Amoco Chemicals Corp.

National Labor Relations Board - Board Decisions

Aug 10, 1978

237 N.L.R.B. 394 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amoco Chemicals Corporation and Oil, Chemical and
Atomic Workers International Union, AFL-CIO.
Case 23-CA-6732
August 10, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENFI. O
AND TRUESDAI E
On May 19, 1978, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This pro-
ceeding was tried before me at Galveston, Texas, on Feb-
ruary 22, 1978, pursuant to a complaint issued on Novem-
ber 3, 1977,1 based on charges filed by the Oil, Chemical
and Atomic Workers International Union, AFL-CIO,
herein called the Union, and timely served on September
14. The complaint alleges that Amoco Chemicals Corpora-
tion, herein called the Respondent, Company, or Em-
ployer, promulgated and implemented a new rule regard-
ing excessive absences counseling without bargaining or
consultation with the Union, thereby violating Section
8(a)(5) and (1) of the Act. The complaint further alleges
that the Respondent violated Section 8(a)(1) of the Act by
refusing to permit employees to have union representation
at counseling interviews regarding their absences. The Re-
spondent duly denied the commission of unfair labor prac-
tices.
All dates herein occurred in 1977 unless specifically noted oItherwise
Upon the entire record, including my observation of the
demeanor of witnesses as they testified, and after due con-
sideration of the parties' able post-trial briefs, I make the
following:
FINDIN(iS AND CONCLUSIONS
I JURISDIC1 ION
The Respondent is a Delaware corporation with princi-
pal offices and place of business at Texas City, Texas,
where it manufactures and sells chemicals and plastics.
During the 12 months immediately preceding the issuance
of the complaint, a representative period, the Respondent
received in excess of $50,000 from its sales of its goods
which were shipped directly] from its Texas City, Texas,
plant to locations outside the State of Texas. Respondent
is, and has been at all times material to this case, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALL EGED UNFAIR LABOR PRACTICES
A. The Facts
Oil, Chemical and Atomic Workers International Union,
Local No. 4-449, AFL-CIO, and the Company have been
parties to collective-bargaining agreements for many years
and are currently parties to one which covers the employ-
ees involved herein. The contract refers to absenteeism as
follows:
Article I-Section 2-Union Responsibility
The Union agrees to use its effort to reduce absen-
teeism, to induce its members to comply with all plant
safety and health rules, and to remain on the job and
to encourage a full day's work for a full day's pay.
Disciplinary action is mentioned at article XVII, section 6,
as follows:
If the company decides to take disciplinary action
against an employee, resulting in his demotion or sus-
pension, the employee, when called before Manage-
ment, may be accompanied by his shop steward, or
the Chairman of the Workmen's Committee.
An employee handbook which has been issued by the
Employer to new employees for several years lists excessive
absenteeism or tardiness as actions "that will not be toler-
ated and will result in disciplinary action."
The Respondent concedes that it promulgated and
placed into effect an excessive absences counseling policy
in the summer of 1977 without bargaining with or consult-
ing with the Union. On July 5, Manager of Employee Rela-
tions Thomas Watson directed a memo to division heads in
the process department, in which he informed them that
237 NLRB No. 69
394
AMOCO CHEMICAIS CORPORATION
the Company had developed its absentee reporting pro-
gram to the point that it was quite accurate and that an
examination of this report showed cause for concern. Fie
suggested to them that each employee with four or more
individual absences within a 6-month period have his rec-
ord reviewed and, "unless there are very definite, known
extenuating circumstances, have a counseling session with
the employer." The memo further instructed the addressees
to make a report on any counseling session held to Em-
ployee Relations Associate Richard Hodges. listing the
participants in the session and the reaction of the employ-
ee. Thereafter, on July 14. Superintendent of Maintenance
Verne Harms drafted and distributed to maintenance sup-
ervisors and foremen a document entitled "Excessive Ab-
sences Counseling." This communication explained that a
computer program had been developed which detailed in-
dividual absence statistics, and that the foreman and super-
visor of any employee with four or more individual absenc-
es must review this record with the employee with a goal of
reducing the absences in the future. The document express-
ly states. "This interview is not to be considered as discipli-
nary but merely a counseling session. Therefore, Union
Stewards may not accompany the employee." Thereafter.
