American Cyanamid Co.

National Labor Relations Board - Board Decisions

Oct 10, 1970

185 N.L.R.B. 981 (N.L.R.B. 1970)

AMERICAN CYANAMID COMPANY 981
American Cyanamid Company and International
Chemical Workers Local No. 120, affiliated with
the International Chemical Workers Union, AFL-
CIO. Case 9-CA-5369
October 10, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On June 9, 1970, Trial Examiner David S. Davidson
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in the unfair
labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its entirety,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging
Party filed separate 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
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 here-
by affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the Trial
Examiner's findings, conclusions, and recommenda-
tions.
and (5) of the Act by unilaterally instituting new work
schedules, with consequent changes in other conditions
of employment, and refusing to bargain with the Union
with respect to these changes and their effects on employees.
The complaint also alleges that Respondent further violated
the Act by disciplining a union committeeman and threaten-
ing that Respondent would no longer be lenient in the
application of its contract with the Union because of the
Union's protest and opposition to the changes instituted
by Respondent. In its answer, Respondent denies the com-
mission of any unfair labor practices.
A hearing was held before me on March 25 and 26,
1970, at Marietta, Ohio At the close of the hearing, oral
argument was waived and the parties were given leave
to file briefs. Briefs have been received from the General
Counsel and Respondent.
Upon the entire record in this case including my observa-
tion of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent, a Maine corporation, is engaged in the manu-
facture of chemical products at a number of locations,
including a plant at Marietta, Ohio, involved herein. During
the 12-month period preceding issuance of the complaint,
a representative period, Respondent sold and shipped prod-
ucts valued in excess of $50,000 from its Marietta plant
to customers located outside the State of Ohio. I find
that Respondent is an employer engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Trial
Examiner's Recommended Order, and orders that
the complaint herein be, and it hereby is, dismissed
in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S . DAVIDSON , Trial Examiner - Pursuant to a
charge filed on October 13, 1969, by International Chemical
Workers Local No. 120, affiliated with the International
Chemical Workers Union , AFL-CIO, hereinafter referred,
to as the Union, a complaint issued on November 28,
1969, alleging that Respondent violated Section 8(a) (1)
185 NLRB No. 135
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent has operated the Marietta, Ohio, plant for
more than 20 years. It describes the plant as a job shop
at which it makes approximately 65 different products.
For a number of years, depending upon demand, the plant
has operated 5, 6, or 7 days a week, with frequent changes
in operating schedules affecting part or all of the plant.
Over the years work schedules for production employees
have vaned with the operating schedules for their depart-
ments. For approximately 10 years before the events at
issue herein, when a department operated on a 5-day sched-
ule, employees were scheduled to work a simple 5-day
week, followed by 2 days off. This work schedule was
referred to in this proceeding as a 5-2 schedule, and provided
for no scheduled overtime. During the same period, when
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a department operated on a 6-or 7-day schedule, the affected
employees were scheduled to work 6 consecutive days fol-
lowed by 2 days off This schedule, referred to herein
as a 6-2 work schedule, provided for a certain amount
of scheduled overtime for employees It also required
employees to work a number of consecutive weekends.'
The changes in operating schedules between 5, 6, and
7 days were based on production needs and determined
unilaterally by Respondent. In conjunction with operating
schedule changes, Respondent posted either 5-2 or 6-2
work schedules for employees without advance discussion
of the work schedule changes with the Union
The dispute at issue in this proceeding arose in October
1969 when Respondent announced that it was shifting
to a new work schedule, referred to as a 7-day schedule
(not to be confused with a 7-day operating schedule) The
principal questions herein are whether Respondent was
obligated to bargain with the Union over the institution
of the new work schedule and, if so, whether Respondent
failed to satisfy its bargaining obligation
2. The bargaining history and pertinent contract provisions
The Union has represented the employees at the Marietta
plant for substantially the entire period of Respondent's
ownership of the plant. The Union entered into its first
agreement with Respondent in 1947, and has entered into
a number of succeeding agreements, the most recent of
which was executed May 23, 1969, and by its terms expires
on May 21, 1971, in the absence of automatic renewal.
It is undisputed that the Union at all times material hereto
has been the exclusive bargaining representative of the
employees in the following unit.
