Catalytic Industrial Maintenance Co.

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 641 (N.L.R.B. 1974)

CATALYTIC INDUSTRIAL MAINTENANCE CO.
Catalytic Industrial Maintenance Company and Oil,
Chemical and Atomic Workers International Un-
ion, AFL-CIO
Catalytic Industrial Maintenance Company and Union
Boilermakers Distrito 3 de Puerto Rico, AFL-
CIO, Petitioner. Cases 24-CA-3063 and
24-RC-4205
March 13, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 24, 1973, Administrative Law Judge
Harry H. Kuskin issued the attached Decision.
Thereafter Oil, Chemical and Atomic Workers
International Union , AFL-CIO, filed exceptions and
a supporting brief, and a brief in answer to the cross-
exceptions . Catalytic Industrial Maintenance Com-
pany filed cross -exceptions and a brief in support of
the Administrative Law Judge 's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
In view of our decision to revoke the Certification
of Representative heretofore issued in Case
24-RC-4205, we have reconsidered our Decision and
Order issued in Case 24-CA-3063, 196 NLRB 228,
and we have decided to dismiss the complaint in its
entirety.
ORDER
Pursuant to the National Labor Relations Act, as
amended , the National Labor Relations Board
adopts as its Order the recommended Order of the
Administrative Law Judge and hereby orders that
the Certification of Representative heretofore issued
in Cases 24-RC-4205 be, and it hereby is, revoked.
IT IS FURTHER ORDERED that the Board's Decision
and Order, reported at 196 NLRB 228 be, and it
hereby is, vacated and the underlying complaint in
that proceeding , Case 24-CA-3063 be, and it hereby
is, dismissed in its entirety.
I The Employer then had a contract with Oxochem to do most of the
latter's maintenance work.
2 His title has since then been changed to that of Administrative Law
DECISION
STATEMENT OF THE CASE
641
HARRY H. KUSKIN, Administrative Law Judge: This is a
postcertification proceeding in the above-entitled matter.
Upon a motion to revoke certification filed herein by
Catalytic Industrial Maintenance Company, herein called
the Employer or Catalytic, the Board, on May 17, 1973,
issued an Order Remanding Proceeding to Regional
Director for Hearing, and a hearing was thereafter held
before the undersigned at Hato Rey, Puerto Rico, on July
18 and 19, 1973. The circumstances leading up to this
postcertification proceeding were as follows: On July 30,
1971, the Board issued its Decision and Certification of
Representative, affirming the Regional Director's Report
and Recommendation on Objections and Challenged
Ballots dated May 7, 1971, and certifying the Intervenor,
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, as the exclusive bargaining representative in a
unit of the maintenance and service employees of the
Employer at the Oxochem Enterprise project' within the
Corco complex at Penuelas, Puerto Rico, excluding all
office clerical employees, service and maintenance tempo-
rary employees, professional employees, guards and
supervisors as defined in the Act. Thereafter, the Employer
filed a motion to revoke certification and for other relief,
which the Board denied on September 10, 1971. Subse-
quent thereto, on October 29, 1971, the Employer filed a
motion to revoke certification and for other relief based on
newly discovered evidence and changed circumstances,
and the Intervenor filed a motion in opposition. On
November 8, 1971, the Board also denied this motion of
the Employer. The next development occurred on Decem-
ber 29, 1971, when Trial Examiner Morton D. Friedman2
issued his Decision, in Case 24-CA-3063, finding that the
Employer had violated Section 8(a)(5) of the Act by
refusing to bargain with the Intervenor as the certified
representative of its employees in the aforesaid unit. He
expressly noted therein that, "if the [Intervenor] performs
some overt act that would be in conflict with its position as
certified representative of [the Employer's] employees,
then the [Employer] could apply to the Board in a proper
manner for the revocation of the [Intervenor's] certifica-
tion." On April 7, 1972, the Board adopted the recom-
mended order in that decision. On November 21, 1972,
while the Board's petition for enforcement of that order
was pending in the United States Court of Appeals for the
First Circuit, the Employer filed the instant motion to
revoke certification, contending that the Intervenor herein
had committed an "overt act" inconsistent with its position
as the exclusive bargaining representative of the employees
in the certified unit by distributing a leaflet stating its
intention, in negotiations with Oxochem, to seek an
increase in the number of Oxochem maintenance person-
nel.3 According to the Employer, this would necessarily
have meant the elimination of its employees from the
Oxochem jobsite. On December 5, 1972, the Board denied
the Employer's instant motion to revoke certification.