Harms set forth in this communication a procedure to be
followed with respect to reviewing the affected employee's
absence record and making a short handwritten report of
the counseling session listing the participants and the
employee's reaction. Suggested guidelines were issued to all
process supervisors on August 3 by Richard Hodges, and
Harms testified credibly that the same guidelines were fol-
lowed by supervisors in maintenance. These guidelines
read as follows:
Suggested Guide Lines for the
First Absentee Counselling Session
In the first counselling session with your employees
the primary purpose is to let the employee know you are
concerned about his attendance. This is not a discipli-
nary session.
Before this session takes place the foreman /supervisor
should do two things.
1. The employee's recent record should be gathered
and analyzed.
2. The employee's record should be compared with
those of other employees.
When a employee is told he is to attend a session he
may request that a Union steward be in attendance. Since
this first session is only for the purpose of counselling
and no discipline is to take place, the employee is not
entitled to have a steward present.
In the session itself. the foreman/supervisor should:
I. Inform the employee that this is not a disciplinary
meeting and that no letter will be put into his personnel
file concerning this session.
2. Explain to the employee that he is needed and that
it is his obligation to work as scheduled.
3. Show the employee what his record is.
4. Inquire as to whether or not there are any special
problems the employee is having which are preventing
him from being at work. If there are any problems for
which outside help is needed (for example medical help).
the foreman/supervisor should suggest that the employ-
ee take necessary steps to alleviate the problem.
In general, our posture should be that employees are
hired with the understanding that they would normally
work 40 hours a week and overtime as required. An
employee who, through reasons within or beyond his
control, cannot fulfill that understanding ceases to be
an asset to the company. When that happens. the Compa-
ny has a right to seek to improve the employees atten-
dance record. Care should be taken to avoid arguments
over whether specific instances of absences were war-
ranted or not. We are only concerned with the totalits
of the individual's record.
David Glenn, project supervisor in the operating depart-
ment, credibly testified that the August 3 guidelines were
implemented in his department. and both he and Harms
testified without contradiction that they gave instructions to
the supervisors under them that they should inform employ-
ees that the counseling session was not a disciplinary meeting
and that no letter would be put into an emploNee's personnel
file as a result of the session. The reports on the sessions
prepared by the supervisors conducting them were utilized
by the Employerasacheck tosee whetherornot the supervisor
had indeed performed the counseling that he had been in-
structed to do. These reports were not filed in the employees'
personnel records, but were kept in a separate file, and were
not referred to with reference to any discipline subsequently
meted out to employees as a result of continued absences after
the session. It appears clear that no employee did in fact
receive any discipline at. immediately after. or as a result of
this counseling session. Employees who were subsequently
called into meetings with their supervisors and given warn-
ings were permitted to be accompanied by their union
steward. The counseling sessions complained of in this pro-
ceeding did not set in motion or give rise to these subse-
quent disciplinary actions.2
(iGerald flihlondo testified that his supervisor discussed his absences with
him In August and told him that he would hase to improse or the super.isor
would hase to call him In again and talk with him and gise him a letter.
presuminiahbl sa rning letter in the circumstances I do not regard this state-
meni hb the super.isor to the effect that Elizondo would have to imnprose
his attendance to he disciplinars in nature Rather. I consider it to he a
cautionars instruction designed to prevent Ehzondo from getting into diffl-
culties s a result of hi, absences. Much later, on February 9. 1978.