All hourly paid production and maintenance employees
employed by Respondent at its Marietta, Ohio, opera-
tions, excluding all office and clerical employees, all
guards, watchmen, professional employees, cafeteria
workers, chemists, laboratory technicians and all super-
visors as defined in the Act
In the original 1947 agreement between the parties, the
following provisions appeared:
Article VIII
Hours of Work
Section 1
The regular work day shall be eight (8) consecutive
hours excluding one-half hour lunch period except
that in the case of shift workers, a paid one-half
' Overtime was based on hours in excess of 40 worked during each
workweek which consisted of the 7-day period starting each Monday
at 7 a in During an 8-week cycle on this work schedule , assuming
7-day operation and disregarding the effects of shift rotation which also
accompanied this schedule, an employee would work 6 days during
2 workweeks and 5 days during the remaining workweeks During such
an 8-week cycle it also appears that employees were scheduled to work
both Saturday and Sunday for 5 consecutive weeks
hour lunch period shall be within their eight (8) regular
hours. The regular work week shall commence on
Monday at 7:00 a.m.
Section 2.
Shift schedules for all employees working on shifts,
will be posted and will be adhered to insofar as produc-
tion requirements and plant conditions will permit
Section 2 of this article has appeared without change
in all succeeding agreements and appears as section 8.3
in the current agreement between the parties.2
In 1948, because there had been numerous schedule
changes during the preceding year, the Union proposed
an amendment to Article VIII, Section 2, to provide further
that all shift workers would work a 5-day rotating schedule,
but the requested change was not agreed upon. Since then
neither party has sought to change this provision of the
agreement
In the most recent contract negotiations in the spring
of 1969 the Union raised a question as to what was meant
by a contract provision dealing with unreasonable absences.
No change was made in the provision, but in discussion
company negotiators pointed out that Respondent was hav-
ing a serious problem retaining employees. They expressed
the view that younger employees did not want to stay
with Respondent because too much overtime was required,
and they attributed much of the problem to scheduled
Saturday or weekend work. They also stated that younger
employees were refusing to perform Saturday work. Howev-
er, there was no discussion of any possible change in
work schedules at this time.
3. The alleged refusal to bargain
a. The announcement to the Union of the impending work
schedule change and its implementation
At a grievance meeting on September 2, 1969, Respond-
ent's representatives indicated to the Union that a change
in work schedules was under consideration ' Present for
Respondent were Plant Manager R. E Leach, Production
Superintendent H. C. Gaffney, Industrial Engineer C. Wil-
liam Miller, and Maintenance Supervisor Perry Smith Pres-
ent for the Union were President Russell Binegar, Vice
President Roger Nicholson, Recording Secretary Earl Rush,
and other members of its committee. At the end of the
meeting, Leach mentioned that Respondent was considering
a change in the work schedules because of employees'
i Section 1 of the original article has been modified slightly, but
the modification is not material to the issues herein
' The Union's representatives testified that the meeting was held on
July 28 while Respondent 's representatives placed it on September 2
Although it appears that there may have been meetings on both dates,
the witnesses were in general agreement that the schedule change was
mentioned at only one of these meetings I find the testimony of the
company representatives more likely to be accurate in this regard, in
view of the timing of the actual change in relation to this meeting
as well as a reference to the September 2 meeting date in the Union's
answer to the second step reply of Respondent to a grievance filed
over the schedule change The testimony otherwise was not in conflict
as to the content of the first discussion of the schedule change
AMERICAN CYANAMID COMPANY
refusals to work scheduled overtime and their griping about
it Leach told them that the new schedule, which was
still being developed, would be designed to overcome these
problems by providing for longer or different type breaks,
and that it would also result in the creation of three
new jobs for relief men which would save three men from
an impending layoff and result in higher classifications
for those assigned to the new jobs Leach asked Miller
if he could supply the Union with further details, but
Miller replied that he could not because he had not complet-
ed work on the new schedule. Leach told the Union repre-
sentatives that Respondent would contact the Union and
that they would get together again as soon as work on
the schedule was completed. The union representatives made
no response to this information and made no request to
bargain over the schedule change at this time.
