NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Bentonite Performance Minerals, LLC, a Product and
Service Line of Halliburton Energy Services, Inc. and International Chemical Workers Union Council/United Food and
Commercial Workers Union, CLC, Local 353C.
Cases 27–CA–20596, 27–CA–20681, and 27–CA–20697
December 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On June 2, 2008, Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent filed exceptions, a supporting brief, and an answering brief. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief. The Charging Party filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,[1] findings,[2] and conclusions and to adopt the recommended Order as modified[3] and set forth in full below.[4]
Amended Remedy
Having found that the Respondent has engaged in certain
unfair labor practices, we shall order it to cease and desist and to take
certain steps to effectuate the policies of the Act. Having adopted the judge’s findings that the
Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the
Union, failing to furnish the Union with information requested on July 19 and
23, 2007, and unilaterally changing wages and other terms and conditions of
employment, we shall order, in addition to the relief described in the remedy
section of the judge’s decision, the Respondent to (1) immediately provide the
information requested by the Union in its letters of July 19 and 23, 2007; (2)
on request, bargain in good faith with the Union; and (3) if requested by the
Union, rescind any or all of the unilateral changes and restore the previously
existing wages and other terms and conditions of employment. To the extent that the unlawful unilateral
changes have improved the terms and conditions of employment of unit employees,
the Order set forth below shall not be construed as requiring or authorizing
the Respondent to rescind such improvements unless requested to do so by the
Union. We shall further order the Respondent to make unit employees and former
unit employees whole for any losses suffered as a result of those unilateral
changes in the manner prescribed in
In addition, we shall require, to the extent applicable, the Respondent to remit all payments it owes to employee retirement, 401(k), and health care funds, with interest, as provided in Merryweather Optical Co., 240 NLRB 1213 (1979), and to make employees and former employees whole for any expenses they may have incurred as a result of the Respondent’s failure to make such payments, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).[5]
The judge recommended an affirmative bargaining order to remedy the Respondent’s unlawful withdrawal of recognition, but did not justify imposition of such an order as required by the United States Court of Appeals for the District of Columbia Circuit. Nevertheless, for the reasons set forth below, we agree with the judge that an affirmative bargaining order is warranted on the facts of this case.
The Board has previously held that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required the Board to justify, on the facts of each case, the imposition of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent Industrial Plastics, supra, the court stated that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Supra at 738. Consistent with the court’s requirement, we have examined the particular facts of this case and we find that a balancing of the three factors warrants an affirmative bargaining order.[6]
(1) As the Board stated in Parkwood Developmental Center, Inc.,[7] an
affirmative bargaining order in this case vindicates the Section 7 rights of
the unit employees who were denied the benefits of collective bargaining by the
Respondent’s unlawful withdrawal of recognition and resulting refusal to
collectively bargain with the
(2) An affirmative bargaining order also serves the Act’s
policies of fostering meaningful collective bargaining and industrial
peace. It removes the Respondent’s
incentive to delay bargaining in the hope of discouraging support for the
Union, and it ensures that the Union will not be pressured to achieve immediate
results at the bargaining table—results that might not be in the employees’
best interests. It fosters industrial peace by reinstating the
(3) As an alternative remedy, a cease-and-desist order,
alone, would be inadequate to remedy the Respondent’s withdrawal of recognition
and refusal to bargain with the Union because it would allow another challenge
to the Union’s majority status before the employees had a reasonable time to
regroup and bargain with the Respondent through their chosen representative in
an effort to reach a collective-bargaining agreement. Such a result would be
particularly unfair where the Respondent’s unfair labor practices already have
given rise to a tainted petition expressing the employees’ coerced dissatisfaction
with the
For all the foregoing reasons, we find that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the violation in this case.
ORDER
The Respondent, Bentonite Performance Minerals, LLC, a
Product and Service Line of Halliburton Energy Services, Inc., Colony,
1. Cease and desist from
(a) Coercively interrogating its employees to determine their sentiments concerning union representation.
(b) Coercively proposing the idea of decertification petitions.
(c) Soliciting employees, either directly or indirectly, to sign decertification petitions.
(d) Making promises of improved conditions if the
(e) Interfering with the
(f) Withdrawing recognition of the Union as the exclusive
collective-bargaining representative of its employees at its Colony,
(g) Unilaterally granting wage increases to members of the
Colony bargaining unit without first bargaining with the
(h) Unilaterally granting improved vacation benefits,
health benefits, retirement benefits, or any other mandatory bargaining
subjects to members of the Colony bargaining unit without first bargaining with
the
(i) Refusing to provide the
(j) In any like or related manner interfering with, restraining, 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 in
good faith with the
All production and maintenance employees, including employees temporarily assigned as watchmen, in Respondent’s mining, milling and packing operations located near Colony, Wyoming, but excluding office and clerical employees, weigh masters, laboratory technicians, watchmen, foremen and supervisory employees.
(b) On the Union’s request, rescind the unilateral changes
and restore the previously existing wages and other terms and conditions of
employment as they existed prior to July 13, 2007, and make unit employees and
former unit employees whole for any losses suffered as a result of those
unilateral changes, and for any expenses they may have incurred as a result of
the Respondent’s failure to make the required payments into the employee
retirement, health care, and 401(k) plans in the manner described in the
amended remedy section of this Decision.
However, nothing in this Order shall be construed as requiring the
Respondent to rescind any benefit previously granted unless the
(c) Reimburse, to the extent applicable, the employee retirement, health care, and 401(k) plans, with interest, for unpaid contributions to those plans in the manner described in the amended remedy section of this decision.
(d) Furnish to the
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay and other moneys due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its mining and milling operation near Colony,
(g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Peter C. Schaumber,
Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
federal law gives you the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not coercively interrogate you to determine your sentiments concerning union representation.
