recognizing that an employer’s actions were unlawful when the employer, inter alia, “initiated and stimulated the activity that led to the employees’ withdrawal from the Union,” even though the employer had previously learned of employee dissatisfaction
How later courts described this case
- recognizing that an employer’s actions were unlawful when the employer, inter alia, “initiated and stimulated the activity that led to the employees’ withdrawal from the Union,” even though the employer had previously learned of employee dissatisfaction
- ‘‘[It is] settled that an employer who puts into effect tentatively approved proposals without awaiting the ratification vote by the union membership [where the parties understand that such ratification is necessary] unlawfully engages in unilateral action in violation of 8(a)(5).”
- management assisted in circulation of decertification petition and initiated idea to cancel collective bargaining agreement
- employer may furnish information upon request when employees ask about revoking dues checkoff or resigning from union
Written by the judges who cited it.
The opinion
PATRICK E. HIGGINBOTHAM, Circuit Judge,
dissenting:
Were I convinced that the workers at the Texaco Amarillo Plant were in fact deprived in any fashion of their free choice in deciding whether or not to continue their participation in the union, I would not hesitate to join the majority’s enforcement of this NLRB order. I respectfully dissent because I am convinced that the contrary is true, and because I think the majority opinion places too much emphasis on facts which are not relevant to our decision in this case and misapplies the case law of this and other circuits.
The majority accepts the Second Circuit’s observation in NLRB v. Monroe Tube Co., 545 F.2d 1320, 1325 (2d Cir.1976), that an employer’s conduct “must be assessed in the light of all the facts in the case.” The majority also recognizes that “the essence *1237 of the proscribed conduct is not merely opposition to union activity, but interference or coercion which makes impossible the free exercise of employees’ rights.” Id. (emphasis added). Though the majority scrupulously recounts every action taken by Texaco in the course of the events here at issue, its factual gathering does not seem to provide a basis for a finding that any of the workers in fact suffered an infringement of the free exercise of their rights. In this pivotal sense this ease is distinguishable from most of the cases relied upon by the majority, in which a particular company action, such as lending anti-unionists the use of company facilities or permitting anti-union solicitation during working hours', was one element in a broader range of company activities coercing the workers or interfering with their right to make a free choice. Here, by contrast, the sum and substance of Texaco’s activities would have permitted the workers to infer no more than that the company wished them to have an opportunity to consider terminating their membership in the union. As the Sixth Circuit held, however, in Landmark International Trucks, Inc. v. NLRB, 699 F.2d 815, 821 (6th Cir.1983), the fact that an employee is able to infer that his employer would be pleased to see him withdraw from the union provides no basis for a finding that the company’s activity is coercive.
The majority attempts to distinguish this case from Landmark and Monroe Tube by asserting that Texaco initiated the idea of cancelling the collective bargaining agreement and persuaded the union workmen’s committee to adopt that idea. The record supports no such finding. The majority points out that the company prepared the union withdrawal documents, but does not mention that the company traditionally prepared all of the union related documents for the workmen’s committee. The majority insists that Texaco violated the anti-solicitation clause in the union contract. However, a reading of this clause, which provides that there shall be no solicitation of employees “for any employee groups,” makes clear that this provision was der signed to limit union solicitation of new members on company time and is inapposite to the present facts. If any contract provision is applicable here it is the clause relied upon by the company, which provides that union representatives may confer with other employees during working hours for the purpose of promoting management-employee relationships. Finally, the majority places great emphasis on the fact that some union members signed the anti-union petition while it was being carried by the assistant supervisor of employee relations and while it was in the office of the supervisor of employee relations. What the majority overlooks, however, is that these incidents took place after more than fifty percent of the union members had already signed the petition and the contract between the plant workers and Texaco had already been can-celled. Thus, though I would concede that this conduct would have tainted the entire process had it taken place before the petition had won the support of a majority of the union members, it has no relevance-here.
Above all, this case is distinguishable from those cases in which an unfair labor practice has been found, because the employees circulating the anti-union petition were the union representatives from the Amarillo plant. The employees consequently cannot have believed that they were being approached by company agents attempting to induce them to forbear from union activity. Rather, the union members must have believed that their local officers were fulfilling their obligation to represent the best interests of the employees at the plant, that the company was not attempting to undermine the union by granting privileges to anti-union activists that would not be afforded union representatives, and that their own right to choose between supporting and opposing the anti-union drive might be freely exercised. Under these circumstances, I see no justification for overriding the clearly expressed preference of a majority of the workers in the Amarillo plant to withdraw from their union.
For these reasons, I believe that the petition validly authorized the workmen’s committee representatives to cancel the collective bargaining agreement between Texaco *1238 and the Amarillo plant workers. Any argument that the workers were not aware that the petition would lead to a cancellation of the bargaining agreement is spurious. The workers knew that they were withdrawing from the union and cancelling their dues checkoff authorization, and must therefore have realized that the contract between Texaco and the union would cease to exist. Moreover, employees had as part of their decisional process examined copies of the work rules agreement in effect in Texaco’s non-union Louisiana plant, hardly suggesting that the employees did not recognize the consequences of withdrawing from the union. The petition being a valid indicator of the workers’ desires, the agreement can-celling the contract is also valid.
We have often shown solicitude for the rights of organized labor. We have been quick to protect workers from having their right to bargain collectively trodden upon by unscrupulous and overbearing employers, and properly so. This case, however, goes beyond solicitude to paternalism. In the absence of any evidence that a single employee felt coerced or felt that his right to make a choice concerning continued membership in the union was in any fashion interfered with or even influenced by the company’s actions, the majority determines that the petition drive was tainted and the express desire of the workers to withdraw from the union shall not be honored. In doing so it sustains a finding of an unfair labor practice on less evidence than in any other case I have located. Viewing the facts as they are, and not as they might have been, I would hold that there has been no unfair labor practice here.
The majority opinion’s marshalling of the facts makes plain that their relevance is generated by the view that a company which communicates its preference that there be no union interferes with the employees’ right of self-organization. I suspect that few union members would be startled to learn that their employer would prefer no union. No labor law command of neutrality requires employer silence, or forbids even a cheer of a choice made freely by the employees. Unable to find interference here other than that of the Board and now this court, I dissent.