Judge and he shall be referred to hereinafter as such.
3 Local 2 of the Intervenor has been the exclusive bargaining agent of
Oxochem 's production and maintenance employees since 1970.
209 NLRB No. 101
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in the light of an affidavit from Ronald J. Grey,
an Oxochem supervisor, in support of the Employer's
contentions in its motion to revoke, filed by the Employer
on December 6, 1972, and in light of an affidavit by Efrain
Velazquez, the area director of the Intervenor, filed by the
latter on December 8, 1972, admitting the posting of the
leaflet, but denying any intent on the part of the Intervenor
to force cancellation of the Catalytic's maintenance
contract with Oxochem, the Board, on January 29, 1973,
moved the United States Court of Appeals for the First
Circuit to remand the unfair labor practice proceeding for
further consideration of the instant motion to revoke
certification in light of the above-mentioned affidavits.
Thereupon, on April 17, 1973, the court granted the
Board's motion and ordered the Board to hold a hearing
on the issue of whether the Intervenor has engaged in an
"overt act" in conflict with its representation obligations to
the Employer's employees in the unit at the Oxochem
project. The Board, having accepted the remand requested
by it, thereupon issued, on May 17, 1973, its heretofore
mentioned Order Remanding Proceeding to Regional
Director for Hearing. The order directed that the hearing
be held before an Administrative Law Judge "on the issue
of whether the Intervenor or its agents have engaged in any
overt acts, particularly the distribution of the June 9, 1972,
leaflet, which would be in conflict with its representation
obligations to the Employer's employees [at the Oxochem
project] and thus would warrant revocation of the
Intervenor's certification."
Upon the entire record, including my observation of the
witnesses, including their demeanor while on the witness
stand, and after due consideration of the briefs of the
Employer and the Intervenor, I make the following:
FINDINGS OF FACT
The Oxochem Complex and its Manner of
Operation
The Employer is engaged in Puerto Rico in the
performance of industrial maintenance. One of its custom-
ers is Oxochem Enterprises, which operates a petrochemi-
cal complex on the south shore of Puerto Rico in what is
commonly called the Corco Petrochemical Complex area.
Oxochem Enterprises is anoint venture between Common-
wealth Petroleum Company, herein called Corco, and W.
R. Grace Chemical Company. Corco itself has a petro-
chemical complex, and in the same area are the P.P.G.
Petrochemical complex and the Puerto Rico Olefins
Petrochemical complex.
Oxochem Enterprises began operations about September
1970. Since that time, Oxochem has employed mostly
production people and four maintenance people at this
complex. Its maintenance people are so distributed
throughout the three shifts that only one maintenance
employee is on the job at any one time. Since the inception
of operations, the Employer has been doing the day-to-day
and other maintenance at this complex for Oxochem,
consisting of preventive maintenance or routine mainte-
nance in order to obviate failure of any piece of
equipment; emergency or unplanned maintenance due to a
failure of an equipment component either outside the usual
working hours, or suddenly during working hours, and for
which additional maintenance people are brought in on
short notice, if needed; cleanup jobs in the office and
around the fences, and so forth; and minor construction,
which is referred to as "capital type work." In addition to
furnishing hourly-paid employees to perform this work, the
Employer supplies its own salaried supervision and staff-
support people, thereby performing the complete function
of maintenance in the areas described above. It has done
so pursuant to a cost-plus contract with Oxochem which
expired on April 23, 1973. Since that date, Oxochem and
the Employer have negotiated the terms of a second
contract, which has been referred by the parties to the joint
venture for approval. At the time of the hearing, Oxochem
and the Employer were "working under the terms of the
old contract vis-a-vis fees, in general terms."
As to the nature and size of the Employer' s maintenance
unit at the Oxochem complex from September 1970 until
the distribution of the June 9, 1972, leaflet by the
Intervenor, the record shows the following: Werner Poelk,
who was project superintendent for the Employer at
Oxochem from June 1970 through January 1972, and was
manager of maintenance for the Employer at the time of
this hearing, gave uncontradicted testimony, which I
credit, that startup operations by the Employer at
Oxochem began in September of 1970 and lasted for about
a month and a half; that, during that period, the
Employer's total complement of hourly paid employees,
i.e., the nonsupervisory employees in maintenance , reached
a maximum of 98 employees; that thereafter an almost
constant decrease in this complement occurred until the
complement stabilized at a force which varied, except
during emergencies or plant turnarounds, from about 33 to
50; 4 that, during emergencies, there could be as many as
about 100 hourly paid maintenance employees working for
the Employer; and that, during annual turnarounds which
usually lasted about a week and a half, the Employer had
about 60 to 70 hourly paid maintenance employees on its
payroll. And with particular reference to the situation on
June 9, 1972, there is credible testimony by Ronald J.