We will not coercively propose the idea of decertification petitions.
We will not solicit you, either directly or indirectly, to sign decertification petitions.
We will not
make promises of improved conditions if the
We will not
interfere with the
We will not
withdraw recognition of the Union as the exclusive collective-bargaining
representative of our employees at our Colony,
We will not
unilaterally grant wage increases to members of our Colony bargaining unit
without first bargaining with the
We will not unilaterally grant improved vacation benefits, health benefits, retirement benefits, or any other mandatory bargaining subjects to members of our Colony bargaining unit without first bargaining with the Union.
We will not
refuse to provide the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act and which are enumerated above.
We will, on
request, recognize and bargain collectively in good faith with the
All production and maintenance employees, including employees temporarily assigned as watchmen, at our mining, milling and packing operations located near Colony, Wyoming, but excluding office and clerical employees, weigh masters, laboratory technicians, watchmen, foremen and supervisory employees.
We will, on the Union’s request, rescind the unilateral changes and restore the previously existing wages and other terms and conditions of employment as they existed prior to July 13, 2007, and we will make you whole, with interest, for any losses suffered as a result of those unilateral changes, and for any expenses you may have incurred because of our failure to make the required contributions to the employee retirement, health care, and 401(k) plans.
We will reimburse the employee retirement, health care, and 401(k) plans, for all unpaid contributions, with interest.
We will
furnish to the
Bentonite Performance Minerals, LLC, a Product and
Service Line of Halliburton Energy Services, Inc.
Nancy S. Brandt and Isabel C. Acosta, for the General Counsel.
Howard S.
Linzy (The Kullman Firm), of
Robert W.
Lowrey, of
DECISION
Statement of the Case
James M. Kennedy, Administrative Law Judge. This case was tried before me for 7 days
in
The issues
presented here are relatively simple.
The complaint asserts that Respondent induced its employees into repudiating
the
The parties were
given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. All parties have filed briefs which have been
carefully considered. Based upon the
entire record of the case, as well as my observation of the witnesses and their
demeanor, I make the following
Findings of Fact
i. jurisdiction
Respondent is a
ii. background and introduction to the issues
Bentonite is a
type of clay which is used as a component of drilling mud; it also has a large
number of other commercial uses. The
Colony plant strip-mines the mineral at various locations within easy reach of
that facility. It is then hauled to the
plant where it is dried, milled, packed in various formats, and shipped by both
truck and rail. Colony is remote, located
in the extreme northeast corner of
The Colony
operation consists of administrative offices, the processing plant, a packing
location, and a warehouse/shipping facility, as well as areas for the Boragel
and Baramix product lines. From Colony
it also directs the exploration for new mineral sites (through crews known as
drillers) and the strip mining itself.
These field employees, as they are known, work 10-hour days, taking advantage
of the early daylight hours.
In 1948 the
Union (through predecessors) was certified as the exclusive collective-bargaining
representative of the Colony employees in a production and maintenance
bargaining unit, then operated by a predecessor. Halliburton acquired the company from Dresser
Industries in 1998. The most recent
collective-bargaining contract, having a term of 6 years, was signed in October
2001 and was set to expire on October 21, 2007.
Events beginning on July 9, 4 months prior to that expiration date, are
the subject of this complaint.
As of the week
of July 9, according to a stipulation, there were 69 employees in the Colony
bargaining unit. The Colony managerial
staff at that time consisted of Senior Plant Manager Mike Houston, Plant Manager
Danny Oaks, and Production Manager Ray Dell.
Supervisors who were involved here include Lyle Droppers and Gerry
Bergum.3
iii. principal facts
A. The AmericInn Meeting; Monday, July 9
Ostensibly to
prepare for the upcoming negotiations with the
At the May
meeting, according to Oaks, he had requested a sheet comparing employee
benefits under the collective-bargaining contract with the benefits of employees
who were not working under that contract.
Such a document was presented during the July 9 meeting. This document, and an identical one on which
Oaks wrote some additional material, became a significant tool in the
disaffection solicitation which began that evening.
During the
meeting, according to
Thurman’s remark
allegedly triggered a flurry of activity.
Oaks testified
that the meeting shifted from negotiation preparations to the prospect of
decertification. In addition, the
participants began discussing the time frame in which that could happen,
concluding that the timing “was right.”
The first thing
that happened was that Shift Supervisor Gerry Bergum was summoned to the
meeting, arriving about 2 p.m. He had
been called because his swing shift was scheduled to begin work at 4 p.m. Oaks gave Bergum a copy of the benefit
comparison chart. Later that evening at
the Boragel station, Bergum gave it, or a copy, to bag handler John Preisner,
saying that he wanted the employees to have everything that Halliburton had to
offer. Preisner had worked for
Respondent for a little over a year.
Preisner testified: “He [Bergum] asked me what I felt about the
Similarly, Dell
decided to leave the meeting at about 4 p.m.
His purpose was to go to the parking lot in
At the parking
lot Dell called McGinnis over to his truck.
He said, “I know how you felt about the
Dell returned to
the hotel and reported the outcome of his conversation to the meeting which was
still in progress. He told them that
McGinnis was scheduled to go to Kaycee in the morning. Oaks responded by telling Dell to call
McGinnis and tell him not to go to Kaycee but to meet with Dell at his office
instead. Dell made the call and Oaks
arranged for McGinnis’ trip to be rescheduled for Wednesday.
In the meantime,
Bergum had been persuading Preisner as described above. Among other things, Bergum asked Preisner if
he could get anyone else to sign the petition.
