Texas Petrochemicals Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1057 (N.L.R.B. 1989)

TEXAS PETROCHEMICALS CORP. 1057
Texas Petrochemicals Corporation and Oil, Chemi-
cal and Atomic Workers International Union,
Local 4-227, AFL-CIO. Case 23-CA-9791
September 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On February 20, 1985, Administrative Law
Judge Richard L. Linton issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief and a motion to reopen the record.
The General Counsel and the Charging Party filed
briefs in support of the judge's decision , and the
General Counsel filed an opposition to the Re-
spondent's motion to reopen the record.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order,
as modified.3
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by conducting a
poll of employees to determine whether they
wished to continue to be represented by the Union;
by failing to provide the Union with advance
notice of the time and place of the poll; by with-
drawing recognition from the Union; and by there-
after unilaterally, without notice to or consultation
with the Union, converting all bargaining unit em-
ployees from hourly to salaried compensation and
restructuring their insurance premiums. We agree
' The Respondent 's motion to reopen the record to admit evidence is
denied ; even if adduced and credited the proffered evidence would not
require a result different from that which we reach here Board 's Rules
and Regulations , Sec. 102 48(d)(1).
2 The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
The judge's decision contains a few inadvertent errors The last word
of the second sentence of the first par. of sec 1l1,B,2 should be
"OCAW," not "employees", in the last par . of sec III,B,3, Supervisor
Miller is incorrectly identified as "employee", in the 10th par of sec.
III,B55, the word "directly" should be "indirectly."
a In sec . I11,C,2,b of his decision and in his Conclusion of Law 6, the
judge found and concluded that the Respondent unlawfully refused to
bargain with the Union by failing to give the Union advance notice of
the time and place of the instant poll . However, the judge does not refer
to this particular unfair labor practice finding in his recommended Order
or notice. For the reasons discussed infra, we agree with the judge that
the Respondent acted unlawfully in failing to provide the Union with ad-
vance notice of the poll. Consequently, we will modify the judge's rec-
ommended Order and notice to include this unfair labor practice finding.
with the judge , for the reasons set forth below, that
the Respondent violated the Act as alleged.
A. Facts
The Respondent purchased the instant plant
from Petro-Tex Chemical Corporation on June 21,
1984.4 During the 2 weeks prior to the purchase,
the Respondent's president, John Shelton, went
through the plant to meet and evaluate employees
and make job offers. According to Shelton, em-
ployee C. E. Goods told him that he thought that
the Union was "a thing of the past" in the plant.
On another occasion, an unidentified employee re-
portedly told Shelton that the Union "had not been
able to tell [the employees] anything about what
was going to happen or . . . to respond to their
questions" about the imminent sale of the company
to the Respondent.
During the period June 27-July 2, following the
June 21 purchase of the company by the Respond-
ent, Shelton conducted a series of four meetings
with separate groups of the approximately 100 unit
employees. According to Shelton, employees ex-
pressed their dissatisfaction with the Union at least
two or three times in each meeting. Employee La-
Fette and other employees are said to have re-
marked to the effect that they had been trying to
talk with the Union, but that it had not responded.
Another comment reportedly made was "we used
to have a union here; we don't anymore."
Subsequently, around July 18, Shelton was told
by the Respondent's supervisors that the employees
did not wish to be represented by the Union. Shel-
ton had earlier been advised by the Respondent's
lawyer that the Respondent was a successor em-
ployer and was obligated to recognize the Union
unless the Respondent "had a lot of objective crite-
ria" on which to base a refusal to recognize the
Union. Shelton therefore informed the supervisors
that they should document any comments made to
them by employees pertaining to loss of employee
support for the Union. According to Shelton, "I in-
formed them then they needed to be specific. They
should not solicit any information, but if people
made comments to them they should document
that and turn it over to Mr. Gebhardt in the em-
ployee relations department."
On July 19, the Respondent recognized the
Union as the collective-bargaining representative of
the Respondent's technicians in the operations,
technical, and maintenance departments. There
were approximately 103 employees in the unit.
From July 18 through 23, there were 15 memos
submitted by 10 different supervisors, reporting on
4 All dates are 1984, unless otherwise indicated.
296 NLRB No. 136
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
purported expressions of dissatisfaction with and/or
opposition to the Union made by 23 different em-
ployees.5 These memoranda from supervisors were
ultimately funneled through Employee Relations
Manager Gebhardt to President Shelton . Based on
these written reports , together with similar verbal
remarks reportedly made to Shelton by several em-
ployees during meetings in late June and early
July, Shelton conferred with the Respondent's at-
torney and four departmental managers on the
morning of July 26 . Thereafter , Shelton decided to
conduct a poll of the employees to determine the
extent of their continued support for the Union. In
order to poll all four work shifts, polling was
scheduled to be conducted in several sessions,
during July 26 and 27. Immediately prior to the
start of actual polling later that day , an employee
delivered to Shelton a petition signed by 35 em-
5 Thus, Shift Supervisor Buckholt reported to Operations Manager
Grimsrud that employee Fields had told him that he did not feel that the
Union represented him; that he felt that the Union should give him a
choice whether to be represented by the Union ; that he did not think that
there were "too many men that want the Union" (quoting Fields), that he
felt that the employees "should give the company a chance without the
Union" (quoting Fields), and that he himself did not want the Union. Su-
pervisor Robinson reported to Operations Manager Grimsrud that both
Fields and employee Bryan told Robinson that they did not believe that
they needed union representation . Employer Relations Manager Geb-
hardt , in a memorandum for file, reported that employee George Bryant
told him that in Bryant 's opinion over 80 percent of the employees did
not want union representation Supervisor Rivers reported to Utilities
Manager Summers , as well as to Grimsrud and Gebhardt , that employee
Ramirez told him that his prounion sentiments had "just about gone away
because of [the Union 's] actions in this plant " Quality Control Manager
Munson reported to Gebhardt that employee Mouton told him that he
did not see what the Union could do for the employees and that the em-
ployees had a right to do anything they wanted to do.
Process Superintendent Howard reported to President Shelton that
during the 2-week period between July 3-17, employees Smith , Powell,
Maxwell , Bryan , and Inman all told him that they did not want union
representation . Crew Supervisor Warren reported that employees Heath
and Maxwell told him that they had unsuccessfully attempted to with-
draw from the Union and that they did not want union representation.
Warren also reported that employee Fields told him that the Union had
not done anything in the past and that he did not want the Union to rep-
resent him . Personnel Manager Rhodes reported to Gebhardt that em-
ployee Bezdeck told him that the Union had not done anything for him,
and that he wanted to cancel his dues-checkoff authorization Rhodes
also reported to Gebhardt that employee Dancy told him that no one in
the 12-employee laboratory was interested in union representation
Supervisor Rivers reported to Utilities Manager Summers , Operations
Manager Grimsrud , and Employee Relations Manager Gebhardt that em-
ployee Heald told him that as long as the Respondent was honest he
wanted no union at the plant Rivers also reported that employee Garrett
told him that he felt that the Union had abandoned him Quality Control
Manager Munson reported to Gebhardt that employee LaFette told him
that he thought that there were only five or six employees in the plant
who wanted the Union to represent them . Process Superintendent
Howard reported to President Shelton that employees Davis , Hoover,
Smith , Eggers, and Wallace told Crew Supervisor Warren that they did
not want union representation Unit Supervisor Dickson reported to
Process Superintendent Lewis that employee Gillen told him that as far
as he was concerned the Union could "take the same shaft that he had
received from them," while Gillen simultaneously (according to Dickson)
"exposed his middle finger in an upright position ." Finally , Dickson also
reported to Lewis that employee Layton told him that he had paid sever-
al thousand dollars to the Union and had received essentially nothing in
return , and that Layton said that "we don't need the Union again "
ployees,6 stating that the signers were aware that
the Union claimed to represent a majority of the
Respondent 's employees, and stating:
Under present conditions we feel union repre-
sentation is no longer necessary , and would
prove to be a detriment in many areas. We
therefore request that a vote be taken of all
hourly employees to substantiate [the Union's]
claim of representation.
There were 103 employees eligible to vote in the
poll. The voters were able to vote yes or no to the
question "Do you want [the Union] to represent
you at Texas Petrochemicals Corporation ." There
were 35 yes votes and 50 no votes; 1 ballot was
void.?
On July 27, the Respondent gave written notifi-
cation to the Union and the employees that the
latter had voted not to have the Union represent
them, and that , accordingly, the Respondent was
withdrawing its recognition of the Union.
On or about August 1 , the Respondent unilater-
ally, without notice to or consultation with the
Union, converted all employees in the unit from
hourly wages to a salary , and also restructured
their insurance premiums.
B. Analysis and Conclusions
1. Polling
The judge concluded that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by conducting
the instant poll because its asserted reasons for
doing so, considered individually and jointly, did
not constitute sufficient objective considerations on
which to base a reasonable doubt of the Union's
majority status. We agree.
First , we agree with the judge 's analysis and de-
termination that Shelton 's testimony about employ-
ee verbal reports of dissatisfaction with the Union
was not reliable . Second , we find the Respondent's
purported reliance on the supervisors' written re-
ports of employee dissatisfaction with the Union to
be unavailing. We find that these reports do not
constitute sufficient objective considerations on
which the Respondent could base a reasonable
doubt about the Union's continued majority status.
We note particularly that less than a quarter of the
unit employees are named in these reports (23 out
6 Of the 35 employees who signed this petition , 8 were among the 23
specifically named employees who had previously been reported to the
Respondent in the above -discussed memoranda as being dissatisfied with
the Union.
7 There is no allegation that the manner in which the poll itself was
conducted was improper . As to turnout, the record does not establish
how many, if any , of the 17 eligible employees who did not vote were
absent from the plant at the time of the polling , or were present but
simply did not participate in the polling
TEXAS PETROCHEMICALS CORP. 1059
of approximately 103 employees in the unit at the
time in question) and that (as the judge found in
secs . III,B ,3 and 4 of his decision) many of the
statements attributed to the relatively few employ-
ees named in these reports do not clearly express a
desire to discontinue representation by the Union.
Some of these reports contain weak or , at best, am-
biguous statements and complaints about what was
perceived by a relatively few employees to be ad-
ministrative and communicative shortcomings on
the part of the Union . Assuming , arguendo, that
these written reports were correctly admitted into
evidence, a number of them fall short of objective
considerations on which the Respondent could le-
gitimately base a reasonable doubt about the
Union's continued majority status .8 Thus, they do
not serve to legitimize the Respondent 's polling of
its employees about their support for the Union.
Nor can the 35-employee antiunion petition sub-
mitted to Shelton just prior to the start of polling
be said to constitute an objective consideration in
justification of the poll. Even though, in the strict-
est sense , Shelton was aware of this petition mo-
mentarily before the actual start of polling , the pe-
tition itself, representing as it did the sentiments of
only one-third of the unit employees , was not in-
dicative of a loss of majority support for the
Union, and could not effectively constitute an ob-
jective basis for the Respondent 's asserted doubt of
the Union 's majority status.9
Accordingly , we conclude , in agreement with
the judge , that the Respondent unlawfully polled
its employees about their continued support for the
incumbent Union , because it did not have the pre-
requisite reasonable doubt , based on objective con-
siderations , about the Union's continued majority
status.
same standard for determining whether an employ-
er may petition the Board for a Board -conducted
election under Section 9 (c)(1)(B) of the Act (i.e.,
an RM election) to ascertain the continued majori-
ty status of an incumbent union ."' It is also the
same standard for determining whether an employ-
er may legitimately withdraw recognition from a
union. 12
In applying this standard , we are mindful that
three circuit courts of appeals have rejected the
Board 's "reasonable doubt" standard in the polling
context .' 3 After careful consideration of the rea-
soning of the courts in these cases, we have decid-
ed, for the reasons set out below , respectfully to
adhere to the "reasonable doubt" standard for poll-
ing. 24
In NLRB v. A. W. Thompson, the Fifth Circuit
(where the instant case arises), noted that the
Board 's standard for when an employer may law-
fully poll its employees about their continued sup-
port for an incumbent union is the same as the
Board 's standard for when an employer may law-
fully withdraw recognition from an incumbent
union . The court was skeptical about the validity
of what it perceived to be a prohibition against an
employer polling its employees about their contin-
ued support for an incumbent union until the em-
ployer has sufficient objective evidence to justify
an outright withdrawal of recognition , without
"need" for a poll . In the court's view , polling
could be a useful and legitimate tool when an em-
ployer's sincere doubt about a union 's continued
majority status was based on objective evidence
which fell short of that needed to justify withdraw-
al of recognition . Therefore , the court held that
when an employer has not engaged in unfair labor
2. Standard for polling
In accordance with established Board precedent,
we have applied the "reasonable doubt" standard
to determine whether the Respondent could legiti-
mately poll its employees about their continued
support for the incumbent Union .' 0 This is the
8 See, e g., Destileria Serralles , 289 NLRB 51 (1988 ), Louisiana Pacific
Corp., 283 NLRE( 1079 ( 1987), enfd . 858 F.2d 576 (9th Cir. 1988); Bryan
Memorial Hospital, 279 NLRB 222 (1986), enfd 814 F.2d 1259 (8th Cir
1987); KBMS. Inc., 278 NLRB 826 (1986), Redok Enterprises, 277 NLRB
1010 (1985 ) See generally Cornell of California, 222 NLRB 303 ( 1976),
enfd 577 F . 2d 513 (9th Cir 1978)
In light of the substantive shortcomings of the supervisory written re-
ports , we find it unnecessary to pass on the judge's discussion of the pro-
priety of his admission of these reports into evidence.
e Tile, Terrazzo & Marble Contractors Assn ., 287 NLRB 769 ( 1987);
KEZI- TV, 286 NLRB 1396 (1987).