On September 26, 1969, Respondent notified the Union's
officers and committee members of a meeting to be held
on September 30. The meeting was held as scheduled
Except for Plant Manager Leach, Union President Binegar,
and another union committee member, who were absent,
the participants were the same as those at the earlier
meeting Gaffney announced that there was going to be
a work schedule change on October 6 and that they were
going to discuss it He stated that the reason for the
change was to create three additional production jobs and
to give the employees better breaks. Gaffney asked Miller
to explain the new schedule. Miller showed the Union
representatives a copy of the schedule and explained it
in some detail Unlike previous schedules, it provided for
employees to work varying numbers of consecutive days
between breaks during a complete multiweek cycle of the
schedule. At one point during a cycle, it required employees
to work 7 consecutive days However, it was structured
so that employees would not work more than 5 days
within any Monday to Monday workweek and provided
for no scheduled overtime' The schedule also provided
for three new classifications for relief or breakermen to
work on a rotating basis to provide continuity of operations
during employee break periods
The Union representatives indicated displeasure with the
new schedule. Rush stated that the schedule was not new
to him and that he had been able to figure out what
was coming based on the earlier discussion. Nicholson
said the Union would take whatever legal steps it could
to stop it In response to a request to the Union to present
the new schedule to its members, Rush stated that he
wouldn't explain anything to the members that he didn't
care for himself.' Union Financial Secretary and Treasurer
Taylor asked what choice the Union had in the matter,
and Gaffney replied that the Union had no choice in
the matter and that the new work schedule was not negotia-
ble 6
The 7 consecutive days consisted of a Saturday and Sunday in
one workweek and the next 5 days in the following workweek
According to Rush, Gaffney asked the committee to sell it to the
members and not merely to explain it
Nicholson and Taylor testified to this effect although conceding
that they could not remember the exact words used by Gaffney Rush
testified that Gaffney said the schedule was nonnegotiable Miller testified
that one of the union representatives asked if the schedule was negotiable
although he also did not recall the exact words used He testified further
983
The union representatives said that they would check
into the matter with the NLRB. They did not ask at
that time for any further meeting over the change, but,
as set forth below, filed a grievance a few days later
On October 2 and 3 Respondent held several informational
meetings with groups of employees to explain the new
schedule to them. One of these meetings was interrupted
by Nicholson, leading to disciplinary action against him.
That incident and the related disciplinary action are dis-
cussed separately below.
On October 6, 1969, the new schedule went into effect
for production employees resulting in the creation of the
three new jobs and the elimination of scheduled overtime.
In most departments, the work schedule change was not
accompanied by any change in departmental operating
schedules
b The grievance over the schedule change
On October 3, 1969, Nicholson filed a grievance entitled
"Relief Operators" alleging a violation of article I, section
1.1 of the agreement between Respondent and the Union
based on the Respondent's statement of intent to institute
the relief operator assignments on October 6 and the state-
ment at the meeting by a company representative that
the Union had no choice in the matter. In the grievance
Nicholson also stated that the Union reserved the right
to rely also on other sections of the agreement and past
practice with respect to scheduling in support of its claim.
As relief the Union requested that all employees affected
by the change be compensated for any losses ensuing from
the change, including lost overtime and shift premiums.
Article I, section 1.1, to which the Union referred, is
the recognition clause of the agreement pursuant to which
Respondent recognized the Union as exclusive representative
of the employees in the appropriate unit "on all matter
concerning wages, hours, and working conditions."
A meeting was held with respect to this grievance on
or about October 3. At this meeting Gaffney repeated
the reasons for the schedule change which had previously
been stated to the Union and asked the Union to withdraw
the grievance for a couple of weeks to give the new schedule
a chance to work. The union representatives refused this
request On October 6, Respondent furnished the Union
with a written first step answer in which Respondent took
issue with the Union's statement of facts in the grievance
and denied that it had violated the agreement "in fact
or in its presentation of schedule changes."
The grievance was processed through the remaining steps
of the grievance procedure At each step, after discussion,
the grievance was denied in a written answer In its final
answer, dated November 11, 1969, Respondent reiterated
its position that it had not violated the agreement and
that Gaffney replied that the Company had the right under the contract
to establish schedules and that "this right was not negotiable " Miller
displayed considerable hesitancy in his testimony concerning this issue,
and I do not credit his version that Gaffney rejected negotiation only
of the "right" to make a change Although there remains some doubt
as to the exact words used by Gaffney, who did not testify, I credit
the witnesses for the General Counsel that Gaffney conveyed to them
that they had no choice and that the change was not subject to negotiation
984 DECISIONS
OF NATIONAL LABOR RELATIONS BOARD
stated further that: "The Company will continue to review
other types and kinds of work schedules to determine
if a different schedule could be utilized that would accom-
plish the same result and at the same time be more palatable
to the Union and the employees involved."