Preisner said he could. Preisner
says that Bergum told him not to speak to fellow employees Rick Reid, Glade
Lynch, or Jerry Rose, because they would not sign. Bergum also told him that he was going to
train him and two other employees, Robert Stack and Jonathan Henderson, that
night on a computer training program known as iLearn. While working their way toward those two employees,
they came across Will Boggs, the hopper shack worker. Bergum allowed Preisner to enter the hopper
shack and speak with Boggs about the petition.
Boggs signed it. Some time
afterwards, during their evening “dinner” in the breakroom, Bergum collected
Preisner, Stack, and
According to
Preisner, at the end of the training session, Bergum got up and announced that
Preisner had something to say to them, and left the room. Using the comparison chart given him earlier,
Preisner went through it with Stack and
Both Stack and
Bergum’s
testimony is not significantly different from that of the three employees. He admits that he gave Preisner the comparison
chart Oaks had given him and told Preisner, pointing to the appropriate spots
on the chart, “Here’s what I get being a nonunion employee, and [what] other
Halliburton nonunion employees get, and here is what you get from being in the
Union.” Bergum does contend that he told
Stack and
I have no
difficulty crediting Preisner, Stack, and
B. Signature Solicitation, Tuesday, July
10
As directed the
night before, McGinnis7
reported to Dell’s office on Tuesday morning.
He recalls Oaks joined them in Dell’s office. McGinnis acknowledges that he has never been
a proponent of the
At that point
either Dell or Oaks produced the comparison chart. McGinnis says that they did not really
discuss its contents and he decided that he would take it home to read it more
thoroughly. He left the meeting and went
to work.
In addition,
McGinnis said Dell told him that if he wanted to get rid of the Union he’d “have
to get signatures on this piece of paper saying that people—having them sign
and date it, that they did not want the
Dell has a
slightly different version, but essentially confirms what McGinnis said. He varies only slightly with the
details. Dell testified McGinnis started
the conversation by asking how “to go about this Union thing?” It was Dell who called Oaks to assist. He remembers McGinnis raising his long-held
issues, a 12-hour day, higher wages, and a 401(k) plan. Dell says they both told McGinnis that they
couldn’t promise anything, that changes would have to come from above. McGinnis observed that when a nearby
competitor, American Colloid, had gone nonunion, its employees had received a
pay raise. Dell again said that they
were not promising or guaranteeing anything.
It should be noted here, that McGinnis, on cross, testified that neither
Dell nor Oaks ever mentioned not guaranteeing anything during this
conversation. Curiously, Oaks asserts
that he never had any conversation with McGinnis where they discussed the need
for a petition, essentially denying being in this meeting.
McGinnis did not
actually began soliciting signatures until following day, Wednesday
July 11, as will be seen below.
Ivan Bierema is
the appointed lead of the drill crew. On
Tuesday, about 1 p.m., he was at the field shop some distance away from the
main plant. There he encountered
McGinnis who showed him the comparison chart.
The two had some sort of discussion about its contents. There is no evidence that McGinnis solicited
any signature at that point, but it gave Bierema some pause.
About 1:30 p.m.,
Bierema and one of his crew members, Dick Holdhusen,8 drove to the plant in a pickup truck in
order to deliver some drill samples to the lab.
While sitting in the pickup, Senior Plant Manager Mike Houston and Production
Manager Ray Dell approached Bierema on the driver’s side. Momentarily, Dell went to the passenger side
where he spoke with Holdhusen at the same time
Bierema
testified that
Holdhusen
testified that either he or Bierema asked Houston and Dell if they could provide
a dollar amount or salary amount they would get if the
Dell also places
the conversation on Wednesday, July 11.
Dell recalls the conversation as initially being about hunting, but that
it quickly turned to the 401(k) plan and whether it would improve or stay the
same. He remembers Holdhusen raised
questions about the comparison sheet, which Dell assumes Holdhusen had seen
earlier. Dell, somewhat vaguely,
testified he told Holdhusen, “[I told him] kind of what, you know, what my
program so to speak, what I have and kind of what he has. I just gave him my analogy of the comparison.” Dell’s lack of specificity here concerns me;
it seems evasive when it was not necessary.
In any event, Dell remembered Holdhusen asking a question through
Bierema: what would they get if they got rid of the
It is clear from
these early instances that the comparison chart would play a major role in the
effort to oust the
It was certainly
valuable for management to know what the existing working conditions were in
Colony. It would also have been handy to
know what goals management might expect to seek at collective bargaining. What it did not need was a list of items
showing how the ESG benefits equaled or exceeded those that the
In any event, it
makes little difference whether the Bierema-Holdhusen/Houston-Dell encounter
occurred on July 10 or 11. In either
case, the comparison sheet had made its rounds to the bargaining unit employees
in question. Its very existence was an
implied promise that without the Union the ESG benefits would replace what had
been lost, and the replacement value exceeded what the
Parenthetically,
it should be also observed that the comparison sheet was an apples v. oranges
circumstance: the
So even if
Houston’s testimony is accepted and one were to conclude that Bierema began the
conversation as Houston said, by asking if he should sign the petition and if
the Union were ousted could they expect better conditions, the whole conversation
was triggered much as planned. The
purpose of the chart was to spark this very discussion.
However, given
There is also
testimony that McGinnis had begun soliciting signatures that day,9 despite his initial hesitation, and his
acknowledgement that he actually began the next day, Wednesday, July 11. As with the Bierema-Holdhusen/Houston-Dell
encounter, there is some disagreement concerning the date he started. Nevertheless, McGinnis testified that he did
not go to Kaycee until Thursday, July 12.
Moreover, all of the signatures he solicited [Jt. Exh. 2, p. 3] are
dated July 11.
It is fair to
say, therefore, that the bulk of the signatures was solicited between Wednesday,
July 11, and most of Thursday, July 12.
I therefore proceed to Wednesday.
