N. L. R. B. v. Amoco Chemicals Corp.

• Decision Date: 25 March 1976
• Docket Number: No. 74--3050,74--3050
• Citation: 529 F.2d 427
• Parties: 91 L.R.R.M. (BNA) 2837, 78 Lab.Cas. P 11,343 NATIONAL LABOR RELATIONS BOARD, Petitoner, v. AMOCO CHEMICALS CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 427

529 F.2d 427

91 L.R.R.M. (BNA) 2837, 78 Lab.Cas. P 11,343

NATIONAL LABOR RELATIONS BOARD, Petitoner, v. AMOCO CHEMICALS CORPORATION, Respondent.

No. 74--3050.

United States Court of Appeals Fifth Circuit.

March 25, 1976.

Elliott Moore, Deputy Associate Gen. Counsel, James L. Kestell, Atty., N.L.R.B., Washington, D.C., Louis V. Baldovin, Jr., Director, Region 23, N.L.R.B., Houston, Tex., for petitioner.

James A. Sullivan, III, Standard Oil Co. (Indiana), William H. Emerson, Chicago, Ill., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board (Texas Case).

Before WISDOM, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

This is a petition by the National Labor Relations Board (the Board) for enforcement of its order against Amoco Chemical Corporation (Amoco or the Company). Substantially affirming the findings and conclusions of the Administrative Law Judge, the Board found that Amoco violated § 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq., by threatening an employee with loss of benefits in reprisal for voting in favor of union representation. Additional § 8(a)(5) and derivative § 8(a)(1) violations were assessed for the Company's action in unilaterally reducing the hours of work of its employees and unilaterally adopting a disciplinary warning system. To remedy these unfair labor practices, the Board issued its usual cease and desist order, ordered Amoco to remove disciplinary letters from employees' personnel files and affirmatively required the Company to make whole those employees who suffered a loss of wages as a result of Amoco's reduction of employee work hours.

A review of the record as a whole fails to reveal substantial evidence to support the § 8(a)(1) violation and thus we refuse to enforce that portion of the Board's order. Although the § 8(a)(5) violations find adequate support in the record, the appropriateness of the Board's backpay order is not demonstrated by the evidence adduced. Accordingly, we remanded for the limited purpose of allowing the Board to determine whether the record should be supplemented to make such showing.

I. BACKGROUND FACTS

On April 27, 1973, the employees of Amoco's truck transport terminal in Texas City, Texas selected Local 4--449, Oil, Chemical & Atomic Workers International Union (the Union) as their bargaining representative. The Texas City terminal had been in existence since January, 1972, as part of Amoco's proprietary trucking operation consisting of five terminals located across the country. The terminal was engaged in providing trucking services for three Amoco manufacturing plants--two at Texas City and the Chocolate Bayou plant at Alvin, Texas. Terminal employees hauled supplies and materials to and between the plants, and transported Amoco products to warehouses, customers and shippers.

The business of the terminal was highly irregular. From month to month, hauling of various product lines was never constant. Certain products were discontinued and it frequently became necessary to procure substitutions. The number of trips per product per month could not be predicted with any certainty. The drivers were paid on the time/mileage basis subject to a monthly guarantee of 700 dollars.

Although the terminal employees were supervised directly by a truck transport supervisor in Texas City, management officials from Amoco's Chicago headquarters had primary responsibility for formulating Company policy. During its life span, the Texas City terminal employed three successive terminal supervisors. Russell Williams, Manager of Proprietary Trucking and William Justiss, Truck Transport Supervisor, were the Chicago officials most involved in the post-election events at the Texas City terminal.

In preparation for bargaining, a union representative requested copies of the drivers' work schedules from both the terminal supervisor and the Company. He was told that no such schedules were available. The only bargaining session between the parties was held on June 21, 1973. The discussion was confined to the proposed collective bargaining agreement. Amoco was not willing to discuss the problems at the Texas City Terminal because of pending Board proceedings.

On August 10, 1973, the Texas City terminal closed for economic reasons. The Board does not question the legality of this action. Rather, three actions taken by the Company in the interim between the April election and the August closing form the basis of the unfair labor charges against it.

