petition, and . . . I couldn't imagine what kind
of a petition or . . . what even it was." (I find that Ri-
chardson's testimony is pure fabrication. From his de-
meanor while testifying, Richardson appeared willing to
give whatever testimony might help the Company's
cause.)
On September 28, leadman Park dated the two copies
of the petition, and turned them in to Plant Manager
Richardson. On the 3 pages there were 31 signatures, I
of which was that of employee Agnew who was not
then in the bargaining unit-leaving 30 valid signatures.
At the time, there were 58 employees in the bargaining
unit (57 persons on the current seniority list, Resp. Exh.
7, plus petition-signer Ramon Hernandez, a new employ-
ee who began working the day before, G.C. Exh. 15.)
Including the probationary employees, this was a bare
majority of 51.7 percent. (Five of the petition-signers,
employees Cruz, Duncan, Hernandez, Miranda, and
Yborra, had been hired that same week. Among the 58
unit employees, 19 had been hired that same month, and
another 5 between August 9 and 30. Of these 24 new
probationary employees, 12 had signed the petition.
Among the 33 regular employees who had been there
over 60 working days, 20-a 60.6-percent majority-
were then on checkoff. Of these 20 union members, 7
signed the petition.)
In an apparent hope of getting a larger majority of pe-
tition-signers, Plant Manager Richardson suggested or di-
rected Bill Park to continue the solicitation. (Park first
testified that Richardson asked if they had asked every-
body and when he answered no, Richardson said, "Well,
take it back, why don't you, and ask everybody." Later
Park testified that Richardson said, "Well, take it back
and ask everybody." On redirect examination, Park testi-
fied that it took 2 or 3 days to circulate the petition,
"and then we turned it in. And then he told us to go ask
the other people.") Thus, the Company was not leaving
the solicitation to the discretion of the employees them-
selves, but was suggesting or directing that they continue
the solicitation-further encouraging the effort to elimi-
nate the Union.
The renewed solicitation failed, and no other employee
would sign the petition. Thus, Bill Park and his fellow
solicitors had failed to persuade more than 51.7 percent
of the employees to sign the petition, even though Park
was telling employees that the Company would give
higher wages if the Union were out, and Dirden told at
least one employee that he thought the employees would
get a bigger raise if they were nonunion.
On September 29, general operator Park turned in the
petition a second time to Plant Manager Richardson.
This time, according to Park, Richardson asked "did we
ask everybody," Park answered, "Yes, we did," and
Richardson said, "Well, okay."
Under all the circumstances, I find it most unlikely
that leadman Bill Park would be telling employees that
the Company would pay higher wages without the
Union (and that solicitor Dirden would be expressing
this "thought" that the Company would) if the Company
had not given such a promise. I discredit the denials by
Plant Manager Richardson and Bill Park (the only solici-
tor who testified), and infer that Richardson-as part of
a campaign to eliminate the Union at the Odessa plant-
encouraged the circulation of the antiunion petition by
making a promise at least to Bill Park that the Company
was prepared to pay higher wages if the plant were non-
union. (The Company's honoring of this promise is dis-
cussed later.) Accordingly, I reject the Company's con-
tentions that Richardson made no promises and that the
petitions were "drafted and circulated wholly spontane-
ously and voluntarily, without any improper participa-
tion or encouragement from management."
Before proceeding to discuss the negotiations, I note
that Plant Manager Richardson continued with the an-
iunion campaign. As credibly testified by quality control
employee Lee Shearman, another former union commit-
teeman at the plant, Richardson sometime between Octo-
ber 5 and 10 offered him the position of quality control
over the whole plant. When he learned that he would be
on call 24 hours a day, he told Richardson that he would
have to have at least the pay of a general operator. Rich-
ardson responded that those positions were filled. Later
in the day, though, Richardson told him, "I've reconsid-
ered that offer. Now, I can give you general operator's
pay if you will get out of the union." (Emphasis supplied.)
Shearman refused, stating that he had been a union
member ever since he had been old enough to work, and
the subject was dropped. I discredit Richardson's denials
and find that his offer, contingent on Shearman defecting
from the Union, was coercive and violated Section
8(a)(1) of the Act.
