Fertilizer Co. of Texas

National Labor Relations Board - Board DecisionsMar 13, 1981

254 N.L.R.B. 1382 (N.L.R.B. 1981)

1382 and l I , I11 finding^,^ 10(c) I(i) (j) Wall Inc.. (1950). F.2d Sec. B(aX5) here~n Mot~on CASE 111, Corsicana, 1979,' 8(a)(l) 9 1, r e c ~ r d , ~ 1. %50,000 2(2), (6), 11. 2(5) Ill. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fertilizer Company of Texas, Inc. Oil, Chemical and Atomic Workers International Union, Local 4-478. Case 16-CA-8609 March 13, 1981 DECISION A N D O R D E R O n August 1980, Administrative L a w Judge William J . Pannier issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided t o affirm the rulings,' and conclusions of the Administrative L a w Judge and t o adopt his recommended Order. O R D E R Pursuant t o Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative L a w Judge and hereby orders that the Respondent, Fertilizer Com- pany of Texas, Inc., Kerens, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. Shortly before the hearing. Respondent filed a motion entitled "Motion T o Dismiss o r in the Alternative for Summary Judgment," al- leging, inter olio, that the complaint was defective because it failed to allege that the Union had majority status o r that Respondent was a suc- cessor employer. Thereafter, the General Counsel filed a motion in oppo- sition to Respondent's motion. The Administrative Law Judge admitted the motions into evidence as G.C. Exh. and and reserved ruling on them until his Decision. However, as noted by Respondent in its brief, the Administrative Law Judge failed to mention or rule on its motion in his Decision, although in light of his findings and conclusions therein it is evident that he would find Respondent's motion to be without merit. In any event, since we agree with the Administrative Law Judge that Re- spondent's withdrawal of recognition from the Union was unlawful, we deny Respondent's motion as lacking in merit. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Products, 91 NLRB 544 enfd. 188 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In agreeing with the Administrative Law Judge that Respondent vio- lated by withdrawing recognition from the Union, we rely solely on his findings that recognition was voluntarily granted by Re- spondent, and that Respondent had failed to present affirmative evidence to show that, at the time such recognition was extended, the Union lacked the majority support of the employees. We do not, therefore, find it necessary to rely or pass on his further finding that Respondent was a successor to Nipak and, as a successor, was obligated to recognize and bargain with the Union. In this regard, we note that the General Counsel did not allege successorship in the complaint or litigate the case on the basis of a successorship theory. Indeed, the General Counsel disavowed the application of such a theory to the issue in opposing Respond- ent's for Summary Judgment described above in fn. I. 254 N L R B No. 183 DECISION STATEMENT OF THE W ILLIAM J. P ANN IER Administrative Law Judge: This matter was heard by me in Texas, on February 21, 1980. On September 7, the Acting Regional Director for Region 16 of the National Labor Relations Board issued a complaint and notice of hear- ing, based on an unfair labor practice charge filed on July 23, alleging violations of Section and (5) of the National Labor Relations Act, as amended, 29 U.S.C. I5 et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evi- dence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire upon the briefs filed on behalf of the parties, and upon my observation of the de- meanor of the witnesses, I make the following: JURISDICTION At all times material herein, Fertilizer Company of Texas, Inc., herein called Respondent, has been a corpo- ration organized under and existing by virtue of the laws of the State of Delaware, has been licensed to do busi- ness in the State of Texas, and has been engaged in the manufacture and sale of ammonia phosphate at a facility located in Kerens, Texas. In the course and conduct of its operation there, Respondent will annually purchase materials and supplies valued in excess of which will be transported directly to the Kerens facility from States other than Texas. Therefore, I find, as admitted by Respondent, that at all times material herein, Respondent has been an employer engaged in commerce within the meaning of Section and (7) of the Act. T H E LABOR ORGANIZATION INVOLVED At all times material herein, Oil, Chemical and Atomic Workers International Union, Local 4-478, has been a labor organization within the meaning of Section of the Act. T H E ALLEGED UNFAIR LABOR PRACTICES A. The Facts Essentially, the issue presented by this case is whether, 3 weeks after it granted voluntary recognition to the Union, Respondent could rescind that recognition be- cause a majority of the employees voted, in a poll con- ducted by Respondent, not to be represented by the Union. Put another way, Respondent argues that the evi- dence shows that it inadvertently had recognized the Union at a time when the latter did not enjoy the sup- port of a majority of its employees and, accordingly, that there was no violation of the Act when it subsequently revoked that recognition. I find that, in the circum- stances presented here, Respondent's poll of its employ- ' Unless otherwise stated. all dates occurred in 1979. Certain errors in the transcript are hereby noted and corrected. 