Texaco Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1132 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texaco Inc. and International Union of Operating
Engineers, Local 340, AFL-CIO. Case 16-CA-
9326
September 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND ZIMMERMAN
On December 11, 1981, Administrative Law
Judge Richard J. Linton 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,1
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, 2 as modified
herein. 3
The Administrative Law Judge concluded, inter
alia, that Respondent violated Section 8(a)(1) of the
Act by unlawfully encouraging or assisting em-
ployees in the circulation of a petition to withdraw
from the Union, and violated Section 8(a)(5) and
(1) of the Act by unlawfully terminating its collec-
tive-bargaining agreement with the Union. We find
that the record evidence fully supports these con-
clusions.
Respondent and the Union had a longstanding
collective-bargaining relationship at Respondent's
Amarillo facility. The Union delegated a substantial
portion of its responsibilities at this facility, includ-
ing the negotiation of collective-bargaining agree-
ments to the plant's Workmen's Committee. 4
During the spring of 1980,5 a dispute arose be-
tween members of the Workmen's Committee, in-
' 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.
2 Respondent has requested oral argument. This request is hereby
denied as the record, exceptions, and brief adequately present the issues
and positions of the parties.
I Considering the date of issuance of this Decision and Order, the next
anniversary date on which the petition can be presented to Respondent
will be August 16, 1983, rather than the August 16, 1982, date indicated
in the Administrative Law Judge's recommended Order. We shall amend
the recommended Order to reflect this change.
4 At the time of the events described herein, the Union's membership
included employees of several employers in addition to Respondent. Col-
lective-bargaining agreements with Texaco were required to be submitted
for approval at a general union membership meeting.
5 All dates herein are in 1980 unless otherwise indicated.
cluding Chairman Billy Sutton, and the leaders of
the Union regarding the Union's employment of a
full-time business agent and a resultant increase in
membership dues. In August, Sutton expressed his
dissatisfaction with the Union to Respondent's su-
pervisor of employee relations, James Steers, and
asked Steers whether it was possible for the plant's
employees to revoke dues checkoff and leave the
Union.
On the morning of August 15, Steers telephoned
several corporate officials of Respondent in Hous-
ton and asked how to respond to Sutton's inquiry.
They decided to suggest to Sutton that the Work-
men's Committee agree to cancel the existing col-
lective-bargaining agreement, thereby terminating
the provisions requiring checkoff. One of the offi-
cials dictated to Steers a memorandum of agree-
ment intended to terminate the collective-bargain-
ing agreement. Later that morning Steers delivered
this memorandum to Sutton. 6
Sutton spoke with other members of the Work-
men's Committee, and they decided that Respond-
ent's employees should withdraw from the Union.
Sutton asked Steers how to proceed and Steers
suggested circulating among the employees a peti-
tion to revoke checkoff. Steers personally com-
posed the language for such a petition and had it
typed before noon that day. 7 He also granted
Sutton his entire afternoon shift off with pay to so-
licit signatures. 8
The petition was circulated that afternoon, and
was posted on employee bulletin boards on subse-
quent days for additional signatures. Respondent al-
lowed employees to discuss and sign the petition at
times when they would otherwise have been work-
ing. Signers were informed that they were acting
to withdraw from Local 340, but were not told
that the petition would lead to the termination of
the collective-bargaining agreement.
The record indicates that there was significant
supervisory participation in the process of collect-
ing signatures. The Administrative Law Judge
found that on August 18 Steers sent Supervisor
Leonard Reagin to different areas of the plant, os-
tensibly to answer questions about the petition and
to make the petition available for signing, thus
a He also indicated to Sutton that Respondent could only deal with
him as the employees' representative as long as the Union did not with-
draw Sutton's authority. Steers had no evidence that the Union planned
to remove Sutton but Sutton inferred from this statement that the Union
was already taking action to do so.
The petition read as follows:
We, the undersigned, hereby advise TEXACO Inc. Amarillo Plant, of
our desire to withdraw from the Union effective immediately and
hereby cancel any checkoff authorization.
8 The record indicates that Sutton previously had taken an entire shift
off with pay on only one occasion when he would have had to work a
night shift before a contract negotiating session the next day.
264 NLRB No. 151
1132
TEXACO INC.
giving the appearance that Texaco favored the pe-
tition and encouraged employees to sign it.9 Addi-
tionally, at least one employee was asked to sign
the petition in a foreman's office,' 0 and another
signed it in Steers' office.
At the conclusion of the second shift on August
15, Sutton presented to Steers the petition with 69
to 70 employee signatures. " The next day, several
members of the Workmen's Committee met with
Steers and signed the previously prepared memo-
randum of agreement terminating the collective-
bargaining agreement.12 Following execution of
this memorandum, Respondent ceased deducting
union dues from its employees' paychecks. On
August 19, Steers and a Texaco attorney filed the
petition at the Board's Regional Office at Forth
Worth. ' 3
Considering the course of events described
above and the entire record herein, we agree with
the Administrative Law Judge that "Respondent
did not maintain a neutral position here, and it ob-
viously went further than simply answering inquir-
ies of employees." After learning from Sutton of
employee dissatisfaction, Respondent initiated and
stimulated the activity that led to the employees'
withdrawal from the Union and the termination of
the contract. Respondent proposed the idea of both
the employee petition and the memorandum of
agreement to terminate the contract, and also draft-
ed and typed them. In addition, Respondent al-
lowed employees to solicit and sign the petition
during working time and provided supervisory as-
sistance in making the petition available to poten-
tial signers.
Clearly, Respondent did far more than merely
allow employees to exercise the rights guaranteed
them in Section 7 of the Act. Respondent actively
and effectively participated in the process of fur-
thering employee withdrawal from the Union.
Accordingly, we adopt the Administrative Law
Judge's finding that Respondent unlawfully aided
in the circulation of the petition and encouraged
9 In the absence of exceptions thereto, we adopt, pro forma, the Ad-
ministrative Law Judge's conclusion that Reagin's conduct did not in
itself violate the Act.
'o The foreman left the room when the employee entered.
" A total of 74 signatures was collected, including those from subse-
quent days.
12 The memorandum read as follows:
It is hereby agreed by and between Texaco Inc., Amarillo Plant, and
International Union of Operating Engineers (AFL-CIO), Local No.
340, that the L.abor Agreement dated February 2, 1979, and effective
from January 26, 1979, through January 7. 1981, and which Agree-
ment was extended through midnight January 7, 1982, pursuant to a
Memorandum of Agreement dated April 9, 1980, is hereby terminat-
ed by mutual agreement of the parties.
'3 The Regional Office delayed processing the case pending resolution
of the unfair labor practice charges in the instant case.
employees to sign. 14 The Administrative Law
Judge also found, and we agree, that the tainted
petition invalidates the memorandum of agreement
to terminate the collective-bargaining agreement.
Therefore, Respondent, in relying on this docu-
ment to cease deducting and remitting monthly
union dues of its employees, violated Section
8(a)(5) and (1) of the Act. 15
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 as modi-
fied below, and hereby orders that the Respondent,
Texaco Inc., Amarillo, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 2(d):
"(d) Continue the dues reimbursement to Local
340 until August 16, 1983, or until the valid termi-
nation of the collective-bargaining agreement,
whichever first occurs. Thereafter, honor the dues-
checkoff provision of any collective-bargaining
agreement then in effect."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i4 See Shenango Steel Buildings. Inc., 231 NLRB 586, 588-589 (1977);
Dayton Blueprint Company. Inc, 193 NLRB 1100. 1107-08 (1971).
iS We also agree with the Administrative Law Judge that this agree-
ment was invalid because it was not ratified by the employees.
In the section of his Decision entitled "The Remedy," the Administra-
tive Law Judge inadvertently stated that the date on which the petition
was presented to management was August 12, rather than August It) We
hereby correct this inadvertent error
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR REI ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportu-
nity to present their evidence and to cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post
this notice and to comply with its provisions. We
intend to abide by the following:
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
1133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT unlawfully encourage or
assist you in circulating a petition wherein you
withdraw from International Union of Operat-
ing Engineers, Local 340, AFL-CIO, and
cancel your dues-checkoff authorizations.
WE WILL NOT unilaterally terminate the col-
lective-bargaining agreement which we have
with International Union of Operating Engi-
neers, Local 340, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you under
the National Labor Relations Act.
WE WILL notify in writing Local 340, the
Workmen's Committee, and you that WE WILL
disregard the August 16, 1980, Memorandum
of Agreement and that WE WILL. honor the
collective-bargaining agreement with Local
340, which agreement was extended through
January 7, 1982, and any renewal agreement.
WE WILL, upon request, recognize and bar-
gain with Local 340 as the exclusive collec-
tive-bargaining representative of the employees
in the appropriate unit described below re-
specting wages, hours, and other terms and
conditions of employment:
All production and maintenance employees
employed by Texaco Inc. at its facility in
Amarillo, Texas, excluding all administra-
tive, clerical, plant protection, technical or
any working outside of the Amarillo Plant
and supervisors as defined in the Act.
WE WIL.L reimburse Local 340 for all mem-
bership dues, with interest, which we failed to
withhold and transmit to the Union on and
after August 16, 1980.
WE WILL continue such dues reimbursement
to Local 340 until August 16, 1983, or until
the valid termination of the collective-bargain-
ing agreement, whichever first occurs, and WE
WILL thereafter honor the dues-checkoff pro-
vision of any collective-bargaining agreement
then in effect.