C. Withdrawal of Recognition
1. The negotiations
In the first negotiating session on October 5, following
the Union's August 29 contract termination notice, the
Union indicated its willingenss to accept the new Hous-
ton wage formula by informing the Company that the
Union "would basically settle along the lines of the set-
tlement in Houston with some changes that we wanted
to propose to you there that day." The Company then
advised the Union "that it had received a petition from a
substantial majority of the employees indicating that they
no longer wished to be represented by your Union," and
stated that the Company "was in a quandry about what
to do about this petition." International Representative
Childs stated that he did not give any credence to that
petition because I knew it had been circulated by super-
visors and that Mr. Richardson had made a lot of state-
ments to employees that-kind of made a fool out of
himself-prejudiced the Company's position. (Later, in a
telephone conversation with the Company's counsel on
October 8, Childs asserted that "the petition had been
circulated by people who wasn't supposed to be circulat-
P. A. INCORPORATED 495
ing it, stepped-up supervisors and others and that prom-
ises had been made.")
On October 28, the Company wrote the Union a
letter, proposing that another meeting be held to "pro-
vide us with the opportunity to explore mutually satisfac-
tory ways that you might demonstrate that your Union
does still enjoy majority status." The letter stated that
the Company's investigation had disclosed no substance
to the allegations of "any improper supervisory involve-
ment."
In the November 9 negotiating session, the Company
showed the Union the checkoff revocations from five of
its union members. The Union stated that it still repre-
sented a majority and discussed the status of the proba-
tionary employees. The Company expressed a good-faith
doubt of the Union's majority status and broke off nego-
tiations.
2. The larger wage increases
Immediately after breaking off the negotiations, the
Company began determining the exact amount of the
larger increases which it would grant unilaterally in the
different classifications following the November 15 expi-
ration of the union agreement. (Meanwhile, the Union
was soliciting authorization cards to support an election
petition. The Union filed the petition with the Board on
November 14, in a proposed expanded unit which would
include the inspection division, but withdrew the petition
on November 22.)
On November 14 and 15, the Company held employee
meetings, reading to the employees on the different shifts
a speech in which the Company made it clear to the em-
ployees the size of the wage increases under the Houston
formula which "on October 5, 1978 the Union told us
that they would accept." This information, given before
the Company announced its large wage increases, en-
abled the employees to compare the union rates with
what the Company was giving without a union.
The justification given in the speech for furnishing the
employees with this information was an unsupported
claim that "we have some reports that some employees
were soliciting union cards . . . with the promise that if
the union stayed in, the employees would be guaranteed
a 45¢ an hour wage increase." Refuting this purported
union promise, the speech stated that the Houston formu-
la "was a 5% wage increase for everybody and an addi-
tional 20¢ an hour for all job classifications above
helper." The speech then described the computation and
pointed out that, under the Houston formula, the helper
would receive an increase of only 19 cents, and the gen-
eral operator, operator A, and operator B would receive
(5 percent plus 20 cent) 44, 43, and 42 cents, respective-
ly.
Then on November 20, the Company announced its
new rates, to be effective November 16. Instead of the
increases ranging from 19 to 48 cents an hour as the
Union had agreed to accept under the new Houston for-
mula (19 cents in the classification of helper for the first
60 working days, 19 cents for helper after 60 working
days, 42 cents for operator B, 43 cents for operator, 44
cents for general operator, 46 cents for mechanic, and 48
cents for mechanic A), which would have been an aver-
age increase of 8.125 percent over the wages in effect
since November 16, 1977 ($3.75, $3.85, $4.33, $4.58,
$4.87, $5.13, and $5.51, respectively, in the seven classifi-
cations), the Company announced wage increases rang-
ing from 25 to 73 cents and hour (25, 35, 52, 57, 73, 47,
and 69 cents, respectively), an average increase of 11.145
percent, which was 37.169 percent more than the 8.125
average increase under the Houston formula. (The new
rates were $4, $4.20, $4.85, $5.15, $5.60, $5.60, and $6.30,
respectively.) I note that in its brief, the Company com-
pletely ignores the fact that the wage increases it an-
nounced were higher than those which the Union had
agreed to accept. Instead of admitting that its newly an-
nounced increases were 37 percent higher-a fact which
would tend to support employee Shearman's credited tes-
timony that leadman Park had told employees when cir-
culating the union-ousting petition that "the Company
was prepared to give them larger wages than the
Union"-the Company contends that Shearman's testi-
mony "was proven untrue by PA's wage rate increase [em-
phasis supplied) of November, which was undisputedly
less than the Houston contract provided." To the con-
trary, the Company's new "wage rate increase" was 37
percent higher than the wage rate increase provided in
the Houston contract. (If the Company is arguing that
the new Odessa rates were still lower than the Houston
rates, that fact is irrelevant because Park did not tell em-
ployees that if the Odessa plant were nonunion, the
Company was prepared to pay wages equal or higher
than the Houston rates-which had always been higher
than the Odessa rates.)