At each step of the procedure, in oral discussion Respond-
ent repeated its reasons for the schedule change, and the
Union sought a return to the former work schedule but
proposed no other alternatives
On November 21, the Union notified Respondent of
its desire to take the grievance to arbitration. Thereafter
on January 8, 1970, the Union withdrew the grievance
from arbitration. According to Union officials they did
so because the matter was pending before the Board and
they decided to rely on this proceeding to remedy their
complaint.' According to Leach, Respondent construed the
withdrawal as acceptance of Respondent's fourth step
answer in accord with past practice.
Following withdrawal of the grievance from arbitration
and issuance of the complaint, Respondent made three
further proposals with respect to the schedule change. The
first of these proposed a new 5-day schedule. The other
two proposals offered a return to the old 6-2 schedule
subject to certain conditions. The last of the proposals
was offered as a proposed basis for settling this case.
All three proposals were rejected by the Union.
4. The disciplinary action against Roger Nicholson
On October 2, Union Vice President Nicholson, who
was a maintenance employee not directly affected by the
schedule change, heard that Respondent was holding infor-
mational meetings with production employees in the lunch-
room. Nicholson went to the lunchroom where Miller was
speaking to a group of employees. As Nicholson entered
he asked Miller "what the hell he thought he was doing."
Miller replied that he was explaining the new schedule.
Nicholson asked if he was explaining it or trying to sell
it. Miller repeated that he was explaining it. Nicholson
said the Union was going to file an unfair labor practice
charge and accused Miller of trying to sell something
to the members about which he would not deal with the
union committee. Miller asked Nicholson to leave, and
he left. As Nicholson testified, he went to the lunchroom
"to try to break up the meeting" because he viewed it
as a captive audience meeting to which no union representa-
tive had been invited. Nicholson conceded that nothing
in the contract gave him the right to break up the meeting
and that the contract in fact prohibited his conduct
Later that afternoon, Nicholson was asked to report
to Leach's office. By agreement, the visit was postponed
until October 6 On October 6 Nicholson went with Binegar
to Leach's office where Leach reprimanded Nicholson for
his conduct and told him he would be discharged if his
conduct were repeated.
Leach told Nicholson he was being disciplined because
he had been insubordinate in interfering with plant opera-
' As set forth above, the charge in this case was filed on October
13, 1968, and the complaint issued on November 28, 1969, a week
after the Union's notice of its desire to arbitrate
tions. Nicholson told Leach he understood what he was
talking about, and Nicholson did not protest the discipline.
According to Nicholson, he accepted the reprimand and
thought it was partially justified. Nicholson conceded that
he did not file a grievance over the reprimand, explaining
that he thought it was a matter for the NLRB.
According to Nicholson, at some point during the meeting
in Leach's office, Leach said "if we were going to have
to follow one point of the contract we were going to
have to follow it all, follow the whole contract." Nicholson
testified that Leach did not give a reason for this statement,
but mentioned a few paragraphs of the contract for them
to review, and Binegar replied that he thought they were
following the contract. Binegar's version of the quoted
remark was that Leach said that "from now on he was
going to go, word for word, and be more strict for every
word in the contract." Leach denied that he stated that
he would no longer be lenient but would adhere strictly
to the contract because a grievance had been filed over
the work schedule change
Either at or shortly after this meeting, Nicholson was
given a copy of the following written reprimand which
was placed on file
In a meeting with you this morning at 8:30 A M.
you were advised in the presence of a shop steward
(R. Binegar) and another member of management (H.
Gaffney) as to the incorrectness of your insubordinate
action Friday, October 3, when you interrupted a
meeting scheduled by management of this plant and
questioned the speaker's right to hold it.
You were further advised that any further action
of this kind would result in more severe disciplinary
measures.
B. Conclusions
1. The alleged refusal to bargain over the change in work
schedules
The issues presented by the complaint are fairly narrow.
There is no contention that Respondent was barred from
changing work schedules until consent of the Union was
obtained. Rather, the questions are whether or not Respond-
ent was free to make the change without first bargaining
over the change with the Union, and, if not, whether
Respondent in fact failed to bargain with the Union over
the change.
