Basf Wyandotte Corp.

National Labor Relations Board - Board Decisions

Oct 29, 1985

276 N.L.R.B. 1576 (N.L.R.B. 1985)

1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BASF Wyandotte Corporation and Local , 7-627, Oil,
Chemical and Atomic Workers International
Union, AFL-CIO-CLC and. Oil, Chemical and
Atomic Workers International Union, AFL-
CIO-CLC. Cases 7-CA-20117, 7-CA-21207,
and 7-CA-22305
29 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 23 October 1984 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
General Counsel and the Respondent (BASF) filed
exceptions and supporting briefs.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order
as modified.
1. We adopt the judge's finding that BASF did
not violate Section 8(a)(1) and (5) of the Act by
making workers in its new automated steamroom
facility salaried "utility technicians" rather than
hourly "boiler operators," thereby removing those
workers from the bargaining unit. We also adopt
the judge's finding that BASF did violate Section
8(a)(1) and (5) of the Act by unilaterally deciding
to discontinue paying union committeemen for re-
lease time spent administering the collective-bar-
gaining agreement.3
i The Respondent BASF has requested oral argument This request is
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
3 BASF has excepted to some of the judge's credibility findings The
Board 's established policy is not to overrule an administrative law judge's
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect Standard Dry Wall Prod-
ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cat 1951) We have
carefully examined the record and find no basis for reversing the find-
ings
We note that the judge inadvertently stated that BASF ' is a New
Jersey corporation BASF is a Michigan corporation. The judge also was
incorrect when he found that the new automated steam facility had been
built when the old South Works boilers closed, as the South Works boil-
ers closed in stages between May and July 1980 , and the new steam facil-
ity was not operational until November 1981 These errors do not affect
the merits of his decision
3 In so finding, however, we do not rely on the judge's statement at In
1 of his decision that he had no jurisdiction to decide whether the paid
release time clause violated Sec 302 of the Act. The Board determined in
BASF Wyandotte Corp, 274 NLRB 978 (1985), that it is appropriate for
the Board to consider arguments concerning Sec 302 to the extent they
support , or raise a possible defense to, unfair labor practice allegations.
We reject BASF 's argument that paid release time violates Sec . 302, in
light of the discussion in the above -cited case . That factually similar case
held that paid release time granted by the employer to union officials or
committeemen administering the contract did not violate Sec 302, as it
2. In regard to the various violations alleged in
what the judge referred to in his decision as the
"withdrawal of recognition" case, we adopt the
judge's finding that BASF Foreman Dan Barton's
asking unit employee Ray Andres if he had signed
a union decertification card violated Section
8(a)(1). Contrary to the judge, however, we find
that BASF Foreman Al Gill did not violate Sec-
tion 8(a)(1) when he discussed the merits of sala-
ried versus hourly benefits with unit employee
Rodney Hinzman, or when he escorted another
employee, Julius Lucia, to Hinzman's restricted
work area where Kucia asked Hinzman to sign a
decertification card. We find that Gill's discussions
with Hinzman regarding salaried benefits were es-
sentially factual discussions, and that Gill did not
make any promises to Hinman about benefits or
suggest that Hinzman disavow the Union. Such
factual discussions, without express or implied
promises , are not violations of the Act. KCRA-TV,
271 NLRB 1288 (1984); Viacom Cablevision of
Dayton, Inc., 267 NLRB 1141 (1983). We further
find that Gill's escorting Lucia to Hinzman's work
area was not particularly unusual, as it was
common for the supervisors in that restricted build-
ing to escort employees who did not work there to
their destinations. Although it was somewhat un-
usual for other employees to go to Hinzman's work
area, it was not so unusual as to create an atmos-
phere in which Hinzman would tend to be coerced.
Moreover, Gill's presence in these circumstances
during Kucia's and Hinzman's discussion was not
in itself an 8(a)(1) violation; Gill said nothing and
did not even know beforehand why Lucia wished
to speak with Hinzman.