8(a)(5) (1) 8(a)(5) 1, collective- U n i ~ n . ~ operator^,^ infra. ' 16- Inc." 17 car- In "he tlme ' Also untt, test~fied w ~ t h N~pak. FERTILIZER COMPANY OF TEXAS. INC. 1383 ees was conducted under circumstances that violated Section and of the Act, and, further, that its revocation of the recognition voluntarily extended to the Union violated Section and ( I ) of the Act. In 1964, Nipak, Inc., an entity unrelated to and totally separate from Respondent, commenced operating, in Kerens, what is known as the Trinity River Complex, a fertilizer producing facility. By August 4, 1978, Respond- ent was operating, at that location, utility, ammonium, sodium nitrate, ammonium phosphate, and maintenance plants as well as a shipping and storage area and techni- cal and laboratory units. On that date, Nipak ceased all manufacturing operations at the Complex and simulta- neously terminated all employees working there, save for eight persons who performed turndown job functions until December 1978, when they also were terminated. On April 29, Respondent, having leased the ammonium phosphate portion of the Complex, commenced oper- ations there. By October 31, Respondent had purchased that portion of the Complex and Nipak sold the remain- der to another company, which has no relation to and is separate from both Nipak and Respondent. Thus, Re- spondent has been operating and will operate only a por- tion of the total operation conducted by Nipak at the Complex between 1964 and 1978. In 1964, Nipak voluntarily recognized the Union as the bargaining representative of the employees in a unit of all field production, maintenance, and plant clerical em- ployees employed at the Complex. The representative status of the Union continued until Nipak ceased oper- ations at the Complex, with the most recent bargaining agreement between them being effective from June 11, 1977, through June 30. There were approxi- mately 180 employees in the unit prior to the closure. Following that event, the Union conducted two meet- ings, each attended by 30 to 40 of the terminated em- ployees, at which it was explained that they would be converted to out-of-work status. This meant that those employees who were members of the Union would remain on the Union's rolls as full members, but would be relieved of their dues obligations until such time as they commenced working for an employer who was party to a collective-bargaining agreement with the A similar message was also conveyed at union membership meetings conducted at the Union's hall. Plant Manager Ben Woolverton testified that on May 7, when he had commenced working for Respondent, there had been nine seven mechanics, seven shipping employees, and a secretary5 employed by Re- = At the hearing, it was contended that this procedure conformed to the provisions in the Union's constitution. However, there was no copy of the constitutton in effect in 1978 at the hearing. The parties agreed that one would be furnished to Respondent's counsel after the hearing so that he could verify the contention pertaining to the out-of-work status of members. Apparently, this was done, for Respondent makes certain con- tentions based on provisions in that constitution. as discussed How- ever, Respondent does not assert, in its brief, that the above-described procedure, regarding out-of-work members, had been contrary to the provisions of that constitution. Woolverton defined a field production employee as one "that is out in the field doing production type work" and he agreed that operators fell within that category. While this particular secretary had been a maintenance plant clerical while working for Nipak, the parties appear, from their statements during spondent at the ammonium phosphate portion of the Complex. International Representative J. B. Stokes testi- fied that, in late April, he had begun receiving reports that operations were being resumed at the Complex by a firm other than Nipak. Pursuing the matter, Stokes ascer- tained that that firm was Respondent. In the first part of May, he met with some of the Union's members who were then working for Respondent at the Complex and, based on the information provided by them, he compiled a list of employees employed there which he then com- pared against the Union's membership list to ascertain how many of Respondent's employee complement were union members. Based on this comparison, which showed that 21 of the 29 employees reported to him as being at work for Respondent were union members, Stokes set about seeking recognition from Respondent. Respondent, however, was not receptive to Stokes' overtures. Delivery