Work schedules relate directly to hours and conditions
of employment. Here the changed work schedules affected
the hours worked by employees, their days off, the number
of consecutive days they worked, and the amount of overtime
they were scheduled to work. There can be little doubt
that work schedules are mandatory subjects of bargaining
at the time of negotiation of a new contract and indeed
during a contract term, unless the provisions of the contract
or other circumstances operate to remove the subject from
the bargaining arena during the term of the contract.'
' Wittock Supply Company, 171 NLRB No 33, cello-Foil Products,
Inc, 178 NLRB No 103
AMERICAN CYANAMID COMPANY
Here, there are two principal reasons advanced in support
of the contention that Respondent was relieved of the
obligation to bargain over the change in work schedules
during the term of the 1969 agreement. One is that the
terms of the agreement gave the right to change work
schedules to Respondent The other is that the right to
make such changes is established by the past practices
of the parties
As set forth above, the agreement provides that, "Shift
schedules, for all employees working on shifts, will be
posted and will be adhered to insofar as production require-
ments and plant conditions will permit " While the agree-
ment fails to provide who is to compile and post the
work schedules, it is clear that these functions rest with
Respondent, as is the usual case, and indeed was the
practice in this case. However, also not specifically provided
and less easy to infer is whether the parties intended for
the Union to have an opportunity to bargain over a change
in work schedules which involved a departure from work
schedules which had been previously utilized in the plant.
The quoted provision simply does not reveal whether the
parties intended Respondent's discretion to be absolute
or subject to a duty to bargain with the Union at the
Union's request, and that intent is not revealed by other
provisions of the agreement. Article XVII of the agreement
provides that Respondent has complete freedom, among
other things, in the increase and decrease of the working
force and that it has sole discretion to diminish or discontin-
ue operations in whole or in part This article clearly
gives Respondent the right to adjust its production schedules
to its needs without bargaining with the Union and to
determine how many employees it will utilize to man its
operations. But those rights do not carry with them a
comparable discretion to set working schedules for its
employees without bargaining with the Union once the
production schedules and employee complement have been
determined.
Nor does the history of bargaining revealed by the record
establish that right. The provision relating to work schedules
dates back to the first agreement between the parties entered
into in 1947. There is no evidence of the negotiations
which led to agreement to this provision In negotiations
the next year the Union sought to add a requirement
that employees be placed on a 5-day schedule. The Union's
proposal was rejected and the provision was readopted
without change. It was Leach's recollection that in resisting
the union proposal, Respondent asserted that it needed
the right to schedule employees and the times they worked
in order to operate efficiently But there is no evidence
that the parties considered whether that right was to be
subject to bargaining or absolute. Insofar as appears the
issue was whether Respondent should be restricted to utiliza-
tion of 5-day schedules rather than free to alter schedules
with or without bargaining.
What must be determined here is whether by its agreement
the Union waived its statutory right to bargain with respect
to changes in work schedules The Board has held that
such a waiver must be "clear and unmistakable" from
the terms of an agreement, and that where an alleged
waiver is based on negotiations, the evidence must be clear
985
that the Union consciously yielded its statutory right.9
I find no such evidence of waiver on the record before
me
Turning to the practice under the agreements, there
is evidence that over the years there have been numerous
changes in work schedules in conjunction with production
schedule changes as to which Respondent has given the
Union no advance notice and there has been no bargaining
Thus, for approximately 10 years, as Respondent has
changed production schedules, it has simply posted corre-
sponding changes of work schedules for employees. Howev-
er, during this period, the work schedules posted have
regularly been those associated with the production sched-
ules in effect and have not involved the introduction of
any work schedule which employees had not previously
worked in conjunction with a particular production sched-
ule. Although there is evidence that work schedule changes
have occurred since Respondent has owned the plant, the
evidence as to the period more than 10 years ago does
not establish the extent, if any, to which changes involved
institution of work schedules which had never previously
been utilized, nor is it clear that if such changes occurred,
they occurred without bargaining. Thus, Leach in his testi-
mony as to this period did not distinguish between kinds
of work schedule changes While he testified that Respond-
ent never negotiated its "right to change" a work schedule
at a particular time, it is not clear from his testimony
that Respondent never negotiated with respect to a particular
change. Rather Leach testified that over the years a process
of communication with the Union evolved so that at the
time of a drastic change, such as a layoff, Respondent
met with the Union to inform it of the anticipated change
and to ask for suggestions
I conclude that the evidence as to practice establishes
only that it was the practice to post work schedule changes
without notice to the Union and an opportunity to bargain
where the newly posted schedule represented a return to
a work schedule previously utilized and pursuant to which
employees had previously worked. But there is insufficient
evidence to establish any similar practice with respect to
introduction of a new kind of schedule not associated
with a production schedule change and not previously
utilized in conjunction with the production schedule in
effect, such as occurred on October 6, 1969.