10 Hajoca Corp., 291 NLRB 104 (1988), enfd . 872 F.2d 1169 (3d Cir.
1989), Howard M. Howes, Inc, 290 NLRB 967 (1988 ); Thomas Industries,
Inc, 255 NLRB 646 (1981 ), enf denied in relevant part 687 F.2d 863 (6th
Cir. 1982), Montgomery Ward & Co., 210 NLRB 717 (1974)
" United States Gypsum Co, 157 NLRB 652, 656 (1966).
12 NLRB Y. A. W. Thompson. Inc., 525 F 2d 870, 871 (5th Cir 1976)
See also , e g , I T Corp, 263 NLRB 1183, 1184 ( 1982), and cases cited
therein , Westwood Import Co, 251 NLRB 1213, 1214 (1980), and cases
cited therein , Cain's Generator & Armature Co, 237 NLRB 1198, 1200
(1978), and cases cited therein
's Forbidden City Restaurant v. NLRB, 736 F 2d 1295 (9th Cir 1984);
Thomas Industries v. NLRB, 687 F.2d 863 (6th Cir. 1982), NLRB Y. A W
Thompson. Inc, 651 F 2d 1141 (5th Cir 1981 ) However, the Third Cir-
cuit Court of Appeals, in Hajoca Corp Y NLRB, 872 F.2d 1169 (1989),
affirmed the Board 's finding that the employer failed to establish that it
had a reasonable doubt that the Union still had majority support in deter-
mining that the employer in that case unlawfully polled its -employees
about their continued support for an incumbent union In any event,
however , in stating its basis for enforcing the Board 's remedial order, the
court found, as did the Board in the underlying proceeding in Hajoca,
that the polling was unlawful under either the Board's standard or the
less stringent standard for polling applied by the three circuit courts in
question , as discussed in full below 872 F.2d at 1176, fn 1.
14 We note in agreement with our concurring colleague that under
either the Board 's "reasonable doubt" standard or the lesser standard ad-
vocated by the three circuits which have expressed disagreement with
the Board in this area, that the evidence submitted by the Respondent in
this case to establish reasonable doubt did not meet the requirements of
either standard
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practices or otherwise created a coercive atmos-
phere, it may, after giving notice to the union, poll
the employees about their union sentiment if there
is substantial , objective evidence of a loss of union
support, even if that evidence is not sufficient by
itself to justify withdrawal of recognition.15 The
court viewed this test as a reasonable accommoda-
tion of the employer's interest in testing the union's
support and the Board 's interest in preventing re-
peated polls which themselves can be coercive.
The court stressed that in order to justify a poll,
there must be substantial, objective evidence of a
loss of at least some support for the union , albeit
not necessarily majority support . The court theo-
rized that the test it had posited might prevent
unfair labor practices and reduce the need for
Board and court involvement in collective -bargain-
ing disputes, by avoiding the situation in which an
employer must risk unfair labor practice charges by
withdrawing recognition to find out whether the
evidence of loss of support is sufficient to justify
withdrawal ; under the court's test, an employer
faced with substantial evidence of a loss of some
support for the union could lawfully conduct a poll
to determine the union's actual level of support.16
We respectfully disagree with this analysis of the
issue . It is true that the Board 's "reasonable doubt"
standard for employer polling is the same as its
standard for withdrawal of recognition , and that
this similarity does present what at first blush ap-
pears to be the anomaly that an employer cannot
conduct a poll until it has acquired sufficient evi-
dence to make a poll unnecessary , i.e., sufficient
evidence to withdraw recognition, without "need"
for a poll. We believe, however, that careful analy-
sis of the statutory goal of employee free choice
and of Section 9(c)(1)(B) (i .e., employer-initiated
petitions , commonly referred to as RM petitions)
establishes that there is no anomaly in our policy.
The similarity of purposes and potential conse-
quences of employer-conducted polls and employ-
er-initiated , Board-conducted RM elections sug-
gests that we apply similar standards for determin-
ing when such polls and elections may be conduct-
ed. Indeed, it is the relative informality of employ-
er-conducted polling , in contrast to the strict pro-
1s The court also required that in order to be noncoercive and proce-
durally fair , any such polling would have to be conducted in accordance
with the guidelines set forth for precertification polling in Struksnes Con-
struction Co. 165 NLRB 1062 (1967), i.e, (1) the purpose of the poll is to
determine whether the union enjoys majority support ; (2) the purpose is
communicated to the employees , (3) assurances against reprisals are
given; (4) the employees are polled by secret ballot , and (5) the employer
has not engaged in unfair labor practices or otherwise created a coercive
atmosphere.
16 651 F 2d at 1144-1145 The Fifth Circuit's "loss of support" stand-
ard has been adopted by the Sixth and Ninth Circuits in Thomas Indus-
tries Y. NLRB and Forbidden City Restaurant v. NLRB, supra, respective-
ly.
cedural formality of Board -conducted RM elec-
tions, that requires the prerequisite standard for
polling to be at least as stringent as that for RM
elections . It is only through the application of such
a comparably stringent standard for polling that
the dual goals of collective-bargaining stability and
employee free choice can be protected in this rela-
tively informal context.
a. Similarity of purpose and of potential
consequences
The Board has long held that RM elections, em-
ployer polls, and withdrawals of recognition all re-
quire as an evidentiary prerequisite a showing of
sufficient objective considerations on which an em-
ployer could base a reasonable doubt about a
union's continued majority status; this is the
Board's "reasonable doubt" standard . It was care-
fully developed because the purposes of RM elec-
tions and employer polls, and the potential conse-
quences of them as well as of withdrawals of rec-
ognition, are the same . The purpose of RM elec-
tions and employer polls is to determine whether
an incumbent union still has majority support; their
potential consequence , as well as that of withdraw-
al of recognition, is loss of recognition and stand-
ing as collective-bargaining representative for the
union, and loss of representation for the employees.
In light of these similarities of purposes and poten-
tial consequences, it is appropriate and necessary
that the evidentiary predicates for these actions be
both stringent and identical . It would be anomalous
to on one hand require an employer to show suffi-
cient objective considerations on which to base a
reasonable doubt about an incumbent union's ma-
jority support in order to have a formal , Board-
conducted RM election for the purpose of deter-
mining the union 's majority support , while on the
other hand permitting that same employer to con-
duct an in-house, relatively informal poll for the
same purpose , with the same serious potential con-
sequences for the union and the employees, on the
basis of a significantly less stringent evidentiary
predicate, i.e., the courts' "loss of support" stand-
ard. Under the courts ' approach , an employer
would be permitted to withdraw recognition from
an incumbent union in reliance on the results of an
in-house poll which itself did not meet either the
evidentiary predicate (reasonable doubt of majority
status) or procedural safeguards required for Board
elections conducted for the same purpose under
Section 9(c)(1)(B) of the Act. Rather than permit
an employer unilaterally to subject a collective-bar-
gaining representative to an in-house test of
strength under circumstances where the Board
itself would refuse to conduct such a test, the
TEXAS PETROCHEMICALS CORP. 1061
Board requires at least as stringent an evidentiary
loss-of-support predicate for an employer-conduct-
ed in-house election as that which is required for a
Board-conducted election.
The Board 's statements made over 23 years ago
in U.S. Gypsum, supra, establishing the "reasonable
doubt" standard as the evidentiary prerequisite for
a Board-conducted RM election , continue to be
equally applicable to the question of what standard
should be required for an employer poll:
[T]he legislative history states clearly that Sec-
tion 9(c)(1)(B) was designed to give relief to
those employers who have "reasonable
grounds for believing" that a union making a
claim is not really the choice of the majority.
There is no indication that Congress in enact-
ing that section contemplated the creation of a
device by which an employer acting without
good faith doubt of the union 's [majority]
status could disrupt collective bargaining and
frustrate the policy of the Act favoring stable
relations.17
As with RM elections , so too with employer polls,
which share the same purpose and serious potential
consequences.
While we require , then, that employer polls be
predicated on the same evidentiary basis as Board-
conducted RM elections , we do not go so far as to
require that such polls be conducted with the same
extensive procedural formalities as those that ac-
company Board elections . "' To impose such proce-
dural requirements on in-house employer polls
would , in all likelihood , effectively do away with
such polls-a result which we do not seek. While
we favor reliance on a Board -conducted RM elec-
tion rather than an employer 's own in-house poll,
we nevertheless acknowledge an employer 's right
to conduct such a poll on the basis of a reasonable
doubt about an incumbent union 's majority status.
Although some procedural refinements must be
foregone in the interest of effectively preserving an
employer 's right to poll , we shall nevertheless re-
quire, at a minimum, that an employer provide the
union with reasonable advance notice of the time
and place of the poll , and that the poll itself be
" 157 NLRB at 656 (fns . omitted , emphasis supplied)
18 The Board 's extensive procedures for the conduct of representation
elections , including RM elections conducted under Sec . 9(c)(1)(B), are set
forth in detail in the Board 's Casehandling Manual for Representation
Proceedings (Part Two), secs 11300-11350 In addition to the general
oversight expertise provided by the Board as a neutral party , some of the
more significant other procedural safeguards of Board elections that are
unlikely to be found in employer polls are voter eligibility lists ; posted
election notices ; reasonable periods of time for discussion of issues and
campaigning ; election observers from all participating parties ; procedures
to challenge voter eligibility , procedures to file exceptions to the election
or to conduct affecting the results of the election.
conducted in accordance with the procedural safe-
guards set forth in Struksnes Construction Co.,
supra.19
b. Statutory purposes and goals
A principal purpose and ultimate goal of the Act
is to promote industrial and workplace stability in
collective-bargaining relationships .20 The Board's
"reasonable doubt" standard for polling is more
consistent with this purpose than the "loss of sup-
port" standard.
In order to preserve industrial and bargaining
stability , an incumbent union enjoys an irrebuttable
presumption of majority support for 1 year follow-
ing certification . 2 1 This presumption remains in
effect during the term of a collective -bargaining
agreement, and thereafter becomes rebuttable, on a
showing of actual loss of majority support for the
union, or a showing of reasonable doubt on the
part of the employer , based on sufficient objective
considerations , that the union continues to enjoy
majority support . 22 Where an employer has suffi-
cient objective considerations on which to base a
reasonable doubt about a union 's continued majori-
ty status , but might not wish to test the accuracy
of that doubt directly by withdrawing recognition
from the union , the Board holds that the employer
may petition for a Board -conducted RM election
under Section 9(c)(1)(B ), or poll its employees
about their union sentiments.
