Texas Petrochemicals Corp. v. N.L.R.B.
| Citation | 923 F.2d 398 |
| Decision Date | 11 February 1991 |
| Docket Number | No. 89-4925,89-4925 |
| Parties | 136 L.R.R.M. (BNA) 2593, 59 USLW 2535, 118 Lab.Cas. P 10,553 TEXAS PETROCHEMICALS CORPORATION, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Samuel E. Hooper, Houston, Tex., for petitioner-cross respondent.
Julie Broido, Aileen Armstrong, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D.C., for respondent-cross petitioner.
Louis V. Baldovin, Jr., Director, N.L.R.B., Houston, Tex., other interested party.
Petitions for Review of an order of the National Labor Relations Board.
Before CLARK, Chief Judge, and GARZA and DAVIS Circuit Judges.
The National Labor Relations Board found Texas Petrochemicals Corporation violated Secs. 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 151 et al. Texas Petrochemicals petitioned this court to review the NLRB's decision and order, and the NLRB cross-applied for enforcement of the order.
Texas Petrochemicals Corporation (TPC) bought an existing chemical plant from Petro-Tex Chemical Corporation located in Houston in June 1984. 1 The Oil, Chemical and Atomic Workers International Union, Local 4-227, AFL-CIO (Union) represented some of Petro-Tex's employees for almost 30 years. When TPC took over, there were 103 unit employees, all but a few were former Petro-Tex employees.
Shortly after the purchase, the Union notified TPC by letter claiming it represented a majority of unit employees and demanding negotiations start. At a July 19 meeting, TPC acknowledged that as a successor employer, it was obligated to recognize and bargain with the Union. After some preliminary negotiations, TPC told the Union it would need two weeks to prepare a contract proposal and would contact the Union about future meetings. The following day, TPC posted a notice informing the employees that it had recognized the Union.
On July 18, the day before meeting with the Union, TPC President Shelton met with supervisors who felt the employees no longer wanted union representation. Shelton asked the supervisors to make a record of this discontent because TPC had to recognize the Union unless there were objective criteria indicating the Union's loss of support. 2 TPC collected 24 comments reportedly made voluntarily by unit employees to supervisors. These comments ranged from clear statements against union representation, to mere observations concerning the Union's lack of presence at the plant. On the morning of July 26, not knowing if sufficient objective evidence existed to withdraw recognition from the Union, TPC decided to poll its employees that day and the next. 3 Before their shift began, employees were told there would be a meeting of some importance but attendance was not mandatory. TPC did not notify the Union it was polling the employees, though after the first day one employee left a message on the Union's answering machine. After Shelton gave a speech to the first shift of voting employees, a petition was presented to him with 35 signatures stating that the Union was no longer wanted and requesting a vote be taken. Eight of the signers had earlier made comments to the supervisors.
Of the 103 employees eligible to vote in the poll, 86 actually cast ballots. Of the cast ballots, 50 were against representation by the Union, 35 were for Union representation, and 1 was blank. TPC then withdrew recognition of the Union allegedly based on the results of the poll, the employee petition, and prior expressions of employee dissatisfaction with union representation. TPC then changed the unit employees from hourly to salaried pay and restructured their insurance premiums. The Union subsequently filed a charge with the NLRB that TPC had committed several unfair labor practices in violation of the National Labor Relations Act (NLRA).
An Administrative Law Judge (ALJ) conducted a hearing in October 1984 and issued his decision in February 1985. The ALJ first found TPC had violated section 8(a)(1) of the NLRA by conducting an employee poll without sufficient evidence. The ALJ further found TPC had violated section 8(a)(5) of the NLRA by failing to give the Union advance notice of the employee poll, withdrawing recognition from the Union, and unilaterally making the changes described above. The ALJ ordered TPC to cease the unlawful conduct, post an appropriate notice, and bargain with the Union.
TPC filed exceptions to the ALJ's decision in March 1985. Then in April 1985, TPC received an unsolicited report of results of an employee-conducted petition. This petition reflected that a majority of employees did not want union representation. TPC then moved the NLRB to reopen the record to receive evidence of the subsequent employee petition. The General Counsel for the NLRB filed an opposition to TPC's motion to reopen the record in May 1985. The NLRB took no further action in the case until September 1989 when it issued a decision. That decision affirmed the ALJ's findings and conclusions and denied TPC's motion to reopen the record.