In sum, the evidence as to practice establishes that among
the conditions of employment under which employees
worked were changes in work schedules, without bargaining,
but following predictable lines to work schedules previously
worked. When additional changes of that nature occurred,
therefore, there was no basic change in their conditions
of employment and no obligation for Respondent to bargain
with respect to each of those changes.'° However, the evi-
dence fails to establish that the conditions of employment
similarly included changes in work schedules of the kind
which occurred on October 6, 1969, without bargaining,
' Clifton Precision Products Division, 156 NLRB 555, 562, General
Electric Company, 173 NLRB No 22, enfd 414 F 2d 918 (C A 4)
'° See Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574,
Superior Coach Corporation, 151 NLRB 188
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a completely new work schedule not predictable on
the basis of previous experience
Accordingly, I conclude that neither the contract nor
past practice gave Respondent the right to make a unilateral
change in work schedules similar to that made on October
6, 1969, without notice to the Union and an opportunity
to bargain over the change."
It remains to be decided whether or not Respondent
in fact failed to bargain over the October 6 work schedule
change In this case Respondent clearly gave the Union
notice of the proposed change, and it is what happened
thereafter which is in issue On September 2, Respondent
gave the Union general notice of its intent to establish
new work schedules Although the Union did not request
bargaining at that time, I find no abandonment of its
rights in that failure, as Respondent indicated that when
work on the schedules was completed it would meet further
with the Union. On September 30, Respondent kept its
word and met again with the Union, presenting the new
work schedule in detail. At that time, the union committee
members expressed displeasure with the schedule and one
of them asked if they had a choice. They were given
a negative reply, accompanied by an assertion that the
work schedules were not negotiable Were this all that
happened, the conclusion might well follow that Respondent
denied the Union the opportunity to bargain after giving
it notice of the proposed change However, discussion of
the work schedule did not end on September 30.
On October 3, Vice President Nicholson filed a grievance
and the grievance was discussed at the first step on that
day. A written answer was furnished on the day the schedule
change took effect, and over the next several weeks the
grievance was processed through the remaining steps of
the grievance procedure short of arbitration. While the
grievance was entitled "Relief Operator," it appeared to
challenge the work schedule generally and through its refer-
ence to the recognition clause of the agreement appeared
to challenge Respondent's refusal to negotiate at the Septem-
ber 30 meeting. Although Respondent denied that it violated
the agreement, the evidence shows that Respondent dis-
cussed the reasons for the change at each of the grievance
meetings, and there is no evidence that Respondent again
took the position that the schedule change was not negotia-
ble. Throughout the processing of the grievance the Union
adhered to its position that Respondent should revert to
the former work schedule. The Union made no other coun-
terproposal, even though, at least at the last step of the
procedure, Respondent indicated receptivity to consideration
of other schedules which would achieve its objectives and
be more satisfactory to the Union
In Shell Oil Company, 149 NLRB 305, the Board consid-
ered whether an employer had satisfied its bargaining obliga-
tion with respect to an intracompany transfer of accounts
from one terminal to another There, as here, advance
notice of the change was given. A few days before the
transfer, the union met with the employer to express concern
" Respondent was not required , however, to obtain agreement from
the Union before it could make such a change See Dixie Ohio Express
Company, 167 NLRB No 72, enforcement denied 409 F 2d 10 (C A
6)
over the transfer and its effects on drivers The employer
sought to assure the union that the transfer would not
result in a change in the work schedule or a reduction
in employment. The union continued to oppose the transfer
and indicated its intention to file a grievance Following
the transfer, .the union filed a grievance. Although the
employer took the position that the transfer was not grieva-
ble and was a company prerogative, it again discussed
the transfer with the union, explaining its reasons for the
transfer and assuring the union that no employees would
be harmed. The union continued to object, but made no
specific proposals The company did not rescind the transfer.
In its decision in Shell, the Board stated with' respect
to its decisions relating to unilateral subcontracting of unit
work, which it found applicable-"
The principles of these earlier cases, however, are
not meant to be hard and fast rules to be mechanically
applied irrespective of the circumstances of the case.