Elizondo's supervior did call him into the office and had him bring his
steward along the superisor then Informed him that he had exceeded the
limit of four ahsences in a h-month period and gave him a warning letter,
which hlzondo sa\, he recel.sed on f ehruary 14 i rejected the General
( ounsel' proffer of the letter into evidence aigainsl his argument that It was
relesant c idence because t hliondo was counseled in August and then given
a reprimanld in I helUrxs 1978. whetl his absence, continued there is no
allegatioin in the complaint. and the General (' unsel specificalls disa.soed
anis such alleiatilon. thai the mniploser', conduct towards Ehzondo was in
ant wad improper. and I cannot agree with General (Counsel that a letter of
reprimand or warning issued some 6 months after counseling with a super-
mlsor and based on continuing absences after that counseling is esidence
that the :mtiplhier's August counseling u as an integral part of the disciph-
nair\ warning sslemti merels because the letter of iarning referred to the
fat that he ha.d been counseled on seseral occas;ons. not specificall dated.
regardint t(,4 epls ilare iabences duirin the period 1974 through 1977
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael Milton, vice president of Local 4-499, first be-
came aware of the Employer's new policy in July, when a
union steward gave him a copy of Harms' July 14 memo-
randum referred to above. He did not ask the Employer to
negotiate on the excessive absences counseling policy new-
ly adopted, and it appears that his first contact with the
Employer with respect to it occurred in August. On August
23, he received a phone call from employee Douglas Had-
ley, sometime before 9:30 a.m. Hadley told him that he
and employee Carlton Danley were to be called in that day
for counseling about their excessive absences. Hadley
asked Milton what he should do, and was told that the
Union felt that counseling was a disciplinary action and
that Hadley was entitled to a steward. Milton suggested to
Hadley that he and Danley request union representation
during counseling. At about 9:30 asked Peterson if he
could have a steward accompany him. Peterson denied his
request and told him that it was denied because no action
would be taken against him. At his meeting with Corrie,
Hadley was asked if he was aware of how many days he
had missed and, when he replied in the negative, Corrie
told him. Corrie also told him that the Employer was set-
ting up a new policy of counseling employees on absences.
According to Hadley, the meeting lasted about 15 minutes,
and Corrie did not warn him but did tell him that he would
be called in again the following year if excessive absences
persisted. He never received any kind of discipline, either
before or after this meeting, relating to excessive absences.
About 12:30 p.m. on August 23, Peterson told Danley to
go to Corrie's office. Danley asked for a steward and the
request was denied. Danley does not relate what Peterson
said to him in any detail, and merely testifies that Corrie,
during the course of a 15-minute meeting with him, just
said that Danley had too many absences and that the Com-
pany was going to start counseling employees about ab-
sences. I find it difficult to believe that Danley related all
that was said to him over a 15-minute discussion with Cor-
rie about his absences, but his generalized recollections are
consistent with the more detailed testimony of Hadley, to
the extent that Danley recalls what happened.
On August 25, Milton told Manager of Employee Rela-
tions Watson that the Union felt that the counseling was
disciplinary action. Watson replied that he would consider
Milton's complaint and contact him later about it. A day
or two later, Watson talked to Milton and told him that the
Employer's position was that the counseling was not a
form of disciplinary action, and therefore an employee was
not entitled to union representation while being counseled.
On September 6, Milton again repeated the Union's po-
sition on counseling to Watson as he had on August 25,
and Watson told him that the Employer's position on the
matter remained unchanged.