of his May 9 demand letter was re- jected and Respondent refused to accept a subsequent "Mail-Gram." Most, if not all, of his efforts to contact Respondent by telephone were rebuffed. Thus, on May 31, Stokes filed an unfair labor practice charge, Case CA-8521, alleging that Respondent was refusing to bar- gain with the Union "as the successor employer to Nipak, At that time, Respondent was represented by a Houston, Texas, law firm. Stokes testified that, on June 19, the Board agent assigned to investigate the charge in Case 16-CA-8821 reported that an attorney from that firm had indicated willingness to recognize the Union if that would serve to settle the case. After Stokes had expressed interest in this proposal to the Board agent, the attorney called Stokes directly that same day. He said that Respondent agreed that it was Nipak's suc- cessor and was willing to recognize the Union as the representative of the employees at the ammonium phos- phate plant. At Stokes' request, the attorney sent a letter6 to the Union confirming these statements: This letter will serve to confirm our discussion of . Tuesday, June 19, 1979, wherein we advised you that our Client, Fertilizer Company of Texas, Inc., recognizes Oil, Chemical And Atomic Workers In- ternational Union and its Local Union No. 4-478 as the exclusive bargaining representative for all field production, maintenance, and plant clerical employ- ees employed at its Kerens, Texas plant, previously identified as the Trinity River Complex of NIPAK, Inc. At the time, Respondent employed six operators, three operator helpers, seven mechanics, a custodian, and nine shipping employees.' Of these 25 employees, at least had been employed previously by Nipak and were the hearing and their briefs, to agree that her duties while working for Respondent warrant her exclusion from the bargaining unit. parties stipulated that this attorney had been an agent of Re- spondent during this period and, further, stipulated specifically that the attorney had been an agent of Respondent when he had sent the letter. employed was the secretary, who the parties agree should not be included in the and a lab analyst who Woolverton would not have been covered by the Union's collective-bargaining agreement 1384 ried 1. Wool- indicate[d] Inc., poll 10 according1 1 1, un- 4-478?" Goodwin. heen Goodwin had been cornnlttteeman Un~on. 1 (1977), F.2d 1 Paole P. Mansour Mansour's ' appropriate."iV.l.R.B. ~ o r ~ o r a t i o n , F.2d W 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the Union's rolls as members on out-of-work status. Upon receipt of the attorney's letter, the Union withdrew the charge in Case 16-CA-852 However, the matter did not end at that point. verton testified that he had not been told that the Union had been recognized by Respondent and that, commenc- ing on June 22, employees had begun inquiring whether recognition had been extended and, further, had ex- pressed opposition to being represented by the Union. Woolverton named three employees specifically who had made such remarks8 and testified that eight or nine others, whose names he did not recall, had made similar comments. Additionally, Respondent produced affidavits of 22 employees, each of which state that at no time be- tween the date of hire by Respondent and June 21 had he or she . . . in any way, either by word or act, to the Oil, Chemical and Atomic Workers Interna- tional Union, its Local 4-478, or any of its agents, officers, representatives, or anyone else that I de- sired this Union to represent me for the purposes of collective bargaining in my employment with Fer- tilizer Company of Texas, at the Kerens, Texas facility. Woolverton testified that, when the employees' com- ments led him to delve further into the matter, he had discovered the recognition letter. Respondent then changed counsel and, in light of the employees' com- ments to Woolverton, decided to conduct a poll of the employees. The employees were asked if they desired to be represented by the Union. Of the 29 employees then working at the Complex, 27 voted in the poll. In all 24 employees voted against representation and 3 voted in favor of representation by the Union. On July 3, the Union had sent a letter to Respondent requesting that ne- gotiations commence. The had been conducted on July and, y, on July Respondent's coun- sel authored a letter to the Union declining to recognize it as the representative of the employees of the ammoni- um phosphate plant: The reason for the declination is that certain mat- ters arose subsequent to the previous representation which caused our client to entertain, in good faith, a serious doubt that your union rerpesented an coerced mejority of the employees in the unit you identified as being appropriate for collective bar- gaining purposes. While we do not necessarily agree with you on the question of unit appropriateness, the matters were so sincerely entertained that on Tuesday, July 10, 1979, a lawful poll was conducted among the employees. The. sole question