In November 1989, TPC moved the NLRB for a stay of its order, reconsideration of the remedy and reopening of the record. The NLRB returned TPC's motion as untimely. In December 1989, TPC petitioned this court to review the NLRB decision and order. NLRB cross-applied for enforcement of the order. In March 1990, TPC moved this court for leave to adduce additional evidence before the NLRB and to remand the case to the NLRB to make additional findings. In May 1990, the NLRB moved this court to strike portions of TPC's brief. These disputed portions relate to TPC's motion to offer additional evidence. Both of these motions have been carried with the case.
Unions elected in Board certified elections are vested with a presumption of majority status. 4 This presumption follows a union when a new employer acquires an existing business and hires a majority of formerly unionized employees. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38, 107 S.Ct. 2225, 2233, 96 L.Ed.2d 22 (1987).
When the presumption is rebuttable, and recognition, therefore, may be withdrawn, an employer must show 1) that he has a reasonably grounded doubt of the union's majority status, or 2) that the union in fact no longer represents a majority. NLRB v. Curtis Matheson Scientific, Inc., --- U.S. ----, ----, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801, 807 (1990); NLRB v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1014 (5th Cir.1990). Although not favored by the NLRB, an employer may show loss of a union's majority status through an employee poll. The NLRB will allow polling when a "reasonable doubt" exists about the union's status based upon substantial objective evidence. Boaz Carpet Yarns, Inc., 280 NLRB 4 (1986). The NLRB's position about the amount of evidence needed to poll is the same as its position on withdrawal of recognition. See Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 867 (6th Cir.1982). This circuit, however, feels that there is a lesser burden for an employer to justify holding a poll. NLRB v. A.W. Thompson, Inc., 651 F.2d 1141 (5th Cir.1981). An employer may, in the absence of any employer unfair labor practices and
after giving notice to the union, poll the employees for their union sentiment if there is other substantial, objective evidence of a loss of union support (even if that evidence is not sufficient by itself to justify withdrawal) and if the poll meets the procedural guidelines set out in Strucksnes [165 NLRB 1062 (1967) ].
Id. at 1145. 5 (emphasis added).
This court will therefore consider TPC's decision to poll its employees under our own standard. However, the NLRB's findings of fact are conclusive if supported by substantial evidence on the record considered in its entirety. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). Reasonable inferences drawn by the NLRB from its findings of fact may not be displaced even if the court might have reached a different view had the matter been before it de novo. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). In the instant case, applying the facts adopted by the NLRB, we cannot find the NLRB erred in holding TPC improperly conducted a poll of union sentiment.
Our precedent has not articulated an exact definition of "other substantial, objective evidence of loss of union support." Obviously, such substantial, objective evidence must conform to the case law we have developed that allows employee polling, and must not violate the NLRA itself.
At the time TPC conducted its poll, it had before it supervisors' reports indicating 24 employees were dissatisfied with the Union. 6 The NLRB found that several of those statements were not necessarily anti-union. Board Chairman Stephens, concurring in today's case, stated that a poll should not be conducted unless 30 percent of the unit employees indicated their wish to repudiate the union--the standard required to seek a Board decertification election. Texas Petrochemicals Corporation, 296 NLRB 136 (1989). The statutory minimum number of petitioning employees needed to force a Board conducted decertification secret ballot [29 U.S.C. Sec. 159(e)(1) ] has not been adopted by this circuit as the minimum number of employees whose expressions of dissatisfaction will establish that degree of substantial, objective evidence of a loss of union support necessary to conduct an employee poll. Such a poll can only result in an indication of employee sentiment. It does not ipso facto invoke a decertification election. The outcome of such a poll must be considered with all other factors present in the whole industrial setting to determine whether an employer holds a reasonably grounded doubt of the union's majority status. NLRB v. Curtis Matheson Scientific, Inc., --- U.S. at ----, 110 S.Ct. at 1549, ...
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