B. Conclusions
I am persuaded, contrary to the General Counsel, that
the Respondent's act of promulgating and placing into ef-
fect an excessive absences counseling policy in 1977 with-
out bargaining with or consulting with the Union was not a
violation of Section 8(a)(5) and (1) of the Act. Milton con-
cedes that. prior to the institution of the present policy by
the Employer, supervisors had from time to time counseled
with employees about their excessive absences. In effect,
the Respondent's adoption and implementation of a more
formal and regular procedure to be followed by its super-
visors in counseling employees about their absences
amounts to structuring of its internal procedures in order
to assure that its supervisors do take note of and counsel
employees who have attendance problems and that the em-
ployee in such a situation is made aware of the extent of his
absences when they go beyond the expected norm. No new
penalties are imposed on employees by virtue of the coun-
seling program, and it is clear that the employees had been
made aware by the employee handbook issued by the Em-
ployer over a period of several years that excessive absen-
teeism or tardiness would result in disciplinary action. I do
not believe that it can be fairly argued that an individual
supervisor may not imform an employee that his absences
are becoming a problem and make suggestions as to how
the situation might be improved, without first bargaining
with the Union about it. There is no substantial difference,
insofar as the employees are concerned, whether the super-
visor informs him, sua sponte, that his attendance is bad or
that he be so informed as part of a regular management
policy at such times that his absences pass an acceptable
level. The counseling program does not conflict with the
collective-bargaining agreement, which itself contains an
agreement that the Union will use its efforts to reduce ab-
senteeism, or the rule set forth in the employee handbook
which has been in effect for several years. I conclude in the
instant case, as Administrative Law Judge Harmatz suc-
cinctly stated in The Trading Port Inc.,3 that "employees
may not be said to have been wrongfully denied the ser-
vices of their exclusive representative, where . manage-
ment has neglected to consult the union before revising its
own internal procedures for assuring that employees do
their work energetically or face the consequences." A sim-
ple substitution of the phrase "without excessive absences"
for the word "energetically" reflects my conclusion in this
case. Accordingly, on the authority of Trading Port, supra,
and Wabash Transformer Corp., 215 NLRB 546 (1974), I
find that the Respondent did not violate Section 8(a)(5)
and (1) by the promulgation and implementation of its ex-
cessive absences counseling program. Having so found, I
consider it unnecessary to discuss various issues of waiver,
management rights, and mandatory subjects of bargaining
argued by the parties.
Turning to the remaining issue raised by the complaint,
with respect to the employees' right to union representation
at the excessive absences counseling interviews, the Re-
spondent admits and the evidence clearly shows that Dan-
ley and Hadley both requested union representation prior
to their counseling on August 23, and were denied union
representation by the Respondent. Further, Danley and
1224 NL.RB 980, 983 (1976)
396
AMOCO CHEMICALS CORPORATION
Hadley were required to submit to the counseling inter-
view, as Manager of Employer Relations Watson acknowl-
edges. The dispositive question clearly posed b? the evi-
dence, and able arguments of the parties, is whether or not
Danley and Hadley reasonably believed that the interviews
would result in disciplinary action. If they did. then were
clearly entitled to be represented bh) the Union in the inter-
view. If the employees did not have reasonable grounds to
fear that discipline might flow from the interview. then the
allegation in the complaint is without merit.
Both Hadley and Danlev were aware that the interviews
were to involve a discussion of their absence records. I
have no doubt that whenever an employee is spoken to bv
a supervisor, or other person in a position to affect the
employee's job status, that the employee entertains a de-
gree of apprehension as to what the consequences of the
conversation might be. The question before me then is
whether or not the assurances given by the Employer to
Danley and Hadley prior to their interviews with Corrie
were sufficient to dissipate such fears. or to remove ans
reasonable basis for such fears. The interviewers were ex-
pressly instructed by Respondent to inform an emploee
that the counseling session was not a disciplinary meeting
and that it would not be recorded in his personnel file. I
credit Manager of Employee Relations Watson's testimonv
that there is no established procedure of sequential disci-
pline for absences and that the oral discussion with the
employee is not a condition precedent to discipline. I fur-
ther credit his testimony that discipline subsequently visit-
ed on employees for excessive absenteeism was based on
events occurring after they were counseled. I cannot, there-
fore, conclude, as the General Counsel would have me do.
that the counseling carried out pursuant to the policy im-
plemented in 1977 was an integral part of Employer's disci-
plinary system.5 However, this is not something that the
employees would be likely to know unless they were specif-
ically so advised, especially in view of the fact that the
counseling program was new to the employees as well as
the Company. I am of the opinion that any apprehension
that Hadley may have entertained with respect to adverse
consequences flowing from his interview of August 23 was
effectively dissipated by Peterson's advice to him that no
diciplinary action would be taken against him as a result of
the meeting. In these circumstances, I cannot conclude that
Hadley entertained reasonable grounds to fear disciplinary
action when he entered into the interview with Corrie. Un-
fortunately, in the case of Danley I am faced with an ab-
sence of testimony from Peterson and a less than convinc-
ing recital by Danley as to what was said to him by
Peterson and Corrie. The content of the meeting between
Corrie and Danley, insofar as Danley's recollection goes.
