Texaco, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1967

168 N.L.R.B. 361 (N.L.R.B. 1967)

TEXACO, INC., HOUSTON PRODUCING DIV. 361
Texaco, Inc., Houston Producing Division and Oil,
Chemical and Atomic Workers International
Union, Local No. 4-367, AFL-CIO. Case
23-CA-2271
November 20, 1967
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On June 8, 1967, Trial Examiner Ivar H. Peter-
son issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in and was not engaging in the unfair labor
practices alleged in the complaint and recommend-
ing that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and the
Union filed exceptions to the Trial Examiner's
Decision and supporting briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, briefs,
and the entire record, and finds merit in certain of
the exceptions of the General Counsel and the
Union. Accordingly, the Board adopts the findings
of the Trial Examiner only to the extent consistent
herewith.
On the morning of November 5, 1965,' Alaniz,
a company porter for some 20 years, was using
kerosene to spray weeds on company property. He
placed in his car a 2-gallon can of kerosene, con-
cededly belonging to the Company. At lunchtime
when Alaniz started to go home in the car, the
production foreman saw the can in the car, con-
fronted him concerning the kerosene, and
suspended him without pay. After lunch Alaniz at-
tempted to return to work, but was again told he
was suspended. At the time Alaniz was part of a
unit of employees represented by the Union.2 He
was not, though, a union member. Later in the day,
Whitten, the Union's field steward, learned of the
incident and called the foreman about the matter.
He requested that it be handled on the local level,
complained that the Union should have been
notified of the incident, and added that Alaniz
needed representation. The foreman replied that he
had already reported the matter to the Company's
district superintendent and, thus, that the matter
was out of his hands. He also stated Alaniz did not
need union representation as he was not a union
member. Alaniz had, as noted, worked as a porter
for some 20 years, had something less than a fourth
grade education, could read English very little,
spoke Spanish at home, and testified in this
proceeding through an interpreter.
The company controller's office undertook to in-
vestigate the matter and scheduled a meeting for
November 17. Alaniz was extended the opportuni-
ty to attend the meeting to defend himself. The
Union, on the ground that Alaniz was within its
recognized unit, requested the right to represent
him at the meeting. The request was denied. The
meeting was held as scheduled; Alaniz attended and
at the outset requested that the Union be permitted
to represent him. His request was also rejected by
the Company. One of its representatives stated
there would be no interview if Alaniz insisted on
union representation, adding that Alaniz was free to
go if he wished. However, Alaniz remained, was
questioned, and then was given a statement
prepared by the Company to sign. In the statement,
which he signed, Alaniz conceded he had taken 2
gallons of Company kerosene to spray weeds but
not "with the thought of stealing but only because
of the convenience," promised to do his job in a
manner which would do credit to him, and asked
that consideration be given "on past service to Tex-
aco." Alaniz was given a suspension of 24-1/2 days
(16-1/2 working days) without pay and restored to
duty on November 30. By letter dated December
3, the Company notified Alaniz that it felt the
suspension lenient and wholly justified and warned
him that any future similar or other disciplinary of-
fense would subject him to discharge.
During the period here involved there was in ex-
istence a company-union contract containing a
grievance procedure. Neither the Union nor Alaniz
filed a grievance at any time.
The complaint alleges in substance that the Com-
pany violated Section 8(a)(1) and (5) of the Act by
refusing to allow a union representative to be
present at the November 17 meeting. The Trial Ex-
aminer concluded that the alleged 8(a)(5) violation
could be found only if the meeting and its outcome
involved the adjustment of a grievance within the
meaning of Section 9(a) of the Act. But he found
tha no grievance had been raised concerning
Alaniz' situation and that even assuming it had, the
meeting was not concerned with its adjustment.
There was, thus, in his view of the case no 8(a)(5)
All dates refer to 1965 and professional employees , all employees at the Houston garage and
s The Union is the recognized bargaining agent of the following ap- warehouse , all Divisional employees , temporary chammen and rodmen,
propnate unit foremen, rotary drillers, head roustabouts , and all other supervisory em-
All hourly rated production and maintenance employees in the Com- ployees)
pany's South Texas Division (except clencal , administrative , technical,
168 NLRB No. 49
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation.3 With respect to the alleged 8(a)(1) viola-
tion, he found no interference with Alaniz' rights in
denying him union representation at the meeting
because he could have filed a formal grievance and
thereby assured himself such representation. In
view of his findings, the Trial Examiner recom-
mended the complaint be dismissed. We are of the
opinion, however, that the Trial Examiner took too
narrow a view of the issues before him.