In applying these principles, we are mindful that the
permissibility of unilateral subcontracting will be deter-
mined by a consideration of the setting of each case.
Thus, the amount of time and discussion required
to satisfy the statutory obligation "to meet at reasonable
times and confer in good faith" may vary with the
character of the subcontracting, the impact on employ-
ees, and the exigencies of the particular business situa-
tion involved. In short, the principles in this area
are not, nor are they intended to be, inflexibly rigid
in application
In Shell, the Board found no violation because the employ-
er gave notice of the transfer a few days before it occurred,
did not refuse to confer with the union concerning the
transfer, met and explained its reasons, and thereafter contin-
ued to disclose a willingness to meet although it believed
it was under no obligation to do so The Board also relied
upon the fact that no employee was discharged, and conclud-
ed that although the employer might have given the union
earlier notice, "in the light of all the circumstances present
here-including the nature of the change, its limited effect
on employees, and other factors indicated below-we cannot
say that the short notice in this case is alone enough
to establish Respondent's bad faith and refusal to bargain."
The "other factors" referred to by the Board were the
meeting between the employer and the union a month
after the transfer and the discussion at that meeting The
Board stated-
Although this meeting occurred after the transfer had
been made effective, we nevertheless considered it of
some significance in appraising the issue of whether
Respondent was seeking to evade its bargaining obliga-
tions, particularly since it appears that the management
decision herein involved was not of an irrevocable
nature. As no third party interests had intervened,
Respondent even at that time could have retransferred
the work by a simple telephone call.
" 149 NLRB at 307, referring to Town & Country Manufacturing
Co., Inc, 136 NLRB 1022, enfd 316 F 2d 846 (C A 5), and Fibreboard
Paper Products Corp, 138 NLRB 550, enfd 322 F 2d 411 (C A D C),
379 U S 203
AMERICAN CYANAMID COMPANY
To be sure some differences immediately appear between
the instant case and Shell. Here work schedules were
changed, and the change was the subject of the dispute,
rather than a transfer of work out of the unit . The impact
of the change on employees was more substantial, resulting
in a rearrangement of their working times and a loss
of scheduled overtime work," although at the same time
saving three employees from layoff. At the September 30
meeting, Respondent stated that the Union had no choice
and the change was not negotiable.
Yet in other respects the cases are not dissimilar, and
Respondent's discussions with the Union after September
30 were if anything more affirmative than in Shell. Thus,
there is no indication that Respondent's change in work
schedules was in any way motivated by animus against
the Union. There is a long history of bargaining between
the parties. Respondent made no effort to conceal the
change in work schedules from the Union before it occurred,
but to the contrary gave general notice of its intentions
a month before the change occurred and specific notice
of the change 6 days before it was to take effect. Although
Respondent appeared to reject bargaining on September
30, it took no issue with the Union's right to grieve the
change, met with the Union over the grievance even before
the change occurred, continued to meet over the grievance
thereafter, and responded fully to the position taken by
the Union in the processing of the grievance. The change
was not irreversible, no other interests intervened, and
Respondent could have reverted to the former work schedule
at any time. Although the Union made no proposal other
than that Respondent revert to the former schedule,
Respondent indicated its willingness to consider other work
schedules which could satisfy its objectives and meet the
Union's objections.
In Shell, the Board looked beyond the employer's assertion
that the transfer was not grievable and a management
prerogative to find that the employer by its overall conduct
had not sought to evade its bargaining obligation but had
met it. Here, likewise, one must look beyond Gaffney's
statement at the September 30 meeting, and assess Respond-
ent's conduct overall. In the light of the factors set forth
in the paragraph immediately above, I am persuaded that
the same conclusion must be reached in this case as in
Shell. Accordingly, I shall recommend dismissal of the
allegations of the complaint that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally instituting
new work schedules and refusing to bargain with respect
thereto."
" Cities Service Oil Company, 158 NLRB 1204, 1205-1206, 1222-
1223
" In this discussion , I have focused on the change in work schedule
which was central to the dispute An incident to that change was the
establishment of the breakerman classification It is not clear from the
complaint or the General Counsel's brief whether the establishment of
that classification is alleged as a separate violation of the Act or merely
as one of the effects of the work schedule change Even if it were
urged as a separate violative unilateral act, I would reach the same
conclusion The Union was given notice of the new classification, and
there is no indication that it sought to bargain over the new classification
except as an incident of the schedule change
987
2. The alleged violations based on the discipline of
Nicholson
The complaint alleges that Nicholson was warned and
threatened with further disciplinary measures because he
orally protested and announced the Union's opposition
to the schedule changes during an employee meeting. It
alleges further that Leach threatened that Respondent would
no longer be lenient because a grievance had been filed.