Thus, after a 51.7-percent majority of the probationary
and regular employees signed the union-ousting petitions,
these bargaining unit employees were rewarded by an
average of 37 percent higher wage increases-the higher
wages which the Company and Park promised if the
plant were nonunion.
3. Alleged contemporaneous conduct
Following the Company's November 9 withdrawal of
recognition from the Union, other unlawful conduct is
alleged to have occurred.
Overly Broad No-Solicitation Rule. On or about No-
vember 11, Union Committeeman Eddings was soliciting
signatures on union authorization cards to support an
election petition (later filed on November 14). As Ed-
dings credibly testified, Plant Manager Richardson asked
him during working time if he had any cards signed and
jokingly said, "Well, give me one and I'll sign it for
you." Eddings responded that he could not right then
because it was during working hours, and that he
"would have to wait until the afternoon break." Richard-
son stated, "Well, you can't do it then either," pointing
out that Eddings could solicit employees before and after
work and during lunch, "but during break you are still
on the payroll and you're not allowed to solicit during
break." The complaint alleges that this was an overly
broad no-solicitation rule. Richardson admitted telling
Eddings, in front of another employee, "You cannot sign
them on breaks, but you can on lunchtime and before
and after work." (Richardson claimed that he placed the
same restriction on the circulation of the antiunion peti-
P. A. INCORPORATED 495
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in September, pursuant to Area Manager Anderson's
written instructions-which as noted above, Richardson
claimed he later discarded. To the contrary, Company
Vice President Patrick Donnelly credibly testified that
Anderson had been told that the petition signing "had to
occur during breaks" and not on company time; and
Vice President Lubke credibly testified that Bill Park-
who "headed up" the petition-had thereafter reported
that the petition signing "was done during breaks and
after hours." I find Richardson's claim of the earlier re-
striction to be another fabriacation.) Eddings had been
soliciting cards during break time, but thereafter stopped
doing so. Later, on November 14 and 15, Lubke read to
the different shifts a speech which included a statement
that "Solicitation, if any, must be conducted on nonwork
time such as breaks or lunch periods." However this was
after elapse of several crucial days, when the Union was
seeking enough authorization cards to support an elec-
tion petition. I therefore find that the undisputedly broad
no-solicitation rule, prohibiting the solicitation of union
cards during break time, was unlawfully announced by
the plant manager on November 11, in violation of Sec-
tion 8(a)(l) of the Act.
Interrogation and Threat. The General Counsel con-
tends that on or about November 14, Plant Manager
Richardson called Union Committeeman L. B. Whiteside
into the office, asked him how he was going to vote, and
threatened him with the loss of benefits if the Union was
retained. However, Whiteside gave such conflicting testi-
mony on direct and cross-examination that I cannot rely
on his testimony as being trustworthy. I therefore find
that these allegations in the complaint must be dismissed.
Threats of Loss of Pay Raise. On November 20, the
Company sent the Union a letter, announcing the larger
wage increases (discussed above), plus other benefits
under the Houston agreement. The letter stated that the
Company "intends to implement" the changes on No-
vember 28 (effective November 16) "unless we receive
notice of an objection from your union by the close of
business on November 27," and added that "all terms
and conditions of employment . . . will be subject to ne-
gotiation if and when your union's majority status should
be established."