TEXACO INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge: This
case was heard before me in Amarillo, Texas, on May
27, 28, and 29, 1981, pursuant to the October 1, 1980,
complaint issued by the General Counsel of the National
Labor Relations Board through the Acting Regional Di-
rector for Region 16.
The complaint is based upon a charge filed by the In-
ternational Union of Operating Engineers, Local 340,
AFL-CIO (hereinafter called Union, Local 340, or
Charging Party), against Texaco Inc. (hereinafter called
Respondent or Texaco). In the complaint the General
Counsel alleges that Respondent violated Section 8(a)(1)
of the Act by orally soliciting employees to sign an an-
tiunion petition, interrogating an employee, impliedly
promising wage increases if the plant went nonunion,
promising benefits for withdrawing from the Union, and
sponsoring the circulation of a petition among the em-
ployees which called for them to withdraw from the
Union and to cancel their dues-checkoff authorizations.
The General Counsel further alleges that Texaco vio-
lated Section 8(a)(5) of the Act by unilaterally terminat-
ing the collective-bargaining agreement with Local 340,
ceasing to deduct union dues pursuant to a contractual
checkoff provision, and refusing thereafter to (recognize
and) bargain collectively with the Union. By its answer,
Respondent admits certain basic allegations, but denies
that it has violated the Act in any manner.
Upon the entire record' in this proceeding, including
my observation of the demeanor of the witnesses, and
after due consideration of the briefs filed by the General
Counsel and Texaco, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with an office
and place of business in Amarillo, Texas, is engaged in
the refining and marketing of petroleum products and
natural gas. By stipulation, Respondent admits that it is
now, and at all relevant times has been, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. During the preceding 12 months,
Respondent's gross volume of sales exceeded $500,000,
and it sold and shipped products valued in excess of
$50,000 directly from its Amarillo, Texas, facility to cus-
tomers in various States of the United States.
II. LABOR ORGANIZATION
Respondent admits, and I find, that Local 340 is a
labor organization within the meaning of Section 2(5) of
the Act.
I The General Counsel's unopposed post-hearing motion to correct the
record in 19 instances is hereby granted.
1134
TEXACO INC.
II. THE AL.LEGED UNFAIR LABOR PRACTICFS
A. Potential Question-Preview of Conclusion
Can a workmen's committee, which has functioned
very nearly as the certified union's alter ego for many
years and through many collective-bargaining agree-
ments, mutually agree with the employer to terminate
the collective-bargaining agreement mid-term based upon
a majority of the employees in the unit having signed a
notice (petition) to the employer canceling their dues-
checkoff authorizations and expressing their desire to
withdraw from the union effective immediately? I do not
reach this potential question, for I find the petition suf-
fers from taint, and I also find the termination agreement
ineffective because it was not ratified.
B. Background
1. Certified unit
Based upon the pleadings, it is admitted that in a
Board-conducted election held on August 19, 1943, a ma-
jority of Texaco's employees in the unit described below
selected Local 340 to be their exclusive collective-bar-
gaining representative. The bargaining unit is:
All production and maintenance employees em-
ployed by the Employer at its facility in Amarillo,
Texas, excluding all administrative, clerical, plant
protection, technical or any working outside of the
Amarillo plant and [supervisors] 2 as defined in the
Act.
It is further admitted that on September 15, 1943, the
Regional Director for Region 16 of the Board certified
Local 340 as the exclusive collective-bargaining repre-
sentative of Texaco's employees in the unit described
above. Although complaint paragraph 10 alleges that
Local 340 has been the bargaining representative since
the date of certification, the correct date is the election
date.
2. Contractual unit
Since 1943, Texaco and Local 340 have enjoyed a
strike-free collective-bargaining relationship. There have
been successive contracts spanning the 37 years between
1943 and the 1980 onset of the instant dispute. At page 2
of the latest printed contract (Resp. Exh. I), a small red
booklet of 45 pages plus a 7-page insert, effective for the
2-year period of January 26, 1979, through January 7,
1981, the unit is defined as:
It is understood that the employees covered by this
Agreement are limited to the employees in the unit
defined and referred to in the decision of September
15, 1943, of the National Labor Relations Board in
which the International Union of Operating Engi-
a Although supervisors does not appear in the allegation, the word
seems to have been an inadvertent omission from the pleadings or the
certification The contract acknowledges that supervisors are excluded.
neers, Local No. 340, was certified as the sole col-
lective bargaining agent.'
Following the term of the red contract, the parties,
while negotiating over wages, health care, and vacation
benefits, executed an interim extension agreement on
February 5, 1980 (Resp. Exh. 16), and on April 9, 1980,
they signed a l-year agreement incorporating and ex-
tending the basic terms of the prior contract plus the
new wages and benefits (Resp. Exh. 15). 4 The effective
term of the new, and current, agreement covers the
period beginning January 8, 1981, through January 7,
1982.
3. Local 340 and the Workmen's Committee
Since 1943, the Workmen's Committee has handled the
bargaining relationship between Texaco and the unit em-
ployees. While the record does not contain documents
extending back to 1943, testimonial and documentary
evidence discloses that at least since 1972 the chairman
of the Workmen's Committee has signed all collective-
bargaining agreements and all other documents on behalf
of Local 340.- No document of any kind was offered as
being from an International representative of the parent
union, or from an officer of Local 340.
Although Ben Smith was president of Local 340 for
many years, and an employee of Texaco, he apparently
had no contact with Respondent in his capacity as an of-
ficer of Local 340. One exception to this was when the
Workmen's Committee obtained Respondent's permission
in November 1978 to expand the authorized number of
employees on the union bargaining committee from four
to five so that Local 340's president (Ben Smith) could
attend the forthcoming negotiations for renewal of the
contract. Respondent answered that management would
consider the Union's request (Resp. Exh. 13, p. 10, min-
utes of regular monthly meeting of October 25, 1978).
At the next regular monthly meeting held between
Texaco and the Union, management officials advised the
Workmen's Committee as follows (Resp. Exh. 14, p. 13,
minutes of meeting of November 22, 1978):
Management advised the Union they were agree-
able to allowing the President of the local Union to
attend the Contract Negotiations this year. It should
be specifically understood that this request is limited
' At p. I, the heading alerts the reader that the contract covers all em-
ployees of the Amarillo plant except administrative. supervisory. clerical,
plant protection and technical employees.
The parties are described on p. 1,. as on the cover, as being Texaco Inc
and Local 340 of the International Union of Operating Engineers, AIL -
CIO.
4 All dates arc in 1980 unless otherwise specified
5 Other documents include the minutes of regular and special meetings
with management, and also plantwide grievances On the latter topic, a
step 2 grievance submitted by Workmen's Chairman Billy R. Sutton in
1979 was on Local 340's stationer) (Resp Exh. 8). Step 2 of the griev-
ance procedure states that the grievance may be appealed to the plant
manager by the grievant, individually or through representatives of Local
340 (Resp. Exh. 1, p 38) Sutton described the exhibit as a typical griev-
ance he would file. In October 1979, Chairman Sutton also requested
data on toxic substances on stationery bearing Local 340's letterhead
(Resp Exh. 9). Sutton testified that this document was to secure informa-
tion relative to1 a program l exaco ' ias establishing
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solely to the present Contract Negotiations and
nothing else. The Union stated they understood that
to be the case and they were appreciative of Man-
agement's consideration.
Although Respondent contends that Smith was noth-
ing more than an invited spectator (br., p. 3),6 Patrick H.
Lister, former supervisor of employee relations at the
Amarillo plant,7 testified that at some point before his
management tenure began at Amarillo, Respondent
agreed to allow a certain number of persons to attend
the negotiations. He was uncertain whether the limitation
of the number was based upon whether Texaco was
paying their regular wages during the time devoted to
contract negotiations. 8 As no issue was made over
Smith's attendance from the standpoint of his official ca-
pacity (such as could have occurred had the Workmen's
Committee substituted Smith for one of the regular mem-
bers, thereby keeping the number at four), I draw no
conclusion from the event. However, it seems clear that
Sutton, not Smith, spoke for Local 340 in these negotia-
tions. Such negotiations led to the January 1979-January
1981 contract (Resp. Exh. 1).
4. Local 340 adds groups
For years the Texaco employees were Local 340.
Chuck E. Gressett, an International Representative for
the Charging Party, testified that Local 340 eventually
expanded by adding groups of employees from Pan-Tex,
Diamond Shamrock, Ashland Chemical, and from some
employees of the city of Amarillo. Each group has its
own collective-bargaining agreement with its employer.
Although each group ratifies its contracts, Gressett testi-
fied that the contract is then normally presented to the
general membership meeting of all groups where either
the president or the recording-corresponding secretary,
upon the recommendation of the particular group, signs
the document. Employee Marvin McLemore testified
that about 6 to 9 years ago the Texaco group decided
that the president of Local 340 would no longer sign the
contract of the Texaco group; instead, the chairman of
the Workmen's Committee would sign. McLemore testi-
fied, without contradiction, that such has been the prac-
tice ever since.
There are five principal officers of Local 340 and they
are elected by the entire membership of the Local.
Historically, leadership of Local 340 came from the
Texaco group. This changed in 1979 upon the death of
Ben Smith, a Texaco employee and longtime president of
the Union. In the election following Smith's death, Pan-
Tex employee Joe Irvin won out over Sutton and
became president of Local 340.
e The implication, as expressed in counsel's argument at the hearing,
was that an official of Local 340 would be an "intruder" since the Work-
men's Committee handled all matters for Local 340.