The Board 's "reasonable doubt" standard for
polling is well-settled . It makes a poll neither easier
nor more difficult to justify than a Board -conduct-
ed election . By contrast, the courts ' less stringent
"loss of support" standard permits an employer to
conduct a poll where the Board would not conduct
an election and could thus lead employers to poll
their employees about their support for an incum-
bent union where there is a reduced likelihood that
the poll will establish an actual loss of majority
support . But polling employees about their contin-
ued support for an incumbent union is itself poten-
tially, if not inherently , both disruptive of the col-
lective-bargaining relationship between an employ-
er and a union and also unsettling to the employees
involved. Submitting a union 's role as representa-
tive to an employer-initiated and conducted em-
19 We have accepted the general adequacy of the Struksnes procedural
safeguards for employer -conducted polls of employees where the em-
ployer has a reasonable doubt about an incumbent union 's continued ma-
jority status See Hohn Industries, 283 NLRB 71 ( 1987); see also Hajoca
Corp, 291 NLRB 104 ( 1988), enfd 872 F 2d 1169 (3d Cir . 1989).
20 Ray Brooks v. NLRB, 348 U . S. 96, 103 ( 1954); NLRB Y Haberman
Construction Co, 618 F . 2d 288, 312 (5th Cir 1980), reversed in part on
other grounds on rehearing en banc , 641 F 2d 351 (5th Cir 1981).
$1 Ray Brooks v NLRB , supra , 348 U.S. at 103-104
22 NLRB v A . W. Thompson , Inc, supra , 525 F 2d at 871
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee referendum raises simultaneously a chal-
lenge to the union in its role as representative and
a doubt in the mind of an employee as to the
union 's status as his bargaining representative. The
courts have recognized the potentially disruptive
and unsettling effects of such polls, 2 3 and yet the
courts that apply the "loss of support " standard for
polling have expanded the range of circumstances
under which employees could be subjected to such
potentially disruptive polling . Increasing the poten-
tial for such polling through application of the
lesser standard would , in our view , allow an em-
ployer 's interest in testing its employees ' support
for a union24 to outweigh the statutory goal of
stable collective-bargaining relationships. We be-
lieve that a more effective balance of competing
policies is achieved through the use of the more re-
strictive "reasonable doubt" standard for polling
employees about their continued support for an in-
cumbent union . By thus reasonably limiting the
range of circumstances under which an employer
may lawfully conduct such polls, the potential for
disruption of collective-bargaining relationships is
limited , without unreasonably impairing either an
employer 's practical interest in finding out the
actual measure of current employee support for an
incumbent union or the employees ' right freely to
choose whether or not to be represented .25
We recognize, of course, that an employer has
legitimate interests in avoiding continued recogni-
tion of an incumbent union that no longer has the
support of a majority of the employees it represents
and, vice versa, in avoiding withdrawal of recogni-
tion from an incumbent union that still does have
such majority support. However, the weight of an
employer 's interest in testing to see if an incumbent
union in fact still has majority support, so as to
avoid either of these situations , is counterbalanced
by the well-settled presumption that an incumbent
union continues to have the support of a majority
of the employees which it represents . Although
23 Hajoca Corp Y. NLRB, supra , 872 F.2d at 1173; NLRB v. A. W.
Thompson, supra, 651 F 2d at 1144 , Thomas Industries Y. NLRB, supra,
687 F 2d at 869; Forbidden City Restaurant v. NLRB, supra, 736 F.2d at
1298 (minimally disruptive).
24 All three of the courts that have rejected the Board 's "reasonable
doubt " standard for polling have either articulated or clearly implied the
existence of such an employer interest NLRB Y A. W Thompson, supra,
651 F 2d at 1145 , Thomas Industries Y. NLRB, supra, 687 F 2d at 866-867;
Forbidden City Restaurant Y. NLRB, supra , 736 F .2d at 1298.
25 We note that in subscribing to the "loss of support " standard for
polling , the Sixth Circuit in Thomas Industries Y. NLRB, supra, stated that
it did not intend to promote or encourage employer polls ; "To the con-
trary , such polls are not favored because of their potential for disrupting
the bargaining process " 687 F 2d at 869 The court went on to note that
the preferable course for an employer who has doubts as to the continu-
ing majority status of an incumbent union is to file a decertification peti-
tion, although (according to the court) that might not be a viable alterna-
tive in some cases because the Board will not process such petitions if
unfair labor practice charges are pending . Id. at fn. 3 (citations omitted).
this presumption is rebuttable , unless and until it is
rebutted it effectively insulates an employer against
an allegation that it is unlawfully recognizing a mi-
nority incumbent union , and it also effectively re-
lieves an employer of any obligation it might feel
to withdraw recognition from an incumbent union
whose majority support is doubted by the employ-
er. Under the statutory scheme of bargaining obli-
gations, therefore , there is no compelling need for
an employer with doubts concerning the majority
status of its employees ' selected representative to
test the actual extent of support for the representa-
tive . Consequently , an employer 's interest in testing
the actual extent of employee support for an in-
cumbent union is not, in our view , a fundamental
interest which outweighs the statutory goal of sta-
bility in collective -bargaining relationships. 26
Apart from a legal interest in avoiding unlawful
continued recognition or unlawful withdrawal of
recognition, an employer who has received evi-
dence of a loss of majority support for an incum-
bent union may also have an economic interest in
testing that evidence , either because as a matter of
business policy (regardless of legal obligations) it
does not wish to continue to recognize a represent-
ative its employees may no longer support, or be-
cause it would prefer not to be encumbered by a
collective -bargaining relationship and sees a poten-
tially lawful way of ending the relationship. But in
neither instance do the interests at stake warrant
the unnecessary injection of instability into collec-
tive-bargaining relationships . Section 8(a)(2) of the
Act protects employees against the imposition of
minority representation and Section 9(c)(1)(A)(ii)
provides a means for them to rid themselves of an
incumbent representative that is no longer support-
ed by the majority (i.e., a decertification election
upon a petition for same supported by at least 30
percent of the unit employees).
On balance, then , we believe that the courts' less
stringent "loss of support" standard for polling is
not warranted by the balancing of the various em-
ployer, employee , union , and statutory interests at
stake. Rather, we find that the "reasonable doubt"
standard more effectively promotes the statutory
goal of stability in collective-bargaining relation-
ships, without interfering with the equally impor-
tant statutory right of employees to choose for
themselves whether or not to be represented for
purposes of collective bargaining , and also without
substantially impairing the legitimate interest an
employer might have in finding out the actual
26 See N. T Enloe Memorial Hospital Y. NLRB, 682 F 2d 790, 793-794
(9th Cir. 1982), enfg 250 NLRB 583 ( 1980).
TEXAS PETROCHEMICALS CORP.
measure of employee support for an incumbent
union.
c. "Reasonable Doubt" standard not anomalous
We do not agree with the apparent view of cer-
tain courts that the "reasonable doubt" standard
amounts to an ill-advised or illogical prohibition or
constraint against polling . We are aware that the
Fifth Circuit has stated that our standard "repre-
sents, in practical effect , an outright ban on em-
ployer-sponsored polls of employee sentiments in
regard to a certified union , 11 27 and that the Sixth
Circuit has criticized our standard on the grounds
that "an employer would only be allowed to take a
poll under circumstances where no poll was neces-
sary; the only value of the poll would be to
double-check the employer's already sufficient evi-
dence to refuse to bargain . 28 We respectfully differ
with these views . We emphasize that the "reasona-
ble doubt" standard neither prohibits nor renders
meaningless an employer 's polling of employee sen-
timents regarding a recognized representative.
Rather , it provides an employer with a clear
choice . Although under this standard an employer
necessarily must have a reasonable doubt about the
union's continued majority status , and could, on
the strength of that doubt , withdraw recognition,
there still remains an inherent uncertainty about
whether the union has actually lost its majority sup-
port; it may well continue to have it. Rather than
simply withdraw recognition from a union that
might still in fact have majority support, an em-
ployer may wish first to poll its employees to
obtain more certain , precise information about the
union's support than is provided by its own reason-
able doubt. The employer can then act with confi-
dence and certainty in light of the results of the
poll.
There may be other sound business reasons for
why an employer with a reasonable doubt about a
union's continued majority status may nevertheless
decide to poll the employees rather than withdraw
recognition . The employer may wish to resolve the
representational issue more quickly , or reduce the
risk of a postwithdrawal recognitional strike, or
minimize damage to the collective-bargaining rela-
tionship and demonstrate good faith to its employ-
ees. Thus, we do not think that polling under the
"reasonable doubt" standard is an anomaly or a
useless exercise.
87 NLRB Y. A. W. Thompson. Inc., supra, 651 F2d at 1144 , see also
Forbidden City Restaurant Y NLRB, supra , 736 F 2d at 1297-1298
28 Thomas Industries v NLRB, supra , 687 F 2d at 867; see also Forbid-
den City Restaurant Y. NLRB, supra , 736 F 2d at 1297.
1063
d. Conclusion
We have attempted here to respond to the con-
cerns raised by the circuit courts which have not
accepted our standard for determining when an
employer may lawfully poll its employees about
their continued support for an incumbent union. In
doing so, we have explained our standard in light
of both statutory policies and industrial practicali-
ties. In the final analysis, we believe that our stand-
ard most effectively accommodates the divergent
policy and practical interests at stake in this con-
text . In addition to these considerations , we also
hope that our discussion and analysis of this issue
will supply the courts with a more satisfactory
basis on which to assess our future decisions in this
difficult area.
3. Advance notice of polling
We agree with the judge , for the reasons he dis-
cusses in the final three paragraphs of section
III,C,1 of his decision, that the Respondent also in-
dependently violated Section 8(a)(5) and (1) of the
A :t by failing to provide the Union with advance
notice of the time and place of the instant poll.
As noted by the judge, the Board has not hereto-
fore imposed an "advance notice" requirement on
employer-conducted polls taken to determine
whether an incumbent union continues to have the
support of a majority of the employees it repre-
sents . Two of the circuit courts-the Fifth and the
Ninth-that have rejected the Board 's more strin-
gent "reasonable doubt" standard for such polling
have nevertheless imposed an "advance notice" re-
quirement on polls conducted under the otherwise
less restrictive "loss of support" standard.
It is appropriate to require employers to provide
unions with reasonable advance notice of such
polls. Although the Struksnes procedural safe-
guards set forth above otherwise provide adequate
protection to employee free choice in such polls,
they do not require that the union be provided
with advance notice of the polling. The Struksnes
guidelines were initially developed, and are most
often applied , in situations where a nonincumbent
union is engaged in an initial organizing campaign,
seeking to represent the employees in question.
Under such circumstances , an employer confronted
with such an organizational campaign and demand
for recognition may be willing voluntarily to rec-
ognize the union without waiting for a Board-con-
ducted election , if the employer can satisfy itself
that the union actually represents a majority of the
employees . However , at the time of such a poll,
the union will ordinarily have been in close, con-
tinuing , active contact with the employees, publi-
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cizing and promoting its position on what it per-
ceives to be the issues of current concern to the
employees . Moreover , even if the results of such a
poll are unfavorable to the union , it is not thereaf-
ter deprived of its entitlement to a Board -conduct-
ed election on a sufficient showing of interest.
Thus , at least arguably , 29 advance notice to the
union of such a poll is less critical , substantively
and procedurally , than it is to an incumbent union
under the instant type of circumstances, where
such a union could be legitimately stripped of rec-
ognition as collective-bargaining representative
based on the results of such a poll . The potential
for such an adverse final effect of a poll under the
instant circumstances is an important reason to
impose an advance notice requirement on an em-
ployer who is planning to conduct such a poll.30
Moreover , imposition of a procedurally stringent
requirement that an employer provide a union with
reasonable advance notice of such polls is consist-
ent with our imposition , fully discussed above, of
the substantively more stringent "reasonable
doubt" standard for conducting such polls in the
first place.
Accordingly, we conclude that the Respondent's
poll of employees about their continued support for
the Union violated Section 8(a)(5) and ( 1) of the
Act as alleged not only because, as discussed in the
preceding section of this decision , the Respondent
did not have a reasonable doubt , based on objec-
tive considerations, that the Union continued to
have the support of a majority of the employees,
but also because the Respondent failed to provide
the Union with reasonable advance notice of the
time and place of the poll.