On November 21, shortly after this letter was posted
on the bulletin board, Plant Manager Richardson ap-
proached Committeeman Eddings who was talking to his
relief forklift driver, Harrison Stewart. After Richardson
told Stewart to go to work, as Eddings credibly testified,
Richardson stated he had overheard Eddings and Stew-
art talking and then asked, in effect, if "we really
planned to fight for the Union," and if International Rep-
resentative Childs was "going to get a petition signed"
(supporting the Union). Eddings said he did not know.
Then, referring to the posted announcement, Richardson
told Eddings, "Well, if you all go ahead and fight for the
Union . . . these benefits on this paper here would not
take effect." (Richardson admitted having a conversation
with Eddings, but denied asking Eddings the questions,
and denied threatening the loss of the pay raises. I dis-
credit the denials. I also find that Eddings erroneously
recalled that such posted notices had also been read to
the employees.) I find that the Company orally threat-
ened employee Eddings with the loss of the pay raises if
the employees continued to fight for the Union, thereby
engaging in coercive conduct in violation of Section
8(a)(l) of the Act.
Finally, on November 30 and December 1, the Com-
pany met with the different shifts and announced that the
Union's election petition had been withdrawn and that
the new wage rates were in effect, retroactive to No-
vember 16.
4. The Company's defenses
In its brief, the Company denies committing any unfair
labor practices and contends that its withdrawal of rec-
ognition was predicated on a good-faith and reasonably
grounded doubt of the Union's continued majority status.
The Company contends that the "employees' decertifi-
cation petition alone is sufficient justification" for its rea-
sonable doubt of the Union's majority status. Concerning
the direct (and credited) testimony by employee Stewart
that he overheard petition-solicitor Bill Park telling em-
ployees that "if the Union was away . . . the Company
was prepared to give them larger wages than the
Union," the Company contends that this "runs against
the weight of the evidence"-even though the only
other employee, besides Park, who testified about how
employees were induced to sign the antiunion petitions
was employee Eddings who similarly testified that peti-
tion-solicitor Dirden "told me that he thought we would
get a bigger raise out of it if we are nonunion." In con-
tending that the decertification petition was a "spontane-
ous and ceorcion-free renunciation" of the Union, and
that there "is simply no credible or competent evidence
of PA having planted the seed in the minds of the em-
ployees," the Company disputes or ignores the evidence
of Plant Manager Richardson's antiunion conduct. The
Company purports to take at face value the separate den-
ials, of any company influence or any promises, made by
Richardson and leadman Park in the Company's October
5 "investigation" of the Union's complaint of company
involvement in the antiunion petitions, and it completely
ignores the fact that it subsequently granted the employ-
ees the larger wage increase-averaging 37 percent more
than the increases which the Union had agreed to accept.
The Company also contends that it offered no more
"than the barest 'ministerial aid' allowed by law" when
furnishing requested information about the petition, de-
spite Richardson's publicizing of his participation to non-
soliciting employees and despite his suggestion or direc-
tion that the solicitation be continued when the petition
was turned in with signatures of only 51.7 percent of the
current employees.
Contrary to the foregoing findings that the Company
violated Section 8(a)(l) in August when Plant Manager
Richardson made an implied promise of employee bo-
nuses if the Odessa plant were nonunion, and in October
when Richardson offered an employee a promotion and
a pay raise contingent on his defecting from the Union,
the Company argues in its brief that its good-faith doubt
of the Union's majority status was "raised in a context
free of unfair labor practices aimed at destroying the
Union's majority status," and that there is "no evidence
of any union animus."
P. A. INCORPORATED 497
The Company also contends that its reasonable, good-
faith doubt was based not only on the antiunion petition
but "on a network of objective factors which cumula-
tively complemented and gave meaning to one another."
I find that all of these so-called "objective factors" (dis-
cussed in the following two paragraphs) either have no
merit or occurred after the promises were made of
higher wages if the plant were nonunion.
