Texaco, Inc.

TEXACO, INC., HOUSTON PRODUCING DIV. 361 Texaco, Inc., Houston Producing Division and Oil, Chemical and Atomic Workers International Union, Local No. 4-367, AFL-CIO. Case 23-CA-2271 November 20, 1967 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On June 8, 1967, Trial Examiner Ivar H. Peter- son issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in and was not engaging in the unfair labor practices alleged in the complaint and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the General Counsel and the Union filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record, and finds merit in certain of the exceptions of the General Counsel and the Union. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent consistent herewith. On the morning of November 5, 1965,' Alaniz, a company porter for some 20 years, was using kerosene to spray weeds on company property. He placed in his car a 2-gallon can of kerosene, con- cededly belonging to the Company. At lunchtime when Alaniz started to go home in the car, the production foreman saw the can in the car, con- fronted him concerning the kerosene, and suspended him without pay. After lunch Alaniz at- tempted to return to work, but was again told he was suspended. At the time Alaniz was part of a unit of employees represented by the Union.2 He was not, though, a union member. Later in the day, Whitten, the Union's field steward, learned of the incident and called the foreman about the matter. He requested that it be handled on the local level, complained that the Union should have been notified of the incident, and added that Alaniz needed representation. The foreman replied that he had already reported the matter to the Company's district superintendent and, thus, that the matter was out of his hands. He also stated Alaniz did not need union representation as he was not a union member. Alaniz had, as noted, worked as a porter for some 20 years, had something less than a fourth grade education, could read English very little, spoke Spanish at home, and testified in this proceeding through an interpreter. The company controller's office undertook to in- vestigate the matter and scheduled a meeting for November 17. Alaniz was extended the opportuni- ty to attend the meeting to defend himself. The Union, on the ground that Alaniz was within its recognized unit, requested the right to represent him at the meeting. The request was denied. The meeting was held as scheduled; Alaniz attended and at the outset requested that the Union be permitted to represent him. His request was also rejected by the Company. One of its representatives stated there would be no interview if Alaniz insisted on union representation, adding that Alaniz was free to go if he wished. However, Alaniz remained, was questioned, and then was given a statement prepared by the Company to sign. In the statement, which he signed, Alaniz conceded he had taken 2 gallons of Company kerosene to spray weeds but not "with the thought of stealing but only because of the convenience," promised to do his job in a manner which would do credit to him, and asked that consideration be given "on past service to Tex- aco." Alaniz was given a suspension of 24-1/2 days (16-1/2 working days) without pay and restored to duty on November 30. By letter dated December 3, the Company notified Alaniz that it felt the suspension lenient and wholly justified and warned him that any future similar or other disciplinary of- fense would subject him to discharge. During the period here involved there was in ex- istence a company-union contract containing a grievance procedure. Neither the Union nor Alaniz filed a grievance at any time. The complaint alleges in substance that the Com- pany violated Section 8(a)(1) and (5) of the Act by refusing to allow a union representative to be present at the November 17 meeting. The Trial Ex- aminer concluded that the alleged 8(a)(5) violation could be found only if the meeting and its outcome involved the adjustment of a grievance within the meaning of Section 9(a) of the Act. But he found tha no grievance had been raised concerning Alaniz' situation and that even assuming it had, the meeting was not concerned with its adjustment. There was, thus, in his view of the case no 8(a)(5) All dates refer to 1965 and professional employees , all employees at the Houston garage and s The Union is the recognized bargaining agent of the following ap- warehouse , all Divisional employees , temporary chammen and rodmen, propnate unit foremen, rotary drillers, head roustabouts, and all other supervisory em- All hourly rated production and maintenance employees in the Com- ployees) pany's South Texas Division (except clencal , administrative, technical, 168 NLRB No. 49 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation.3 With respect to the alleged 8(a)(1) viola- tion, he found no interference with Alaniz' rights in denying him union representation at the meeting because he could have filed a formal grievance and thereby assured himself such representation. In view of his findings, the Trial Examiner recom- mended the complaint be dismissed. We are