4. Withdrawal of recognition
We have concluded above that the supervisors'
written reports of employee dissatisfaction with the
Union and the 35 -employee antiunion petition did
not constitute sufficient objective considerations on
which the Respondent could base a reasonable
doubt about the Union 's continued majority status,
29 As the instant case does not involve a nonincumbent union which is
seeking initial recognition , it does not raise a question about the need for
or propriety of advance notice to a nonincumbent union of an employer-
conducted poll taken to determine the extent of employee support for
that union
30 Indeed , as the judge points out, the facts in the instant case illustrate
the appropriateness of imposing an advance notice requirement on em-
ployer-conducted polls. The percentage of eligible employees who voted
in the poll was 83 percent (86 of 103 unit employees ), with a tally of 35
for continued representation by the Union , 50 against , and I void ballot
Nevertheless , in the context of no advance notice of the poll from the
Respondent to the Union , 17 unit employees , for reasons not shown in
the record , did not vote . Had all of them , or even all but one, validly
voted in favor of continued representation by the Union, the result of the
poll would have been a narrow vote for continued representation , rather
than the rejection of continued representation shown by the instant no-
notice poll.
for purposes of justifying the Respondent 's poll.31
For the same reasons , we conclude that these fac-
tors do not justify the Respondent 's subsequent
withdrawal of recognition . Nor, of course , can the
Respondent rely on the results of the poll as an ob-
jective consideration , because the poll itself was an
unfair labor practice, establishing an unlawful con-
text for withdrawal of recognition . Accordingly,
we agree with the judge that the Respondent's
withdrawal of recognition violated Section 8(a)(5)
and (1 ) of the Act.32
5. Unilateral changes
We agree with the judge, for the reason he set
forth in section III, C, 2, d of his decision, that, fol-
lowing its unlawful withdrawal of recognition from
the Union, the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally, without notice
to or consultation with the Union, converting all
bargaining unit employees from hourly to salaried
compensation and restructuring their insurance pre-
miums.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Texas Petrochemicals Corporation,
Houston , Texas, its officers , agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to bargain with the Union as the
exclusive bargaining representative of all the em-
ployees in the unit described below by failing to
provide the Union with reasonable advance notice
of the time and place of polls of unit employees
taken for the purpose of determining their desire
for continued representation by the Union; by con-
ducting unlawful polls for such purpose; by unlaw-
fully withdrawing recognition from the Union; and
by making unilateral changes in terms and condi-
tions of employment without first providing the
Union with notice of an opportunity to bargain
about such changes."
2. Substitute the following for paragraph 2(b).
31 In reaching this conclusion we note that even if the comments re-
ported by the supervisors evidencing 23 employees ' dissatisfaction with
the Union were counted in combination with the petition signed by 35
employees , this would be insufficient to support a reasonable doubt about
the Union 's continued majority status . In this regard we note that eight
employees who were among the sources for the supervisors ' reports were
also signers of the petition . Thus , even assuming that the reports could be
relied on as substantive evidence of a desire not to be represented by the
Union , the fact remains that less than a majority of the employees had
expressed a desire not to be represented by the Union
32 Hajoca Corp . supra, Howard M Howes Inc, 290 NLRB 967 (1988)
TEXAS PETROCHEMICALS CORP.
"(b) On request by the Union reinstate any terms
of employment existing when recognition was
withdrawn from that labor organization as the bar-
gaining representative of the employees in the
above unit, and make whole those employees, with
interest , for any losses they may have suffered as a
result of the Respondent 's unlawful changes from
hourly to salaried compensation and in structuring
of insurance premiums . Any money owed under
the terms of this Order is to be computed in the
manner prescribed in Ogle Protection Service, 183
NLRB 682 (1970), with interest thereon to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), except that
any interest accrued prior to January 1, 1987, shall
be computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). Nothing herein
shall be construed as requiring rescission of any
benefits which previously have been granted to
unit employees."
3. Substitute the following for paragraph 2(d).
"(d) Post at its Houston, Texas plant , copies of
the attached notice marked "Appendix."33 Copies
of the notice , on forms provided by the Regional
Director for Region 16, after being signed by the
Respondent's authorized representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material."
4. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN STEPHENS , concurring.
I generally agree with the Courts of Appeals for
the Fifth, Sixth , and Ninth Circuits' that , at least
so long as Board law permits an employer to with-
draw recognition from an incumbent union on a
basis other than the union 's loss of an employee-ini-
tiated decertification election , the standard for per-
mitting an employer to take the grave step of with-
drawing recognition should be more rigorous than
the standard for permitting an employer to deter-
mine in a noncoercive manner whether its objec-
tively based grounds for concluding that the union
has suffered a significant loss of support in fact re-
flect an actual loss of majority.
My differences with my colleagues concerning
the appropriate legal tests do not , however, dictate
a different result in this case . I would find that the
i Forbidden City Restaurant v. NLRB , 736 F . 2d 1295 (9th Cir 1984);
Thomas Industries Y. NLRB , 687 F 2d 863 (6th Cir 1982); NLRB Y. A W
Thompson. Inc, 651 F . 2d 1141 (5th Cir 1981)
1065
evidence relied on by the Respondent here would
not meet even the lesser standard that I would
apply for polling by the employer.
As the statement of facts in the opinion of the
majority reveals, at the time the Respondent an-
nounced to its employees that it would be polling
them to determine whether a majority of the unit
supported the Union , the Respondent had evidence
that 23 out of 103 unit employees made statements
indicating either that they did not want union rep-
resentation or that they were critical of the Union's
performance . Beyond that, the evidence consisted
of statements of opinions by some employees that
other employees felt this way too . Because it is
human nature to want to believe that others share
one's opinion and because of the very real possibili-
ty that these unidentified "other employees" consist
largely of the employees who are already being
counted as antiunion , I would not place much cre-
dence in opinions about the sentiment of unidenti-
fied others as representing significant additional
evidence of lack of union support.2
In finding the evidence here insufficient to justify
an employee poll, I note that the Sixth Circuit (the
only court of the three mandating a dual standard
which actually found evidence meeting the less rig-
orous test for polling)3 particularly noted that
more than one-third of the employees had made
statements manifesting lack of support for the
union . While I would not necessarily subscribe to
all of the Sixth Circuit's reasons for concluding
that its standard was met there (particularly its reli-
ance on revocation of dues checkoff), I do think
that the one-third figure is a significant one for de-
termining what , at a minimum , should be required
for polling by an employer. We will not run a
Board decertification election unless 30 percent of
the unit employees are willing to place their names
on a list of those who wish to repudiate the union.
I see no reason to allow an employer to run its
2 In this regard , I note several examples in this case of multiple reports
of the antiunion sentiments of a single employee . Thus, after supervisors
were instructed to watch for and document evidence of union disaffec-
tion, employee Bryan turned up in the reports of both Supervisor Robin-
son and Process Superintendent Howard , employee Smith was reported
as antiunion by Howard and Crew Supervisor Warren, and employee
Fields was singled out as antiunion by Robinson , Warren, and Shift Su-
pervisor Buckholt Had these supervisors simply reported numbers of an-
tiunion employees without names, Fields might have been counted three
times.
8 The Ninth and Fifth Circuits both remanded the cases to the Board
for application of the lesser standard to determine whether polling was
justified I note that the Sixth Circuit was mistaken about the substance
of the Board 's standard for reasonable good -faith doubt of majority, the
court appeared to believe that the "good faith doubt" test was no differ-
ent from the "actual loss of majority" test, because it stated that the
Board took the position "that an employer must set forth objective evi-
dence establishing that over 50 percent of the affected employees have reject-
ed the incumbent union as their representative before the employer may
take a poll ." Thomas Industries, supra , 687 F . 2d at 867 (emphasis added).
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
own inhouse election on a lesser showing , particu-
larly when , as here , the employer 's supervisory
force has been on the lookout for every possible
sign of disaffection from the union .4 Thus, even if I
were to agree with the Respondent that all the
quoted statements by the 23 identified employees
could be taken as a desire not to be represented by
the Union , s I would not find that the Employer's
objective considerations justified a poll.
Finally , I agree with my colleagues that the peti-
tion containing the names of 35 employees dis-
claiming any desire for union representation--
which was handed to John Shelton , the Respond-
ent's president , after he had addressed the first
group of employees to be polled-could not retro-
actively justify a polling decision the Respondent
had already made and announced to employees.
4 If, in fact , antiunion sentiment was as strong and widespread as the
Respondent suggests, the most activist antiunion employees should have
been able to collect the names of 30 percent of the unit to submit to the
Board for a decertification election There was no contract in effect that
would bar such an election
x The judge counted only 18 employees as expressing (according to su-
pervisors ' reports) the view that they did not want union representation
I agree with the judge and my colleagues that some of the statements
relied on by the Respondent-e g, employee Chism 's statement that he
thought the Union no longer existed at the plant, which could easily co-
exist with a desire for active union representation --did not clearly show a
desire to have no union
I note also that at least some of the expressions of disaffection from the
Union occurred here during the period after the Respondent had pur-
chased the plant but before it had recognized the Union As the Supreme
Court observed in Fall River Dyeing Corp v NLRB, 482 U.S 27, 39-40
(1987), unions are especially vulnerable during the period that immediate-
ly follows a change of employers, and some employees , reacting to the
uncertainties of the situation , may "be inclined " during that period to
"shun support for their former union "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain with the OCAW
as the bargaining representative of the bargaining
unit employees by failing to provide the OCAW
with reasonable advance notice of the time and
police of polls of unit employees taken for the pur-
pose of determining their desire for continued rep-
resentation by the OCAW, by conducting unlawful
polls of such unit employees concerning their
desire for union representation , by unlawfully with-
drawing recognition from the OCAW, or by
making unilateral changes without giving notice to
or bargaining with the OCAW.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request , bargain col-
lectively with Oil, Chemical and Atomic Workers
International Union, Local 4-227, AFL-CIO, as the
exclusive bargaining representative of all employ-
ees in the following appropriate bargaining unit
and, if an understanding is reached , embody such
understanding in a signed agreement:
INCLUDED: All Operations Department
technicians, Technical Department laboratory
technicians, Maintenance Department techni-
cians (machinist) and Maintenance Department
technicians (instrument).
EXCLUDED: All other employees, includ-
ing shift supervisory employees , executive, ad-
ministrative and professional employees, cleri-
cal employees , technical employees and safety
employees.
WE WILL, on request of the OCAW, reinstate
any terms of employment existing prior to the time
we unlawfully withdrew recognition from it as the
bargaining representative of the employees in the
above unit , and WE WILL make you whole , with in-
terest, for any losses that you may have suffered by
virtue of those changes . However, nothing herein
shall be construed as requiring rescission of any
benefits which we granted to you after withdraw-
ing recognition from the OCAW.
TEXAS PETROCHEMICALS CORPORA-
TION
Robert S. Breaux, Esq., for the General Counsel.
Samuel E. Hooper, Esq. and James M. Neel, Esq. (Neel,
Hooper and Kalmans), of Houston , Texas, for the Re-
spondent.
Patrick M. Flynn, Esq. (Watson , Flynn and Bensik), of
Houston , Texas, for the Charging Party.
TEXAS PETROCHEMICALS CORP. 1067
DECISION
STATEMENT OF THE CASE
RICHARD J . LINTON, Administrative Law Judge. This
is a withdrawal of recognition case . After initially meet-
ing with the Union, the successor employer conducted a
poll of bargaining unit employees . Based on the poll's re-
sults, and on other factors , the successor employer with-
drew recognition of the Union and thereafter made uni-
lateral changes . I find that the poll , the withdrawal of
recognition , and the unilateral changes were unlawful.
This case was tried before me in Houston , Texas, on
October 23-24, 1984, pursuant to the August 30, 1984
complaint issued by the Acting General Counsel (Gener-
al Counsel) of the National Labor Relations Board
through the Regional Director for Region 23 of the
Board . The complaint is based on a charge filed July 27,
1984, by Oil, Chemical and Atomic Workers Internation-
al Union , Local 4-227, AFL-CIO (Union, OCAW, or
Local 4-227) against Texas Petrochemicals Corporation
(Respondent or TPC). I
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(5) and ( 1) of the Act by
conducting a poll of unit employees on or about July 26-
27 concerning their desire to be represented by the
Union, by not giving the Union advance notice of the
time and place of the poll , by withdrawing recognition
from the Union on July 27, by unilaterally converting
unit employees from hourly to salaried pay, and by uni-
laterally restructing insurance premiums.
By its answer Respondent admits certain factual
matters but denies violating the Act.