' Lister testified that he transferred to the Amarillo plant on January 1,
1972, as assistant supervisor of employee relations, and that he was pro-
moted to supervisor of employee relations there on October 1, 1978.
Lister was succeeded by James Roger Steers on June 30, 1980.
8 Sutton testified that the committee members received their regular
rate of pay during contract negotiations, regular monthly meetings, and
similar matters.
5. Contract ratification
The bylaws of Local 340 require, in article VIII, sec-
tion 3(c), that a vote to accept or reject any employer
proposal or collective-bargaining agreement shall be taken
at a specially called group meeting (one called by either
the president of Local 340 or the chairman of the group,
with a minimum of 48 hours' notice) where the majority
of the total votes cast by the members present shall
govern (G.C. Exh. 2, p. 8).
Lister testified that he had never been served with a
copy of the Union's constitution or bylaws; that he con-
sidered he had an agreement with the Union whenever
the chairman of the Workmen's Committee signed it; and
that he had never concerned himself with whether the
Union obtained ratification (by the members) of the col-
lective-bargaining agreements. On cross-examination,
however, Lister admitted that he was aware that the ten-
tative agreement (Resp. Exh. 18) for the January 1979-
January 1981 contract (Resp. Exh. 1) contained the con-
dition "[t]entative agreement subject to ratification by
the Union membership within five calendar days" under
the signature line for Local 340 (Resp. Exh. 18, p. 10)
because his office had typed the document.9 Of course,
the final version of the contract, the red pamphlet (Resp.
Exh. 1), says nothing about ratification. To the extent,
Lister was referring to the final printed contract, he was
correct in saying he considers he has an agreement when
the chairman of the Workmen's Committee signs it.
However, that is a reference to the final, ratified agree-
ment. to
Moreover, the record contains other documentary evi-
dence, also prepared by Texaco, revealing that Respond-
ent was aware of the practice of the Workmen's Com-
mittee taking tentative agreements to the union member-
ship for ratification. Thus, the June 24, 1974, minutes
(Resp. Exh. 22) so reflect regarding a wage reopener. As
recorded in those minutes, "The Union advised that in a
special meeting the membership agreed to accept the
Company's proposal. The item was closed without fur-
ther discussion." R. C. Munger, who was chairman then,
signed the minutes on behalf of the Workmen's Commit-
tee. Munger, a member of Local 340 for most of his 27.5
years' employment with Texaco, also testified that the
procedure was for tentative contracts to be ratified by
the membership, and that when he was chairman (in the
mid-1970s), he communicated the results of such ratifica-
tion vote to Texaco's management, including Lister.
Sutton confirmed that such matters are taken to the
membership for ratification.
I rejected the bulk (Resp. Exh. 17A) of Texaco's min-
utes of the bargaining sessions beginning November 27,
1978, for a renewal contract (and which ultimately re-
sulted in the red booklet, January 1979-January 1981) on
the basis it would unnecessarily burden the record, but
received the first and last pages as (Resp. Exh. 17). A
D The record reflects that management types all documents, such as
minutes of meetings and contracts. The parties sign the documents after
reviewing them for accuracy.
lO The tentative agreement (Resp. Exh. 18, p. 10) was signed on Janu-
ary 26, 1979, whereas the final agreement of January 1979-January 1981
was signed February 2, 1979 (Resp. Exh. I, p. 43).
1136
TEXACO INC.
complete copy of these minutes appears in the rejected
exhibit file. Because of the particular relevance of the re-
jected exhibit to the issue of ratification, I reverse my
ruling, and now receive the bulk of the 20 minutes
(Resp. Exh. 17A) into evidence. 1" Brown & Root, Inc.,
246 NLRB 33, fin. 3 (1979).
These minutes (Resp. Exhs. 17 and 17A) cover a series
of bargaining sessions. At the end of the session of Janu-
ary 13. 1979, the following statement is recorded (Resp.
Exh. 17A, p. 45):
The Union advised Management they would study
the Company's latest offer and review it with their
membership at a special meeting Monday night,
January 15, 1979. Subsequent to that meeting they
would advise Management of their decision regard-
ing its offer.
At the session of January 18, 1979, the minutes record
that the Union pointed out that "their membership was
not willing to give anything on any of the Company
items which the Company had presented in these negoti-
ations." (p. 50)
At the last session of January 24, 1979, a postscript
(apparently of January 26) recorded that the parties had
reached a tentative agreement, and that such agreement,
"forming the basis for a new Labor Agreement," was
signed on January 26, 1979 (p. 56, an obvious reference
to Resp. Exh 18 which has the ratification condition
typed under Sutton's signature).
Article XXIV, 11(e), of the International's constitution
(Resp. Exh. 25), under the heading "Contracts," reads as
fol lows:
Proposed collective bargaining agreements and
modifications thereof may be negotiated for Local
Unions by the Business Manager, by a committee,
by the Local Executive Board, or by the Business
Representative. Such agreements and modifications
thereof shall not be executed until they have been
presented at the next membership meeting following
the negotiation of the proposed agreement and have
been approved by the membership affected, pro-
vided, however, that a Local Union may delegate
to its L.ocal Executive Board or to its bargaining
committee authority to approve such agreements
and modifications without such submission of the
same to vote of its membership.
International Representative Gressett testified that to
his knowledge Local 340 has never delegated authority
to the Workmen's Committee to approve contracts or
modifications without a vote of the affected "member-
ship." 2 The record does not indicate otherwise. Argu-
ably, the quoted provision does not contemplate the ter-
mination of a contract.
In light of the foregoing, I find that ratification by the
Texaco unit was an established past practice and that Re-
spondent's officials were well aware of such practice.
1I For convenielnce, I shall leave the complete document in the folder
marked for rejected exhibits.
12 Presumably a reference to the Texaco group and not the whole
memhership of Local 340
The petition the employees signed on August 15 to
revoke dues checkoff and withdrasw from the Union, dis-
cussed later herein, does not constitute ratification be-
cause it does not address the issue of terminating the col-
lective-bargaining agreement.
C. Dissatisfaction of the Texaco Group
Chief among the changes which caused dissatisfaction
among the Texaco employees was an increase in mem-
bership dues. This was followed closely by unhappiness
over the employment of a full-time business agent,
Lowell Cranfill. For many years all union members had
paid monthly dues of $7.50, but in the spring of 1979 the
dues schedule was restructured on a prorated basis, and
the dues of Texaco employees (whose wages were
higher than those of other members) were raised to $13.
It was the feeling of the Texaco group that the dues
were increased to offset the $24,000 annual salary of
Business Agent Cranfill. Texaco Group Chairman Billy
Sutton testified: "That was the primary reason for dissen-
sion. It was having to pay extra for something we didn't
want."
In the period of July to early August, Sutton spoke
twice with Steers about this matter. He informed Steers
of the discontent of the Texaco group and inquired
whether Texaco would deal with the Workmen's Com-
mittee, independent of the Union. Steers responded that
Texaco had a binding agreement with Local 340. Sutton
requested Steers to obtain a copy of the work practices
agreement Texaco had with its nonunion employees at its
Louisiana refinery.' 3 Sutton said he wanted the agree-
ment to ascertain how Texaco would treat the Amarillo
employees if they were nonunion. Steers said he would
obtain a copy for him. Sutton asked what was necessary
to get out of the dues checkoff. Together they inspected
the contract, and Steers told him that an authorization
could be revoked on the anniversary date of the checkoff
authorization or the termination of the contract, which-
ever came first.
Steers conferred with the plant manager and then with
several Texaco officials in Houston, including labor at-
torneys. He also obtained a copy of the Louisiana agree-
ment (G.C. Exh. 3), had 25 copies made and distributed
to the foremen, and gave Sutton a copy around August
12. Steers credibly testified that he distributed copies to
Texaco's foremen in accordance with a standard practice
of keeping the supervisors at least as informed as the
hourly employees on matters such as this. Thereafter,
copies of the Louisiana agreement were visible and avail-
able for employees to inspect. The copies were not made
from Sutton's copy. In early August, Foreman John
Remlinger asked employee Aaron Braxton if he would
like to look at the copy which Remlinger had on his
desk. Braxton replied in the affirmative and looked
through it. Remlinger then asked Braxton what he
thought of it. Braxton responded that it had some good
provisions and some undesirable ones.
13 Steers testified that of Texaco's II refineries, the Louisiana plant is
its only nonunion facility.
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 12, Sutton told Steers that the committee
was going to consult Tom Upchurch, Local 340's attor-
ney in Amarillo. Sutton did meet briefly with Upchurch
on August 13 and left rather dissatisfied. Sutton under-
stood from the attorney that the Texaco group could not
break away from Local 340. The following day, August
14, Gressett, who was in Amarillo, called Sutton. Sutton
testified that the two met that day and conferred for
some 2 hours about the problems.
Gressett testified that in early August 1980 the Texaco
group voted to terminate the services of Cranfill. 14 Ap-
parently the Local's executive board temporarily blocked
this action, although Cranfill's services eventually were
terminated at the end of October 1980. In the meantime,
however, the events transpired which gave rise to this
proceeding.