Ignoring the fact that a majority of the regular em-
ployees were union members on checkoff, and the fact
that none of the new probationary employees had ex-
pressed any dissatisfaction with the Union before the
promises of higher wages, the Company contends that it
believed reports of the "Union's neglectful inactivity"
and "lack of grievances" (despite the Union's active coo-
peration with the Company in attempting to solve the
difficult turnover and contract-employee problems, and
the handling of grievances which did arise). It cites the
failure of the Union to hold a membership meeting
before and the "Union's capitulation" at the 1977 wage
strike clause-and following a committeemen meeting at-
tended by other members-accepted the wage formula
negotiated at the Houston plant). It contends that the
Union, not holding a membership meeting before, and
failing to present any formal proposal at the October 5
negotiating session, "did not know what the unit employ-
ees might have desired to include in a proposal" (ignor-
ing the testimony that a meeting had been held earlier
and that before the Company challenged the Union's ma-
jority at that session, the Union informed the Company
that there were changes in the Houston settlement which
the Union wanted to propose verbally that day). It cites
"a credible statement from an employee that there was
long-time dissent within the Union, including evidence of
prior inquiries as to decertification procedures" (referring
to a luncheon conversation about September 27 or 28
with a new supervisor who had been away from the
plant since Feburary when he had quit as an employee
and who, before becoming the Union's committee chair-
man in 1977, had asked a prior plant manager about get-
ting out of the Union but had recieved no response). It
cites "the employees' statements regarding the credit
union" (referring to its receipt in November-following
the promises of higher wages for going nonunion-of re-
ports, not introduced for their truth, that employees had
signed union cards or joined the Union in order to par-
ticipate in the credit union), "and the checkoff revoca-
tions" (referring to five of the seven union members who
signed the antiunion petition, wanting in early November
to revoke their checkoff authorization).
The Company also cites International Representative
Childs' "repeated refusal to offer any evidence of the
Union's majority status other than its stale certification
and his concomitant admission that the Union could
show majority support only if PA waived the contrac-
tual probationary period." (The Company was already
checking off the dues of a majority of the regular em-
ployees. The Union of course did not have checkoff au-
thorizations from the 24 new, probationary employees
who had been hired since August 9; the Company had
refused to check off dues of probationary employees.
Moreover none of these new employees had expressed
any dissatisfaction with the union representation before
the antiunion petition was circulated. It is true that after
the Company broke off negotiations on November 9, the
Union apparently failed to get many of the nonmembers
to sign union authorization cards, but this union solicita-
tion occurred in the context of the earlier promises of
higher wages without a union and it was impeded for
several days by the unlawfully broad no-solicitation rule,
prohibiting the solicitation of union cards during breaks.)
Finally, the Company contends that it did not violate
Section 8(a)(5) by posting on November 21 its letter an-
nouncing the new wage increases. The Company asserts,
"it is well-settled that a unilateral wage increase imple-
mented subsequent to a good faith withdrawal of recog-
nition is not a violation of Section 8(a)(5)."
5. Concluding findings
The evidence shows that the Company decided to, and
did, grant the Odessa employees higher wages without a
union.
Plant Manager Richardson, shortly after the Company
transferred him to the Odessa plant from its nonunion
Oklahoma City plant, began engaging in a campaign
clearly designed to eliminate the Union. As found, he at-
tempted to turn one of the union committeemen against
the Union by coercively telling him that if the plant
were nonunion, the Company could give the same ($250)
on-the-spot bonuses which it gave good employees in the
nonunion Oklahoma City plant. He admitted "probably"
making the statement that "we was going to run" the
plant "right by the [union] book," and admitted that "we
did have some grievances filed on me when I was
there." Yet, despite the admitted talk in the plant about
company "promise or bonuses," there was still no ex-
pression of dissatisfaction with the Union either by the
regular employees (most of whom were union members
on dues checkoff) or by the new, probationary employ-
ees (for whom the Company refused to check off dues
until they were employed 60 working days-about 90
calendar days). Finally, as found, Richardson made a
promise at least to leadman Bill Park that the Company
was prepared to pay higher wages if the plant were non-
union. (Park was in a special status of a "walking general
[operator]," who "walked around and made sure every-
thing was running right" and the employees were work-
ing, and who had on occasion temporarily replaced an
absent foreman or supervisor. Although a member of the
bargaining unit, he was in a good position to convey
company policy to the employees.) After talking with
several other employees, Park and another employee for-
mally asked Richardson how to vote out the Union, and
a few days later, Richardson publicized the instructions
for preparing and circulating an antiunion petition by
calling still other bargaining unit employees into the
office to hear the instructions. Park prepared two copies
of the antiunion petition, and he and several employees
solicited signatures during the latter part of September.