On the entire record , including my observation
of the demeanor of the witnesses , and after due
consideration of the briefs filed by the General
Counsel , the OCAW, and the Respondent ,2 I make
the following
FINDINGS OF FACT
1. JURISDICTION
A Texas corporation, Respondent operates a plant in
Houston , Texas where it manufactures chemical prod-
ucts . During the past 12 months, and since Respondent
commenced its operation on June 21, TPC has sold and
shipped from its Houston , Texas plant goods, materials,
and chemical products valued in excess of $50,000 direct-
ly to points located outside the State of Texas. Respond-
ent admits , and I find, that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local 4-227 is a
labor organization within the meaning of Section 2(5) of
the Act.
i All dates are for 1984 unless otherwise indicated
2 Respondent 's unopposed motion of December 3, 1984, to correct the
record is granted Moreover , p 318, LL I I should reflect that I said I
would not recommend throwing away the ballots.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For about 30 years the employees involved in this case
were represented by the OCAW. Robert H. Broughton,
employed at the plant since September 11, 1950, was a
charter member of Local 4-227. The Union won an elec-
tion (apparently Board conducted) there in the early
1950s (1:229-230).3
John H . Shelton is president of Respondent TPC.4 It
is Shelton 's understanding that Goodyear built the plant
in the 1940s, and that Tenneco and FMC Corporation, as
a joint venture , subsequently purchased the plant (1:165).
The plant for many years was owned by Petro-Tex
Chemical Corporation (Petro-Tex), a subsidiary of Ten-
neco, Inc. The plant involved is located in Houston,
Texas . Following a lengthy process of evaluation and ne-
gotiation , TPC purchased the plant from Tenneco and
began operations there at 3 p.m. on June 21, 1984 ( 1:98).
At the plant , TPC produces butadiene , the primary in-
gredient in the manufacture of synthetic rubber, and
MTBE, a gasoline additive used to boost the rating of
octane (2:314).
As described by Shelton, TPC completely restructured
the plant 's operations . Departments were eliminated,
some officers were not retained , and most of the mainte-
nance craft work was subcontracted ( 1:98-99). TPC of-
fered jobs to 120 of Petro-Tex's 300 hourly employees.
Most accepted , but some declined , and a few quit after
receiving the severance pay negotiated between Tenneco
and TPC . To reach its complement of 120 hourly em-
ployees, Respondent eventually had to add 15 to 20 em-
ployees by transfers from TOC and general hiring. As of
July 26, the date of the poll herein, TPC employed 103
hourly employees. Of these 103, some 15 to 20 had not
worked for Petro-Tex (1:133-134).
There is no dispute, and Respondent admits, that TPC
is a successor employer to Petro -Tex. However, TPC
did not assume the prior collective -bargaining agreement
which had been in effect between Petro-Tex and the
Union (1:97, 168).5
By letter dated June 28, the Union requested TPC to
meet and bargain (G.C. Exh. 4).6 TPC responded by its
letter of July 10 signed by William E. Gebhardt, employ-
ee relations manager (G.C. Exh . 5). Gebhardt advised
that TPC would meet with the Union to discuss recogni-
tion of the OCAW for an appropriate bargaining unit.
Shelton testified that on July 11 TPC posted a notice
(not in evidence) to employees advising them of the
8 Citations to the two-volume transcript are by volume and page
Broughton presently is director of marketing services for Respondent.
4 Shelton also is president of Texas Olefins Company (TOC) which is
the parent of TPC ( 1 93) In addition to his chemical engineering degree,
and his post graduate business courses, Shelton has a law degree (1 95,
161)
5 The last contract was set to expire March 1 , 1984 (G.C Exh 2) It
was extended by supplemental agreements until the ownership of the
plant changed (1 -30, G C. Exh 3).
6 The letter actually was mailed on June 29 and received on July 2
(1.56, 169 , 250). It is signed by Lloyd A. Carter, president of Local 4-227,
and Gary Weatherby , International representative
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
OCAW's recognition demand and that TPC had re-
sponded (1:171-172).
Following another exchange of letters the parties met
in the office of Respondent's attorneys on July 19.
Minutes of the July 19 meeting are in evidence (R.
Exh. 3). Only a few matters were discussed . The primary
accomplishment at the meeting was an agreement on the
description of the appropriate unit . Respondent recog-
nized the Union as the representative of the employees in
the unit . At the end of the meeting Respondent 's coun-
sel, Samuel E . Hooper , stated that it would take about 2
weeks for him to prepare a contract proposal , and that
he would contact the Union regarding future meeting
dates.
The next day , July 20, Gebhardt sent the following
letter to Joe W. Campbell, secretary-treasurer of Local
4-227 (G.C. Exh. 9):
Mr. Campbell:
This letter will confirm our discussions of Thurs-
day, July 19, 1984 . As we discussed, Texas Petro-
chemicals Corporation is obligated to recognize
your union as the representative of certain of our
employees because Texas Petrochemicals Corpora-
tion would be deemed a successor employer of
Petro-Tex Chemical Corporation . Due to the suc-
cessor employer status of Texas Petrochemicals
Corporation, we have not required your union to
independently establish that the majority of our em-
ployees in the following described unit continue to
desire that you represent them . Accordingly, Texas
Petrochemicals Corporation will recognize your
union as the collective bargaining representative of
the following unit of employees:
INCLUDED: All Operations Department
technicians, Technical Department laboratory
technicians , Maintenance Department technicians
(machinist) and Maintenance Department techni-
cians (instrument).
EXCLUDED: All other employees, including
shift supervisory employees , executive, adminis-
trative and professional employees, clerical em-
ployees, technical employees and safety employ-
ees.
We will provide you with the names of our em-
ployees employed in the above -described unit as
soon as possible.
Very truly yours,
William E . Gebhardt
Manager
Employee Relations
Also on July 20 Respondent posted ? the following
notice to its employees from Shelton (G.C. Exh. 8):
Our Employee Relations staff met with represent-
atives of O.C.A.W. on Thursday, July 19, 1984, to
discuss its claim to represent certain of our employ-
7 Although the notice is dated July 19, Gebhardt testified that it was
not posted until July 20 (2:257)
ees. We have formally responded to their claim of
representation by letter advising them that as a suc-
cessor employer , we are required to recognize the
O.C.A.W. for the following unit of our employees:
all Operations Department Technicians , Technical
Department Lab Technicians, Maintenance Depart-
ment Technicians (Machinist) and Maintenance De-
partment Technicians (Instrument).
The O .C.A.W. requested that we begin to deduct
its union dues from your paychecks beginning im-
mediately . We refused to deduct dues at this time.
We advised O.C.A.W. that we intended to imple-
ment a 12 hour shift schedule starting on Monday,
July 23, 1984. The O.C.A.W. objected to our imple-
menting the 12 hour shift schedule until they had
more time to review it. We have postponed institut-
ing the 12 hour shift schedule until August 6, 1984.
Attached is a copy of the 12 hour shift proposal we
intend to start on August 6th.
By additional letters on July 20, TPC mailed certain
requested information to the Union.
At some point between the July 19 meeting and July
30 the Union , over the signatures of President Lloyd A.
Carter and Secretary -Treasurer Joe Campbell , mailed to
employees the following notice (G.C. Exh. 13):8
This is to inform you that on Thursday, July 19,
1984, your local union officers and representative
Weatherby met with Texas Petro-Chemicals Corpo-
ration officials and their attorney.
As a result of this meeting the company agreed
to recognize OCAW , Local 4-227 as the official
bargaining representative for the hourly employees
currently employed by Texas Petrochemicals. These
employees include:
All Operations Department, Technicians, Technical
Department, Laboratory Technicians, Maintenance
Department Technicians (Machinist) and Mainte-
nance Department Technicians (Instrument)
Also, the company proposed a new 12 hour shift
for shift workers which, if agreed to by a vote of
the membership, would go into effect on August 6,
1984.
A special meeting is being called at the Union
hall on Tuesday, July 30, 1984 at 4:30 p.m. and July
31, 1984 at 8.00 a.m. for the purpose of discussing and
voting on the proposed /2 hour shift.
We urge you to attend this important meeting.
Weatherby testified that the Union did not meet with
employees in preparation for the July 19 meeting with
TPC, and that no employees showed up for the July 30-
31 meeting (1:71-72).
At the hearing before me, the General Counsel called
two witnesses and rested . The first, called under FRE
6 Neither Carter nor Campbell testified International Representative
Weatherby testified that he and Carter jointly prepared the notice, and
that it was mailed because TPC declined, in the absence of a contract, to
permit the Union to post the notice on bulletin boards (1:43, 66, 75)
TEXAS PETROCHEMICALS CORP.
611(c), was Employee Relations Manager Gebhardt and
the second was International Representative Weatherby.
The OCAW rested without calling any witnesses ( 1:87).
Respondent called six witnesses , three being from man-
agement , 9 two being unit employees ,1 ° and the third
being Gregory S. Carll , the certified public accountant
(CPA) who conducted the employee poll of July 26-27,
1984.
B. Events Leading to the Poll
1. Employee comments June 8 to July 18, 1984
Between June 8 and 21 Shelton made trips through the
plant to evaluate employees and to make job offers to
the 120 TPC planned to operated the plant with. During
this initial period two employees, Shelton testified, per-
sonally told him they felt the OCAW was not represent-
ing them and that they did not want the OCAW to be
their representative . This was in addition to similar re-
ports made to him through supervision (1:102, 107-108).
On cross-examination Shelton testified that the first of
these comments made directly to him was by C. E.
Goods (1:141, 160). Goods told Shelton that he thought
the Union was "a thing of the past in the plant ." (1:137.)
When asked about the second employee's comment,
Shelton testified that the (unnamed) employee, who
worked in the lab, 11 had expressed dissatisfaction that
the OCAW had not been able to tell them anything
about what was going to happen and had been unable to
respond to their questions (1:140).
Between June 27 and July 2 Shelton held group meet-
ings with 100 or more employees on the different shifts
to inform employees about Respondent's plans and to tell
them of his own background ( 1:150, 180-181 ). A prime
goal of TPC was to persuade the 120 employees to stay
with TPC. However, during the initial 2-week period the
former Petro-Tex employees had the option of leaving
and receiving severance pay of $12,000 to $15,000 from
Petro-Tex (1:100-101). There were rumors, Shelton testi-
fied, that many employees would take the severance pay
and leave (1:134). It appears that only a few opted to
leave after tentatively accepting TPC's job offer.
During the group sessions , Shelton testified, some em-
ployees expressed dissatisfaction with the Union's alleged
failure to communicate with employees (1:108). Others
commented that they preferred a 12-hour shift schedule
but that the more senior employees who ran the Union
were opposed to it (1:152). Shelton told them he had no
comment about the Union ( 1:182).
During this period and into July the supervisors in-
formed Shelton that the employees did not want the
OCAW to represent them (1:109). As Gebhardt testified,
however, some 90 percent of the Petro-Tex employees
hired by TPC had been on dues checkoff on behalf of
the OCAW while with Petro-Tex (2:297-298). (Gebhardt
9 President Shelton , Employee Relations Manager Gebhardt, and Di-
rector of Marketing Services Robert H Broughton.
10 Pumper Robert F. Wallace and Tommy L. Dancy, a technician in
the quality control laboratory.
11 1 157-159 (Although page number 158 is skipped , it appears that
the testimony is intact from pages 157 to 159 )
1069
actually testified about 10 percent had not been on
checkoff. Presumably , 90 percent had been.)
2. Employee comments July 18 to July 26, 1984
On July 18 Shelton and Gebhardt met with TPC's su-
pervisors and informed them that TPC would meet the
following day with the OCAW because of a legal obliga-
tion to do so as a successor employer ( 1:109; 2:281). The
supervisors remarked that the employees did not want to
be represented by the employees . Shelton told the group
that they should document any comments made to them
on this topic by their employees and submit their memos
to Gebhardt (1:111). The latter established a file in which
to maintain such memos (2:278).
The memos began coming in immediately . Gebhardt
identified a series of memos (R. Exhs . 10-24) from super-
vision purporting to record the comments of about 20
employees expressing the position that they did not want
the OCAW representing them . The General Counsel ob-
jected to an early reference by Shelton to the memos on
several grounds , including hearsay, but I overruled the
objection when Respondent announced that it was offer-
ing the testimony only to show Shelton 's state of mind
(i.e., his good-faith belief) and not for the truth of the
contents (1:103, 106). Respondent concedes that the
memos would be hearsay if offered to prove the truth of
their contents . Indeed , when the memos were offered
through Gebhardt , Respondent 's counsel conceded that
they would be hearsay if offered to prove the truth of
their contents , and counsel reiterated TPC's position that
the memos were offered only to show state of mind and
course of action (2:263). The General Counsel 's objection
that the documents were prepared for the purposes of
litigation was overruled and the exhibits received (2:288-
291).12
The reports fall into two main groups , simple hearsay
and, second , double hearsay. The simple hearsay reports
are memos from a named supervisor or manager who re-
ports the comments made directly to him by a named
employee . The double hearsay reports are memos from a
named superintendent or manager passing on the report
of a named lower supervisor about the comment a
named employee made, for himself or on behalf of other
employees, to the lower supervisor.