Although Gressett learned from Sutton and others of
the Texaco group's discontent when Gressett visited
Amarillo around the week of August 11, he nevertheless
urged Sutton to keep Business Agent Cranfill. Sutton
told Gressett that a lot of employees wanted to get out
of the Union and that many did not feel they needed a
business agent at all.
D. The Events of August 15-16
1. The August 15 petition to revoke checkoff
Steers testified that around 8:30 on the morning of
Friday, August 15, he held a telephonic "brainstorming"
conference with several officials of Texaco in Houston.
The group concluded that if the employees wanted out
of the checkoff, the best method would be to cancel the
contract. One of the Houston officials composed the lan-
guage for the memorandum canceling the contract.
There is some dispute between Sutton and Steers as to
what occurred the morning of Friday, August 15. Ac-
cording to the former, Steers came to him at the fire-
men's shack where Sutton was working and told Sutton
that he had received information from Houston that the
International was taking action to remove Sutton as
chairman of the committee and to appoint a replace-
ment.15 Sutton, assuming that the replacement would be
Cranfill, asked Steers who in Houston had told him this.
They discussed other things, however, and Steers never
answered the question. Steers said that, if a replacement
were appointed, Texaco would have to deal with that
person rather than Sutton."6 He also told Sutton that if
14 Gressett testified that at the time about 400 employees comprised
Local 340. Sutton testified that there were 123 employees in the Texaco
group. Although Smith was still president at the time the membership
voted in favor of hiring a business agent, he died before Cranfill was
hired in October 1979.
'5 Sutton places the conversation around 8 or 9 that morning. Accord-
ing to Steers, he first delivered to Sutton, around 10 a.m., a copy of the
proposed memorandum of agreement to terminate the contract. The
exact sequence of delivery seems immaterial. The memorandum is dis-
cussed in the next section. Sutton credibly testified that Don Watts, su-
pervisor of maintenance, and then the acting plant manager, brought the
memorandum to him in the firemen's shack at noon as Sutton and some
others were eating lunch. On cross-examination he was positive that it
was Watts, not Steers, who brought him the proposed memorandum of
agreement.
16 Steers denies that he said the International was taking steps to re-
place Sutton, and asserts that he told Sutton that his Houston advisors
he wanted to talk over the matter, Respondent would
call for Sutton's relief from the next shift to come in
early.
After Sutton spoke with some of the other unit em-
ployees, he called Steers and requested that his relief be
called in. When the relief person, Tim Edwards, arrived,
Sutton discussed the situation with him, for Edwards
was an officer (treasurer) of Local 340. They decided
that Sutton should get some others to help canvass the
other employees in the unit who were at work. Sutton
secured the assistance of the other members of the
Workmen's Committee, Tim Forrest, Billy McBee, and
Terry Knox.
The committee decided that they should take action to
get out of the Union. Sutton therefore telephoned Steers
and asked him what they would need to do to get out of
the Union. Steers said they would need a list of names to
present to the Labor Board for an election. Sutton asked
him to have the list typed with a statement to the effect
that they wanted out of the Union. Sutton testified that
management normally typed all matters pertaining to
labor relations, including items requested by the Union
to be typed. Steers had the petition typed. At the top of
each lined page, dated August 15, the following state-
ment appears (G.C. Exh. 4; Resp. Exh. 23):' 7
We, the undersigned, hereby advise TEXACO Inc.,
Amarillo Plant, of our desire to withdraw from the
Union effective immediately and hereby cancel any
checkoff authorization.
Two columns of signature lines were typed on the letter-
size pages, 16 lines to a column.
said that they could make a legal agreement as long as Sutton was the
chairman. Because of the animosity Sutton had told Steers existed be-
tween the Texaco employees and Local 340, Steers expressed the con-
cern that the "International Union" could step in and remove Sutton
from office or withdraw his authority to do business with Texaco. Steers tes-
tified more persuasively, and more specifically, on this point than did
Sutton, and I therefore credit Steers. However, it is obvious that Steers
and his "principals" in Houston clearly recognized that the passage of
time, and past practice, had not transferred the certification of exclusive
bargaining representative from Local 340 to the Workmen's Committee.
Indeed, Texaco's words and conduct reveal that the Company was
keenly aware that the Workmen's Committee held only that authority
delegated to it by Local 340. Thus, Steers admits at several points in his
testimony that on Friday, August 15, he told Sutton that they could make
a deal only as long as Sutton was chairman, or the designated bargaining
agent, for once the "International" stepped in, whether by telephone or
telegram, and removed Sutton's authority, Texaco would be powerless to
deal with him as the bargaining agent and could not recognize him as the
bargaining agent.
Gressett testified that he checked with his Houston region and with the
International in Washington and learned that there was no talk of replac-
ing Sutton. Indeed, Gressett testified that he did not have the authority to
remove Sutton. I find that Sutton, alarmed by the possibility of replace-
ment since Gressett was already in Amarillo, overstated the matter by ex-
aggerating the danger as he solicited the various employees that day to
sign the petition to cancel the checkoff and withdraw from the Union.
"? According to Steers, Sutton dictated the precise language which ap-
pears on the exhibit. I do not credit Steers. As a witness, Sutton tended
to generalize more than Steers, and I find it very unlikely that he dictated
the specific language. However, they had spoken on more than one occa-
sion about getting out of the Union. Therefore, the fact that it was Steers
who dictated the actual sentence is of no significance, for he merely in-
corporated the dual concept Sutton already had described.
1138
TEXACO INC.
Sutton testified that he received the pages that same
day, apparently before noon. He and Knox took some
sheets and went in one direction; Forrest and McBee
took some pages and went in another; and the two
groups circulated among the workers and, according to
Sutton, spoke to about 70 employees.'8 He testified that
70 was the maximum who could be contacted on any
one shift. At hearing Sutton admitted that he said noth-
ing to the employees about the contract being canceled
when he obtained their signatures on the petition. When
asked why he did not have a meeting with the member-
ship to discuss the petition and the memorandum termi-
nating the collective-bargaining agreement, Sutton testi-
fied that he and the other members of the committee did
not think of that. In this connection, he testified that the
four of them had contacted "a good number" of the unit
and had obtained their general feeling. In that sense,
Sutton agreed on cross-examination it might be said that
a meeting in fact was held.
Sutton testified that supervisors observed them confer-
ring with the employees at work, but did not interfere.
Indeed, Steers testified that he told the supervisors on
duty at the time not to interfere because that action
might be viewed as an unfair labor practice. Steers grant-
ed Sutton the afternoon off with pay to confer with em-
ployees pursuant to contract article XIII,E, which reads
(Resp. Exh. 1, p. 37):
Employes acting as representatives of the Union
may, with the approval of the Plant Manager, be
permitted to confer during working hours with
other employes for the purpose of promoting man-
agement-employe relationships.
On the other hand, paragraph H, also on page 37 of the
red contract, reads: "Solicitation of employes for any
employe groups and collection of dues shall not be done
during working hours."
Steers testified that, although Respondent enforces its
plant rule that employees are to remain in their assigned
work areas, and are not to read nonwork material during
worktime, Texaco did not view the petition as unauthor-
ized reading material. Although it was not unusual for
Sutton, as chairman, to have short conferences on the
job with other employees, the only other time he took
off an entire shift with pay was when he would have had
to work a night shift before a contract negotiating ses-
sion the next day.
Employee Braxton testified, without contradiction,
that about mid-August he was informed that some people
wanted to see him in the foreman's office. On arriving at
Foreman Remlinger's office, Braxton found Sutton and
Knox there with a copy of the petition. Foreman Rem-
linger, present when Braxton arrived, turned and went
into his individual office which adjoined the department
office area. Sutton then handed the signed petition to
Braxton. After inspecting the petition, Braxton, a stew-
'8 Steers testified that at a meeting later that day Sutton said he had 70
signatures. Leonard C. Reagin, assistant supervisor of employee relations,
testified that he counted 70 names as of August 18. G.C. Exh. 4 contains
69 signatures. It is undisputed that a few employees signed over the next
few days. Resp. Exh. 23, consisting of four sheets, contains 74 names.
The different figures do not appear to be significant.
ard for Local 340, handed it back to Sutton with the
remark that he would not sign anything like that, for it
was union business and they were on the job. Braxton as-
serted that this was a matter which should not be con-
ducted inside the plant. Sutton replied that that was
okay, that they had enough signatures without his
anyhow. Braxton testified that subsequent to this, Local
340's president, Irvin, called a meeting to discuss the
matter of the petition, but fewer than seven members at-
tended.
Because the machine shop employees pointed out that
the Louisiana plant contracted out its maintenance work,
and the committee had no answers for questions on this
and other points, Sutton called Steers after lunch and ar-
ranged for the committee to meet with Steers and other
management representatives at 2 p.m. According to
Steers, whom I credit on this point, Sutton asked various
questions about how seniority and other matters would
be handled if they dropped their union protection. Steers
responded that Texaco could make no guarantees or
promises' 9 and that the men would have to use their
best judgment. Sutton said the employees would want an
agreement similar to the one they then enjoyed. Steers, I
find, said he could make no guarantees, but "that" (an
apparent reference to the contract) had worked well and
he saw "no reason for change."
Sutton said that although they had quite a few signa-
tures, they wanted to see the shift coming on at 3:30 p.m.
The parties then arranged to meet at 4 o'clock that after-
noon.