As the record shows, the November 17 meeting
was not simply part of an investigation into some al-
leged theft and Alaniz was not invited to attend
solely to provide the Company's representatives
with information. Rather the meeting was con-
cerned essentially with Alaniz and his alleged theft,
the facts of which were known to management
representatives some 2 weeks earlier, and more
specifically with the Company's concluding its
"case" against Alaniz in order to provide a
"record" to support disciplinary action, if deemed
appropriate. Thus it is clear that on November 17
the Company sought to deal directly with Alaniz
concerning matters affecting his terms and condi-
tions of employment. Yet, as noted, the employees
in the unit had selected the Union to deal with the
Respondent on such matters and there is no
evidence that either Alaniz - assuming he could
have done so - or the Union had waived to any ex-
tent the right of representation or had agreed to
channelize disputes concerning such right into the
procedures of the contract grievance provisions.
Consequently, we find in the circumstances here
that the Respondent's refusal to respect Alaniz'
request that the bargaining representative be per-
mitted to represent him at the meeting interfered
with and restrained him in the exercise of his rights
guaranteed by Section 7 of the Act. Also in view of
Alaniz' request for union representation at the
meeting and the Union's evident willingness to
represent him-both conveyed to management-we
find that the Respondent's refusal to deal with the
Union on that occasion transgressed its statutory
obligation to bargain with the Union concerning the
terms and conditions of employment of the em-
ployees it represents. Accordingly, we find that the
Respondent by the above conduct violated Section
8(a)(1) and (5) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act. It has been found that the Respondent unlaw-
J Sec . 9(a) provides in part that an employee has the right to present a
grievance directly to his employer and have it adjusted without interven-
tion of the bargaining representative , providing "that the bargaining
representative has been given the opportunity to be present at such adjust-
fully denied the request of Alaniz for representation
by the Union and refused to deal with the Union at
the November 17 meeting. Consequently, the
meeting and its results are tainted by Respondent's
unlawful activities, and it is, therefore, necessary in
order to provide a full and effective remedy to
recreate insofar as possible the status quo prior to
the meeting. Accordingly, we shall order the
Respondent to strike from its records any
references to the meeting and what occurred there,
including all copies of the statement signed by
Alaniz at the close of the meeting and the
December 3 letter of reprimand sent Alaniz. We
shall also order it to revoke its decision that Alaniz
be suspended for 24-1/2 days because of his alleged
misconduct on November 5, and so notify him. We
shall further order the Respondent to give Alaniz
the original (i.e., signed copy) of the statement he
signed on November 17, and notify him that it is
withdrawing and considering of no effect its letter
of reprimand dated December 3.
The General Counsel and Union request that we
also order the Respondent to make Alaniz whole
for such loss of pay and other benefits he suffered
as a result of his suspension. However, Respond-
ent's illegal conduct occurred after Alaniz was
suspended without pay and it is not alleged that the
suspension itself was unlawfully caused. Further-
more, that Respondent would have reinstated
Alaniz with backpay had it dealt with the Union on
November 17 is at best a speculative consideration
concerning the merits of Respondent's disciplinary
action, and is not for us to resolve. However, the
possibility that Respondent's unlawful conduct did
adversely affect Alaniz can be fully remedied by or-
dering in addition to those matters covered above
that Respondent meet with Alaniz and the Union
upon Alaniz' request within 5 days of the date of
this Decision and Order for a consideration de novo
of those matters dealt with at the November 17
meeting. We shall also order that the Respondent
take no further action with respect to Alaniz' al-
leged misconduct until after the expiration of the
above specified 5-day period or, if Alaniz requests
a meeting, until after such meeting has been con-
cluded.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material , the Union has been the
exclusive representative of the employees in a unit,
ment ." That provision on its face is concerned with a situation where an
employee is not, contrary to the matter before us , seeking union represen-
tation . Consequently, finding the above part of Sec 9(a) inapplicable does
not dispose of the 8(a)(5) issue before us
TEXACO, INC., HOUSTON PRODUCING DIV.
of which Alaniz has been at such times a member,
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
4. By denying Alaniz his request that the Union
represent him at the November 17, 1965, meeting,
the Respondent violated Section 8(a)(1) of the Act.