These two main groups may be subdivided into classi-
fications based on whether the employee comments ex-
press clear or apparent opposition to union representa-
tion, whether they are ambiguous, or simply general
criticisms of the Union or expressions of discontent.
3. The simple hearsay reports
Ten employees may be classified as clearly or appar-
ently stating they did not want union representation as
reported directly by the supervisor writing the memo.
These are employees G. W. Bryan , V. M. Inman, W. H.
Maxwell , R. L. Powell, T. J. Smith (R. Exh . 15), Rose-
I2 An additional objection concerning authentication was satisfied by
Gebhardt's further testimony verifying the signatures on the memos and
identifying the employees named in the memos as being members of the
bargaining unit (2 289-290)
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mary Heath (R. Exh. 16), H. D. Fields (R. Exh. 17),
Tommy L. Dancy 1 a (R. Exh. 19), A. C. Heald (R. Exh.
21), and D. R. LaFitte (R. Exh. 22).
Although Dancy's statement to Jimmy Rhodes, Geb-
hardt's personnel assistant , is that he would not sign a
dues deduction authorization for the Union , he also re-
portedly told Rhodes that no one in the lab was interest-
ed in a union . I therefore include Dancy . Shelton testi-
fied that there were 12 lab employees (1:100, 162).
Dancy, a lab employee, also testified. He testified that he
told Rhodes, around July 21 or 22, that the employees he
spoke with did not desire to be represented by the
OCAW any longer . He even asked Rhodes whether
there was a way that the employees could vote on the
matter. Rhodes, who did not testify, replied that he did
not think a vote could be held (1:221, 225).
Employee D. R. LaFitte's comments of July 19 in-
clude his reported opinion that there were only five or
six employees in the plant who wanted the OCAW. In
the same vein , Gebhardt wrote a memo recording a July
20 conversation with George Bryan, named above, in
which Bryan expressed the opinion that over 80 percent
of the employees did not want union representation (R.
Exh. 12; 2:266).
For the category of expressions of discontent with the
Union , or simply ambiguous comments , I include the re-
ported remarks of three, and possibly four, employees.
The July 20 remark of R. Ramirez that he had just about
lost his prounion feeling (R. Exh . 13) is nothing more
than an expression of discontent which does not qualify
as a statement of no desire to be represented by the rec-
ognized union.
Statements of two other employees are ambiguous, and
I would not count them as expressions of no desire to be
represented by the OCAW. First, on July 18 C. A.
Munson, the quality control manager , informed employ-
ee H. Wayne Mouton of the OCAW-TPC meeting
scheduled for the following day. Mouton, as Munson re-
ports in his memo, replied (R. Exh . 14): "I don't see
what the OCAW could do for us; we have a right to do
anything we want to do."
On July 19 J. H. Chism told Safety Specialist Cotton
Miller14 that he, Chism , thought the union no longer ex-
isted at the plant (R. Exh. 20; 2:270, 285).
On July 20 Bezdek told Personnel Assistant Jimmy
Rhodes that the Union had done nothing for him, that he
would not sign a dues deduction form , and that he did
not want any dues deducted from his pay (R. Exh. 18).
On the same date Bezdek told employee Cotton Miller,
as recorded on a memo addressed to no one, that the
Union could "kiss my ass." (R. Exh. 20.) An employee
who, angry at the recognized union, withdraws his finan-
cial support from the Union is not necessarily to be
counted as being against representation by the union. In
conjunction with appropriate circumstances , Bezdek's ex-
pressions might qualify as a vote of no confidence.
13 Tommy L Dancy is one of two unit employees who testified at the
hearing The other is Robert F. Wallace as is noted below.
14 Employee Miller is not part of the bargaining unit (2 290).
4. Double hearsay reports
Coming now to the second main group, the double
hearsay reports, I would count eight employees as being
clearly or apparently opposed to union representation.
These are: J. N. Sims (R. Exh. 15), L. B. Davis, W. M.
Eggers, A. G. Hoover, R. C. Smith, and R . F. Wallace
(R. Exh. 23),15 plus Garlen Gillen and Cliff Layton (R.
Exh. 24).
Gillen's July 18 comment , as reported on July 19 by
Supervisor J. V. Dickson to Superintendent E. Lewis,
was that as far as Gillen was concerned the Union could
take the same shaft it had given him. In making this
comment, Gillen reportedly extended his hand with "his
middle finger in an upright position ." That expression
seems to qualify Gillen as being opposed to representa-
tion by the OCAW, although it could be argued that it
means simply that Gillen would refuse to sign a dues
checkoff.
To sum up, I count a total of 18 named employees as
reportedly (by hearsay or double hearsay) against repre-
sentation by the OCAW. These reports were received by
Gebhardt and Shelton during the period of July 18
through July 20. In addition to the comments of named
employees, and as previously noted, employees D. R.
LaFitte and George Bryan are quoted as expressing their
opinion that a majority of the unit did not want to be
represented by the OCAW.
5. TPC decides to take a poll
Shelton testified that following TPC's meeting with
the OCAW on July 19 and the July 20 posting of Shel-
ton's memo to all employees informing them about that-
meeting, employees began contacting their supervisors
wanting to know why TPC had met with the Union
(1:111). Moreover , Shelton testified , employees came to
the personnel department demanding that no union dues
be deducted from their paychecks. "We had almost an
uprising in the plant ." (1:111.) Gebhardt characterized it
as a "crescendo of comments" being "almost a revolt," a
"ground swell" of employee opposition , and a period of
"turmoil ." (2:259, 292.)
I find the "uprising" and "ground swell" characteriza-
tions by Shelton and Gebhardt to be exaggerated: No
doubt there was some turmoil . But it included more than
outright opposition to representation by the Union.
Indeed , Marketing Services Director Robert H.
Broughton testified that during June and July, 8 to 10
unit employees told him they wanted representation by
the OCAW but felt they were not receiving it (1:232,
236). Broughton in turn informed Shelton and Gebhardt
that employees were very disturbed because they had no
representation from the Union (1:238). That report, of
course, was nothing more than a report of employee dis-
is As previously noted , Robert F Wallace is one of two unit employ-
ees who testified at the hearing Wallace is named in a July 19, 1984
report by Process Superintendent W. F Howard to Shelton as having
told Shift Supervisor John Warren that he , Wallace , did not want union
representation (R. Exh 23 ) Wallace, a member of the Workmen's Com-
mittee at Petro-Tex, denied that he had ever spoken with TPC's manage-
ment about the union issue (2.218). The testimony of Wallace illustrates
one of the risks inherent with hearsay reports.
TEXAS PETROCHEMICALS CORP.
content-a concept which falls short of a desire not to
be represented by the OCAW.
Furthermore , almost all the memos Respondent sub-
mitted as exhibits concerning reported comments of em-
ployees reflect July 20 as the last date of employee re-
marks (R. Exhs . 10-24). Only 18 employees are named in
the memos and expressing clear or apparent opposition
to representation by the Union.
On the other hand , the reports did include purported
statements by two different employees (G. W. Bryan, R.
Exh. 12, and D . R. LaFitte , R. Exh . 22) that over 80
percent of the bargaining unit were opposed to represen-
tation by the OCAW. Lab employees also told Personnel
Assistant Rhodes on July 20 that none of the ( 12) em-
ployees in the lab was interested in being represented by
a union (R. Exh . 19). These matters have been noted, as
has Dancy's testimony that around July 23 he asked
Rhodes whether an election could be held so the em-
ployees would have the opportunity to vote on the issue
of union representation (1:221, 225).16
Rhodes did not testify, and the record does not reflect
whether he reported Dancy's inquiry to Gebhardt or
Shelton . Whether by coincidence , or based on Dancy's
inquiry, that same week Shelton and Gebhardt had con-
versations with TPC's labor attorney concerning the pos-
sibility of conducting a poll (1:127-128; 2:294).
At this point Shelton decided he needed to call a
meeting to resolve the matter . He testified that it had
become apparent to him that the employees were becom-
ing displeased with TPC because they were interpreting
Respondent 's meeting with the OCAW (and recognition
of the Union) as forcing them to be represented by the
Union (1:112).
Accordingly, from 9 to 10:30 a.m. on Thursday, July
26, Attorney Hooper met in Shelton 's office with Shel-
ton and his four department managers in order to resolve
the situation (1:112, 124; 2:294).17
They discussed the course of events until about 10:30.
At that point Shelton decided , on attorney Hooper's rec-
ommendation , to conduct a poll beginning that afternoon
(1:113, 129; 2:299). Shelton testified that he based his de-
cision to conduct the poll on the following factors
(1:114). First , no unit employees had said they wanted to
be represented by the OCAW. I agree with the General
Counsel that this amounts to no reason.
Second , no unit employee had been present at the July
19 meeting between TPC and the OCAW. This item
calls for some background information . Under the con-
tract with Petro-Tex , the company recognized a Work-
men's Committee consisting of six employees elected as
committeeman for the transacting of regular business
16 Marketing Services Director Broughton testified that the only elec-
tion the employees had ever had on the matter was the original election
in the early 1950s ( 1:230).
19 Gebhardt was there as manager of employee relations. The other
managers are not specifically named in this context , but Gebhardt identi-
fied the only departments as Operations , Quality Control, and Mainte-
nance (2:294) Elsewhere Gebhardt names C. A Munson as being the
quality control manager (2.266 , 286), Tom Grimsrud as operations man-
ager (2.265 , 267), and R. W. Summers as utilities manager (2 266) As we
saw earlier, the unit description lists three line departments . Operations,
Technical , and Maintenance Presumably , quality control is part of Tech-
nical, and utilities is part of Maintenance.
1071
(G.C. Exh. 2, art . 2). Gebhardt testified that even con-
tract negotiations had been handled by the Workmen's
Committee on behalf of the OCAW (2:246-247, 254).
Shelton testified that TPC had offered jobs to 5 of the 6
former committeemen and that 3 had accepted and re-
mained with TPC (1:179). As the General Counsel ob-
serves, brief at 8, the OCAW was privileged to deter-
mine the makeup of its bargaining committee , and could
well have signified that the OCAW considered this initial
meeting to be crucial to its representation of TPC's em-
ployees by sending officers of the Union plus a repre-
sentative of the International . Moreover, unlike Petro-
Tex, TPC was not contractually obligated to give the
former committeemen leave for time spent at a bargain-
ing session (1:217-218, Wallace). I find that the second
ground is insufficient either alone or in conjunction with
others. 18
Third, the documented reports and the comments
made to Shelton directly by employees. The troublesome
aspect of the memos is their hearsay nature . I shall re-
serve discussion of this ground until later.
Fourth, it had been about 30 years since the employees
had experienced the opportunity of voting regarding
being represented by a union . That is no ground at all,
for the 30 years indicates that there was a stable bargain-
ing relationship.
Fifth, 15 to 20 employees were new hires who had not
been Petro-Tex employees . This is not a ground, for
Board law deems new hires to be represented in the
same ratio as those they replace . Hutchison-Hayes Inter-
national, 264 NLRB 1300, 1307 (1982). In this connec-
tion , and as already noted , Gebhardt testified that 90 per-
cent of the employees TPC hired from Petro-Tex had
been on dues checkoff to the OCAW while employed at
Petro-Tex (2:297-298). As Texas is a right-to-work state
where employees may reap the benefits of union repre-
sentation without the necessity of being union mem-
bers,19 the figure of 90 percent reflects that at least in
the recent past the OCAW enjoyed a very high standing
with the bargaining unit.