Grey, Oxochem's superintendent of engineering and
maintenance , that the Employer actually had on the job
that day 33 hourly paid employees, that 2 such employees
were absent, and that, of this full complement of 35 hourly
paid employees, which comprised the certified unit, 9 were
laborers who were unskilled, while the rest were skilled;
and further that the Employer also had on the project that
day 24 salaried people consisting of supervisors and other
types of staff and support people, I salaried person being
absent, making an overall employer complement at
Oxochem of 60 individuals.5 It is further apparent, and I
find, on the basis of other uncontradicted and credited
testimony of Grey, that this complement on June 9, 1972,
which was a Friday, was typical of the size of the
Employer's work force at Oxochem during the period of
4 Poelk testified that, if this figure was ever exceeded, it was only by one Employer which was delivered to him by the Employer during the morning
or two people. of June 9, 1972, and which, he testified, he checked out at the time and
5 Grey referred, in the course of this testimony, to a force report of the found to be correct The report is in evidence as Empl Exh. 3
CATALYTIC INDUSTRIAL MAINTENANCE CO.
May and June preceding that Friday, except for weekends
and holiday periods, when the complement was reduced
very substantially. More specifically, during this period of
approximately 5 weeks, the number of hourly paid
employees, other than on weekends or during holiday
periods, varied between 32 and 37, and the number of
salaried personnel varied between 25 and 28.
The Bargaining History at the Oxochem Complex
Oxochem has been in bargaining relations with Local 2
of the Intervenor with respect to its production and
maintenance employees since October 19, 1970. To date
there have been two collective-bargaining agreements
between Oxochem and Local 26 covering these employees.
The first one expired on June 9, 1972, and the second one
was executed the next day, was for a 2-year period, and
was still in effect at the time of the instant hearing. The
second contract, like the first, contains a subcontracting
clause which reads as follows:
THE UNION recognizes that OXOCHEM has signed
a contract with a subcontractor to provide part of its
maintenance work . Said subcontract terminates on
April 27, 1973.
OXOCHEM agrees not to let or renew subcontracts,
prior to negotiations with the UNION.
OXOCHEM further agrees not to use the services of
contractors to do production work except in cases of
operation and training needed in the start-up of new
units that may be installed.
1. Prior to contracting such work, OXOCHEM will
notify and discuss the contract with THE UNION. It is
understood that personnel included in the bargaining
unit shall not be transferred from their usual occupa-
tion and replaced by personnel not included in the
bargaining unit.
2. Under no conditions can a member of the
bargaining unit (UNION) be placed under the orders
or supervision of the personnel of a contractor.
3. It is agreed that Maintenance men who are
placed on sl-ift will be of a classification not lower than
«B„
It was during the negotiations for this second contract that
the overt act of distributing the leaflet, which is in issue
herein, occurred. The relevant details of these negotiations
shall be discussed hereinafter.
To be noted, at this point, are these additional develop-
6 As it would appear that the Intervenor was in charge of the union
negotiations for these contracts , I shall refer to the Intervenor hereinafter
rather than Local 2 when I discuss these negotiations
T The petition was filed on September 25, 1970
8 Both these meetings took place before the Intervenor was certified by
the Board herein. Indeed , the meetings occurred during the pendency before
the Board of Catalytic's exceptions to the heretofore mentioned Regional
Director 's Report and Recommendation on Objections , wherein he found
the objections of Catalytic to the election to be without merit and
recommended that the Intervenor be certified.
643
ments during 1970 and 1971, viz., on September 3, 1970,
more than a month before the first of these two contracts
was executed, and about 3 weeks before the Intervenor
filed its petition in the instant proceeding ,7 which resulted
in its certification as the exclusive bargaining agent of
Catalytic's maintenance employees , Oxochem and the
Intervenor executed a letter of intent to the following
effect:
On April 10, 1971 OXOCHEM agrees to meet with
THE UNION to discuss the staffing of its maintenance
work force. The intent of both Parties being to seek a
solution to this problem . The intent of THE UNION
being to provide an orderly system to phase out
subcontracting of routine maintenance work. It is the
further intent of THE UNION to seek ways and means
to implement a program whereby employees of
subcontractor would be used only to supplement a
permanent maintenance work force during shutdowns
and for new constructions.
