Extract
Allied Chemical Corp., 849 (1965)
DECISION AND ORDER
On November 21, 1963, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision.The Respondent thereupon filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The Charging Party filed cross-exceptions, a brief in support of the Trial Examiner's Decision, and a brief in answer to the Respondent's exceptions. The General Counsel submitted a brief in support of the Trial Examiner's Decision.Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins].The Board has reviewed the rulings of the Trial Examiner made 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 and cross-exceptions, the briefs, and the entire record in this case, and finds merit in certain of the exceptions of the Respondent. Accordingly, the Board 1 hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent herewith? The record herein clearly demonstrates, and we find, that the Respondent intended at all times to take over the Winnie plant, purchased from Texas Gas Corporation, in a shutdown condition. The I Member Brown concurs in the result herein a Respondent' s motion for oral argument is denied . Further, we find without merit the Respondent's allegation of bias on the part of the Trial Examiner in his analysis of certain of the facts herein There is no basis for finding that bias existed merely because the Trial Examiner resolved some of the important factual conflicts arising in this proceeding in favor of one side rather than the other. As the Supreme Court has stated, '. . .[T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact.' N.L.R B. v. Pittsburgh S.S. Company, 337 U S. 656, 659 (1949).153 NLRB No. 71.796-027-66-vol. 153-55 record further demonstrates, and we find, that Respondent planned to convert all the existing production areas from a gasoline refinery to a plant producing petrochemicals .3 Although title to the plant passed to the Respondent on December 31, 1961, the plant was not actually shut down until February 14,1962. It is evident from the record, however, that this passage of title was accomplished on December 31 solely as an accommodation to Texas for purposes unrelated to the matter here under consideration.4During the 6-week period between December 31 and the February 14 shutdown date, the Respondent assumed the responsibility for the cost of running the plant but engaged Texas to operate it on a cost-plus-fixed-fee basis. In our view, the record contains insufficient evidence to warrant a finding that, during this period, the relationship between the Respondent and Texas, under which Texas operated the plant, was one of joint or coemployers or one of agency, which would constitute Allied the employer of the Winnie employees and obligate it to bargain with the Union representing these employees.Contrary to the Trial Examiner, we find that the Respondent's representative, Quinn, who was assigned to the Winnie plant during the December 31-February 14 period, did not engage in such activities or possess such authority over the day-to-day operations of the plant as to warrant a finding that the Respondent was a joint or coemployer with Texas (or that Texas was the Respondent's agent). The record demonstrates that Quinn did no more than pass upon expenditures in excess of $500, including items involving major repairs of existing equipment, all of which, if not scrutinized by the Respondent, might have resulted in waste when the conversion was undertaken.Nor do we find that the Respondent's traffic manager, Herrington, directed the work of the rackmen and pumpers employed by Texas at the Winnie plant during this period. Herrington was employed at the Respondent's Houston sales office which had taken over Texas' sales functions, but which was completely divorced from the production and maintenance facilities at Winnie. (It has not been contended that the takeover of Texas' sales functions by the Respondent constitutes evidence with respect to the relationship of the two companies at the Winnie plant.) Herrington forwarded sales memorandums either in writing or orally to these employees. The memorandums contained information as to the number of the truck or tank cars to be loaded;the scheduled arrival of barges; the type of product to be loaded on, or unloaded from, the truck, t...See the full content of this document
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