Bentonite Performance Minerals, LLC, (2008)

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 Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

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 Union. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the order’s duration is not indefinite but only for a reasonable period of time sufficient to allow the good-faith bargaining that the Respondent’s unlawful withdrawal of recognition cut short. It is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reasonable period of time that employees’ Section 7 right to union representation is vindicated. It will also give employees an opportunity to fairly assess the Union’s effectiveness as a bargaining representative and determine whether continued representation by the Union is in their best interests.

(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 Union to its rightful position as the bargaining representative chosen by a majority of the employees. Also, as mentioned, providing this temporary period of insulated bargaining will afford employees a fair opportunity to assess the Union’s performance in an atmosphere free of the effects of the Respondent’s unlawful withdrawal of recognition and refusal to bargain.

(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 Union. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union representation.[8]

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, Wyoming, its officers, agents, successors, and assigns, shall

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 Union, International Chemical Workers Union Council/United Food and Commercial Workers Union, CLC, Local 353C, was ousted as their collective-bargaining representative.

   (e) Interfering with the Union’s right to communicate with the employees it represents.

   (f) Withdrawing recognition of the Union as the exclusive collective-bargaining representative of its employees at its Colony, Wyoming operation.

   (g) Unilaterally granting wage increases to members of the Colony bargaining unit without first bargaining with the Union.

   (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 Union.

   (i) Refusing to provide the Union with the information it has requested that is relevant to collective bargaining.

   (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 Union in the following 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.

   (b) On the Unions request, rescind the unilateral changes and restore the previously existing wages and other terms and conditions of employment as...