660 F.2d 637 (5th Cir. 1981), 80-1764, Dow Chemical Co., Texas Div. v. N.L.R.B.

Docket Nº:80-1764, 80-1765.
Citation:660 F.2d 637
Party Name:DOW CHEMICAL COMPANY, TEXAS DIVISION, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
Case Date:November 05, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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660 F.2d 637 (5th Cir. 1981)



NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

Nos. 80-1764, 80-1765.

Unit A [*]

United States Court of Appeals, Fifth Circuit

November 5, 1981

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Baker & Botts, Richard R. Brann, Joseph R. Weeks, Houston, Tex., for intervenors.

Tom Martin Davis, Jr., Houston, Tex., for Certain Employees of Dow Chemical Co.

Elliott Moore, Deputy Assoc. Gen. Counsel, Allison Brown, NLRB, Washington, D.C., for respondent cross-petitioner.

Petitions for Review and Cross Applications for Enforcement of Orders of the National Labor Relations Board.

Before MARKEY, [**] Chief Judge, and GEE and POLITZ, Circuit Judges.

MARKEY, Chief Judge:

Dow Chemical Company, Texas Division (DOW) and certain employee-intervenors petition to review and set aside, and the National Labor Relations Board (board) cross-petitions to enforce, two orders of the board issued July 18, 1980. The orders originated in two cases one involving Dow and Local Union 716 of the International Brotherhood of Electrical Workers, AFL-CIO-CLC (IBEW), the other involving Dow and Local No. 1848 of the International Brotherhood of Painters and Allied Trades, AFL-CIO (IBPAT). The board found Dow guilty in both cases of violating 29 U.S.C. § 158(a)(5) (8(a)(5)) and 29 U.S.C. § 158(a) (1) (8(a)(1)) of the National Labor Relations Act (Act). The petitions have been consolidated on this appeal. We deny enforcement.


Dow operates a large chemical manufacturing complex in Brazoria County, Texas, with 7200 employees, of which 2700 were represented by unions and 4500 were not. Represented employees were paid hourly and received benefits bargained for by their respective unions; unrepresented employees were salaried and received a standard set of benefits.

  1. IBEW

    Since 1944, Dow had collectively bargained with IBEW. The most recent collective bargaining agreement covered May 1975 May 1978. On or about March 14, 1978 1 certain members of IBEW filed a decertification petition. The board scheduled an election for April 14.

    Between March 14 April 14, Dow conducted voluntary meetings at which management representatives informed IBEW members of the scheduled election, and answered their questions on differences between their existing wages and benefits and those of salaried, unrepresented employees. The managers presented slides illustrating the differences. In some respects salaries and benefits of unrepresented employees were superior to those of IBEW members. The managers repeatedly and specifically emphasized that they could not promise and were not promising that salaried pay and benefits would be available if the voters were to decertify the Union.

    During the election campaign, Dow sent three letters, over the signature of D.A. Rikard, Vice-President of Operations, to the home addresses of IBEW members.

    Enclosed in the first letter, dated April 3 and addressed to "Dow Electricians and Families," were reproductions of slides presented at the previous week's meetings. The enclosures compared life insurance, medical coverage, and various types of leave afforded unrepresented and represented employees. The letter stated that the "benefits covered (in the enclosures) ... are specifically outlined in the policies and booklets issued by the Company to all salaried employees." In closing, Rikard wrote, "As we explained in the meetings, the law prohibits us from promising these salaried benefits to our Dow Electricians if they choose to decertify. This information is being provided for you solely in response

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    to your questions to allow you to review the answers at your convenience."

    The second letter, dated April 7, included reproductions of slides presented at the second set of meetings to illustrate pay and retirement policy differences. Rikard noted that although the retirement formula was "exactly the same for both hourly and salary" that "the higher the annual earnings, the higher the monthly retirement benefit." Rikard also commented on the availability of "excellent medical insurance for the families of salaried employees who die while employed at Dow." This letter closed with the same disclaimer paragraph pointing out Dow's legal disability against making any promises.