3. In sum, we find that BASF violated the Act
by: (1) unilaterally discontinuing payment to union
committeemen for release time spent administering
the contract after 27 September 1982; and (2) Fore-
man Dan Barton's asking unit employee Ray
Andres in early June 1983 if he had signed a union
decertification card. In spite of these violations,
however, we adopt the judge's finding that BASF's
withdrawal of recognition was lawful,4 as the
came within the exception set forth in Sec 302(c)(1) for payments made
"by reason of one's services as an employee.
4 We find it unnecessary to determine whether the International Union
was a joint bargaining representative for the unit, as we are finding that
BASF's withdrawal of recognition was not unlawful
We adopt the judge's finding that BASF did not violate Sec 8(a)(1) by
leaving confidential memos explaining union decertification in places
where unit employees could read them In so finding, however, we do
not rely on the judge 's statement that "even if I assume that the
memo was deliberately left out to be found by unit employees I cannot
conclude that although improper this so taints" the decertification as to
make it improper (see sec IV, C, par 9 of the judge's decision) Rather,
we simply find that BASF did not deliberately leave the confidential
memos out for the unit employees to read.
276 NLRB No. 175
BASF WYANDOTTE CORP. 1577
unfair labor practices committed by BASF were
not "sufficiently serious . . . that they possessed an
inherent tendency to . . . [contribute] to the
union's loss of majority status." Chicago Magnesium
Castings, 256 NLRB 668, 674 (1981).5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, BASF Wyandotte Corporation, Wyan-
dotte, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order6
as modified.
1. Delete paragraphs 1(c) and (d) and reletter the
subsequent paragraph.
2. Substitute the attached notice for that of the
administrative law judge.
WE WILL NOT interrogate employees regarding
whether or not they have signed a card to decerti-
fy the union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL make union committeemen Alex Koz-
lowski and Frank Hrabelski whole for any loss of
pay they may have suffered as a result of our uni-
lateral abrogation of said paid release time, with in-
terest.
BASF WYANDOTTE CORPORATION
Mark D. Rubin, Esq ., of Detroit , Michigan , for the Gen-
eral Counsel.
Charles E. Keller, Esq., of Detroit , Michigan , for the Re-
spondent,
5 In agreeing with the judge that the withdrawal of recognition was
not unlawful, we place no reliance on the judge's reasoning that, as no
evidence was proffered to demonstrate that BASF's violations influenced
the employees to vote to decertify the Union, the violations did not taint
the decertification process
Rather, we find that under all the circumstances the violations are not
of such seriousness as to warrant a conclusion that they caused employee
disaffection.
6 The judge ordered BASF to make the union committeemen whole
for any loss of earnings they may have suffered by reason of BASF's un-
lawful refusal to grant paid release time. BASF excepts to the judge's
remedy, however, stating that the committeemen did not suffer any loss
of earnings as the Local Union reimbursed them for release time taken.
As we do not know the circumstances surrounding the Local's payment
to the committeemen, we leave this issue to compliance.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT unilaterally discontinue payment
to union committeemen for 8 hours a week paid re-
lease time.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSiY, Administrative Law Judge. These
cases were heard by me on February 28, March 1, No-
vember 15-18, 28-30, and December 1,2, and 5-7, 1983.