Sixth, Shelton testified that there had been a strong
rumor that a petition was being circulated in the plant
requesting a vote (1:115). Gebhardt testified that he
heard the rumor earlier that week (2:296). TPC did not
receive the petition until moments after his no repercus-
sion announcement in the cafeteria to the first voting
group on July 26 when the apparent sponsor, employee
Albert G. Hoover, handed it to him as Shelton was leav-
ing (1:116-117). The petition , bearing 35 signatures,20
has the following preamble (R. Exh. 4):
We the hourly paid employees of Texas Petro
Chemical understand that the Company received a
letter from Local 4-227 of the O.C.A.W. in which it
19 I note that after Respondent decided on July 26 to poll its employ-
ees, it did not bother to notify any of the three former committeemen of
its decision (2:313, Gebhardt).
19 Hutchison -Hayes, id
20 There is no issue concerning authenticity of the signatures as being
those of unit employees.
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
claims to represent a majority of former Petro-
Texas employees.
Under present conditions we feel union represen-
tation is no longer necessary , and would prove to
be a detriment in many areas.
We therefore request that a vote be taken of all
hourly employees to substantiate OCAW's claim of
representation.
When TPC made its decision at 10:30 a . m. on July 26,
it, of course , had not seen the petition and knew of it
only by rumor . I find that such a rumor does not qualify
as a ground , either alone or in conjunction with the
other record evidence, to authorize TPC to poll its em-
ployees.
The petition will be considered further when discuss-
ing the validity of TPC's withdrawal of recognition. At
this point it may be useful to note Gebhardt 's testimony
that the 35 employees who signed the petition , with pos-
sibly the exception of one or two persons, constitute one
entire shift (2:296). Gebhardt speculated that Hoover
proceeded no further with the petition , and submitted it
to Shelton , because TPC's poll made a petition unneces-
sary (2:297).
6. The poll of July 26-27, 1984
In order to cover the four shifts, the poll extended
over the 2 days of July 26-27. The record evidence de-
scribes in detail the conditions under which the employ-
ees voted in the poll. There is no need for me to describe
all of them , however, because there is no allegation that
Respondent violated the Act by the manner in which it
conducted the poll.
The two complaint allegations pertaining to the poll
are that Respondent unlawfully refused to bargain by
failing to give the Union prior notice of the time and
place of the poll,21 and by conducting the poll at all
(complaint par. 10). I shall discuss these allegations later.
A few facts should be mentioned about the poll's con-
ditions . First, Respondent hired a certified public ac-
countant, Gregory S. Carl], to conduct the poll and
count the ballots . Each voting session had two observers.
Most of the observers were unit employees. The voting
was by secret ballot outside the presence of supervisors.
Shelton told employees they could vote without fear of
repercussion (1:116), and CPA Carll read a four-point
statement including that same assurance (R. Exh. 5;
1:190). No advance notice, however , was given to the
employees of the poll (1:133, Shelton). By contrast, TPC
posted the results of the poll.
The employees voted by a ballot which asked for
them to mark a yes or no box in answer to the question
of whether they wanted the Union to represent them at
TPC (R. Exh. 6). The bargaining unit consisted of 103
employees (1:103, 120, 162; R. Exh. 8).
The tally of ballots reflects that of 103 eligible voters,
there was 1 void ballot, 35 "Yes" votes for the Union,
21 Complaint par 11. In its answer, Respondent admits that it did not
give prior notice A unit employee did give a telephone message late on
July 26 which Weatherby did not receive until the following day (1 73-
74)
and 50 "No" votes against representation (R. Exh. 8).22
That made a total of 86 ballots cast . Shelton testified that
there had been eight employees who had not had the op-
portunity to vote (1:120-121). Whether Shelton meant
the eight were on sick leave , vacation , at work but did
not vote, or whatever , is unexplained . Nor is any refer-
ence made to the remaining nine employees needed to
bring the total to 103. Even if the missing eight voters
mentioned by Shelton had voted and cast ballots for the
Union, it would not have affected the outcome. If
against the Union, they could have affected the results
only if the poll, to justify TPC's withdrawing recogni-
tion , must show a majority of the 103 as voting against
the OCAW. The General Counsel argues, brief at 13-14,
that the standard must be a majority of the entire unit of
103.
It appears that case authority holds against the Gener-
al Counsel 's argument, and supports Respondent 's posi-
tion that an employer, in the appropriate context, may
rely on the results of the balloting as in a Board-conduct-
ed election . That is, the test is whether a majority of the
valid votes counted is against representation . Taft Broad-
casting, 201 NLRB 801 (1973) (involving an 11 to 11 tie
where 22 employees of a 28-employee unit cast ballots).
7. TPC withdraws recognition
Shelton testified TPC looked at the results of the vote
"and we felt then that we had an edict and sufficient ob-
jective criteria" on which to withdraw recognition from
the OCAW ( 1:121). Shelton interpreted the vote as being
strongly opposed to representation by the OCAW
(1:135).
By telephone and mailgram on July 27, Gebhardt noti-
fied the Union that it was withdrawing recognition and
would no longer bargain with it based on the secret
ballot poll taken of the employees (G.C. Exh. 12;
2:304).23
Following that notification to the OCAW, on July 27
TPC posted a notice to employees from Shelton (2:305).
The text of Shelton's memo reads (R. Exh. 25):
Yesterday and this morning our technicians were
given the opportunity to vote on whether they
wanted to be represented by the OCAW here at
Texas Petrochemicals Corporation . The voting has
been completed and 59 % voted against having the
OCAW represent them . Accordingly, we have sent
a telegram to the OCAW advising them that we are
withdrawing recognition from them.
I sincerely appreciate the confidence our techni-
cians have shown in Texas Petrochemicals Corpora-
tion and I pledge to do my utmost to earn that sup-
port.
22 Thus , the "No" votes amount to 48 5 percent of the eligible voters,
but 58 8 percent of the valid votes counted
23 Complaint par 12 . TPC's answer admits the factual allegation but
denies the refusal -to-bargain conclusion
TEXAS PETROCHEMICALS CORP.
8. The unilateral changes
Complaint paragraph 13 alleges that on or about
August 1 Respondent "unilaterally , and without notice
to, or consultation with , the Union, converted all em-
ployees in the bargaining unit set forth above from
hourly rates of pay to salaried compensation and restruc-
tured insurance premiums ." In its answer, Respondent
admits that factual allegation , 24 but denies the conclu-
sionary allegation of paragraph 14 that the unilateral
change was a refusal to bargain in violation of Section
8(a)(5) and (1) of the Act. The lawfulness , of course, de-
pends on whether TPC lawfully withdrew recognition
from the OCAW.
C. Analysis and Conclusions
1. Applicable legal principles
To preserve stability in bargaining , an incumbent
union enjoys an irrebuttable presumption of majority
status for 1 year after its certification , and a rebuttable
presumption thereafter . Thomas Industries, Inc. v. NLRB,
687 F.2d 863 (6th Cir. 1982). Absent special circum-
stances, a union which is voluntarily recognized by the
employer but not certified by the Board also is irrebutta-
bly presumed to have majority status-but only for a
reasonable period of time from the date of recognition.
Tajon, Inc., 269 NLRB 327 (1984).25
But where the recognition is by a successor employer,
majority status is deemed by operation of law , and rec-
ognition extended by the successor is a formality not the
same as voluntary recognition of a nonincumbent union.
Landmark International Trucks, Inc. v. NLRB, 699 F.2d
815 (6th Cir. 1983). Thus, the "reasonable time" standard
is inapplicable in successorship cases, for a successor's
obligation to bargain with an incumbent union is based
on a rebuttable presumption of the latter's majority
status . 26 Agri-International Inc., 271 NLRB 925 (1984). A
successor employer may overcome that presumption by
demonstrating either (1) that the bargaining representa-
tive no longer enjoys majority support on the date of the
employer's refusal to bargain , or (2) it has a good-faith
and reasonably grounded doubt of the union 's continued
majority support . Agri-International Inc.; Sofco, Inc., 268
NLRB 159 (1983); Aircraft Magnesium , 265 NLRB 1344,
1346 (1982).
Stated differently, the established rule is that an em-
ployer may withdraw recognition if it demonstrates, on
the date of withdrawal and in a context free of unfair
labor practices, that the union (1) in fact had lost its ma-
jority status, or (2) that the withdrawal was predicated
on a reasonable doubt, based on objective considerations,
of the union 's majority status .27 Master Slack Corp., 271
24 Shelton confirmed it in his testimony (1 184)
25 In Talon the Board discusses the meaning and application of the
"reasonable time" standard
26 Of course, if the incumbent union had been certified and the certifi-
cation year has not expired, then the presumption is irrebuttable for the
balance of the certification year. Btu-Fountain Manor, 270 NLRB 199 fn
3 (1984)
27 For this second option , the employer is not required to show that a
majority of the entire bargaining unit opposes the union Sofco, supra
And where the employer conducts a lawful poll of employees and the
1073
NLRB 78 (1984); Abbey Medical/Abbey Rents, 264
NLRB 969 (1982), enfd. mem. 709 F.2d 1517 (9th Cir.
1983).
The employer's burden is a "heavy one," Distribution
Services West, 262 NLRB 764, 772 (1982), for the evi-
dence must be "clear, cogent , and convincing ." Hutchin-
son-Hayes International, 264 NLRB 1300, 1304 (1982);
Forbidden City Restaurant v. NLRB, 736 F.2d 1295 (9th
Cir. 1984). This is "high standard of proof" which re-
quires more than unfounded speculation of a subjective
state of mind . Hutchinson-Hayes, ibid.
Moreover, evidence of dissatisfaction with the union,
to be of any significance , must come from the employees
themselves , not from the employer on their behalf. Mont-
gomery Ward & Co., 210 NLRB 717 (1974). This does
not mean that at trial the employer is required to call the
employees as witnesses and elicit the testimony from
them directly. Sofco, supra, fn. 9; Naylor, Type & Mats,
233 NLRB 105, 107-108 (1977). However, an employer
can rely only on quoted comments of the employees and
not on self-serving general assertions by the employer
that in its opinion the employees did not support the
union . Sofco, at fn. 10.
If an employer, in order to determine whether to with-
draw recognition from an incumbents union polls his em-
ployees regarding their desire to continued representa-
tion, then as a prerequisite to conducting such poll, the
employer must have an objective basis for doubting the
union 's majority status or the poll is unlawful . Hutchison-
Hayes, supra at 1304. It has been the Board's rule that
the objective basis test used for determining whether a
poll was justified is the same test applied in deciding the
lawfulness of an employer's withdrawal of recognition
from an incumbent union. Hutchison-Hayes, supra at 1304
fn. 9; Thomas Industries, 255 NLRB 646, 647 (1981),
enfd . denied in relevant part 687 F.2d 863 (6th Cir.
1982). At least three courts, the Fifth Circuit in NLRB v.
A. W. Thompson, Inc., 651 F.2d 1141 (5th Cir. 1981); the
Sixth Circuit in Thomas Industries; and the Ninth Circuit
in Forbidden City Restaurant v. NLRB, surpa, disagree
with the Board and have held that the objective evi-
dence, while it must be substantial , need not meet the
high standard necessary to justify a withdrawal of recog-
nition . With due respect to the decisions of the circuit
courts, an administrative law judge is bound to apply
Board law until the Supreme Court or the Board over-
rules or modifies that precedent . Iowa Beef Packers, 144
NLRB 615 (1963).
A crucial issue in this case is whether the evidence
TPC relied on in deciding whether to conduct the poll
of July 26-27 satisfies the objective test required.
Finally, although the General Counsel has not alleged
that TPC independently violated Section 8(a)(1) of the
Act by failing to observe certain safeguards in conduct-
union does not win a majority, the result may, in an appropriate context,
serve as support for an employer 's withdrawal of recognition Taft Broad-
casting, 201 NLRB 801 (1973). Taft involved a tie vote of I I to I I where
22 employees of a 28-employee unit cast ballots Thus , as earlier noted,
the General Counsel's argument is unavailing that the "majority" in a
polling situation is a figure based on the entire unit , rather than on the
valid votes counted
1074 DECISIONS OF THE NATION'AL• LABOR RELATIONS BOARD
ing the poll of July 26-27, the complaint does allege that
Respondent refused to bargain in violation of Section
8(a)(5), and (derivatively) Section 8(a)(1), by failing to
give the Union advance notice of the time and place of
the poll . 28 The Board apparently has never expressly
passed on the notice point,29 but the Fifth Circuit, in
A. W. Thompson, supra, and the Ninth Circuit, in Forbid-
den City, supra, do require that the union be given ad-
vance notice of the time and place of the poll.