It is the intent of OXOCHEM to seek a solution
consistent with its business objectives, relative to the
staffing of its maintenance work force. In the event
agreement is not reached in the interim period, the
subject will be negotiated on the termination date of
the present Labor Contract.
Thereafter, the parties met pursuant to the terms of the
letter of intent. According to the findings of Administrative
Law Judge Friedman in Case 24-CA-3063, which the
Board adopted, at the second meeting, Velazquez, who was
then the International representative of the Intervenor,
"expressed the intent `that if we agree, then they'd start the
plans for phasing out the routine maintenance by Catalytic
and taking over by our own maintenance force' and that
this would be accomplished as a start with the transfer of
15 employees of 'Corco,' a company administratively
associated with Oxochem, whose employees are also
represented by the [Intervenor]"; and at the third such
meeting on July 19, 1971, Velazquez manifested "the
intention to try to persuade Oxochem to perform its own
maintenance work by employing individuals both from
Corco and from [the Employer]."s I note, too, that
Velazquez, during his testimony before me, acknowledged
that the purpose of these meetings was that of "phasing out
the regular maintenance."
I come now to the developments during the bargaining in
1972 between Oxochem and the Intervenor for a second
contract. The only witness in this proceeding who attended
these bargaining negotiations was Velazquez, who was then
the International representative of the Intervenor. With
particular reference to what occurred prior to and
Catalytic, the Employer herein, urges, in its brief , that I should now find,
after a review of the evidence in the proceeding before Administrative Law
Judge Freedman, that Velazquez was aware of the Regional Director's
recommended certification when the above statements were made at the
June and July 1971 meetings. and that these statements should therefore be
viewed as a positive act inconsistent with the Regional Director's
recommended certification . Suffice it to say that it is implicit in
Administrative Law Judge Freedman's findings and conclusions , which the
Board adopted , that the date of the Board's certification was the critical
date and not the date of the Regional Director's recommended certification.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including the distribution of the leaflet, he testified, in
substance, as follows: One of the original proposals, of
which there were about 15, was that the number of in-
house maintenance employees of Oxochem be increased
from 4 to 30. Another original proposal was that the
September 3, 1970, letter of intent be carried forward with
the resulting contract. In the course of the discussions that
they had concerning increasing the in-house maintenance
force, he told the representatives of Oxochem that if they
moved over 30 hourly paid maintenance employees from
the Employer and added them to the in-house maintenance
employees of Oxochem, there would be 50 hourly paid
maintenance employees remaining with the Employer. The
representatives of Oxochem did not dispute his statement
that the Employer then had 80 hourly paid maintenance
employees in its employ at the Oxochem complex, but took
the position "right from the beginning" that "we are not
gping to move over anybody from Catalytic."9 As of June
8, this proposal was one of about 10 items still outstanding.
At this juncture, this proposal, as well as others, was
revised downward by the Intervenor and submitted to the
representatives of Oxochem. As no agreement resulted, the
Intervenor posted copies of the June 9, 1972 leaflet 10 at the
Oxochem complex and distributed copies to its members at
that complex and at other petrochemical complexes in the
area . The record shows that, in the leaflet, the Intervenor
set forth Oxochem's last offer, its revised proposals in
response thereto, the failure of agreement, and the facts
that it had obtained the intervention of a conciliator, that it
did not know whether Oxochem would agree to a meeting
with the conciliator, that a strike effective at 12:01 a.m.,
Saturday, June 10, 1972, had been authorized by the
president of the Intervenor, and that an emergency
meeting of the board of directors of Local 2 was being
called for the following morning at 7:15 a.m. in the Corco
cafeteria . The critical language here appears in part (b) of
the section entitled "Increase in the Working Force." The
text of that section, the first part of which refers to a
proposal to increase the production employees and is not
in issue herein, reads as follows:
(a) We proposed a total of 10 per shift in Process.
Before we were asking for 12 operators on each shift.
(b) We proposed a total of 20 in maintenance . Before
we were asking for a total of 30.