While doing so, Park appeared at the plant before his
regular shift and remained after his shift, and was over-
heard telling a number of employees that "if the Union
was away . . . the Company was prepared to give them
larger wages than the Union." When he turned in the an-
P. A. INCORPORATED
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiunion petition, with only 51.7 percent of the current
employees' signatures (including signatures of 12 of the
24 new probationary employees hired since August 9),
Richardson suggested or directed that the solicitation
continue. However, none of the other employees would
sign the petition. Shortly after Park turned in the petition
a second time, he began substituting for a supervisor on a
regular basis. About 5 or 10 days later, the Company
continued the antiunion campaign when Richardson of-
fered an employee (another former union committeeman)
a promotion and a pay raise on the unlawful condition
that he "get out of the union." Then, after questioning
the Union's majority status at the October 5 negotiating
session, and breaking off negotiations and withdrawing
recognition from the Union on November 9, the Compa-
ny proceeded on November 21 to post a notice of unilat-
erally determined wage increases, averaging 37 percent
higher than the increases which the Union had agreed on
October 5 to accept. The higher wages were made retro-
active to November 16, the day following the expiration
of the union agreement.
In its brief the Company admits, under the basisc prin-
ciple set forth in Celanese Corporation of America, 95
NLRB 664, 671-673 (1951), that "the General Counsel
met his burden of establishing a prima facie case," based
on the rebuttable presumption after the first year of the
decertification that the Union continues to have a major-
ity status. I find, after considering the totality of all the
circumstances involved in this case, that the Company
had not rebutted the prima facie case that the Company
was obligated to bargain and that its refusal on and after
November 9 was unlawful.
The credited evidence shows that until leadman Park
relayed to employees the Company's promise of higher
wages if the Odessa plant were nonunion, 60.6 of the 33
regular employees were union members on checkoff. (Of
course, as held in N.L.R.B. v.Gulfmont Hotel Company,
362 F.2d 588, 591-592 (5th Cir. 1966), "there is no neces-
sary connection between the checkoff list and the
number of union supporters," because "No one knows
how many employees who favored the unions had decid-
ed not to authorize the company to deduct union dues or
how may who favored union bargaining were not even
members of the unions.") Despite the Company's antiun-
ion campaign carried on by Plant Manager Richardson
since his transfer in June from the nonunion Oklahoma
City plant, there is no evidence of any antiunion expres-
sions being made by either the regular or the new proba-
tionary employees until Park met with several employees
and began planning the ousting of the Union with a peti-
tion. (Cf. N.L.R.B. v. Nu-Southern Dyeing & Finishing,
Inc., 444 F.2d 11, 16 (4th Cir. 1971), where "numerous
employees expressed to company supervisors a desire to
disassociate themselves from the union.") Thus at the
time the Company, through Park, "planted the seed in
the minds of the employees" that signing of the antiunion
petition would mean higher wages, the Company had no
objective basis for doubting that a majority of all of the
bargaining unit employees wished to have the Union as
their representative for collective-bargaining purposes.
Moreover, even when the antiunion petition was being
circulated in the context of promises of higher wages, a
bare majority of only 51.7 percent of the regular and
probationary employees would sign it. The others re-
fused, although the Company caused the petition to be
circulated again.
Finding that the Company encouraged the circulation
of the antiunion petition by promising to pay higher
wages if the plant were nonunion, I reject the Compa-
ny's contention that it was "confronted with the employ-
ees' spontaneous and coercion-free renunciation of the
Union through the petition," and find that its own an-
tiunion campaign induced the bare majority of 51.7 per-
cent of the bargaining unit employees to sign the peti-
tion. Also, finding that the Company continued its an-
tiunion campaign when Plant Manager Richardson (who
had in August unlawfully promised bonuses if the plant
were nonunion) thereafter in October unlawfully prom-
ised an employee a promotion and a pay raise if he
would "get out of the union," I find that the Company's
conduct refutes its professed "reasonable, good faith
doubt of the Union's continued majority status," and its
contention that its doubt was "raised in a context free of
unfair labor practices aimed at destroying the Union's
majority status."