consisted only of a statement by Corrie that Danle) had
too many absences and that the Employer was going to
start counseling the employees with respect to the absenc-
es. I do not believe that this is all that was said during a
4 N L RB i. J h eingarren. In, .420 t S 251 (197Th
(C. Alfred It Le.ies. Inr, 229 Nl RB 7S7 (1977)
15-minute meeting. but even this contains no element of
discipline that I can ascertain. Absent express testimony
from Danles one way or the other as to whether or not he
was advised that the interview with respect to his absences
would not result in discipline, and in view of the limited
scope of his recollection as to what occurred. I have care-
fully considered the logical probabilities in an effort to de-
termine whether or not I could fairly conclude that Danley
was advised in the same manner that Hadley was. I am
persuaded. although the matter is not entirely free from
doubt, by the express instructions issued to the supervisors
by the Respondent requiring them to advise employees
that no discipline would result from the counseling, and
Hadley's testimony that Peterson so advised him 3 hours
before Peterson talked to Danley. that it may be reason-
ably inferred that Peterson extended the same assurance to
Danley that he did to Hadley. General Counsel does not
contend in his post-trial brief that Danley was not given
the same assurances as Hadley. and his brief seems to as-
sume that both were specifically told that there would be
no action taken against them, inasmuch as General Coun-
sel argues that this is no defense.
The General Counsel appears to contend that when
Danley and Hadley requested union representation they
had reasonable grounds to fear that disciplinary action
might result from the interviews. and that the Respondent
was therefore under an obligation to grant the request for
union representation, even though Peterson then told them
that no action would be taken against them. I cannot be-
lieve that either the Supreme Court or the Board intended
the rule in these cases to be applied in such a mechanical
fashion. To require the Respondent's agent, in this case
Peterson, to make the statement that no discipline would
result before either Hadley or Danley asked for union rep-
resentation, rather than after they made such requests,
placesa premiumon rapidity ofspeech,which isunwarranted.
The record does not show whether or not either Hadley
or Danle- was told that he had to participate in the inter-
vie., but I am persuaded, from the testimony of Watson,
that attendance was compulsory and that this was the un-
derstanding given to them when they were told of the
pending meeting. I find no evidence in the record that
either of them refused to submit to the interview without
union representation.
Although the scope of the right to representation at em-
ployer interviews of employees is a very difficult question,
subject to many qualifications and conditions, which is not
lightly to he passed over, I conclude from the evidence
before me that neither Hadley nor Danley had any reason-
able grounds for believing that the interview would result
in disciplinary action after Peterson advised them that no
discipline would be forthcoming. Accordingly. I find that
the Employer did not violate Section 8(a)( ) of the Act by
denying its employees union representation at the excessive
absences counseling interviews in transgression of the
Weingartern rules as explicated by the Supreme Court. and
as further explained by the Board in Certified Grocers of
California, Ltd., 227 NLRB 1211 (1977): Alfred M. Lewis,
Inc., 229 NLRB (1977); and other cases.
For the foregoing reasons. I find that the Respondent
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not violate Section 8(a)(l) and (5) of the Act as alleged
in the complaint, and shall recommend dismissal of the
complaint in its entirety.
CONCLUSIONS OF LAW
I. Respondent Amoco Chemicals Corporation is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, and its Local No. 4-449, are labor orga-
nizations within the meaning of Section 2(5) of the Act.
3. Respondent Amoco Chemicals Corporation did not
violate Section 8(a)(5) and (1) of the Act by promulgating
and implementing a new policy regarding excessive ab-
sences counseling without bargaining or consultation with
the Union, nor did it violate Section 8(a)(l) of the Act by
refusing to permit employees to have union representation
at excessive absences counseling interviews.
Based upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 6
It is hereby ordered that the complaint in this proceeding
be, and it hereby is. dismissed in its entirety.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings. conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
398