After circulating the petition among the second-shift
employees, the committee met again with Steers and the
management representatives. As noted, Steers and
Reagin testified that the petition then had 70 signa-
tures.2 0 The committee expressed some of the same con-
cerns about how they would be treated in a nonunion
plant. Steers responded that he could not answer those
questions, and the employees would have to use their
own judgment. Sutton told them that the committee had
arranged to see another attorney. Steers said that was
good. The parties arranged to meet the following day,
August 16, at 4 p.m. Before leaving, Sutton inquired
when the dues could be stopped if they signed the agree-
ment terminating the contract, and Steers told him "im-
mediately." He also asked what Texaco would do with
the petition, and Steers said he was not sure, but prob-
ably "we would be on a plane to the NLRB in Fort
Worth with them."
Sutton was not present when the rest of the committee
met with the different attorney, but they reported to
Sutton that the attorney said they were going in the
right direction if they wanted out of the Union. Based on
that assurance, the committee decided to sign the agree-
ment terminating the contract.
19 Sutton confirmed this in his own testimony.
'o Sutton testified that in answer to Steers' question, he told them it
contained 69 signatures.
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The August 16 agreement terminating the
contract
The parties (Texaco and Workmen's Committee) met
again on Saturday, August 16, about 4:15 p.m. After
some hesitation and a caucus by the committee, Sutton
and Forrest signed the Memorandum of Agreement
(G.C. Exh. 5). Sutton also signed the minutes of that spe-
cial meeting, and a copy of the agreement is attached to
the one page of minutes (Resp. Exh. 7). The minutes
read as follows:
This was a special meeting held at 4:15 P.M. at the
request of the Union on the above date to discuss
the following:
The Union stated that as they had previously indi-
cated to Management the employes are dissatisfied
with the International Union of Operating Engi-
neers Local 340. The Committee presented petitions
signed by a majority of employes at Amarillo Plant,
including the workmen's committee, to withdraw
from the Union and cancel check-off authorizations.
Both parties subsequently executed the Memoran-
dum of Agreement, a copy of which is attached
cancelling the Labor Agreement.
The Union emphasized that this action was taken
because of their dissatisfaction with the Internation-
al and Local Union of Operating Engineers.
Meeting adjourned at 5:00 P.M.
The memorandum reads in full as follows (G.C. Exh.
5; attached sheet to Resp. Exh. 7):
Memorandum of Agreement
It is hereby agreed by and between Texaco Inc.,
Amarillo Plant, and International Union of Operat-
ing Engineers (AFL-CIO), Local No. 340, that the
Labor Agreement dated February 2, 1979, and ef-
fective from January 26, 1979, through January 7,
1981, and which Agreement was extended through
midnight January 7, 1982, pursuant to a Memoran-
dum of Agreement dated April 9, 1980, is hereby
terminated by mutual agreement of the parties.
Dated this 16th day of August, 1980.
INTERNATIONAL UNION OF OPERATING ENGINEERS
(AFL-CIO) LOCAL NO. 340 21
TEXACO INC., AMARILLO PLANT
/s/ Billy R. Sutton /s/ E. H. Enloe/DHW
/s/ Tim C. Forrest
Steers testified that following execution of the forego-
ing memorandum, Texaco ceased deducting dues for
Local 340. On Tuesday, August 19, Steers flew to Fort
Worth where he met Attorney James D. Garrison of
Texaco's legal department. They proceeded to the
Board's Regional Office where they filed the petition in
Case 16-RM-612 (Resp. Exh. II). By letter dated
at Local No. 340 was added when Sutton came in later to sign the
minutes.
August 22, the Regional Director notified the parties
(Resp. Exh. 12):
This is to advise that we are unable to proceed with
the above case at this time because of charges filed
in Case No. 15-CA-9326 which case is currently
being investigated. You will be advised when this
case becomes unblocked.
3. More employees sign the petition
Sutton testified that he was off work the next few
days, but he understood that it was Tim Edwards, the
then treasurer of Local 340, who posted copies of the
signed petition and the Memorandum of Agreement on a
bulletin board in the control room. Sutton testified that
the Union's bulletin board is located in the clockroom
where employees enter the plant and change clothes.
Steers testified that about mid-morning on Monday,
August 18, Sutton telephoned him and said that someone
had posted the petition in the control room and that it
had been signed by several more employees. Sutton re-
quested that someone be sent to retrieve the petition. 2 2
During that same morning, Louis Tupin came to Steers'
office and said that he wanted to sign the petition, and
thereupon signed the original which Steers had on his
desk. Reagin, who witnessed the event, gave confirming
testimony.2 3
That afternoon Steers sent Reagin to secure the peti-
tion from the control room.
E. The Allegations of Interference, Restraint, and
Coercion
1. Leonard C. Reagin
a. Facts
Complaint paragraph 7(a) alleges that on or about
August 18, Reagin "orally solicited employees to sign an
anti-union petition."
Assigned to the Amarillo plant on June 1, Reagin
worked there only intermittently before he moved to
Amarillo from Phoenix on July 25. Reagin testified that
on Monday, August 18, Steers directed him to ascertain
if a petition was in fact posted in the control room and,
if so, to bring it back. Because of the many questions
being posed by employees to supervision on the subject,
Steers instructed Reagin to answer these questions on the
trip. In view of the expressed desires of other employees
to sign the petition, and even though Respondent was
aware that the 70 signatures were sufficient, Steers,
Reagin, and Acting Plant Manager Don Watts decided
that Reagin would carry the original petition with him in
case anyone requested to sign it. Reagin was cautioned
not to solicit any signatures.
Carrying the original petition in a folder, Reagin made
two stops on his way to the control room. He first
stopped at the machine shop where Johnny Alvarez
asked to sign, and he did so after Reagin produced the
22 The call is consistent with Sutton's testimony that he was off work
that day.
23 Tupin was not called as a witness.
1140
TEXACO INC
original. This apparently was during the time several em-
ployees there were asking Reagin questions about the sit-
uation. He told them, in brief, that Texaco had no plans
for changing its operation in the foreseeable future. To a
question about checkoff, Reagin made it clear that since
the labor contract had been canceled on August 16, the
checkoff provision also was canceled since it was part of
the contract and that Texaco would no longer be with-
holding union dues. As to other questions, Reagin re-
sponded that he could not answer other than to say, as
noted, that Texaco had no plans to change.
From the machine shop, where he stayed 30 to 45
minutes, Reagin proceeded next door to the lab where
he stayed another 30 to 45 minutes. He testified that
many of the questions dealt with the employees' relation-
ship with the Union, and he made no answer other than
to refer them to other sources. At the lab, W. D. "Dub"
Jones requested to sign. Because Jones appeared hesitant
in his request, Reagin handed the petition to another lab
employee who had signed already, and that employee
gave it to Jones who then signed.
From the lab, Reagin drove a short distance to the
main control room where he stayed only about 10 to 20
minutes. In the control room, Al Trevino and Pancho
Rubalcaba also signed the petition Reagin was carry-
ing.24
Regin testified that he left Steers' office about 2:30
p.m. and returned around 4 p.m.
Called by the General Counsel, employee A. F. Pyeatt
testified that he entered the control room the afternoon
of Monday, August 18, to begin the second shift at 3:30
p.m. He observed that Reagin was there with a folder
and that pipefitters Al Trevino and Pancho Rubalcaba,
who had gotten a drink of water at the fountain, had
started out when Reagin said something to them which
Pyeatt did not hear. He then heard Reagin tell them: "I
can't promise you that it will be any better or any worse,
but the company seems to be satisfied with the agree-
ment that we now have. And the job conditions."
As Pyeatt walked toward the group, Reagin opened
the folder and Pyeatt recognized the petition sheets.
Reagin said:
I'm making this available to you to sign it. This
does away with the contract-the Union. And just
as soon as we have 51 percent of the signatures on
here, that does away with the Union.
Pyeatt protested that such was not so, that it was just
a list of people who wanted to drop their checkoff. He
denied that it canceled the contract, saying that the
Workmen's Committee did not have the authority under
the constitution and bylaws to do that. Reagin, accord-
ing to Pyeatt, responded, "Well, as soon as we have 51
percent that will do away with the contract." Pyeatt said
that was not so and that he did not appreciate Reagin
carrying the petition around getting people to sign it.
Reagin said he would check into it and get back with
him later, and he left. Pyeatt said Reagin never contact-
ed him thereafter.
24 Their signatures appear on the third page or the petition (Resp. Exh.
23)
Marvin McLemore also worked the control room the
second shift on the day (August 18) Rubalcaba and Tre-
vino signed the petition Reagin was carrying. He walked
into the room just as the two finished signing the list.
According to McLemore, Reagin then said that some
employees had complained they had not been able to
sign, and they demanded to be able to sign. So, Reagin
allegedly continued, Steers and Reagin had gone around
the plant making the list available for the ones who had
not had the opportunity to sign. But all that was needed
was 51 percent, and they already had that many who
wished to cancel the contract.
McLemore testified that A. F. Pyeatt told Reagin to
stop spreading false rumors, for the list said nothing
about canceling the contract and that it related only to
stopping the dues checkoff. Reagin said he would check
with Steers and get back with Pyeatt.
Reagin testified that in the control room that afternoon
all four employees, McLemore, Pyeatt, Rubalcaba, and
Trevino, gathered around him when he arrived there and
began to ask (unspecified) questions.2 5 Rubalcaba and
Trevino said they had not had the opportunity to sign
the petition and desired to do so. Reagin said he was not
soliciting their signatures, but that he had the petition
with him and they could sign it if they wished. They
signed.