The trial record was closed on February 13, 1984, fol-
lowing receipt of a written stipulation of expected testi-
mony. Based on unfair labor practice charges filed De-
cember 10, 1981 (7-CA-20117), and September 23, 1982
(7-CA-21207), by Local 7-627, Oil, Chemical and
Atomic Workers International Union, AFL-CIO-CLC,
and Oil, Chemical and Atomic Workers International
Union, AFL-CIO-CLC, the Regional Director for
Region 7 of the National Labor Relations Board (the
Board), issued complaints dated January 26 and Novem-
ber 2, 1982. These cases were consolidated by order of
the Regional Director dated November 3, 1982. The
complaint in Case 7-CA-20117 alleges that BASF Wy-
andotte Corporation, (Respondent), violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act) by: (1) unilaterally and without agreement of the
Union converting and reclassifying the hourly bargaining
unit position of boiler operator to the salaried position of
utility technician thereby removing it from the bargain-
ing unit; and (2) refusing to meet and discuss with the
Union this unilateral action or process the Union's griev-
ance concerning this dispute. The complaint in Case 7-
CA-21207 alleges that Respondent violated Section
8(a)(5) and (1) of the Act by: (1) unilaterally and without
notice to or agreement of the Union, stopping payment
to Local Union committeemen for time spent administer-
ing the contractual grievance procedure; and (2) refusing
to bargain in good faith with the Union concerning this
dispute by refusing to accept, entertain, and otherwise
process any grievances relating to the dispute. Respond-
ent denied in its answers the commission of any unfair
labor practices. These two cases are referred to as the
"utility technicians" case and the "paid release time"
case.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the hearing began on these complaints , the Inter-
national Union filed a further charge on June 28, 1983,
upon which a complaint (7-CA-22305) was issued on
August 11 , 1983, alleging that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by: (1) on numerous occa-
sions Foreman Al Gill advising employees that they
would obtain better benefits if they became salaried, non-
union employees ; (2) Foreman Don Barton coercively in-
terrogating an employee about whether the employee
had signed a card indicating that the employee no longer
wished to be represented by the Union; (3) Foreman Al
Gill granting access to a restricted area of the plant to
allow employees to solicit employees signatures on cards
indicating they no longer wished to be represented by
the Union; (4) Supervisor Logan "Tom" Burkhart telling
an employee that any unfavorable review and discipline
would be removed from his personnel file if the union
employees decided to become nonunion salaried employ-
ees; (5) refusing to recognize the negotiating committee
designated by the Union because it included the secre-
tary-treasurer of the Local and a representative of the
International ; (6) bypassing the local union and refusing
to recognize the International Union, while offering unit
employees improvements in wages, pensions , and other
fringe benefits if the unit employees became salaried,
nonunion employees ; and (7) withdrawing recognition
from the Union and unilaterally instituting changes in
wages, fringe benefits, and other terms and conditions of
employment . Respondent again denied the commission of
any unfair labor practices . This case is referred to as the
"withdrawal of recognition" case.
Each of the complaints will be treated separately
except that the "utility technician " and "paid release
time" case will be looked at for their impact, if any, on
the "withdrawal of recognition" case. Local 7-627,
OCAW (the Local), and OCAW International Union
(the International) are joint exclusive bargaining repre-
sentatives of the unit employees.
On consideration of the entire record, including briefs
filed by the General Counsel and Respondent and my
observation of the witnesses and their demeanor, I make
the following
Respondent admits , and I find , that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Since 1971, pursuant to a series of collective -bargain-
ing agreements, the most recent of which was effective
from June 24, 1980, through July 22, 1983, Respondent
had recognized Oil, Chemical and Atomic Workers
International Union and its Local 7-627 jointly as the ex-
clusive agents for purposes of collective bargaining of
the employees in the unit with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment. Reference to the last several collec-
tive-bargaining agreements refer to the agreements as
ones between the Employer and the International "on
behalf of" the Local. The last several agreements were
signed by both officials of the International and Local.
Both the International and the Local are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent acquired the Wyandotte , Michigan site
when it took over the Wyandotte Chemical Company in
January 1971. During the 1970s, Respondent employed
about 1300 bargaining unit employees at its North and
South Works facilities. During that time Respondent pro-
duced high volume basic industrial chemical products.
In October or November 1978, Respondent shut down
its soda ash facility, reducing its bargaining unit person-
nel to about 600. In 1980 Respondent restructured its fa-
cilities further by closing the South Works facilities and
the Bi-Carb plant in the North Works. With those
changes the Company changed by 1980 from a high
volume, labor intensive, chemical facility into a low
volume, highly technical facility, producing vitamins and
polyols. After personnel reductions in 1980, about 233
unit employees remained employed at the site. The
number of unit employees was just over 100 when the
charges in these cases were filed.
