Texaco, Inc. v. N.L.R.B.

• Decision Date: 19 January 1984
• Docket Number: No. 82-4454,82-4454
• Parties: 115 L.R.R.M. (BNA) 2509, 99 Lab.Cas. P 10,751 TEXACO, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1226

722 F.2d 1226

115 L.R.R.M. (BNA) 2509, 99 Lab.Cas. P 10,751

TEXACO, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 82-4454.

United States Court of Appeals, Fifth Circuit.

Jan. 19, 1984.

J.M. Mitchell, David R. Sheil, Houston, Tex., for petitioner-cross respondent.

Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Mark S. McCarty, Washington, D.C., for respondent-cross petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before GARZA, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Texaco, Inc. petitions for review, and the National Labor Relations Board cross-petitions for enforcement, of an order of the Board, 264 N.L.R.B. No. 151, adopting the findings and conclusions of the Administrative Law Judge that Texaco violated Sec. 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq. (1976). The Board found that Texaco violated Sec. 8(a)(1) of the Act by unlawfully encouraging or assisting its employees to withdraw from the International Union of Operating Engineers, Local 340, AFL-CIO ("Union" or "Local 340"). The Board further found that Texaco violated Sec. 8(a)(5) and (1) of the Act by unlawfully terminating its collective bargaining agreement with the Union. We conclude that the record evidence fully supports the Board's findings and therefore grant enforcement of the Board's order.

I. FACTS

Texaco, Inc. is a Delaware corporation engaged in the refining and marketing of petroleum products and natural gas. This case involves events which occurred at Texaco's refinery in Amarillo, Texas. The production and maintenance employees at the Texaco Amarillo plant had been represented by Local 340 since 1943. In addition to the Texaco bargaining unit, Local 340 represented other bargaining units composed of employees from several other companies in or near Amarillo. Each of the bargaining units represented by the Union had its own Workmen's Committee, consisting of members elected by the employees within that bargaining unit. The Union had delegated to these committees the authority to hold meetings with management representatives and to process employee grievances. Each Workmen's Committee also had the authority to negotiate its own collective bargaining agreement. Before becoming effective, each contract or modification had to be ratified by the members of the bargaining unit it covered.

In 1979 and 1980 several events occurred which caused members of the Texaco group to become dissatisfied with the Union's representation. For many years all Union members paid the same monthly dues. In 1979, however, the dues schedule was restructured on a prorated basis. As a result of the schedule modification, Texaco employees were required to pay higher dues than Union members at other plants. The dues increase was followed closely by the hiring of a full time business agent by the Union. Many Texaco employees felt that their monthly dues were increased solely to offset the annual salary of this newly hired business agent. The Texaco employees became further dissatisfied with the Union when none of the members of the Texaco bargaining unit were elected as Union officers in the 1980 election. Prior to this election, the Union's leadership had traditionally come from the Texaco group.

On August 7, 1980, Billy Sutton, chairman of the Texaco Workmen's Committee, approached Roger Steers, Texaco's supervisor of employee relations, and informed him of employee dissatisfaction with the Union. Sutton inquired whether Texaco would deal with the Workmen's Committee independently of the Union and asked Steers to obtain a copy of the work practices agreement Texaco had with its non-union employees at its Louisiana refinery. Sutton explained that he wanted this agreement "for our [the employees'] information" and "to determine what Texaco did in a non-union refinery." Sutton also asked Steers how the employees could "get out of" the dues checkoff. Together, Steers and Sutton inspected the collective bargaining agreement. Steers informed Sutton that a checkoff authorization could be revoked on the anniversary date of the authorization or upon the termination of the contract, whichever came first.

The next day Steers telephoned several Texaco officials in Houston and discussed his recent conversation with Sutton. On August 12, he gave Sutton a copy of the Louisiana non-union agreement and had copies distributed to the Company's foremen. Thereafter, copies of the Louisiana agreement were visible and available for employees to inspect, although the ALJ found that the copies were not made from Sutton's copy.