Reagin specifically denied initiating the conversation,
denied saying that he and Steers were going around
making the list available, and denied saying anything
about whether conditions would be better or worse. He
testified that on being asked here, as at the other two
stops, what would happen to pay and working condi-
tions, he made it clear that questions pertained to one of
those matters management can say very little about.
Reagin denied that he said when he or we have 51
percent, that such will do away with the Union. Indeed,
as Reagin credibly testified, he made no statement what-
soever about percentage because the list already con-
tained signatures of a majority (i.e., before he left Steers'
office), and there was no reason for him to make any ref-
erence to percentage.
Reagin concedes that Pyeatt became upset when he
said the contract had been canceled on the previous Sat-
urday. Pyeatt said Reagin should not be spreading such
nasty rumors. McLemore tapped Pyeatt on the shoulder
and walked him 8 to 10 feet over to a bulletin board
where a copy of the Memorandum of Agreement (G.C.
Exh. 4, apparently, rather than Resp. Exh. 7 attachment)
had been thumbtacked to the board. As Pyeatt read it,
Reagin remarked, "Gentlemen, I'll let that piece of infor-
mation speak for itself." Reagin then returned to the
main office. 2 6
25 Although McLemore and Pyeat testified. none of the parties called
Rubalcaba or Trevino as a witness
26 Reagin's testimony suggests that he returned without removing the
petition This is a puzzling conclusion to his trip. fior his express purpose
was to retrieve the petition Nesertheless. Steers confirmed that Reagin
did not remove the petition
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Conclusion-dismiss paragraph 7(a)
Reagin's version is plausible and consistent, and I have
credited his denial of a reference to 51 percent. More-
over, it seems unlikely that he would have said that he
and Steers were going around making the list available
when only he was making a trip-and his trip, while it
had two stops before the control room, did not cover the
entire plant. Overall, I credit Reagin.2 7
This is not to say that I credit Reagin totally, or dis-
credit McLemore and Pyeatt completely. However, it
appears that the events occurred substantially as de-
scribed by Reagin. Accordingly, I shall dismiss com-
plaint paragraph 7(a).
2. Night Foreman Charles Carver
a. Facts
Complaint paragraph 7(b) alleges that on or about
August 20, Night Foreman Charles Carver "orally solic-
ited an employee to sign an anti-union petition."
Paragraph 7(c) alleges that on the same date, Carver
"orally interrogated an employee as to his union mem-
bership and activities, and impliedly promised wage in-
creases if the Amarillo, Texas facility became non-
union."
In support of these allegations, the General Counsel
offered the testimony of Mitzi Vanderbush. A steelman's
helper at the time of hearing, during the events in issue
Vanderbush was a coke driller. Her days off work had
extended through August 18, and she returned to work
on Tuesday, August 19. Her supervisors were Charles
Carver and Bill Leonard.
In going to work on Wednesday, August 20, for the
evening shift, Vanderbush entered the control room and
went to the water fountain for a drink. According to
Vanderbush, pinned to the bulletin board above the foun-
tain was a copy of the petition. 28 Carver walked up to
her and, handing her a pen, asked if she wanted to use it.
She replied in the negative and turned to walk out. He
asked, "Don't you even want to stay and argue about
it?" Continuing her departure, Vanderbush again replied
no.
About 2 hours later in the firemen's house, the two
had a second conversation. On this occasion Vanderbush
was washing her hands. Another employee, whose iden-
tity Vanderbush could not recall at the hearing, was
present. Carver approached her again and they began to
talk generally. Carver, at some point, asked her why she
did not want to sign the petition. She replied because she
27 I do not overlook Steers' testimony, given during rebuttal when
called by counsel for the General Counsel, that Steers did conduct meet-
ings with the foremen at 8 a.m., Monday, August 18, to bring them up to
date on events. A foreman told Steers that a large number of employees
were not aware that the contract had been canceled. Apparently on his
way back to his own office, Steers stopped at the fabrication shop and
advised unit employees that the collective-bargaining agreement had been
terminated.
a8 The record is rather puzzling about the presence of petition sheets
there as of the afternoon of August 20. We know from Steers that Reagin
did not remove the sheets on August 18. Yet, Reagin went to the control
room for that express purpose. On August 19, Steers flew to Fort Worth
with the original petition which was filed with 16-RM-612. It therefore
seems that the sheets (or sheet) were still pinned there on August 20.
was not sure about it. He allegedly then asked whether
she knew the benefits of being nonunion. She had
thought about it, she replied. Carver stated that the plant
probably could get more pay and not pay union dues like
the Louisiana plant. Vanderbush responded, "I'm not a
scab." Carver then left.
Vanderbush testified that the reason she recalled the
second conversation so well was that she thought Carver
should not be saying this to her, and after Carver left she
recorded the key words in a notebook. The notebook
was not produced because, as explained by Vanderbush,
she discarded the notes she had taken soon after she gave
her pretrial affidavit. 2 9
Carver's testimony is simple. He was not at work on
August 20 and 21 because those were his days off that
week; he checked the schedule for that week before
hearing to verify the fact;30 and he denies Vanderbush's
assertions. "It just never happened."
b. Conclusion-dismiss paragraphs 7(b) and 7(c)
I credit Carver. While his testimony would have been
more persuasive had business records/work schedules
been introduced corroborating his testimony of being off
work the evening of August 20, he testified with accept-
able persuasion as to this point and regarding his denials
of Vanderbush's accusations.
Vanderbush's version is unpersuasive. I have found
that she never made any notes in a notebook which she
later discarded. Accordingly, I shall dismiss complaint
paragraphs 7(b) and (c).
3. Night Foreman Bill Allen Leonard
a. Facts
Complaint paragraph 7(d) alleges that on or about
August 21, Night Foreman Bill A. Leonard "orally inter-
rogated and impliedly promised benefits to an employee
if the employee would withdraw support from the
Union." Employee Vanderbush also testified in support
of this allegation.
According to Vanderbush, on the evening shift (3:30
p.m. to 11:30 p.m.) of Thursday, August 21, she had a
conversation with Leonard in the firehouse. Another em-
ployee was present, but Vanderbush could not recall his
identity at the hearing. While she did not think she
brought up the union subject, the matter did arise and
Leonard asked why she would not want to go nonunion.
She asked why she should. He responded that in his
opinion Texaco would like to make an example of the
Amarillo plant by providing more pay as at the Louisi-
ana plant. She did not reply, and Leonard left.31
29 Vanderbush did not testify persuasively on this point, and I do not
credit her story that she entered notes in a notebook which she later dis-
carded. Moreover, as it was a notebook in which she assertedly recorded
her notes, it seems more likely than not that she would have preserved
the original as opposed to how she may have handled notes made on
loose sheets of paper.
so Respondent did not offer the schedule, and neither the General
Counsel nor Charging Party moved for its production.
Si As with the Foreman Carver situation, Vanderbush supposedly re-
corded this conversation in her notebook because it was a "serious"
matter.
1142
TEXACO INC.
Leonard was off work and out of the city from
August 15 through 19, and he returned to work the eve-
ning of Wednesday, August 20. He testified that around
7 p.m. on August 21 he was in the control room when
Vanderbush entered, walked up to him and said, "He
can't do this. It's illegal." Leonard asked what she was
talking about. She answered that if he did not know, she
was not going to tell him. He said he did not know. Van-
derbush stated, "Well, Lee Reagin. He can't do that."
"What?" Leonard asked. "He passed the petition around
in the plant. I also heard that Roger Steers had done
this," she replied.
Leonard stated that he did not believe it, and asserted
that he believed they were smarter than to pull some-
thing like that.3 2 He testified that Vanderbush was angry
and upset and that there were several employees in the
vicinity, including Terry Knox, a member of the Work-
men's Committee, who was close enough to hear. Knox
did not testify. Leonard specifically denied each of the
statements attributed to him by Vanderbush.
b. Conclusion-dismiss paragraph 7(d)
I credit Leonard over Vanderbush. He testified in a
persuasive fashion and with specificity. Vanderbush was
rather vague on everything but the words she attributed
to Leonard. I shall dismiss paragraph 7(d).
4. Operating Foreman Sam Nelson
a. Facts
Complaint paragraph 7(e) alleges that on or about
August 27, Operating Foreman Sam Nelson "orally
promised a benefit to employees if they voted to go non-
union."
Controlman Marvin McLemore testified that in ap-
proximately the week of August 25 to 29, Nelson ap-
proached him at his desk in the control room. On
coming up to the desk, Nelson told McLemore that in
his personal opinion Texaco would give the employees a
raise if they voted to go nonunion. He further said that
the employees at the Louisiana plant saw no need for a
union and were very happy with the (nonunion) agree-
ment they had. McLemore just laughed and started to
walk away, and Nelson left. Just the two were present.
After testifying that nothing further was said, McLe-
more, on cross-examination, admittedly added to the ver-
sion in his affidavit by saying that, after he laughed,
Nelson said the Louisiana employees were so satisfied
that they jumped on a union organizer. Later that same
August day, Nelson returned and stated that the Louisi-
ana employees were satisfied at being nonunion. McLe-
more testified that on that day, several copies of the
Louisiana plant agreement had been left on the desk in
the control room, apparently for employees to read.
Finally, at the hearing Respondent's counsel told
McLemore that Nelson had categorically denied the alle-
gation during the Board's investigation of this case.