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New Jersey corporation, headquartered
in Parsippany , New Jersey , maintains an office and place
of business at 1609 Biddle Avenue in the city of Wyan-
dotte and the State of Michigan , where it is engaged in
the manufacture of vitamins and polyols . Respondent's
plant in Wyandotte , Michigan is the only facility in-
volved in these proceedings . During the year ending De-
cember 31, 1982, which period is representative of its op-
erations during all times material , Respondent in the
course and conduct of its business operations, realized
gross revenues in excess of $500,000 and purchased
goods and materials valued in excess of $50,000 which
were transported and delivered to its Wyandotte, Michi-
gan place of business directly from points located outside
the State of Michigan.
B. Utility Technicians Case
By 1980 Respondent required about 200 people to run
the old boilerhouse. The old North Works boilers were
manually operated and adjusted and required constant at-
tention. When the South Works closed, a new "state of
the art high tech" fully automated steam facility had
been built to supply the Company's steam generation.
At the regular company union meeting on August 27,
1981, Assistant General Manager Ron Bearer gave union
officials an hourly job description and specifications for
the new steam facility. Bearer and Bob Parmer, superin-
tendent at the boilerhouse , explained that the new steam
facility would be fully automated and designed to run
practically unattended. There was not enough work to
justify paying an employee full time but since the Com-
pany wanted someone at the steam facility constantly,
repair and maintenance functions were included in this
new job description. Additional training , licensing, and a
BASF WYANDOTTE CORP. 1579
high school diploma were among the specifications for
the job.
The union representatives objected to the inclusion of
maintenance and repair functions in the job description.
They also objected to licensing and education require-
ments because those were not required at the North
Works and because many of their unit members did not
have a high school education. The union representatives
also took the position that boiler operators should only
do boiler operations and repair and maintenance func-
tions should be done by maintenance employees, which
was a separate group of unit employees. The meeting
ended with Bearer announcing that he would take the
Union's objections into consideration.
Following this meeting, the engineering superintendent
in charge of the new steam facility, Logan "Tom" Burk-
hart, reviewed the job description and specifications of
the boiler operator position for the new steam facility
which had been presented to the Union. Burkhart ex-
plained that virtually all items listed on the job descrip-
tions were done automatically by instruments. He criti-
cized the job descriptions as having no applications to
the new facility and was therefore asked to draft a job
description which corresponded more closely to what
would be done. The resulting job description required
math and mechanical comprehension because of the in-
strumentation, ability to perform routine operations re-
pairs, and technical background to make necessary deci-
sions. Since only one person would man the facility each
shift, the job description also required decision making
and storage and inventory of raw materials . Burkhart ex-
plained that intensive and extensive training would be re-
quired for whoever was selected for these positions be-
cause the technology and instruments in the facility were
new and sophisticated. The training expenses were pro-
jected to be $200,000.
After Burkhart presented his job description to Anne
Marie Bieniewski, labor relations representative of Re-
spondent who had requested he draft it, Respondent de-
cided this position would be titled "utilities technician."
During the 1980 bargaining, instrument technicians and
other "technician" positions were removed from the bar-
gaining unit and made salaried positions with the agree-
ment of the Union.
At a company union meeting on September 23, 1981,
in response to questions from union representatives about
their objections to maintenance work being done by
boiler operators, the Company announced that the posi-
tions were salaried and refused to discuss it further.
Anne Marie Bieniewski told the union representatives
that the job was going salaried, because of the Union's
objections about the repair and maintenance functions to
be done by the operators. Although the Union was left
with the clear impression that the position would be sala-
ried and out of the bargaining unit it was not until a few
days after this meeting that Respondent made the final
decision. A job vacancy notice for salaried utilities tech-
nician positions was posted from September 30 through
October 6, 1981.
On October 14, 1981, John Profitt, a union steward in
the boilerhouse, drafted a grievance protesting Respond-
ent action "in removing a boiler operator's job from
hourly and making it a salaried job." Profitt attempted to
submit the grievance to his shift supervisor, Bob Beeny,
who said he could not accept it and referred him to Bob
Parmer, the heard of the department. Profitt next at-
tempted to give the grievance to Parmer who also re-
fused to accept it.