of the opinion, however, that the Trial Examiner took too narrow a view of the issues before him. As the record shows, the November 17 meeting was not simply part of an investigation into some al- leged theft and Alaniz was not invited to attend solely to provide the Company's representatives with information. Rather the meeting was con- cerned essentially with Alaniz and his alleged theft, the facts of which were known to management representatives some 2 weeks earlier, and more specifically with the Company's concluding its "case" against Alaniz in order to provide a "record" to support disciplinary action, if deemed appropriate. Thus it is clear that on November 17 the Company sought to deal directly with Alaniz concerning matters affecting his terms and condi- tions of employment. Yet, as noted, the employees in the unit had selected the Union to deal with the Respondent on such matters and there is no evidence that either Alaniz - assuming he could have done so - or the Union had waived to any ex- tent the right of representation or had agreed to channelize disputes concerning such right into the procedures of the contract grievance provisions. Consequently, we find in the circumstances here that the Respondent's refusal to respect Alaniz' request that the bargaining representative be per- mitted to represent him at the meeting interfered with and restrained him in the exercise of his rights guaranteed by Section 7 of the Act. Also in view of Alaniz' request for union representation at the meeting and the Union's evident willingness to represent him-both conveyed to management-we find that the Respondent's refusal to deal with the Union on that occasion transgressed its statutory obligation to bargain with the Union concerning the terms and conditions of employment of the em- ployees it represents. Accordingly, we find that the Respondent by the above conduct violated Section 8(a)(1) and (5) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, we shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent unlaw- J Sec. 9(a) provides in part that an employee has the right to present a grievance directly to his employer and have it adjusted without interven- tion of the bargaining representative , providing "that the bargaining representative has been given the opportunity to be present at such adjust- fully denied the request of Alaniz for representation by the Union and refused to deal with the Union at the November 17 meeting. Consequently, the meeting and its results are tainted by Respondent's unlawful activities, and it is, therefore, necessary in order to provide a full and effective remedy to recreate insofar as possible the status quo prior to the meeting. Accordingly, we shall order the Respondent to strike from its records any references to the meeting and what occurred there, including all copies of the statement signed by Alaniz at the close of the meeting and the December 3 letter of reprimand sent Alaniz. We shall also order it to revoke its decision that Alaniz be suspended for 24-1/2 days because of his alleged misconduct on November 5, and so notify him. We shall further order the Respondent to give Alaniz the original (i.e., signed copy) of the statement he signed on November 17, and notify him that it is withdrawing and considering of no effect its letter of reprimand dated December 3. The General Counsel and Union request that we also order the Respondent to make Alaniz whole for such loss of pay and other benefits he suffered as a result of his suspension. However, Respond- ent's illegal conduct occurred after Alaniz was suspended without pay and it is not alleged that the suspension itself was unlawfully caused. Further- more, that Respondent would have reinstated Alaniz with backpay had it dealt with the Union on November 17 is at best a speculative consideration concerning the merits of Respondent's disciplinary action, and is not for us to resolve. However, the possibility that Respondent's unlawful conduct did adversely affect Alaniz can be fully remedied by or- dering in addition to those matters covered above that Respondent meet with Alaniz and the Union upon Alaniz' request within 5 days of the date of this Decision and Order for a consideration de novo of those matters dealt with at the November 17 meeting. We shall also order that the Respondent take no further action with respect to Alaniz' al- leged misconduct until after the expiration of the above specified 5-day period or, if Alaniz requests a meeting, until after such meeting has been con- cluded. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material , the Union has been the exclusive representative of the employees in a unit, ment ." That provision on its face is concerned with a situation where an employee is not, contrary to the matter before us , seeking union represen- tation. Consequently, finding the above part of Sec 9(a) inapplicable does not dispose of the 8(a)(5) issue before us TEXACO, INC., HOUSTON PRODUCING DIV. of which Alaniz has been at such times a member, appropriate for the purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 4. By denying Alaniz his request that the Union represent him at the November 17, 1965, meeting, the Respondent violated Section 8(a)(1) of the Act. 5. By denying the Union the right to represent Alaniz in accordance with his request at the November 17, 1965, meeting, the Respondent vio- lated Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. All exceptions other than those relating to the aforesaid unfair labor practices are without merit and are hereby overruled. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Texas, Inc., Houston Producing Division, Freer, Texas, its officers, agents, successors, and assigns , shall: 1. 'Cease and desist from: (a) Refusing any employee in the unit of which Oil, Chemical and Atomic Workers International Union, Local No. 4-367, AFL-CIO, or any other labor organization, is the legal bargaining represent- ative permission to be represented by such labor organization at any meeting convened by the Em- ployer in which the employee is questioned about, or required to defend himself against, his own al- leged misconduct in the course of his duties or oc- curring on, or in relation to, the Respondent's pro- perty where the employee requests representation at the meeting by said labor organization. (b) Refusing permission to Oil, Chemical and Atomic Workers International Union, Local No. 4-367, AFL-CIO, or any other labor organization, to attend any meeting and to represent any em- ployee at such meeting who is a member of a unit of which it is the legal bargaining representative where the purpose of such meeting is to question the em- ployee about or to require him to defend himself against his own alleged misconduct in the course of his duties or occurring on, or in "relation to, the Respondent's property where the employee requests representation at the meeting by said labor organization. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization to form labor organizations, to join or assist the above-mentioned Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual 363 aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Strike and physically remove from its records and files any reference to the meeting of November 17, 1965, and to decisions or actions based upon that meeting , including all copies of the statement signed by Alaniz on that date and all copies of the letter of reprimand dated December 3, 1965; but nothing in this Order shall be construed as adverse- ly affecting Alaniz' reinstatement on November 30, 1965. (b) Revoke its decision, and notify Alaniz that it has revoked said decision, that he be suspended without pay for 24-1/2 days because of his alleged misconduct-on November 5, 1965. (c) Return to Alaniz the signed original state- ment he signed on November 17, 1965, if it still has possession of such statement, and notify him that it is withdrawing and considering of no effect its letter of reprimand dated December 3, 1965. (d) Meet with Alaniz and the Union as his representative for purposes of considering de novo those matters dealt with at the November 17, 1965, meeting if within 5 days of the date of issuance of this Order Alaniz requests such a meeting, taking no further action with respect to Alaniz' alleged misconduct on November 5, 1965, until after the above-specified 5-day period or, if a meeting is requested, until after said meeting has been con- cluded. (e) Post at its place of business, Freer, Texas, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Re- gional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse any employees in the unit of which Oil, Chemical and Atomic Workers International Union, Local No. 4-367, AFL-CIO, or any other labor organization, is the legal bargaining representative permission to be represented by such labor organization at any meeting we hold with the employee for the purpose of questioning him about, or having him defend himself against, his alleged miscon- duct. WE WILL NOT refuse permission to Oil, Chemical and Atomic Workers International Union, Local No. 4-367, AFL-CIO, or any other labor organization, to attend any meeting and represent any employee who is a member of a, unit of which it is the legal bargaining representative where an employee attends a meeting set up by the Company for purposes stated above and the employee requests the Union be present to represent him. WE WILL remove from our files all papers and other references to the November 17, 1965, meeting with employee Alaniz and rescind all actions based in whole or in part upon such meeting, except our actions shall not affect his reinstatement on November 30, 1965. WE WILL upon the request of Alaniz meet with him and the Union as his representative to consider anew the matters taken up at the November 17, 1965, meeting, and shall take no further action with respect to his alleged misconduct until after such meeting, if he requests it, has been held. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-or- ganization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities. TEXACO, INC., HOUSTON PRODUCING DIVISION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material.' If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611.