McLemore testified that he was surprised, for when the
3' A 26-year employee of Texaco, Leonard, had held a prominent po-
sition on the Workmen's Committee before his promotion to relief fore-
man 7 years ago.
list with the supervisors' names which had been turned
in was posted (apparently a reference to the complaint
which issued October 1), McLemore told Nelson it was
he who had reported the incident and not a different em-
ployee Nelson suspected. Nelson responded that he had
simply expressed his own personal opinion, not that of
anyone in management, that Texaco would give an im-
mediate pay raise if the Amarillo employees voted to go
nonunion.
It appears that Nelson died about 3 to 4 months before
the instant hearing around February 1980.33
Steers testified that he and Respondent's counsel were
present when the investigating Board agent interviewed
Nelson. He heard the agent ask Nelson whether he had
expressed his personal feeling to an unnamed employee
that if he voted nonunion, he would get a raise in 30
days. Nelson denied the allegation.3 4
b. Conclusion-dismiss paragraph 7(e)
McLemore's testimony presents a troubling issue.
While he testified with some persuasion regarding the
postcomplaint conversation with Nelson, the context of
the main portion of his testimony seems to lack the ancil-
lary details which should accompany evidence of this
nature. Thus, is Nelson's alleged conduct compatible
with other conduct by him? How frequently did Nelson
supervise McLemore? How was their working relation-
ship-friendly, hostile, strictly "work only" verbal ex-
changes? Was it usual or unusual for Nelson to have a
conversation with McLemore at the desk in the control
room?
Because the record does not establish a compatibility
context as a basis for weighing McLemore's testimony, I
accord no weight to such evidence, and I shall dismiss
complaint paragraph 7(e).
5. Aiding and assisting circulation of the petition
a. Facts
Complaint paragraph 7(f) reads:
On or about August 18, 19, 20, and 21, Respondent,
through its supervisors Roger Steers, Leonard
Reagin, Sam Nelson, Charles Carver, and Bill
Leonard, sponsored, aided and assisted the circula-
3s The transcript records McLemore as answering the question of
when Nelson died, "I was there about three or four months." In my
notes I recorded the answer as, "About three or four months ago." Re-
spondent objected to McLemore's testimony about any conversation with
Nelson on the basis of the Texas Dead Man statute, but I overruled the
objection. The Board long ago ruled that the Texas Dead Man statute
does not bar evidence adduced under Sec. 10(b) of the Act. Quarles Man-
ufacruring Company, 83 NLRB 697, 699, fn. 8 (1949). However, such evi-
dence is to be received with caution, and it will be closely scrutinized in
proceedings before the Board for the purpose of determining what
weight it will be given in light of its consistency and compatibility with
the balance of the credited evidence in the record. Quarles. supra, West
Texas Utilities Company. Inc., 94 NLRB 1638, 1639 (1951).
3' The General Counsel initially lodged but then withdrew her objec-
tion of hearsay. Such withdrawal seems in accord with the position de-
scribed in McCormick, Evidence, 2d ed., pp. 143-144 (1972), that "any
writings of the deceased or evidence of oral statements made by him,
bearing on the controversy" should be received even though both ordi-
narily would be excluded as hearsay.
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of a petition among employees in the unit de-
scribed below in paragraph 8, which petition called
for withdrawal from the Union and cancelation of
dues checkoff authorizations.
The essential facts have been described in relation to
other allegations. As I have dismissed the complaint
paragraphs relating to Reagin, Nelson, Carver, and
Leonard, the facts are essentially those admitted by
Steers and Reagin, as supplemented by the testimony of
Sutton and Braxton. 3 5
b. Conclusion-paragragh 7() meritorious
Clearly Respondent did not maintain a neutral position
here, and it obviously went further than simply answer-
ing inquiries of employees. Texaco cannot rely upon arti-
cle XIII,E, of the red booklet contract. That paragraph,
it will be recalled, relates to approved conferences
during working hours between employee representatives
of the Union and other employees "for the purpose of
promoting management employee relationships." Such a
contractual provision and practice involve administration
of a collective-bargaining agreement and constitute
normal incidents in a working labor relations situation.
However, "They do not justify Respondent's actions in
aiding and abetting the anti-union petition." Garrett Rail-
road Car & Equipment, Inc., 255 NLRB 620, 629, fn. 26
(1981).36
In this case, at least some employees were called to a
department office and asked by Sutton if they desired to
sign the petition. Sutton's presence, and his activity (and
that of the other three members of the Workmen's Com-
mittee), had management's open approval. Texaco knew
the precise language of the petition because it had been
typed in Steers' office. Thus, Texaco knew that the peti-
tion was antiunion. In no way did the petition pertain to
administration of the collective-bargaining agreement.
Sutton and Steers both knew, but Sutton did not tell the
employees, that the petition would lead to termination of
the collective-bargaining agreement. In these circum-
stances, Texaco violated Section 8(a)(1) of the Act. 3 '
F. The Refusal To Bargain Allegation
i. Discussion
Complaint paragraph 11, in conjunction with para-
graph 13, alleges that Respondent violated Section
8(a)(5) of the Act by refusing on and after August 15 to
3s Although par. 7(f) does not include the date of August 15, the pre-
amble to complaint par. 7 does allege that since "on or about August 15
.... "In any event, I find that the facts covering the events of that day
were fully litigated. Hence, I include them in my findings.
s6 N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974),
would not appear to suggest a different result on any theory that Texaco
was required to permit employees advocating the expulsion of Local 340
to have the same right employee representatives of Local 340 enjoyed
under article XIII,E.
a? While the evidence is insufficient to show that Texaco acted to en-
courage employees, such as Tupin, to go to Steers' office to sign the peti-
tion, I find that Respondent's action in sending Reagin to different areas
of the plant on Monday, August 18, ostensibly to answer questions, and
to make the petition available for signing, also constitutes conduct pro-
hibited by the statute because it gave the appearance that Texaco favored
the petition and thereby encouraged employees to sign.
bargain with the Union by (1) unilaterally terminating
the contract and by (2) ceasing to deduct union dues. 3 8
Relying upon cases such as Automated Business Sys-
tems, Division of Litton Industries, Inc., 189 NLRB 1
(1971), and Eastern Cooperatives, Inc., 79 NLRB 1112
(1948), Respondent argues that the complaint should be
dismissed. In Automated Business Systems, Bookbinders
Local 77 had represented the employer's Ogden, Utah,
employees for 15 years following voluntary recognition
and a series of collective-bargaining agreements. Al-
though the International Union never participated in the
past contract negotiations, it was a signatory to all of the
contracts except the current one. Local 77 held a meet-
ing of unit employees during the term of the existing
contract. At the meeting the employees voted 26-to-3 to
"disaffiliate" from the "Union," and to request the em-
ployer to terminate the contract. All unit employees
signed a petition to the International Union stating that
they were canceling their membership, and a petition to
the employer requesting that the contract be cancelled.
The president and secretary of Local 77 thereafter pre-
sented the second petition to the employer, as officers of
Local 77, and the company agreed to terminate the con-
tract. Four days later, the officers of Local 77 resigned
their positions, and thereafter employee Greer filed a de-
certification petition which gave rise to the Board's deci-
sion cited above.
Local 77, through its trustee appointed by the Interna-
tional Union, intervened in the proceeding and took the
position that the action of its members was ultra vires.
Petitioner Greer and the employer argued that the col-
lective-bargaining agreement had been terminated by
mutual assent. Finding the International to have been
only a nominal party to the contract, the Board held that
the members and officers of Local 77 had the authority
to terminate the contract and that their actions in that re-
spect were effective. The Board observed that "a con-
tract may be terminated by mutual assent of the parties."
189 NLRB at 2. The instant case, of course, does not in-
volve an action by Local 340, but by the Workmen's
Committee.
In Eastern Cooperatives, Inc., supra, the chairman of the
Shop Committee, acting pursuant to instructions from
employees covered by a contract with the employer,
gave written notice that the employees desired to termi-
nate the contract between the employer and Local 16 of
United Office and Professional Employees of America,
CIO. The employer acknowledged that such notice con-
stituted the contractual notice provision for terminating
the contract.
Local 16 contended before the Board that the Shop
Committee had no authority to terminate the contract or
to act as its agent for that purpose. The Board rejected
this contention on the basis that the contract provided
for the election of a shop committee "to represent the
38 Although there is no evidence that Respondent expressly withdrew
recognition from Local 340 or refused a specific request by Local 340
that Texaco meet and bargain about a particular grievance or other topic,
the attempted termination of the contract implicitly supports a conclusion
that Respondent no longer recognizes Local 340 as the bargaining repre-
sentative and does refuse to bargain with Local 340.
1144
TEXACO INC.
union and the employees in the office covered by this
agreement"; the fact that the Shop Committee had han-
dled most of the negotiations for the (current-expiring)
contract; and the fact that Local 16 had acquiesced in
the termination of prior contracts by the Shop Commit-
tee. The Board held that the contract terminated under
the delegated authority of the Shop Committee, did not
renew itself, and did not constitute a bar to a petition for
a representation election.
As Texaco argues on brief (p.3):
In sum . . . the Workmen's Committee was the
Union at Amarillo Plant and was, indeed, the exclu-
sive bargaining representative for all of the employ-
ees included in the bargaining unit at Amarillo
Plant.