On October 19, 1981, four boiler operators (hourly em-
ployees) from the old boiler house were transferred to
the salaried utilities technician classification in the steam
facility. The fifth position was filled by a supervisor from
the old boilerhouse.
C. Paid Release Time
It is undisputed that for the prior 30 years, pursuant to
agreement, Respondent had paid the union bargaining
committemen their hourly wage for "release time"
during which they "administered" the contract. Under
collective-bargaining agreements prior to 1965, they
were released and paid for a full 40 hours per week.
After a lengthy strike in 1965, the paid release time was
reduced to 25 hours per week. The collective-bargaining
agreement in effect from July 1980 through July 1983
further reduced the release time to 8 hours per week.
The 1980 to 1983 contract was silent about whether the
release time was to be paid or not. However, from July
24, 1980, until September 27, 1982 (more than 2 years),
the committeemen were paid for their release time and
then abruptly Respondent stopped paying them for re-
lease time claiming to continue paying them was viola-
tive of the contract and against the law.
According to the credited and undisputed testimony of
Frank Hrabelski, who had been a committeeman since
1950, the committeemen spent their released time investi-
gating and attempting to settle gripes , complaints, and
grievances at the lowest level possible, as specifically
mentioned in the collective-bargaining agreement. This
involved talking to the complaining employee or steward
and then discussing resolution of the problem with the
employee's supervisor. Complaints which the committe-
men could not resolve at this level were investigated fur-
ther and the employees were advised concerning wheth-
er or not they had a grievance which merited further
action. If it did, the committeemen advised the grieving
employee how to write his grievance and submit it ac-
cording to the contractual procedure. The committee-
men were also paid for release time spent in meetings
with management.
At a regular company union meeting on September 16,
1982, Respondent announced that it would no longer pay
union committeemen for release time unless the commit-
teemen were in meeting with management. When the
union representatives questioned this decision, they were
told that Respondent's legal counsel had determined that
this practice violated Sections 8(a)(2) and 302 of the Act.
The union representatives were told that the committee-
men could continue to take the 8 hours of release time a
week to conduct "union to union" business but they
would not be paid for this time. Respondent's representa-
tives asked that the committeemen inform them as to
their decision to either take the 8 hours without pay or
work the 8 hours each week.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A special company union meeting was held on Sep-
tember 22, 1982, at which International Representative
Larry Sartin questioned the reason behind the Compa-
ny's decision to discontinue paying committeemen for
their release time. He and committeemen Kozlowski and
Hrabelski were informed that the Company had been ad-
vised by legal counsel that what they had been doing
was illegal and the union was also breaking the law by
accepting such payments. Sartin then asked if this was a
deliberate attempt to single out the Wyandotte site. They
were told that this was a corporate decision applicable to
all sites. The union committeemen asked for and were
granted more time to consider their decision.
On September 29, 1982, Hrabelski and his steward met
with their foreman to protest the Company' s action.
When the foreman told them the answer remained un-
changed (no paid release time except for meeting with
management or meetings approved by management) the
grievance was put into writing and given to the steward
with the notation signed by the foreman that it was not
acceptable and not grievable.
At the next regular meeting on October 6, 1982, there
was further discussion of the release tim6 issue. The
Union suggested several alternatives to the Respondent's
no paid release time position , including payment for 4
hours per week, 1 day per month, and 1 day every other
week. Respondent maintained its position that any pay-
ment for meetings other than with management would be
illegal . Sometime after this meeting the union committee-
men decided that they would work and be paid rather
than take unpaid release time.
D. Withdrawal of Recognition
Although it was not until June 20, 1983 , that Respond-
ent withdrew recognition of the Union effective on July
22, 1983, when the collective-bargaining agreement ex-
pired, it is necessary to recount events going back some
several years to put what happened into context.