5. By denying the Union the right to represent
Alaniz in accordance with his request at the
November 17, 1965, meeting , the Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
7. All exceptions other than those relating to the
aforesaid unfair labor practices are without merit
and are hereby overruled.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Texas, Inc., Houston Producing Division,
Freer, Texas, its officers, agents, successors, and
assigns , shall:
1. 'Cease and desist from:
(a) Refusing any employee in the unit of which
Oil, Chemical and Atomic Workers International
Union, Local No. 4-367, AFL-CIO, or any other
labor organization, is the legal bargaining represent-
ative permission to be represented by such labor
organization at any meeting convened by the Em-
ployer in which the employee is questioned about,
or required to defend himself against, his own al-
leged misconduct in the course of his duties or oc-
curring on, or in relation to, the Respondent's pro-
perty where the employee requests representation
at the meeting by said labor organization.
(b) Refusing permission to Oil, Chemical and
Atomic Workers International Union, Local No.
4-367, AFL-CIO, or any other labor organization,
to attend any meeting and to represent any em-
ployee at such meeting who is a member of a unit of
which it is the legal bargaining representative where
the purpose of such meeting is to question the em-
ployee about or to require him to defend himself
against his own alleged misconduct in the course of
his duties or occurring on, or in "relation to, the
Respondent's property where the employee
requests representation at the meeting by said labor
organization.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exer-
cise of their right to self-organization to form labor
organizations, to join or assist the above -mentioned
Union or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual
363
aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Strike and physically remove from its records
and files any reference to the meeting of November
17, 1965, and to decisions or actions based upon
that meeting , including all copies of the statement
signed by Alaniz on that date and all copies of the
letter of reprimand dated December 3, 1965; but
nothing in this Order shall be construed as adverse-
ly affecting Alaniz' reinstatement on November 30,
1965.
(b) Revoke its decision, and notify Alaniz that it
has revoked said decision, that he be suspended
without pay for 24-1/2 days because of his alleged
misconduct-on November 5, 1965.
(c) Return to Alaniz the signed original state-
ment he signed on November 17, 1965, if it still has
possession of such statement, and notify him that it
is withdrawing and considering of no effect its letter
of reprimand dated December 3, 1965.
(d) Meet with Alaniz and the Union as his
representative for purposes of considering de novo
those matters dealt with at the November 17, 1965,
meeting if within 5 days of the date of issuance of
this Order Alaniz requests such a meeting, taking
no further action with respect to Alaniz' alleged
misconduct on November 5, 1965, until after the
above-specified 5-day period or, if a meeting is
requested, until after said meeting has been con-
cluded.
(e) Post at its place of business, Freer, Texas,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly
signed by Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 23,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
4 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT refuse any employees in the
unit of which Oil, Chemical and Atomic
Workers International Union, Local No. 4-367,
AFL-CIO, or any other labor organization, is
the legal bargaining representative permission
to be represented by such labor organization at
any meeting we hold with the employee for the
purpose of questioning him about, or having
him defend himself against, his alleged miscon-
duct.
WE WILL NOT refuse permission to Oil,
Chemical and Atomic Workers International
Union, Local No. 4-367, AFL-CIO, or any
other labor organization, to attend any meeting
and represent any employee who is a member
of a, unit of which it is the legal bargaining
representative where an employee attends a
meeting set up by the Company for purposes
stated above and the employee requests the
Union be present to represent him.
WE WILL remove from our files all papers
and other references to the November 17,
1965, meeting with employee Alaniz and
rescind all actions based in whole or in part
upon such meeting, except our actions shall not
affect his reinstatement on November 30,
1965.
WE WILL upon the request of Alaniz meet
with him and the Union as his representative to
consider anew the matters taken up at the
November 17, 1965, meeting, and shall take no
further action with respect to his alleged
misconduct until after such meeting, if he
requests it, has been held.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form labor organizations, to join
or assist the above-named Union or any other
labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or
all such activities.
TEXACO, INC., HOUSTON
PRODUCING DIVISION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.'
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617 Federal Office Building , 515 Rusk
Avenue, Houston, Texas 77002, Telephone
228-0611.