The leaflet makes no mention of the Intervenor's proposal
9 It is patent that Velazquez' testimony concerning his representations to
the negotiators for Oxochem as to the size of Catalytic' s maintenance unit at
the Oxochem complex does not comport with my findings heretofore as to
the actual size of Catalytic's maintenance unit during this period. And
although he testified further , during cross-examination , that he was given
the figures , which he mentioned during these negotiations, by members who
were in the Catalytic maintenance unit, with whom he met four or five times
during the period of these negotiations at such places as thejobsite, the El
Gungulen Bar, and his office , I note that he did not identify these
individuals In the light of the above , and since it taxes one 's credulity to
believe that Velazquez would not have known the facts relating to this
significant aspect of the negotiations at the very time when the Union
proposed the transfer, I do not credit this part of his testimony relating to
these negotiations , although I find credible the rest of his testimony as to
these negotiations.
10 The leaflet , in Spanish, is in evidence as part of Empl Exh l; the
with respect to the letter of intent which the Intervenor had
been urging theretofore and which Oxochem was opposing.
As already noted, agreement was reached by the
negotiating parties on June 10, 1972, and this agreement
was still in effect at the time of the instant hearing.
According to Velazquez, although the Intervenor did not
prevail on this revised work force proposal, it was able,
through this method of pressuring for an increase in the
work force, to get Oxochem to include in the resulting
agreement the subcontracting provision which has been set
forth herein. And as to the letter of intent, which was not
carried along with this resulting agreement, Velazquez
testified that he "let the Letter of Intent out" at that time
because of Oxochem's agreement "not to cut out Catalytic
unilaterally." It is, however, apparent from an examination
of the subcontracting provision in the resulting agreement
that it does not so provide.
The Asserted Reasons for Seeking the Transfer of
Maintenance Employees in the Certified Unit to
the In-House Production and Maintenance Unit of
Oxochem
Velazquez testified, in substance, that the Intervenor's
paramount concern in this connection was to guard against
the unilateral cancellation by Oxochem of the Employer's
contract as the maintenance subcontractor on the Oxo-
chem jobsite with the resulting loss of jobs to its
membership, as had happened prior thereto at the PPG
complex when PPG cancelled a similar contract with the
Employer; ti and that, in consequence, the Intervenor took
the position that, should a unilateral cancellation occur,
Oxochem had to take over Catalytic's maintenance
employees as its own employees. He testified further that
the Intervenor sought at that time to have some mainte-
nance employees at Catalytic transferred to Oxochem's
production and maintenance unit, in which it was the
bargaining agent , in order to prevent such unilateral
cancellation and to gear the negotiations toward getting
Oxochem to agree, as Oxochem had in the prior agreement
between them, "not to let or renew subcontracts prior to
negotiations with the [Intervenor]."
I find unconvincing Velazquez' testimony above that the
transfer of some maintenance employees at Catalytic to
Oxochem's production and maintenance unit was pro-
posed, in part, in order to prevent such umlateral
cancellation. Rather does it appear that the transfer
proposal, if accepted by Oxochem, would have brought
English translation thereof is in evidence as Empl. Exh. 2
ii The Employer asserts that "a violent strike of Catalytic which
occurred at those PP.G premises (during March 19721 as well as the
Oxochem premises , and the premises of Olefin 's petro-chemical complex,
brought about the cancellation of Catalytic's subcontract " The record
shows, in this connection , that, pursuant to unfair labor practice charges
filed by the Employer, a complaint issued, in Cases 24-CC- 149 and
24-CB-803, alleging that the Intervenor had committed acts at these
complexes in violation of Sec . 8(b)(IXA) and 8(bX4)(i) and (ii)(B) of the
Act, and that the matter was thereafter settled on the basis of the
Intervenor's agreeing , without admitting liability for the actions alleged, to
post notices to the effect that it will cease and desist from the conduct
alleged in the complaint . I perceive no warrant for holding , without more, as
the Employer impliedly contends herein , that the foregoing supports a
conclusion that the Intervenor itself brought about the cancellation of
Employer's contract by P P G.
CATALYTIC INDUSTRIAL MAINTENANCE CO.
nearer the date of the phasing out of Catalytic's mainte-
nance unit on the project. Indeed, that the latter was the
intent behind this proposal of the Intervenor is under-
scored by the fact that, during most of these negotiations
with Oxochem, i.e., until shortly before the second contract
was entered into, the Intervenor was seeking a renewal of
the letter of intent of September 3, 1970, which stated, in
relevant part, "The intent of the [Intervenor] being to
provide an orderly system to phase out subcontracting of
routine maintenance (i.e. every-day maintenance) work.12
It is the further intent of the [Intervenor] to seek ways and
means to implement a program whereby employees of the
subcontractor be used only to supplement a permanent
work force during shutdowns and for new constructions."