    In the third letter, dated April 11, Rikard said it was "very significant" that employees from other groups who had voted to decertify had not chosen to revert to union status, illustrating that "these employees are being treated fairly and are well satisfied with their compensation and benefits." He concluded that "(a) 'no (X)' vote is a vote for a better way for yourself and your family."

    Not surprisingly, there were numerous brief discussions about the election between supervisors and IBEW members during the campaign. Testimony regarding some of those discussions, and about some managers' statements at the meetings, figured prominently in the board's evaluation of Dow's pre-election conduct.

    On April 14, the 115 IBEW members voted 63 to 52 against continued representation by the Union. On Monday, April 17, Dow placed the former IBEW members on salary and made available the fringe benefits established for salaried employees. In changing the electricians' classification, Dow was following precedent established in 1969 and 1972, when employees affiliated with the Teamsters' and the Carpenters' unions voted to decertify and were placed on salaried status immediately after the elections.

    On April 21, IBEW filed objections to the election, and requested that it be set aside, alleging that Dow had "destroyed the conditions necessary for the conduct of a fair election" by informing the electricians that "decertification of the Union would result in an immediate and substantial wage increase, along with other improved benefits," in violation of § 8(a)(1) 2 of the Act.

    On May 18, some former IBEW members were granted increases of $140 to $150 per month, retroactive to the date of the election. 3 On May 22, the IBEW filed a charge with the board, alleging that Dow had "refused to bargain in good faith," and had "discriminated against its employees in terms and conditions of employment to discourage membership in a labor organization by granting increased wages and improved benefits."

    On July 6, the board's Regional Director issued a complaint alleging that Dow had engaged in conduct violative of § 8(a)(1) and § 8(a)(5) 4 of the Act. The complaint and election objections were consolidated for hearing.

    Administrative Proceedings re IBEW

    The Administrative Law Judge (ALJ) who presided over a hearing on November 6-8 found that each of eight statements of Dow supervisors constituted a "promise of benefit" and thus an unlawful attempt to

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    induce employees to vote against the Union in violation of § 8(a)(1). He considered three other statements or questions coercive inquiries violative of § 8(a)(1).

    The ALJ stated, "If I were to view the informational meetings with employees (including the slide presentations on wages and benefits) and (the three letters) which were mailed to employees detailing the same material in isolation, there would be a strong argument that the Company was correctly detailing the existing facts to employees in order that they could make an informed decision in the election.... (However,) (b)ecause of comments made by supervisors ... in which employees were told, inter alia, that they would receive better wages and fringe benefits, and would fare better as salaried employees, ... and in light of a systematic campaign of interrogation of employees, I find that the dissemination of benefits via slides and individual mailings to employees to be part and parcel of the Company's effort to woo the employees from the Union and in this context, constitutes a promise of benefits and is violative of Section 8(a)(1) of the Act."

    Regarding the transfer to salaried status immediately after the election, the ALJ stated, "Since such actions were taken both before and after timely objections to the election were made, the Employer made such changes at its peril. As I have found (Dow's) conduct in the period prior to the decertification election is violative of Section 8(a)(1), and ... also constitutes objectionable conduct to the election, I find that the unilateral granting of the raises and change of employee status, done while the validity of the election was still in doubt, constitutes a violation of Section 8(a)(5) and (1) of the Act." (Emphasis added.)

    Finding that "a fair election at this time would not be possible," the ALJ recommended that the election be set aside and that Dow be ordered to bargain with the Union "for a reasonable period of time." He further recommended that the bargaining order should not be construed to require a rescission of the benefits granted subsequent to the election.

    The board affirmed the ALJ's rulings, findings and conclusions, and adopted his recommended order. The board added that if Dow had not engaged in pre-election unfair labor practices, it would nonetheless have still violated § 8(a) (5) and § 8(a)(1) by its post-election transfer to salaried status, citing Presbyterian Hospital, 241 NLRB 996 (1979).

  2. IBPAT

    IBPAT had been the collective bargaining representative for Dow's painters since 1944. The most recent collective bargaining agreement covered May 19, 1975 May 18, 1978. On March 16, members of IBPAT filed a decertification petition. On August 25, the board scheduled an election for September 22.

    During the month before the election, Dow conducted voluntary meetings with the painters...

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