presented was: "Do you wish to be represented for purposes of collective-bargaining by Oil, Chemical and Atomic Workers International Union and its Local NO. The results of this poll revealed that of the twenty-nine (29) eligible employees, twenty-seven Jerry Crocker, Calvin Warren, and C. Lynn While em- ployed by Nipak. Crocker had trustee and a for the (27) voted, with twenty-four (24) voting against and three (3) voting for representation by your union. In view of this overwhelming result, which only served to confirm our client's previously held good faith doubt of your majority status, it is obvious we must decline your request that our client voluntarily recognize and bargain with your union. Further, we must also decline your request for the information contained in your letter of July 3, 1979. B. Analysis In addressing the issue of Respondent's June recogni- tion of the Union, the General Counsel, in his brief, char- acterizes Respondent's action both as recognition ex- tended pursuant to a private settlement agreement and as a voluntary recognition. Inasmuch as the Union with- drew its charge alleging an unlawful refusal to bargain in return for recognition by Respondent, there is a basis for concluding that recognition was extended here as a result of a settlement agreement between the parties. As the Board stated in Vantron Electric Corporation, 23 NLRB 1014, 1015 enforcement denied 580 92 (7th Cir. 1978): We conclude that when an employer, as Respond- ent here, agrees as one of its concessions to bargain with a union and that union, based on that conces- sion, thereupon withdraws unfair labor practice charges against the employer, alleging an unlawful refusal to bargain, we will construe that agreement as a typical settlement agreement warranting appli- cation of Foundry rules. See also Theodore d / b / a Ted Market, 199 NLRB 218, 221-222 (1972). However, application of this particular theory may present problems in the circumstances of this case. For example, there has been no showing of the extent to which the Regional Office had investigated the charge in Case 16-CA-8521 to ascertain "whether any remedial action [was] v. Vantran Electric 580 921, 924 (7th Cir. 1978). Further, with respect to his approval of the withdrawal request, "the record herein does not reflect what considerations the Regional Director entertained in taking such action." R. Grace Company, 240 NLRB 813 (1979). In light of these and other considerations suggested by cases in which the Board has applied the settlement agreement theory of recognition to withdrawal situations, and inas- much as there would be no difference in the impact of utilizing a voluntary recognition theory, rather than a settlement theory, in the circumstances of this case, I find it unnecessary to reach the issue of whether the at- torney's June telephone call and June 21 letter suffice to constitute a settlement of an unfair labor practice charge. I do find that by that conduct Respondent's attorney, admitted1 y Respondent's agent for doing so, voluntarily recognized the Union. As a result, Respondent was obliged to bargain with the Union as the representative of the ammonium phosphate plant employees for a rea- sonable period of time. Where "a bargaining status [is] ." Keller un~ t e.g., Sun Clemente Inc., F.2d 1969), 8(a)(2) & Tri- 10. Goodwin und i~pu t ed .~ Woolver- lnasmuch test!- rnony. .Manufacturing Massachuserts and Slamping, Inc.. F.2d 15 (1st signkd, nur- Goodwin. employ~es.10 Good- i t . - heen Inc., F.2d (1st F.2d (2d F.2d 1972).11 l o Woolvcrton thehe indiv~dualh. thcre I\ for convlud~ng available witnebhe\ h> partirh. ' ' employ% (cla\ri- lied operalor\) claim5 hat ~t will of that clahhification advcrhely bignificant at phahphate whlch, encompilhhe\ C O I I I I I I U L ~ ~ FERTILIZER COMPANY OF TEXAS. INC. 1385 established as the result of voluntary recognition of a majority representative, we conclude that, like situations involving certifications, Board orders, and settlement agreements, the parties must be afforded a reasonable time to bargain . . . Plastics Eastern, Inc., 157 NLRB 583, 587 (1966). Even should the bargaining rep- resentative lose the support of a majority of the em- ployees during that "reasonable time," the employer is not free to withdraw recognition from it during that period. See, N.L.R.B. v. Publishing Corporation; Coastline Publishers, 408 367, 368 (9th Cir. and cases cited therein. Therefore, having extended recognition to the Union in June, Re- spondent was not free to assert a good-faith doubt of the Union's majority and to withdraw recognition from it 3 weeks later on July 11. Respondent, however, contends that its reason for re- scinding recognition which it had extended to the Union was not the fact that it launched and entertained a doubt regarding the Union's continued majority support. Rather than argue that the evidence which came to its attention on and after June 22 sufficed to show that the Union had not enjoyed the support of a majority of am- monium phosphate