C. Signature Solicitation, Wednesday,
July 11
On July 11, four
employees began soliciting signatures on home-made petitions. These were Daniel McGinnis, Brad Kirksey,
Jeffrey Westland, and Martin Brosnahan.
Daniel
McGinnis. McGinnis, noted above, had not immediately
accepted the Dell/Oaks suggestion that he begin soliciting disaffection
petitions from his fellows. But, he
said, on Wednesday he met again with both Dell and Oaks and engaged in another
discussion concerning the issues that bothered him most. These were his desire for a 12-hour shift and
a pay increase. During this conversation,
McGinnis says Dell told him the company would not be able to guarantee him
anything, repeating it several times.
Nevertheless, the comparison chart was at work and McGinnis, reasonably,
came to believe that if the
Dell testified
that the Wednesday morning meeting described by McGinnis did not occur. He testified that the only meeting he had
with McGinnis was on Tuesday, July 10.
Oaks would not even agree with Dell that he had met with McGinnis on
Tuesday, though Dell had called him to the meeting. He denied ever meeting with McGinnis concerning
disaffection petitions. Both of these
denials are entirely unpersuasive and are not credited. McGinnis had been kept in Colony for the
specific purpose of soliciting such petitions.
Both Dell and Oaks were entirely confident that he would do so. McGinnis’ 1-day hesitation only amplified the
need to put him to work on Wednesday to solicit the needed signatures. If Dell and Oaks did not want him soliciting,
they would have permitted him to go to Kaycee on Tuesday as originally planned.
After the
meeting on Wednesday morning, according to McGinnis, he changed his clothes and
began the solicitation process. His work
is set forth in Joint Exhibit 2, page 3.
The petition is typical of all of them.
It is homemade and headed with “I do not want a
During the
course of his rounds he discovered other individuals were also soliciting signatures. As a result, he went back to the office and
spoke with either Dell or Oaks who told him to go into the field, that the
strippers were about to take their break.
McGinnis did so and was able to persuade Priewe to sign. He says he attempted to persuade the remainder
of the mining crew to sign but they declined.
It was here that
Bevier remembered seeing McGinnis soliciting the signatures. As noted above, Bevier misplaced the incident
as being on Tuesday. Nevertheless, he
knows McGinnis had a tablet and the comparison chart. Bevier even saw Priewe sign McGinnis’
petition.
McGinnis says
his lack of success in persuading other stripping crew members to sign was
because he could not answer some of their questions. When he returned to the plant, he spoke to
A number of the
stripping crew corroborate McGinnis, including Bevier. Mining employee Kenneth Merrell specifically
corroborated McGinnis, saying that
Earlier
Wednesday, both Merrell and McKenna had temporarily been working on a road
project which they finished at noon.
While they were working on the road that morning, they remember McGinnis
coming by and telling them both that “they” were passing around a petition to “vote
the
McGinnis
testified that after he was through soliciting that day he returned to the
plant yard about 4 p.m. He saw Marty
Brosnahan there. By then McGinnis had become
aware that Brosnahan was soliciting a similar petition and asked Brosnahan to
turn his in for him. Brosnahan did, but
as the General Counsel observes, it is unclear when Brosnahan actually did so
or to whom he gave it. Brosnahan opined
that McGinnis may well have given him the petition, but he had no real
recollection of the incident. Clearly,
at some point, McGinnis’ petition was submitted to someone in Colony
management.
Brad
Kirksey. Kirksey was the solicitor for Joint Exhibit
2, page 4. He has been employed by Respondent
since 2004. In July, he was a dryer
operator in the plant. By the time he
testified, he been promoted to a nonunit a job, laboratory technician. Kirksey said that sometime in either April or
May he had asked Ray Dell what they needed to do to get rid of the
Kirksey
remembers starting the petition by asking Ray Dell’s son, Jeff, to help him
with the language. He testified that his
own handwriting is illegible, so he asked Jeff Dell to write it for him. The original wording was “Petition to Remove
the
In addition,
Kirksey testified that he and two other employees, whose identity he does not
remember (one might have been Kevin King, who signed the petition), had a
conversation with Mike Houston in the dryer room. They discussed the comparison chart.
Q. (By Ms. Acosta) Do you remember what he [Houston] said about it specifically?
A. (Witness Kirksey) He would just—pretty much what the paper said was if we were a non-union you would get this much time of vacation after—the first year you would get I believe it’s two weeks, I think it is, and then on down the list, however it was reading.
After
After the
discussion ended, his coworkers signed the petition. The three additional employees who signed the
petition were Joseph Bohm, Kevin King, and Terry Samples. Other individuals also started to sign, but
for the most part their names are illegible, having been marked over. Another, Jamie Sexton, signed, but did not
print or date his name.
Kirksey
testified that he took the signed petition home with him that evening. He says he gave it to Ray Dell: “At least four days after I started [collecting
signatures] I probably turned it in.”
This testimony suggests that Respondent’s management did not possess
Kirksey’s petition at the time it says it counted the signatures on July 12 at
midday, for the earliest Kirksey could have turned it in would have been
Friday, July 13.
Dell, however,
says that Kirksey came to him during the midmorning of July 12 asking what he
should do with his petition. Dell asked
him to wait for moment while he went up to the lab and when he returned Kirksey
took the petition out of his back pocket and gave it to him. Dell told Kirksey that he would get it to
Oaks.
Jeffrey
Westland.
Q. [By Ms. Acosta] What happened when you went in his office?
A. [Witness Westland] He asked me if I heard that the employees were not happy with the union, and if I would take a petition down and have the guys on my crew sign it.
Q. And did you respond?
A. I said, yeah.
Q. And what happened after you said yes?
A. He just showed me a sheet of the difference between the hourly employees—the union employees and the salary employees, what the benefits were. Vacations, insurance, and different things. [Referring to the comparison chart.]