II. POST-ELECTION STATEMENTS

On the first working day following the election, Truck Transport Supervisor Justiss approached employee Richard Montayne, the terminal's sole mechanic, and stated that, 'it looks like you fellows have voted yourself a cut in pay.' That same day, Justice asked a driver what he thought about the election. After receiving the driver's noncommittal response, Justiss remarked,' it might not be too bad on drivers, but poor old Dick (Montayne) voted himself a cut in pay.' Three days later, Justiss showed Montayne a piece of paper purportedly containing Union wage classifications, and pointed to the item listing mechanics' pay at $2.85 per hour. Montayne replied that if mechanics at that plant worked for $2.85 per hour, they were not qualified, decent mechanics, since no qualified mechanic would work for that kind of money. The next day, Montayne was summoned to the terminal supervisor's office. There Justiss notified Montayne that he did not want Montayne putting in overtime any more and that pursuant to the Company's new set of rules, no one would be working more than 40 hours a week. Throughout this period, Montayne was a salaried employee receiving 800 dollars per month.

Only Justiss' first 'cut in pay' statement to Montayne was alleged in the General Counsel's complaint as a violation of § 8(a)(1). The Administrative Law Judge found the Company's post-election statement coercive in nature, constituting an implied threat of reprisal against the employees for their decision to unionize the terminal. The judge reasoned that while the statement, by itself, might appear to be isolated, the fact that it was accompanied by conduct constituting an unlawful refusal to bargain necessitated the issuance of a remedical order. The Board adopted the findings of the Administrative Law Judge on this charge without comment. Member Kennedy dissented, classifying the statement as isolated and not worthy of a remedial order.

In this enforcement proceeding, our review is limited to the question of whether there is substantial evidence on the record as a whole to support the Board's findings. Section 10(e), 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). With respect to coercive speech violations, an appellate court must recognize 'the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.' NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547, 581 (1969). Applying this narrow review standard, we are unable to agree with the Board's finding that Justiss' post-election statement to Montayne constituted a threat of reprisal violative of § 8(a)(1).

On its face, Justiss' conversation with Montayne was innocuous. The only reasonable construction of the Amoco supervisor's 'cut in pay' remark was that the Union new representing Montayne possessed a lower regard for the worth of mechanics than did the Company. Neither the words used nor any other evidence indicates that Amoco intended to communicate any implication that Montayne's monthly salary would be lowered unilaterally. Neither does the record show that Montayne felt intimidated by the supervisor's remarks or viewed them as a warning to discontinue support for the Union. Most importantly, the alleged violation took place only after the Union won the election. In this context, there is less danger that an employer's facially non-coercive statements are intended as threats than might be attributable to pre-election comments.

The case at bar can be easily distinguished from the two post-election § 8(a) (1) cases cited by the Board. In Armstrong Cork Co. v. NLRB, 211 F.2d 843 (5th Cir. 1954), an employer announced to an assembly of workers shortly after a representation election that he intended to remove a 'pledge' which the Company had posted on the bulletin board setting forth employees' rights. This symbolic threat was swiftly carried out and was accompanied by a cancellation of proposed wage increases to represented employees. The Company's retaliatory posture had been foreshadowed by a pre-election warning to an employee which in effect threatened a withdrawal of the pay raise if the Union won. Similarly, in NLRB v. McCann Steel Co., 448 F.2d 277 (6th Cir. 1971), the employer's coercive post-election remark ('there goes the Christmas bonus') was accompanied by an actual withdrawal of benefits and was presaged by pre-election threats. In upholding the Board's § 8(a)(1) determination, the court in McCann expressly found the remark to be de minimis, but refused to review it independently because of the employer's other § 8(a)(1) transgressions. Id. at 279.

In contrast to the events described in Armstrong and McCann, the Board in the case now before the court did not find that Amoco was engaged in a campaign of retaliation against the workers. Although the Company committed § 8(a)(5) violations, such action did not serve to transform the employer's otherwise non-coercive statements into threats motivated by employer anti-union animus. Cf. NLRB v. Sachs, ...