plant employees at the time that rec- ognition had been extended in mid-June. Consequently, argues Respondent, to continue recognizing the Union in the face of that evidence would constitute, in effect, a violation of Section of the Act and would under- mine the right of the ammonium phosphate plant em- ployees to select a representative supported by a major- ity of their number. It does appear accurate that an employer does not vio- late the Act if it rescinds voluntary recognition so long as it can produce "affirmative evidence proving a lack of majority at the time of [recognition]." Moisi Son Trucking, Inc., 197 NLRB 198, fn. 2 (1972). Accord: City Meats, Inc., 231 NLRB 768, fn. 2 (1977). T o estab- lish the Union's lack of majority status on June 19 and 21, Respondent points to essentially three factors. The first factor is the employee comments to Woolverton, commencing on June 22. The second factor is the state- ments in the 22 affidavits that none of the employees had ever designated the Union as their bargaining representa- tive between the employees' dates of hire and June 22. The final factor is the result of the poll conducted on July With respect to the-first factor that Crocker, Warren, and had said that they did not desire represen- tation by the Union is However, ton was unable to identify the other eight o r nine em- ployees who assertedly made similar remarks to him. Moreover, in contrast to his descriptions of the com- ments by the three named employees, he supplied no de- tails with respect to the circumstances and exact state- ments of these other eight o r nine employees. Although Respondent had spoken with the employees concerning as. so far as the record discloses, these employees were equally available to all parties, no inference can be drawn from Respond- ent's failure to call them as witnesses to corroborate Woolverton's Hichiner Company. 243 N L R B 1016 (1979): N.L.R.B. v. Machine 578 Cir. 1978). the subject of this proceeding prior to the hearing as i l- lustrated by the affidavits which they apparently no effort was made to identifv which of them had portedly spoken to Woolverton making comments simi- lar in nature to those of Crocker, Warren, and In any event no employees were called by Respondent to corroborate Woolverton's testimony regarding re- marks made to him by eight o r nine other Even, however, assuming that the latter's estimate con- cerning the number of employees who had approached him was accurate and that their remarks had, in fact, been of the type made by Crocker, Warren, and win, at best only 12 of the 25 employees employed in the unit at that time-less than a majority-had complained about being represented by the Union. Indeed, it cannot even be said that all of those who complained had been included in the bargaining unit. For, included among the 22 affidavits of employees submitted by Respondent were affidavits of the lab analyst and secretary Duncan, both of whom Respondent agrees should be excluded from the bargaining unit. Inasmuch as Respondent is willing to rely on their affidavits to show that no em- ployees had specifically designated the Union to repre- sent them between the date of hire by Respondent and July 22, it cannot be said that Woolverton would have been any the less likely to disregard any comments that they might have made, concerning not wanting to be represented by the Union, in computing employee com- plaints on and after June 22. In these circumstances, i t cannot be said that these comments by less than a major- ity of the employees establish that the Union did not enjoy the support of a majority at the time that was recognized by Respondent in June. With regard to the affidavits, each of them states only that the signer had not designated the Union as his or her bargaining representative between the date of hire by Respondent and June 21. Yet, the fact that they had taken no action during that precise time period does not suffice to show that the Union lacked the support of a majority of Respondent's employees on June 19 and 21. At no point in this proceeding has Respondent chal- lenged the conclusion of its first attorney that it had a successor employer to Nipak at the ammonium phos- phate plant. Respondent has presented no evidence that would support a contrary conclusion. Certainly that con- clusion is not negated, alone, by the fact that Respondent had assumed only a portion of the operations conducted at the Complex by Nipak. N.L.R.B. v. Band-Age. 534 1, 5 Cir. 1976); Nazareth Regional High School v. N.L. R. B., 549 873, 819-880 Cir. 1977); N.L.R.B. v. Geronimo Service Co., 467 903 (10th Cir. Nor is it refuted by the fact that the unit Inasmuch ah did not identify no baaih that they were equally a all Like Nipak. Respondent field production employees as and maintenance employers. Although it not be employing plant clerical employees, there has been no show- ing that the absence employees in will affect or have any impact on the bargaining unit the ammo- nium plant, as operated by Respondent.