In all the circumstances, I conclude and find that the
Intervenor's intent. during the bargaining over its proposal
that Oxochem agree to enlarge the in-house maintenance
force, was that of getting Oxochem to phase out the
subcontracting of routine maintenance work being done by
Catalytic for Oxochem and to fill in the void by enlarging
its own maintenance force through the employment of
maintenance employees from Catalytic's certified unit at
Oxochem. I am satisfied, too, and find that had the
Intervenor prevailed in this original or revised proposal,
Catalytic's continuance as a subcontractor doing mainte-
nance work would have been placed in serious jeopardy
and that Catalytic's elimination from the Oxochem project
would have been a strong likelihood. This is apparent from
(1) the fact, as found herein, that during the period of these
negotiations the number of maintenance employees in the
certified unit of Catalytic at the Oxochem project varied
between 32 and 37, and that this was typical of the size of
unit , except during emergency periods and yearly plant
turnaround situations, and (2) the convincing and credible
testimony herein of Grey and Poelk that eliminating either
20 or 30 of this number would have resulted in the
elimination of the Catalytic subcontract because it would
not have been economically feasible for Catalytic to
continue working on the Oxochem project with the small
number of personnel remaining. In this connection, both
Grey and Poelk stressed the difficulties which would then
exist with respect to supervision, administration, and
training, due to the existence of a small contingent of
maintenance personnel at Catalytic and a larger contingent
of maintenance employees at Oxochem, as well as the
problems attendant upon coordinating two working forces
which would be interdependent.
Developments Between Oxochem and Catalytic in
the Wake of All the Foregoing
The Employer admits, in its brief, that the Intervenor has
taken no positive action inconsistent with the certification
herein since June 10, 1972, the date of the signing of the
collective-bargaining agreement between Local 2 of the
Intervenor and Oxochem. In this connection, as appears
from my findings heretofore, after the aforesaid agreement
was signed the following occurred: (1) Oxochem and the
Employer entered into negotiations for a new subcontract
12 Poelk testified credibly that, on June 9, 1972, 6 of the 35 employees
then comprising the Employer's complement of maintenance employees
were doing other than routine maintenance work, and that, if the entire
645
to replace their prior subcontract which expired in April
1973, and the terms of a new subcontract were agreed upon
several months before the instant hearing; and (2) the
subcontract was thereupon referred by Oxochem for
approval to Corco and W. R. Grace Chemical Company,
which companies operate Oxochem Enterprise as a joint
venture, and has yet to be approved for signature.
According to Grey, "basically the reason [for this inaction]
is that our agents [of the joint venture companies] don't
want to sign the contract because they are waiting to see
what the final position of the [Intervenor] will be with
regard to the subcontracting problem and the problem we
are having which is personified by this hearing."
Analysis and Conclusions
The United States Court of Appeals for the First Circuit
issued two decisions, which are here relevant, in the case of
N. L. R. B. v. David Buttrick Company, the second decision
having issued after remand to the Board of its decision
therein for further consideration. As here, that proceeding
required consideration of the allegations by the subject
employer of a conflict of interest on the part of the
bargaining agent. In the first decision in 361 F.2d 300, 307
(C.A. 1, 1966), the court listed, as controlling considera-
tions in cases of this type, the following:
(1) it is the innate danger to be guarded against;
(2) the existence of this danger does not require proof
of abuse of trust, so long as there is sufficient power
and temptation to commit such abuse; (3) such a
danger, if proximate enough, without evidence of
present abuse, can poison the collective bargaining
process by subjecting every issue to the questioning of
ulterior motives; (4) where such proximate danger
exists, it is not exorcised by the mere existence of other
legal remedies such as those created by anti-trust
legislation; and (5) the keystone freedom required on
the part of a local union seeking to become an exclusive
collective bargaining agent is the freedom to conclude
such bargaining negotiations free of the suspicion that
it is motivated by any purpose other than its loyalty to
the employees it represents.