Although the courts in A. W. Thompson and Forbidden
City did not describe their rationale for adding the notice
requirement , it seems obvious they did so on the basis
that the union is still, at that point , the recognized bar-
gaining agent . Moreover, the incumbent union might
well desire to review the polling arrangements with the
employer, designate , or at least suggest , names of em-
ployees to be observers, and no doubt would want to be
present when the ballot boxes are opened and the votes
tallied . Finally, and of critical importance , the union
would want to make certain that as many eligible voters
as possible will have the opportunity to vote. Otherwise,
an employer, either by design or through oversight,
could exclude a department full of union supporters.
Where the majority standard is based on the number of
valid votes counted , as in a Board -conducted election,
rather than tested against the number of the entire bar-
gaining unit, an incumbent union will find it imperative
to see that there is a big turnout of voters-and particu-
larly of its own supporters.3° If the test were in terms of
the entire unit , then the crucial votes would be those
voting No, and the Yes voters could, if they desired, re-
frain from voting.
Indeed , in this very case a total of 17 unit employees
did not vote. The brief testimony of Shelton on this sub-
ject is that 8 (of the 17) did not have the opportunity to
vote ( 1:121). Does that mean that the remaining nine had
the opportunity to vote but declined? If so, did they de-
cline on the mistaken assumption that the votes which
really counted were the No votes? As we can see, if the
missing 17 eligible voters had cast ballots, and if their
ballots had been Yes votes, then the tally would show a
vote of 52 to 50 favoring representation by the Union.3 t
In short, there is every reason for giving advance notice
to the incumbent union.
2. Discussion and conclusions
a. The objective criteria insufficient
I previously have discussed five of TPC's six grounds
for deriding to conduct the poll, and I found that none
28 The Board has not expressly extended its precertification poll stand-
ards, enumerated in StruArnes Construction Co, 165 NLRB 1062 (1967),
to polls taken in withdrawal of recognition situations.
29 For contrary authority , Respondent cites Taft Broadcasting, 201
NLRB 801 (1973) However, the question of whether advance notice
should be given was not raised in that case
30 The many safeguards attendant to Board-conducted elections assure
that all employees know well in advance that an election will be con-
ducted In TPC the valid votes counted can have the same impact of a
Board-conducted election , yet neither the employees nor the OCAW was
given advance notice of the election
" Recall that one ballot was void
of the five is a valid ground whether considered singly "
or together.
Earlier I reserved the sixth ground , actually Shelton's
third enumerated ground , for discussion at this point.
The problem with the memos is their hearsay nature. I
overruled the General Counsel's hearsay objection when
Respondent observed that it offered the memos for the
limited purpose of showing Shelton's state of mind (his
good faith) in making his decision to poll the employees.
That ruling , I find , was erroneous . This is so because the
great bulk of Respondent 's objective evidence consists of
hearsay reports, received over objection , that various
employees, as quoted by the reporting supervisors or
managers , were opposed to representation by the
OCAW. President Shelton's good faith is only one aspect
of the issue . Respondent's good faith must be reasonably
grounded on objective factors. Hearsay reports of super-
visors not made available for cross-examination do not
meet the text of "reasonably grounded on objective fac-
tors." In this conversation I note that in Sofco, supra, in
Thomas Industries, Inc., 255 NLRB 646 ( 1981), and in
Naylor, Type & Mats, 233 NLRB 105 (1977), the supervi-
sors holding the conversations with the quoted employ-
ees were called as witnesses and, therefore , were subject
to cross-examination by the General Counsel.
The only supervisor mentioned in any of the memos
who testified is Gebhardt, and there is only one memo
by him (R. Exh. 12). In that memo , dated July 20, Geb-
hardt describes a conversation with unit employee
George Bryan. The relevant portion of the memo quotes
Bryan as expressing the opinion that over 80 percent of
the unit do not want union representation . But Bryan's
assessment of the opinion held by others is entitled to far
less weight than an expression by the employees of their
own feelings , even though quoted by a supervisor . Sofco,
supra at fn. 10.
Moreover, a factor indicating that Shelton 's testimony
is not fully reliable is the discrepancy between him and
employee Robert F. Wallace. Shelton testified that
around mid -July former committeeman Wallace told him
that all the employees wanted the 12-hour shift and if
TPC was willing to install it then to do so and not
worry about the OCAW (1:109, 179). Yet Wallace, on
cross-examination by the General Counsel , denied that
he ever discussed any union opposition matter with Shel-
ton, Gebhardt , or any other management person ( 1:216).
Neither the cross nor the redirect examination specifical-
ly asked Wallace about the 12-hour shift remark. Al-
though I do not view Wallace 's denial to be a direct im-
peachment of Shelton , I do consider the denial to detract
from Shelton's overall reliability.
Aside from the hearsay reports that employee George
Bryan thinks over 80 percent of the unit do not want
union representation , and that employee D. R. LaFitte
believed that only five or six employees in the plant
wanted a union , we have only Shelton's generalized testi-
mony of remarks of discontent which ( 1) he personally
heard or (2) oral reports to him by unnamed supervisors
that the employees did not want the OCAW.
Had some of these reporting supervisors been called as
witnesses by Respondent , their testimony , if accounting
TEXAS PETROCHEMICALS CORP.
for. a significant portion of the 18 employees named in
the reports , combined with the personal opinion assess-
ments by employees George Bryan and D. R. LaFitte (if
quoted by testifying supervisors) that over 80 percent of
the unit did not want to be represented by the OCAW,
then Respondent might well have met its burden of
proof.
Previously I have found the testimony of Shelton and
Gebhardt concerning the oral reports to be an unreliable
indicator . They testified in an exaggerated fashion. More-
over, their testimony is undercut by that of Marketing
Services Director Broughton who explained that he told
Shelton and Gebhardt the employees were very dis-
turbed because they had no representation from the
Union (1:238). As already noted , Broughton 's report re-
flects nothing more than a frustrated desire of the em-
ployees to have representation by the OCAW.
In conclusion, I find Respondent 's evidence unsupport-
ed, too generalized , and far too insubstantial to justify
the action of TPC in conducting a poll. The poll, there-
fore, was an unlawful refusal to bargain as alleged in
complaint paragraph 10 (in conjunction with conclusion-
ary par. 14).
b. TPC unlawfully failed to notify the OCA W
My discussion of TPC's admitted failure to give the
OCAW advance notice of the poll appears earlier. In
light of the factors and authorities considered there, I
find that Respondent , as alleged in complaint paragraph
11, unlawfully refused to bargain with the Union by fail-
ing to give the OCAW advance notice of the time and
place of the poll.
c. Respondent unlawfully withdrew recognition
TPC argues that even if it cannot rely on the poll, it
nevertheless was entitled to withdraw recognition be-
cause of the other factors, including the petition present-
ed to Shelton on July 26. Aside from the petition, the
other factors, already discussed , fall far short of the sub-
stantial and objective evidence Respondent needed to
adduce.
Respecting the petition bearing 35 signatures, TPC
argues that it is even more impressive than the total of
35 signatures because (1) the names are of employees on
just one of the four shifts, and (2) Hoover stopped circu-
lating the petition because of TPC's poll. However, the
second factor , as previously observed, is nothing more
than Gebhardt 's speculation and therefore has no proba-
tive weight . The single shift factor is just as consistent
with an inference that Hoover reached the main group
of those opposed to the OCAW when he covered that
one shift and that had he gone to other shifts he would
have met with little success . Indeed , if the rumor was
that the petition had been circulating for at least a few
days before July 26, one can justifiably wonder whether
Hoover had gone to all the shifts and had been able to
secure only 35 signatures . We do not know because
Hoover did not testify . In these circumstances, I find
that the petition manifestly is an insufficient ground to
justify Respondent's withdrawal of recognition from the
1075
OCAW whether considered alone or in conjunction with
the other evidence already found sufficient.
Accordingly, I find that TPC, as alleged in complaint
paragraph 12 (and 14), unlawfully refused to bargain
with the Union by withdrawing recognition from the
OCAW on July 27, 1984.
d. Unilateral changes unlawful
If TPC's withdrawal of recognition had been lawful,
then the unilateral changes made thereafter would have
been lawful. Master Slack Corp., 271 NLRB 78 (1984).
Because the withdrawal of recognition was illegal, the
unilateral changes were illegal . Peat Manufacturing Co.,
251 NLRB 1117 fn. 4 (1980), enfd. 667 F.2d 1169 (9th
Cir. 1982).
CONCLUSIONS OF LAW
1. TPC is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The OCAW is a labor organization within the
meaning of Section 2(5) of the Act.
3. On June 21, 1984, TPC became a successor employ-
er to the employees in the bargaining unit described
below.
4. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
INCLUDED: All Operations Department techni-
cians, Technical Department laboratory technicians,
Maintenance Department technicians (machinist)
and Maintenance Department technicians (instru-
ment).
EXCLUDED: All other employees, including
shift supervisory employees , executive, administra-
tive and professional employees , clerical employees,
technical employees and safety employees.
5. At all times material herein the OCAW has been the
exclusive collective-bargaining representative of all the
employees employed in the unit described above for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
6. By conducting a poll among its employees on July
26-27, 1984, concerning whether they desired to be rep-
resented by the OCAW, and by failing to give advance
notice to the Union of the time and place the poll was to
be conducted , TPC refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act.
7. By withdrawing recognition from the OCAW on
July 27, 1984, TPC refused to bargain with the Union in
violation of Section 8(a)(5) and 0 of the Act.
8. By unilaterally , without notice to or consultation
with the OCAW, converting all bargaining unit employ-
ees from hourly rates of pay to salaried compensation
and by restructuring their insurance premiums , all on or
about August 11, 1984, TPC refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
9. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent TPC has committed
the unfair labor practices as alleged , I shall order it to
cease and to take affirmative action designed to effectu-
ate the policies of the Act.
Counsel for the General Counsel requests that TPC be
ordered to rescind all unilateral changes (Br. at 15). A
blanket order to rescind the unilateral changes is inap-
propriate. Peat Mfg. Co., 251 NLRB 1117 fn. 4 (1980),
enfd. 667 F.2d 1169 (9th Cir. 1982). Additionally, I shall
include make whole language in the order . Peat Mfg.
Respecting the matter of rescission of unilateral
changes, the Board in Peat Mfg., ibid, provided that
nothing in the order would be construed as requiring re-
scission of benefits granted to unit employees as part of
any unilateral changes . As the order shall provide here,
as there, that unilateral changes will be rescinded on re-
quest of the Union, it is unclear how the OCAW will
obtain rescission of unilateral changes deemed beneficial
to employees if the OCAW, in order to restore its bar-
gaining position , or for whatever reason, desires that
even beneficial changes be rescinded.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed32
ORDER
The Respondent , Texas Petrochemicals Corporation,
Houston, Texas , its officers , agents, successors , and as-
signs, shall
1. Cease
(a) Refusing to bargain with the Union as the exclusive
bargaining representative of all the employees in the unit
described below by conducting unlawful polls of our em-
ployees concerning their desire for union representation;
by unlawfully withdrawing recognition from the
OCAW ; and by making unilateral changes without
giving notice to or bargaining with the Union.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with Oil, Chemical and Atomic Workers International
Union , Local 4-227, AFL-CIO as the exclusive bargain-
ing representative of the employees in the following ap-
propriate bargaining unit and , if an understanding is
reached , embody such understanding in a signed agree-
ment:
INCLUDED: All Operations Department techni-
cians, Technical Department laboratory technicians,
Maintenance Department technicians (machinist)
and Maintenance Department technicians (instru-
ment).
EXCLUDED: All other employees, including
shift supervisory employees , executive , administra-
tive and professional employees, clerical employees,
technical employees and safety employees.
(b) On request by the OCAW, reinstate any terms of
employment existing when recognition was withdrawn
from that labor organization as the bargaining represent-
ative of the employees in the above unit, and make
whole those employees for any loss of benefits which
would have accrued to them but for the changes in the
terms of their employment following the withdrawal of
recognition ; provided, however, that nothing herein shall
be construed as requiring rescission of any benefits
which previously have been granted to unit employees.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Houston , Texas plant copies of the at-
tached notice marked "Appendix."33 Copies of the
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced , or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
32 If no exceptions are filed as provided by Sec. 102 .46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
83 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"