A. [Witness
Q. Did they tell you why they were explaining it?
A. Well, so I could explain it to my guys on my packing crew so they would understand what was going on. What kind of benefits they would be getting compared to what they had now.
Q. Did they explain to you what you needed to do?
[Objection Interposed.]
The Witness: Yeah. They had just asked if I’d get the petition signed. They just explained me the benefits and how to get the petition. They needed them to print their name, sign their name, and date it, so it’d be official.
Droppers agrees
that he left the group alone because he was under instructions not to get
involved. Even so, he said someone asked
him what he would do if it was up to him.
He responded, “. . . knowing what I have for benefits and what you have
for benefits, I would sign that document in a heartbeat.”
A short time
after that,
After
D. Supervisory Solicitation: Foreman Lyle
Droppers
As noted above,
Lyle Droppers is a plant foreman and admitted supervisor. At 4 p.m. on July 11 he had a conversation
with Zackary Zupan, one of the dryer operators.
At the end of the preshift meeting, Zupan asked Droppers if there was a
petition going around as he had heard rumors from other employees. Droppers replied that he was aware that Jeff
Westland was circulating such a petition and took Zupan to the warehouse where
Droppers picked up a comparison chart sitting on a table near the tail rollers
of the palletizer. He gave it to Zupan
to read. Zupan perused it as they were
returning to the dryer room. Zupan asked
Droppers some questions regarding the differences between what they would be
given without the
They then had a
discussion concerning the number of union plants Halliburton operated as
opposed to nonunion plants. Zupan also
recalls Droppers saying that if they got rid of the
Droppers denies
that the conversation Zupan described ever occurred. He offered an alternative version that
occurred during the luncheon break where Zupan and two other employees had a
conversation with him concerning short-term disability and vacation benefits. Droppers told them he had done really well
under the ESG plan because he had invoked it after being injured. He does agree that he told the group that the
Company plan “would affect a lot of the newer employees because [under] the
union scheduling they get one week vacation after the first year and then two
weeks after the second year, where what the salary people were getting we have
two weeks after the first year.”
I credit Zupan
over Droppers. Zupan’s detailed
testimony was impressive, whereas Droppers’ denial and alternative version did
not seem to carry with it a sense of veracity.
Even so, his alternative version is consistent with the promises being
implied from the comparison chart. Accordingly,
I find that Droppers engaged in the direct solicitation of Zupan’s signature on
a disaffection petition.
About two hours
after his conversation with Zupan, Droppers encountered Thomas (T.J.) Davis,
the mill operator in the sample room.
Droppers agreed
that he had a similar conversation with
Again, I credit
the employee, Davis, over Droppers. Droppers’ presence in the sample room
together with the comparison chart was not simply fortuitous. It was a direct effort to persuade
Here, too,
Droppers was engaged in the solicitation of employee to sign a disaffection petition. That he did not utter the magic words is not
a defense. He schemed so that
E. Signature Solicitation, Thursday, July
12
Martin
(Marty) Brosnahan. Brosnahan has worked
for Respondent since February 2004.
Initially, he was a maintenance electrician and held that job in July
2007. At the time of the hearing he had
become Respondent’s health, safety and environment manager (HSE), a managerial
job outside the bargaining unit.
Brosnahan
readily agrees that he circulated disaffection petitions and solicited fellow employees
to sign them. The record shows that he
obtained 15 signatures on July 12. Those
petitions are in evidence as Joint Exhibit 2, pages 7–9 and 11–14.
Brosnahan’s
testimony was significantly marred by his inability to recall with any detail
how he came to be a solicitor. It will
be recalled that on the evening before, he had accepted McGinnis’ petitions
with an apparent promise to deliver them to
Q. By Ms. Brandt: What was the reason you signed the petition?
A. [Witness Brosnahan]: I signed the petition for the pension purpose only. You know, the—
Q. Take your time. If you’d like to help yourself to a bottle of water—
A. No, not yet.
Q. —feel free to.
A. Not yet. I stutter, so—but anyway, I signed it for the percentage benefit that they were going to give us. And that’s why I signed it.
Q. Okay. And how did you know you were going to get a different pension percentage?
A. If I remember right—was it in here?
Q. Just take a moment and look through the document.
A. Yes. The fir—the very first one. It’s—
Judge Kennedy: And if it’s not in the document, you can take a minute to think through where you got that information too. That’s—
The Witness: It looks like the first benefit on the first line, or, you know, the fourth column, the first, second—or the fifth box down.
Q. By Ms. Brandt: So when you saw a document similar to this and it had information about the pension, you made up your mind to sign the petition?
A. That is correct. I made up my mind to sign that petition, that—this petition here, yes.
A review of the
comparison chart shows that the first comparison, the one to which Brosnahan
referred, was that of retirement benefits.
Under “Colony Provisions” (the Union-negotiated plan) there was a 100-percent
to 4-percent match, but with a 5-year vesting period. Under (Halliburton’s) ESG plan the matching
contribution was the same, but there was immediate vesting, plus an additional
automatic 4-percent company basic contribution which took 3 years to vest.
Moreover,
Brosnahan’s perception of what the Company was going to do is clear from his
testimony, as he absorbed the face of the document. He looked at it and “knew” that if the
The truly
curious thing about Brosnahan’s solicitation was that he was totally free to
roam the plant as well as the field in his effort. And, he was out early the morning of July 12. Kurt Ranta testified he encountered Brosnahan
at 7:30 a.m., just as Ranta was coming off his graveyard shift. He said that Brosnahan already had several
names on the petition Brosnahan offered him.12
In any event, as
an electrician, Brosnahan would normally be called to perform electrical repair
work in both places. One thing is clear;
he had the comparison chart with him while he solicited the signatures. He also told Vern Keegan, who had signed
Kirksey’s petition, that Kirksey’s had an error in the heading and Keegan
needed to sign again. Keegan did
so. How did Brosnahan make that
judgment?