Having also rejected the Company's other so-called
"objective factors" asserted in its defense as supporting
its "good faith doubt," I find that the Company unlaw-
fully refused on and since November 9 to recognize and
bargain with the Union, and on November 21 unlawfully
posted a notice announcing the granting of unilaterally
determined wage increases, in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
1. By refusing on and since November 9 to recognize
and bargain with the Union in a stipulated appropriate
production and maintenance unit, and by announcing
unilaterally determined wage increases to bargaining unit
employees on November 21, the Company engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
2. By promising to give employee bonuses if the
Odessa plant were nonunion, and by promising to give
an employee a promotion and a pay raise if he would get
out of the Union, the Company violated Section 8(a)(1)
of the Act.
3. By orally promulgating an overly broad no-solicita-
tion rule, and by threatening to withdraw announced
wage increases if the employees continued to fight for
the Union, the Company further violated Section 8(a)(l)
of the Act.
4. The General Counsel has failed to prove that the
Company engaged in unlawful interrogation or threat-
ened an employee with loss of benefits if the employees
retained the Union.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
P. A. INCORPORATED 499
certain affirmative action designed to effectuate the poli-
cies of the Act as set forth in the Order below.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 2
1. Cease and desist from:
(a) Unlawfully withdrawing recognition of, or refusing
to bargain with Oil, Chemical and Atomic Workers In-
ternational Union, AFL-CIO, and its Local 4-586, as the
exclusive representative of its employees in the following
appropriate unit:
All production and maintenance employees em-
ployed in the maintenance, yard, custom and tube
departments by the Company at its plant located at
300 W. 61st Street in Odessa, Texas, excluding all
other employees including administrative, estimat-
ing, sales, engineering, purchasing, office, technical,
payroll, quality control, inspection and reclamation
employees and all foremen, guards, watchmen and
supervisors as defined in the Act.
(b) Unlawfully granting any future wage increases
without notifying and bargaining with the Union.
(c) Promising to give bonuses if the Odessa plant is
nonunion.
(d) Promising to give any employee a promotion or a
pay raise if he leaves the Union.
(e) Threatening to withdraw announced wage in-
creases if the employees continue to fight for the Union.
(f) Promulgating an overly broad no-solicitation rule,
prohibiting solicitation during nonworking time.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain in good faith with the Union
as the exclusive representative of the employees in the
above-described appropriate unit and embody in a signed
agreement any understanding reached.
(b) Post at its plant in Odessa, Texas, copies of the at-
tached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by the Respondent's
2 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections there shall
be deemed waived for all purposes.
3 In the event that 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 Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully withdraw recognition
of and refuse to bargain with the Union.
WE WILL NOT unlawfully grant any future wage
increases without notifying and bargaining with the
Union.
WE WIt.. NOT promise to give bonuses if the
plant is nonunion.
WE WILL NOT promise to give any employee a
promotion or a pay raise if he leaves the Union.
WE WILL NOT threaten to withdraw announced
wage increases if the employees continue to fight
for the Union.
WE WILL NOT prohibit solicitation during breaks
or other nonworking time.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them under Sec-
tion 7 of the Act.
WE WILL bargain with Oil, Chemical and Atomic
Workers International Union, AFL-CIO, and its Lo-
cal 4-586, and put in writing and sign any bargaining
agreement we reach covering these employees:
All production and maintenance employees em-
ployed in the maintenance, yard, custom and tube
departments by the Company at its plant located
at 300 W. 61st Street in Odessa, Texas, excluding
all other employees including administrative, esti-
mating, sales, engineering, purchasing, office,
technical, payroll, quality control, inspection and
reclamation employees and all foremen, guards,
watchmen and supervisors as defined in the Act.
P. A. INCORPORATED
P. A. INCORPORATED 9