On August 15, Steers held a "brainstorming" conference by telephone with several Texaco officials in Houston. This group concluded that the best way for the employees to revoke the checkoff of their Union dues would be to cancel the entire collective bargaining agreement. One of the Houston officials then dictated over the telephone a memorandum cancelling the bargaining agreement.

After the telephone conversation, Steers went to the firemen's shack where Sutton was working and gave him the memorandum. Although Steers admitted that he might be "sticking [his] neck out" by talking to Sutton, he proceeded to tell Sutton that the best way for the employees to revoke their dues checkoff would be for the Workmen's Committee to cancel the collective bargaining agreement. Steers also told Sutton that they could make a deal only as long as Sutton was the committee chairman or the designated bargaining agent. Steers offered to call in Sutton's replacement from the next shift several hours early so that Sutton and the other committee members could further discuss the matter. Sutton accepted Steers' offer, and while he worked only two hours that day, Sutton was paid a full day's wages.

When the relief man arrived, Sutton met with the other three members of the Workmen's Committee, Billy McBee, Tim Forrest, and Terry Knox. McBee and Forrest were allowed to leave their work stations to attend these meetings. Knox, who had the day off, came into the plant. The committee decided that it should take action to get out of the Union. Sutton telephoned Steers and asked him what procedures were necessary in order to withdraw from the Union. Steers suggested circulating among the employees a petition to revoke the dues checkoff authorization. At Sutton's request, Steers composed and had typed the following petition:

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.

The Company's acting plant manager, Don Watts, delivered the typed petition forms to Sutton at approximately noon that same day, along with a copy of the memorandum of agreement terminating the collective bargaining agreement. Sutton and the other members of the Workmen's Committee then circulated the petition throughout the plant and solicited the signatures of the employees during the first and second shifts. The committee members did not tell the employees that by signing the petition they were authorizing the Workmen's Committee to terminate the collective bargaining agreement. Forrest and McBee were permitted to leave their work stations, and Sutton was given the remainder of the day off with pay to solicit signatures. The plant supervisors observed the solicitation activity, but they had been instructed by Steers not to interfere. Employee Aaron Braxton, who worked on the second shift, testified that when he reported to work, he was told to go to the foreman's office. Upon reporting there, he found Sutton, Knox, and Foreman John Remlinger waiting with a copy of the petition. Remlinger then left the room, and Sutton asked Braxton to sign the petition. Braxton, however, refused.

After the solicitation began, the Workmen's Committee met with Company officials twice during the course of this same day, August 15. In both of the meetings, the committee expressed concerns about how the employees would be treated in a non-union plant. Steers responded that he could not answer those questions, and that the employees would have to use their own judgment. In the second of the two meetings, Sutton informed Steers that he had 70 signatures, which constituted a majority of the employees in the bargaining unit. Steers told the committee that the dues payment to the Union would be stopped immediately if the committee signed the memorandum terminating the contract.

Texaco officials and the Workmen's Committee met again the next day, Saturday, August 16. After some hesitation and a caucus by the committee, Sutton and Forrest signed the memorandum of agreement cancelling the collective bargaining contract. The agreement was attached to the minutes of that meeting. ¹ Steers, with Sutton's permission, later altered the memorandum of agreement by adding to it "International Union of Operating Engineers (AFL-CIO) Local No. 340" above Sutton's and Forrest's signatures.

Copies of the petition and the memorandum were posted in the plant control room on the following Monday morning, August 18. There, several more employees signed the petition. When Sutton informed Steers of the posting of these documents, Steers sent Leonard Reagin, assistant supervisor of employee relations, to the control room to retrieve the documents. Steers also instructed Reagin to take the original petition with him and permit employees to sign it. Reagin was cautioned not to solicit any signatures. On his way to the control room, Reagin stopped at the machine shop and the laboratory. He stayed at each location approximately 30 to 45 minutes answering questions regarding the effect of the signed petition. One employee at each location signed the petition. In addition, two employees signed the petition in the...