About an hour
before quitting time, perhaps about 3 p.m., Brosnahan and Houston drove in
In any event,
the two arrived at the mining “shack” and
The members of
the stripping crew who testified, Bevier, Merrell, and McKenna did not confirm
Brosnahan’s version. They testified that
It is clear to
me, and I find, because of Brosnahan’s guarded unwillingness to implicate
F. Supervisory Solicitation: Production
Manager Ray Dell
Charles Callison
has worked for Respondent in a variety of jobs for 23 years. At the time he testified, he had been a
loader operator for about 2 years. He
said he had been on vacation during the week of July 9.13
He said that on Wednesday morning he received a telephone call at his
home from Ray Dell. This was unusual, as
Dell had never before called him at home.
Dell told him that a petition was going around to get rid of the
Callison says he
faxed Joint Exhibit 2 page 5 to Dell.
Curiously, however, the exhibit does not appear to have been what was
received by Respondent. Later that
night, about 10:30 p.m., Callison received a call from Plant Manager Danny
Oaks. Oaks told Callison he wanted him
to resign his name and date the petition.
Oakes then drove to Callison’s home in Spearfish so he could acquire the
re-signed version. He did so and Callison
signed something, apparently the original which he had probably kept. Oaks does not have a significantly different
version.
Clearly,
Callison’s signature on the disaffection petition was solicited and obtained by
members of management, Ray Dell14 and
Danny Oaks.
David Dell is
Ray’s brother. Ray testified that his
brother, who works in the maintenance department, had been vacationing in a
remote location in
Whatever the
circumstances of the transmittal, Ray Dell readily admitted soliciting his
brother, a bargaining unit member, to sign a disaffection petition.
G. Supervisory Solicitation: Senior Plant
Manager
Mike Houston
Gregory
DeKnikker
is the plant cleanup man. He has worked
for Respondent for a little over 2 years.
His principal duty is to clean up around the plant and haul debris to
the landfill located on Respondent’s property about 1-1/2 miles southeast of
the plant. On July 12, DeKnikker was
located at the landfill performing his duties when Mike Houston drove up in his
personal pickup truck. That was unusual,
as the senior plant manager rarely spoke to the individual who performed the operation’s
most humble tasks, and certainly not at a location as remote as the landfill.
DeKnikker
testified that
There is no
doubt in my mind that
Morning
at the stripping site. I have
already discussed
During the
morning visit, apparently arriving in time for the coffee break, he spoke with
the crew. This was his second
solicitation of the crew, though he and McGinnis had been there the night
before, with scant success. McGinnis had
signed only Priewe on Tuesday morning.
The stripping crew was a much tougher sell than the plant employees.
So I explained
to them that employees were passing around a petition to get rid of the
Two employees,
Rick Bevier and Frank McKenna, testified about the morning meeting with
Bevier said, in
effect, that
McKenna
testified about what
It is clear to
me that even if
William
Kester and John Kreitel. During
the morning of July 12, maintenance department employees William Kester and
John Kreitel were putting in a drainage line at the railroad tracks adjacent to
the warehouse building. They encountered
Marty Brosnahan and another employee who were working on the electrical
rerouting on the same project. Brosnahan
asked Kester to sign a petition saying they were putting the petition out to
see how many people did not want the
About 3 30 p.m.,
Kreitel said
that he joined the two after he had moved some pallets. When he joined them
During this
conversation they spoke about two other employment connected perquisites, the
Star card and the length of service award.
The Star card was a type of debit card or gift card which employees who
had earned it could use to purchase products.
With respect to
benefits that had been applied to the Colony plant, but which were not part of
the collective-bargaining agreement, it is clear that
After his
discussion with
H. Withdrawal of Recognition and
Unilateral Changes
In its answer
Respondent has admitted that it withdrew recognition of the Union on
July 13 and since that date has failed to respond to the
Although
Respondent’s answer denies that it made unilateral changes in the terms and
conditions of the employees after July 13, the denial is essentially without
force as it actually admits making the changes alleged in the complaint.
More specifically,
on July 19,
At the meeting,
Stevens was able to persuade about 18 employees to sign a petition in favor of
continued union representation. Two more
employees also signed separately on July 18.
Over the next few days, 20 employees added their names, for a total of
40. Of these 40, 14 had signed a
disaffection petition.
On August 10,
Stevens asserted by letter that the
In any event,
immediately after withdrawing recognition, Respondent began making changes,
some of which appeared in the chart and also added some additional matters to
the terms and conditions of employment at Colony. The first was a notice from
By letter dated
July 19, Union Representative Stevens asked Oaks four questions: who gets this
wage increase? How long would be in
effect? Is the Company asking bargaining
unit members to give up anything for the increase, i.e., were there
trade-offs? He concluded by asking for
the reasoning behind the “welcomed, but unprecedented wage increase this close
to our impending negotiations for a new collective bargaining agreement.”
On July 25, Oaks
responded by letter which can only be described as gloating. In his first sentences he told Stevens:
You are absolutely correct when you say that the $1.25 per hour wage increase was UNPRECEDENTED! To my knowledge, the wage increase was about 100% LARGER than any increase your union has ever negotiated for our employees in any one year. We have also just announced an unprecedented increase in the men’s vacation policy and will soon be meeting with them to explain that new benefit to each one of them.
these are
unprecedented wage and benefits changes which occurred directly as a result of
their decision to give us and them a chance to see what being
The wage increase and better vacation benefits
came months before anything could have happened by bargaining with the
union. And, if history is any judge,
those wages and better benefits came YEARS before anything could have happened
by being represented by your union.