It alleges both acts as violations of Section 8(a)(1) and
(5) of the Act.
With respect to the discipline, the General Counsel con-
tends that Nicholson went to the employee meeting as
a union representative to protest Respondent's conduct
in bypassffig the union committee and taking the schedule
change directly to the employees Accordingly, the General
Counsel argues that Nicholson was engaged in protected
concerted activity for which Nicholson was improperly
disciplined.
The basic question is whether Nicholson was engaged
in protected concerted activity at the time of his actions
for which he was disciplined. There is no doubt that Nichol-
son believed the employee meeting improper and that he
was acting in his capacity as a union officer in going
to the meeting But these facts are not sufficient to give
his conduct protection. Despite Nicholson's belief, there
is little evidence to establish that Respondent called the
meetings to bypass the union committee. It is true that
the committee refused to explain the work schedule change
to the membership, but that refusal did not render Respond-
ent powerless to explain it The evidence is clear that
most of the employee meeting was taken up with an explana-
tion by Miller of the operation of the new schedule While
Gaffney prefaced the meeting with a statement that the
new schedule would be a good thing because it would
give the employees better breaks and provide three additional
jobs, the employees were not asked to agree to the new
schedule or to express their sentiments otherwise. I do
not find that Gaffney's remarks were sufficient to convert
an otherwise informational meeting into an unlawful attempt
to bypass the Union.
Nicholson had an unquestioned right to protest the meet-
ing. But that right did not extend to all times and places.
The meetings did not present the kind of an emergency
situation which warranted disregard of the contractual griev-
ance procedure. Nicholson admittedly went to the meeting
not merely to provide union representation for anyone
who might want it but to try to break up the meeting
In the light of the circumstances and Nicholson's testimony,
I conclude that Nicholson's conduct for which he was
reprimanded was not protected concerted activity, and that
he was not insulated from discipline for it when Respondent
viewed his conduct as insubordinate.
There remains for consideration the evidence as to Leach's
alleged assertion that he would no longer be lenient in
reading the contract. Leach's denial in this regard was
in response to a leading question which tied the statement
to its alleged motivation " While his denial meets the allega-
15 Q Mr Leach, at any time have you ever stated to any employee at the
Marietta plant, including union negotiating committeemen, or union officers
I guess I should say, that because a union committeeman had tiled a written
(cont'd)
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the complaint, it does not meet the testimony
of Nicholson or Binegar and leaves it unclear whether
Leach would also have denied their testimony to the effect
that he said the Union was going to have to follow the
contract without mentioning a reason. Nonetheless, assum-
ing that Leach made some reference to following the con-
tract, the differences in the testimony of Nicholson and
Binegar, as well as indications otherwise that their recollec-
tions as to exact words spoken in conversations were uncer-
tain, leave in doubt the tenor of Leach's remarks Neither
attributed to Leach any statement of the reason for his
remark. While Binegar's version attributes to Leach a deter-
mination to substitute a stricter reading of the contract
for a previously more lenient approach, Nicholson's version
does not carry with it the connotation of change in approach,
but rather can be construed simply as a reminder that
the whole contract had to be followed and not merely
those portions the Union was particularly interested in
Apart from the single statement attributed to Leach, there
is no evidence of any other threat nor is there any evidence
grievance relative to your action, or the company's action, in changing work
schedules, that the company, or you, would no longer be lenient but would
adhere strictly to contract conditions, terms, and requirements as a change
from your, or the company's prior policy" Have you ever made that
statement9
A That is an untruth
Q Are you sure of that one9
A Yes, sir
that Respondent in any way became more strict or literal
in its application of the contract. In these circumstances,
I conclude that the evidence fails to establish that during
the course of the October 6 meeting, Leach threatened
a more restrictive reading of the union contract because
of the Union's grievance over the change in work schedules.
Accordingly, in view of these findings as well as those
above, I shall recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. American Cyanamid Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
2 International Chemical Workers Local No. 120, affiliat-
ed with the International Chemical Workers Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the Board
issue an order dismissing the complaint in its entirety.