In August, September, or October 1981, Union Presi-
dent Lowen Draheiin and committemen Alex Kozlowski
and Frank Hrabelski were called to an unscheduled
meeting with Respondent's labor relations managers,
Ann Marie Bieniewski and Earl Schuknecht . During this
meeting one of the company officials said the meeting
was to discuss how unit employees could become sala-
ried (i.e. , nonunion) if they wanted to. Pamphlets and
brochures concerning salaried benefits were on the
tables. When union officials responded that they were in
the middle of a collective-bargaining agreement and
abiding by it, Bieniewski said there were ways around
the contract . She suggested a "schism," at which point
Kozlowski said the union officials should not be there
and they left immediately. Neither Bieniewski nor
Schuknecht testified . I credit Draheim 's testimony re-
garding this conversation since he impressed me as a
truth-telling witness and no one contradicted him.
Schuknecht and Bieniewski were both available to be
called by Respondent if it wanted to do so.
On numerous occasions between January and June
1983 Foreman Al Gill discussed the advantages of being
salaried rather than hourly with employees under his su-
pervision, including vitamin E operator Rodney Hinz-
man. Hinzman worked in the vitamin E area which is a
restricted area where anyone not employed in that build-
ing must obtain a pass to enter . On June 16, 1983, Gill
issued a pass to Julius Kuzia and escorted him to Hinz-
man's working area . Kuzia asked Hinzman if he was
ready to sign a card to decertify the Union explaining
that it was important to get all the cards they could since
they were close to the amount needed . Gill was present
and in a position to hear this conversation , although he
did not say anything . Hinzman replied that he was not
ready to sign a card because he had doubts and as a
trustee of the Union he would resign before signing a
card. Kuzia left with Gill escorting him out. The next
day, when Hinzman asked Union President Draheim
about the procedure required to resign, he was told that
there were enough signatures already and they did not
need his anymore.
By letter dated January 26, 1983, the Union notified
Respondent of its desire for early negotiations . This re-
quest was rescinded by letter dated March 2, 1983, fol-
lowing Respondent 's rejection of the request . The Re-
spondent and the Union by letters of May 9 and May 14,
respectively, exchanged statutorily required notices of in-
tention to modify or terminate the then current agree-
ment due to expire July 22, 1983. Both announced their
availability for negotiations.
On May 24, 1983, Respondent sent a letter to Alex
Kozlowski , chairman of the union bargaining committee,
suggesting that negotiations begin on Thursday , June 23,
1983, at 5:30 p .m. Respondent 's letter requested that the
Union inform them who would represent the Union on
the negotiation committee . Respondent's negotiation
committee was also tentatively designated in'the letter.
The Union informed Respondent of the membership of
its negotiating Committee in a letter dated May 26, 1983.
The negotiating committee members named were: Presi-
dent Lowen Draheim, Secretary-Treasurer Joseph
Kanthack, Committeemen Alex Kozlowski, and Frank
Hrabelski . International Representative Larry Sartin was
named as chairman of the union negotiating team. The
Union agreed to the Company 's proposal for beginning
negotiations on June 23, 1983.
About May 25, 1983, International Representative
Larry Sartin attended a third-step grievance meeting at
the Wyandotte site. While there, Sartin asked Respond-
ent's manager of human resources , Charles Caldwell,
why Respondent was going after the Union as hard as
they were. Caldwell answered that it was not anything
personal but they had orders from Germany (company
worldwide headquarters) to get rid of all the unions in
the United States. He went on to say they had already
done it in two plants and Wyandotte was just next in
line. Sartin was unaware of any move in the plant for de-
certification at that time so he asked Caldwell how Re-
spondent planned to get rid of the Union. Caldwell told
him not to be surprised during negotiations if one of the
committeemen from the Union proposed to the Company
that they "go salary." Caldwell refused to name the
committeemen but when Sartin asked if it was Alex Koz-
lowski, Caldwell said yes. I credit Sartin that this con-
versation took place and credit his testimony as to what
BASF WYANDOTTE CORP. 1581
he said and what Caldwell said . Although Sartin later
changed his testimony about the date of this conversa-
tion from May 20 to May 25, this does not so impeach
his credibility that I would disbelieve what he said. Al-
though Caldwell specifically denied that he said this to
Sartin, I do not credit his denial. Caldwell, I note, admit-
ted under oath that he had lied to the Union back in Sep-
tember 1982 about the identity of the attorney who ad-
vised Respondent that paid release time was illegal. He
knew who the attorney was but lied to the Union and
said he did not know who it was. Caldwell was less than
a totally credible witness.