Oaks concluded
with three paragraphs in which he claimed that a clear majority of its employees
had told them that they no longer wished to be represented by the Union and
downplayed a July 18 grievance which the Union had filed protesting the
withdrawal of recognition. Indeed, he
accuses Stevens of “ignoring the will of the majority.” He said that the Company no longer recognizes
the
Consistent with
that letter, Respondent almost immediately notified the employees of their
improved vacation benefits in an undated notice. Once again, this change was consistent with
the ESG benefits described in the comparison chart. The notice also stated that the Company would
stop withholding union dues when the contract expired in October. It advised that employees could resign their
membership earlier if they chose by sending a resignation letter to the Union
with a copy to the Company, noting that
At some point,
shortly before July 27, the
In August, there
was an exchange of correspondence in which the
After the
contract expired on October 21, Respondent began making additional
changes. On October 15 it announced it
was amending the retirement plan effective December 1 by ceasing future benefit
accruals; it explained that a participant’s benefits would be frozen at the
level determined as of December 1. This
was the plan that had been negotiated with the
It also began
taking steps to terminate the 401(k) plan which the
In addition,
Respondent also began requiring all its Colony employees to acknowledge that
they were now bound by Halliburton’s Dispute Resolution Program. An exemplar is in evidence as Joint Exhibit
17. This requirement was short-lived as
on December 13 it revoked that requirement.
I. The Demands for Information
There is really
no dispute concerning the allegations concerning information requests. Indeed, Respondent has admitted the
allegations. The
iv. analysis and conclusions
At this stage, a
short review of the complaint’s allegations is appropriate. First, is an overview. Generally, the complaint alleges that
Respondent embarked upon a campaign to oust the
That chart was
unfair from the outset. Presumably, Respondent
had obtained a significant benefit from the 6-year contract, labor peace and a
lengthy period of economic certainty. Despite
that, it decided to compare its current financial well being with a 6-year old,
out-run, collective-bargaining contract which was about to expire. No doubt, if the contract had been renegotiated,
whatever currency Respondent had been able to provide its unrepresented
employees would have caught the attention of the
Moreover, I have
already concluded that Respondent’s behavior during these 4 days was not the
result of happenstance. It was a result
of a plan begun in May at the very least.
Oaks’ testimony that he sought a comparison chart for the purpose of
educating himself concerning negotiations makes no sense. It makes sense only in the context of
instigating a revolt against union representation. Indeed, all the conduct described in the
facts section of the decision is tethered to that aim. Accordingly, I find that Respondent’s conduct
here was aimed at the heart of the Act.
It was a clear manipulation of its employees for selfish purposes,
undermining their Section 7 rights. In
general, I find that each of the allegations of Section 8(a)(1) of the
complaint has been proven. In this
regard, Shift Supervisor Gerry Bergum’s questions of John Preisner were clearly
coercive under that section of the Act.
Preisner’s own feelings for the
Ray Dell’s
meeting Dan McGinnis at the
Mike Houston,
himself, interrogated both Bierema and Holdhusen, specifically asking whether
they had signed a petition, another interrogation which breached Section 8(a)(1). In addition, through the use of the
comparison chart, he promised benefits to Bierema and Holdhusen if they got rid
of the
In this regard,
Similarly,
Bergum and Dell’s efforts, as well as the effacing Oaks follow the same
route. Indeed, their direct
solicitations of employees such as Preisner, Callison, and Dave Dell easily exceeded
the permissible bounds.
If Respondent
had been acting innocently, it would have directed them to an NLRB Regional
Office,18 rather than sending these employees on
a disaffection mission. Respondent, with
its nefarious motivation, had no interest in determining the true sentiments of
the employees by permitting them a free and uncoerced vote in any decertification
petition which might be filed. Had it
not embarked upon its campaign, it is possible a decertification movement may
have begun from the grass roots. Waiting
for that happenstance, however, was a risky business for it could not be
assured. In addition, it would have subjected
Respondent’s promises to scrutiny in an openly debated campaign. That would have meant that its benefits for
employees outside the bargaining unit might well have been incorporated into
the
In addition, it
did not want to file an RM petition19
(a representation petition filed by an employer) based upon the disaffection
petitions for the same reason. The disaffection
petitions were only effective in support of a direct withdrawal of recognition. From Respondent’s perspective, withdrawal of
recognition was a far better and quicker procedure. It had the obvious benefit of not subjecting
itself to the aforementioned scrutiny.
Furthermore, it was quick and, in large measure, out of sight of the Union
whose professional representative lived in
The entire
campaign and all its features violated Section 8(a)(1). It was a repudiation of the principles set
forth in the Act.
The Board has
long considered an employer’s undue involvement in sparking employee interest
in decertifying the incumbent union or otherwise hamstringing it from within
(urging resignations, dues-checkoff cancellations and the like) to be an
unlawful interference with the employees’ Section 7 rights. See generally Texaco, Inc., 264 NLRB
1132 (1982), enfd. 722 F.2d 1226 (5th Cir. 1984), where the Board said at
1133:
Considering the course of events described above and the entire record
herein, we agree with the Administrative Law Judge that “Respondent did not
maintain a neutral position here, and it obviously went further than simply
answering inquiries of employees.” After learning from Sutton of employee
dissatisfaction, Respondent initiated and stimulated the activity that led to
the employees’ withdrawal from the
Clearly, Respondent did far more than merely allow employees to exercise
the rights guaranteed them in Section 7 of the Act. Respondent actively and
effectively participated in the process of furthering employee withdrawal from
the
Accordingly, we adopt the Administrative Law Judge’s finding that Respondent unlawfully aided in the circulation of the petition and encouraged employees to sign.14
_________________________
14
See Shenango Steel Buildings, Inc., 231 NLRB 586, 588–589 (1977); Dayton Blueprint Company, Inc., 193
NLRB 1100, 1107-08 (1971).