At page 11 of her brief, the General Counsel asks,
"Whose agent is Sutton?" She argues that the evidence
does not show that the employees selected Sutton as
their agent; and that as agent for Local 340, Sutton owed
the Union a duty of loyalty and could not act adversely
to his principal's interest (citing Restatement of Agency,
2d, secs. 313, 389, and 391). Relying upon sections 26,
27, 33, and 34 of the Restatement of Agency, the Gener-
al Counsel also contends that an agent cannot create his
own authority nor exceed the authority granted to him
by the principal.3 9
The General Counsel also relies upon cases such as
Craftool Manufacturing Company, 229 NLRB 634 (1977).
The employer there was found to have unlawfully aided
the circulation of a petition asserting that employees did
not want to be represented by the union which had been
certified less than I year. This occurred in a context of
employer conduct found to be coercive. The petition
was secured even though the employees had just ratified
a contract effective only until the end of the certification
year. At the end of such year the employer withdrew
recognition and refused to bargain with the union on the
basis that the union no longer represented a majority of
the employer's employees. Craftool's action was found
unlawful because it had tainted the petition by its illegal
conduct.
2. Conclusion
Although Texaco tainted the petition with its unlawful
August 15 conduct,40 Respondent relies not upon the pe-
tition for justifying termination of the contract and ceas-
ing deduction of union dues, but upon the August 16
Memorandum of Agreement attached to the minutes of
the special meeting held between Texaco and the Work-
men's Committee on such date (Resp. Exh. 7). The
memorandum, copied earlier herein, was signed by
Sutton and Tim C. Forrest on behalf of Local 340. It
39 Using these terms, Sutton would be more of a subagent since Local
340 was the bargaining agent, and the unit employees would be the prin-
cipal.
40 The unlawful conduct of August 18, postdating the August 16 sign-
ing of the agreement terminating the contract, formed no part of the taint
which vitiated the August 16 memorandum. As noted earlier, I find that
Texaco's August IS conduct, while not alleged as violative of Sec. 8(aX1)
in the complaint, was a matter fully litigated.
does not recite Local 340 "by the Workmen's Commit-
tee."
It is obvious that Sutton would not have signed the
termination memorandum had it not been for the petition
having been signed by a majority of the unit employees.
The tainted petition, therefore, infects the termination
agreement, and neither document is valid. Moreover, the
termination agreement is ineffective for the additional
reason that the unit employees (the Texaco group) did
not ratify it. I need not decide whether the termination
agreement would have been effective had it been ratified
and had the petition been free of taint.
In light of the foregoing, I find that Texaco, in refus-
ing to bargain collectively with Local 340 by, in effect,
unilaterally terminating the collective-bargaining agree-
ment and ceasing the deduction and remittance of union
dues, has violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 340 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Texaco Inc., at its facility in Amarillo, Texas,
excluding all administrative, clerical, plant protection,
technical or any working outside of the Amarillo plant
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since August 19, 1943, Local 340 has
been and continues to be the exclusive representative of
the employees in the unit described above for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act. 4
5. By encouraging and assisting employees on Texaco's
premises, and during work time, to circulate and sign an
antiunion petition, Respondent violated Section 8(a)(1) of
the Act.
6. By executing and giving effect to the August 16,
1980, Memorandum of Agreement which, by its terms,
terminated the collective-bargaining agreement with
Local 340, and by ceasing to deduct and remit monthly
union dues of its employees to Local 340 on and after
August 16, 1980, Respondent violated Section 8(a)(5) and
(I) of the Act.
7. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom and to take such af-
4' Although the pleadings utilize the certification date of September
15, 1943, the certification merely confirmed that Local 340 had estab-
lished its exclusive bargaining representative status in the election of
August 19, 1943.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firmative action as will effectuate the purposes of the
Act.
It is clear that Respondent must reimburse Local 340
for all membership dues it failed to withhold and remit
to the Union on and after August 16, 1980. Seneca Envi-
ronmental Products, 243 NLRB 624 (1979); Stackpole
Components Company, 232 NLRB 723 (1977). What is
not clear is whether Texaco, after reimbursing Local
340, can collect in turn from the employees who were on
dues checkoff.
Although the petition signers, by the petition, gave
written notice to Texaco of their desire to cancel their
dues-checkoff authorizations, the record does not reflect
that they gave a similar notice to Local 340 as required
by article XVI of the contract (Resp. Exh. i, p. 42). This
is the article providing for the checkoff authorization
language, and the relevant portion reads:
[S]uch deductions to continue for a period of one
year from the date hereof or until the termination of
the collective Bargaining Agreement now in effect
between Amarillo Plant and the Union, whichever
first occurs; and unless sooner revoked as provided
below, this authorization shall be automatically re-
newed and shall be irrevocable for successive peri-
ods of one (1) year each or for the period of each
succeeding applicable collective Bargaining Agree-
ment between Amarillo Plant and the Union,
whichever shall be shorter. I expressly reserve the
right to send written notice at any time to the Com-
pany and to the Union cancelling this authority,
such cancellation to become effective on the first
annual date hereof occurring after the date of such
notice or the termination of the collective Bargain-
ing Agreement then in effect between Amarillo
Plant and the Union, whichever first occurs. [Em-
phasis supplied.]
It therefore seems that the employees, having failed to
comply with the contractual requirement that they notify
the Union in writing, never effectively revoked their
checkoff authorizations. 4 2
While it may be that all of the petition signers would
have signed the petition absent Respondent's unlawful as-
sistance to the Workmen's Committee, that fact can
never be ascertained. As Administrative Law Judge
Romano wrote, with Board approval,4 3 it is well estab-
lished that "'The most elementary conceptions of justice
and public policy require that the wrongdoer shall bear
the risk of the uncertainty which his own wrong has cre-
ated.' Bigelow v. R.K.O. Radio Pictures, Inc., 327 U.S.
251, 265 (1946)." Applying that principle to our facts, I
find that Texaco cannot collect reimbursement from the
employees for the past dues the Company must pay to
Local 340.
Local 340 was not a wrongdoer. While the employees
failed to give Local 340 the required contractual notice,
it cannot be known what they would have done absent
Respondent's unlawful intervention. To require Respond-
*4 Presumably the language of signed authorizations tracks the con-
tractual form. No signed authorization form was offered in evidence.
41 Amoco Production Company, 233 NLRB 158, 162 (1977).
ent to honor the checkoff authorizations retroactively, or
even currently, could well penalize employees whose an-
niversary dates predate this Decision. Thus, even if
Texaco resumed honoring the authorizations prospective-
ly, some employees might be penalized by having to pay
another 10, 11, or 12 months of dues, while others with
an anniversary date a few days after the date of this De-
cision could give the required dual notice and soon be
free of the checkoff. Once again, the wrongdoer must
shoulder the burden for the uncertainty it has created.
Accordingly, I shall order that Texaco not resume hon-
oring the checkoff authorizations until the next anniver-
sary date on which the petition was presented to man-
agement. Assuming that a collective-bargaining agree-
ment is then in effect, that anniversary date will be
August 12, 1982.
Finally, I shall order Respondent to post a copy of the
notice on the control room bulletin board, among its
other usual posting places. Although Texaco did not pin
a copy of the petition to the control room bulletin board,
it did fail to remove it promptly after receiving notice of
its presence. Consequently, it is appropriate that a copy
of the attached notice be posted there.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER4 4
The Respondent, Texaco Inc., Amarillo, Texas, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully encouraging or assisting employees in
the circulation of a petition whereby they withdraw
from International Union of Operating Engineers, Local
340, AFL-CIO, or any labor organization.
(b) Failing and refusing to honor the collective-bar-
gaining agreement with Local 340, the effective date of
which agreement was extended through January 7, 1982.
(c) Failing or refusing to recognize and bargain with
Local 340 as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees em-
ployed by Texaco Inc. at its facility in Amarillo,
Texas, excluding all administrative, clerical, plant
protection, technical or any working outside of the
Amarillo Plant and supervisors as defined in the
Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed under Section 7 of the Act, including the
right to free choice with respect to representation for the
purposes of collective bargaining.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
44 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
findings, 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 thereto
shall be deemed waived for all purposes.
1146
TEXACO INC.
(a) Notify in writing Local 340, the Workmen's Com-
mittee, and unit employees collectively that Texaco Inc.
will disregard the August 16, 1980, Memorandum of
Agreement, and that it will honor the collective-bargain-
ing agreement with Local 340, which agreement was ex-
tended through January 7, 1982, and any renewal agree-
ment.
(b) Upon request, recognize and bargain with Local
340 as the exclusive collective-bargaining representative
of the employees in the above-described appropriate unit
respecting wages, hours, and terms and conditions of em-
ployment.
(c) Reim Local 340 for all membership dues
which Respondent has failed to withhold on and after
August 16, 1980, and transmit such funds to Local 340,
with interest computed thereon in the manner prescribed
in Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Hieating Co., 138 NLRB 716
(1962).
(d) Continue the dues reimbursement to Local 340
until August 16, 1982, or the valid termination of the col-
lective-bargaining agreement, whichever first occurs.
Thereafter, honor the dues-checkoff provision of any
collective-bargaining agreement then in effect.
(e) Preserve and, upon 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 backpay due
under the terms of this Order.
(f) Post at its Amarillo, Texas, facility copies of the at-
tached notice marked "Appendix." 4 5 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's au-
thorized representative, shall be posted by 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 Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint is dismissed in-
sofar as it alleges unfair labor practices not found herein.
45 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."
1147