In the second decision in 399 F .2d 505 , 507 (C.A. 1, 1968),
the court said further:
There is a strong public policy favoring the free choice
of a bargaining agent by employees. This choice is not
to be frustrated. There is a considerable burden on a
non-consenting employer, in such a situation as this, to
come forward with a showing that danger of a conflict
of interest interfering with the collective bargaining
process is clear and present.
While the court there found against the subject employer,
it did so because "on this record we cannot find a
proximate danger of infection of the bargaining process."
It is apparent from all my findings heretofore that the
complement were to reach 40 employees, there would be about 7 employees
doing other than routine maintenance work.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose that the Intervenor admittedly had, before its
certification on July 31, 1971, as the bargaining agent of
Catalytic's maintenance employees on the Oxochem
jobsite, of not having Catalytic's maintenance employees
do the routine maintenance work on that jobsite as
theretofore, was again in evidence thereafter in May and
June 1962 during the negotiations between Oxochem and it
to replace the initial contract between them, which was to
expire on June 9, 1972. This purpose manifested itself, as
my findings herein show, in (1) the union proposal,
through all but the last I or 2 of the approximately 25
bargaining sessions, that, in addition to the contract
resulting from these negotiations, the contracting parties
carry forward the letter of intent theretofore entered into
by them on September 3, 1970, which says, in relevant part,
that "the intent of the [Intervenor is] to provide an orderly
system to phase out subcontracting of routine maintenance
work"; (2) the Intervenor's demands, during the bargain-
ing, that Oxochem's in-house maintenance force be
expanded very substantially, asking, at first, that that force
be expanded from 4 to 30, and then revising the demands
to an expansion to 20, the additional employees to come
from the certified unit at Catalytic, which demands were
withdrawn at the last bargaining session ; and (3) the overt
act herein of distribution by the Intervenor of the June 9,
1972, leaflet to its members at the Oxochem jobsite and to
other members at other petrochemical complexes in the
area, which leaflet set forth the latest union demands upon
Oxochem, including the initial and the revised demand for
an increased in-house maintenance force. While it is true
that this purpose was not realized, in that the status quo as
to size of unit was maintained in the resulting contract
between the Intervenor and Oxochem, and in that the
union efforts to carry along with that resulting contract the
letter of intent of September 3, 1970, also proved abortive,
what is significant here is that the above overt act occurred
and further that, as found herein, had the union position
prevailed, Catalytic's continuance as a subcontractor doing
maintenance work on the Oxochem jobsite would have
been placed in serious jeopardy, and Catalytic's elimina-
tion from the Oxochem jobsite would have been a strong
likelihood. Accordingly, I am persuaded that the overt act
13 I am cognizant in this connection of the fact that the Intervenor has
taken no positive action inconsistent with its certification herein since June
10, 1972, the date on which its negotiations with Oxochem ended in
agreement However, I find no warrant for inferring therefrom a disavowal
of its demonstrated purpose to work for the dissolution of the certified unit
herein
of the Intervenor consisting of its June 9, 1972, leaflet,
which it posted and distributed in the manner found
herein, when viewed in the light of the context from which
it arose , warrants a finding , which I make here , that the
Intervenor has acted inconsistently with its representation
obligations to the employees in the certified unit.
Although Velazquez made the statement at the hearing
in the related 8(a)(5) proceeding before Administrative
Law Judge Friedman that the Intervenor's policy is not to
work for the dissolution of a unit which it represents, I am
persuaded, and find, on the basis of my findings above,
that the Intervenor has here demonstrated a purpose to
work for the dissolution of the certified unit herein. That
this purpose did not abate with the signing of the contract
by Oxochem and the Intervenor is apparent from the
following testimony of Velazquez, during cross- examina-
tion , explaining why the letter of intent was not mentioned
among the Intervenor's demands in the June 9, 1972
leaflet: "I believe we did not include that one because we
had already decided that we were not going to press it, but
the membership always knew that we wanted to have people
transferred from Catalytic to Oxochem." [Emphasis sup-
plied.] Accordingly, I conclude and find that the evidence
preponderates in favor of a finding that the Intervenor has,
by the aforesaid conduct, created a proximate danger of
infection of the bargaining process.13
Recommendation
In view of my findings above, it follows that the
Employer's motion to revoke certification, filed herein on
November 21, 1972, has merit. Accordingly, I recommend
that the motion be granted.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
remanded proceeding, I hereby issue the following recom-
mended:
ORDER t4
The certification of representative heretofore issued in
this case is hereby revoked.
14 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 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