In addition to Texaco and the cases cited therein,
other cases covering the point include Corrections Corp. of America, 347 NLRB 632 (2006); Erickson’s
Sentry of Bend, 273 NLRB 63, 64
(1984); Inter-Mountain Dairymen, Inc., 157 NLRB 1590, 1609–1613 (1966).
Following the
presentation of the signatures on the disaffection petitions, Respondent
naturally took the next step and withdrew recognition of the
It follows that
the unilateral changes in the wages, hours, and terms and conditions of employment
which Respondent admits (or at least did not counter with evidence) it
instituted also violated Section 8(a)(5).
NLRB v. Katz, 369
v. the remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
It will also be ordered to cease its campaign of encouraging, fostering,
and instigating an employee movement to decertify or otherwise oust the
The affirmative
action will include an order to recognize the Union and to resume bargaining in
good faith with the
Based upon the
foregoing findings of fact, legal analysis, and the record as a whole, I make
the following
Conclusions of Law
1. Respondent,
Bentonite Performance Minerals, LLC, a Product and Service Line of Halliburton
Energy Services, Inc., is an employer engaged in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International
Chemical Workers Union Council/United Food and Commercial Workers Union, CLC,
Local 353C is a labor organization within the meaning of Section 2(5) of the
Act.
3. The following
is an appropriate bargaining unit:
All production and maintenance employees,
including employees temporarily assigned as watchmen, in Respondent’s mining,
milling and packing operations located near Colony, Wyoming, but excluding
office and clerical employees, weigh masters, laboratory technicians, watchmen,
foremen and supervisory employees.
4. By coercive
interrogation of its employees to determine their sentiments concerning union
representation; by proposing the idea of disaffection
petitions; by soliciting signatures, both directly and indirectly, of employees
on those petitions; by making promises of improved conditions if the Union was
ousted as their collective-bargaining representative; and by attempting to
interfere with the Union by limiting communications with the employees it represents,
Respondent violated Section 8(a)(1) of the Act.
5.
By withdrawing recognition of the Union as the exclusive collective-bargaining
representative of its Colony, Wyoming production and maintenance employees; by
refusing to bargain with the Union for a new collective-bargaining contract; by
making unilateral changes in the wages and other terms and conditions of
employment of those employees and by refusing to respond to the Union’s request
for information relevant to collective bargaining, Respondent violated Section 8(a)(5)
and (d) of the Act.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
ORDER
The Respondent,
Bentonite Performance Minerals, LLC, a Product and Service Line of Halliburton
Energy Services, Inc., Colony,
1. Cease
and desist from
(a) Coercively
interrogating its employees to determine their sentiments concerning union
representation.
(b)
Proposing the idea of disaffection petitions.
(c)
Soliciting employees, either directly and indirectly, to sign disaffection
petitions.
(d)
Making promises of improved conditions if the
(e) Withdrawing
recognition of the Union as the exclusive collective-bargaining representative
of its employees at its Colony,
(f) Unilaterally,
without first bargaining with the
(g) Unilaterally,
without first bargaining with the
(h) Refusing to
provide the
(i) Interfering
with the
(j) In any other
manner restraining 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) Bargain
collectively in good faith with the
All production and maintenance employees,
including employees temporarily assigned as watchmen, in Respondent’s mining,
milling and packing operations located near Colony, Wyoming, but excluding
office and clerical employees, weigh masters, laboratory technicians, watchmen,
foremen and supervisory employees.
(b) Upon written
request by the
(c) Within
14 days after service by the Region, post at its mining and milling operation
near Colony,
(d) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has
found that we violated Federal labor law and has ordered us to post and obey
this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not interrogate you to determine your sentiments concerning
union representation.
We will not propose the idea of disaffection
petitions in order to disestablish International Chemical Workers Union
Council/United Food and Commercial Workers Union, CLC, Local 353C as your
collective-bargaining representative.
We will not solicit you, either directly and
indirectly, to sign disaffection petitions to oust your collective-bargaining
representative.
We will not make promises of improved
conditions in order to induce you to oust your collective-bargaining representative.
We will not withdraw recognition of Chemical Workers/UFCW Local 353C as
the exclusive collective-bargaining representative of our employees at our
Colony,
We will not unilaterally, without first bargaining with Chemical
Workers/UFCW Local 353C, grant wage increases to members of our Colony bargaining
unit.
We will not unilaterally, without first bargaining with Chemical
Workers/UFCW Local 353C, grant improved vacation benefits, health benefits, retirement
benefits, or any other employment connected benefits to members of our Colony
bargaining unit.
We will not refuse to provide Chemical Workers/UFCW Local 353C with the
information it has requested which is relevant to collective bargaining.
We will not interfere with Chemical Workers/UFCW Local 353C’s right to
communicate with you.
We will not in any other manner interfere with, restrain, or coerce you
in the exercise of the rights guaranteed you by Section 7 of the Act and which
are enumerated above.
We will bargain collectively in good faith with Chemical
Workers/UFCW Local 353C in the following appropriate bargaining unit:
All production and maintenance employees,
including employees temporarily assigned as watchmen, at our mining, milling
and packing operations located near Colony, Wyoming, but excluding office and
clerical employees, weigh masters, laboratory technicians, watchmen, foremen
and supervisory employees.
We will, upon written request by Chemical Workers/UFCW Local 353C,
reinstate the wage structure, the health plan, the retirement plan(s), and any
other changes in your benefits and working conditions which we instituted after
July 23, 2007.
Bentonite Performance Minerals, LLC, a Product and Service Line of
Halliburton Energy Services, Inc.