On May 24, 1983, at a meeting of all supervisors of
bargaining unit employees a confidential memo prepared
by Henry Kramer, one of Respondent's in-house counsel,
was given by Caldwell to all supervisors . The memo out-
lined the procedures by which bargaining unit employees
could become salaried. The memo explained decertifica-
tion, disclaimer, or disaffirmation, and listed various
"do's and don'ts" for supervisors to abide by if asked by
employees how to decertify their union or other ques-
tions. The memo ended by stating: "Supervisors should
clearly understand that it is our intention to stay within
the law and to honor our employee's right to choose for
themselves whichever status they believe is in their best
interests and those of their families." The memo was
signed by Human Resources Manager C.L. Caldwell and
dated May 24, 1983. Although the memo was headed
"Salaried Confidential," copies were left by person or
persons unknown lying in places where unit employees
could see them. Two unit employees, Joseph Kanthack
and Rodney Hinzman, saw copies laying on desks in
rooms that they had to pass through regularly in the
course of their work. Kramer testified that he told the
supervisors at the May 24, 1983 meeting not to leave this
memo lying around but to keep it confidential. His
advice was not followed by all the supervisors.
In early June 1983, unit employee Ray Andres was in
the office of Foreman Don Barton to pick up mainte-
nance sheets. During this time Barton asked Andres if he
had signed a card to decertify the Union yet. Andres re-
plied that he wanted no part of it. He went on to explain
that he believed there would be a hit list and because of
his union activities he would probably he the first to "go
out the gate" if the employees went salaried. Andres ex-
pressed his fear of being on a hit list to others including
unit employees Julius Kuzia and Clarence Sturgill who
were circulating the decertification cards.
On June 24 or 25, 1983, one of Respondent' s supervi-
sor Tom Burkhart approached Andres after asking and
receiving permission from Charles Caldwell to do so.
Burkhart told Andres that he knew of Andres ' concern
that there was a hit list and that he was at the top of the
list. Burkhart told Andres there was no hit list and
nobody would be "going out the gate" if employees
went salaried. Andres questioned this but Burkhart as-
sured him again there was no hit list. Burkhart went on
to explain that if there was anything in an employee's
record to do with reprimands or disciplinary actions it
would be taken out if the employee so desired. The em-
ployees would start out with a clean slate. Burkhart ad-
mitted that he spoke with Andres and told him there was
no "hit list" but claims this conversation took place after
recognition of the Union was withdrawn . Andres simply
was not sure when it took place. Burkhart credibly main-
tained that he spoke to Andres in order to alleviate any
concern Andres might have that his job was in jeopardy.
Burkhart denies that he spoke about starting over with a
clean slate but I conclude that if he did not say exactly
this he said something like it.
On June 14, 1983, Alex Kozlowski told Respondent
Representative Walter Krudwig that they had to meet
because he was getting many questions concerning sala-
ried benefits from the union membership . Krudwig told
Kozlowski that he would have to contact Pat Howard or
Chuck Caldwell to set up a meeting . Late that afternoon
Kozlowski and Union President Draheim met with
Krudwig , Howard , and Caldwell . Frank Hrabelski was
told about the meeting but chose not to come . Interna-
tional representative Sartin was not informed of or invit-
ed to this meeting by either side.
At the beginning of the meeting Draheim said he was
there as an employee not as the President of the Union.
Despite this statement , he asked what benefits Respond-
ent was offering if employees became salaried. Koz-
lowski said they wanted to communicate this information
to the membership . Respondent ' s representatives em-
phatically denied rumors that the Company was offering
between $300 and $700 increase in pensions if employees
became salaried calling those rumors "totally false."
There followed a discussion of the summary of benefits,
including wages, pensions , bumping rights protection,
and cost-of-living adjustments (COLA). The meeting
ended when Draheim had to leave but resumed the next
morning about 7 a.m. with more extensive comparison of
benefits and discussion of alternatives if unit employees
became salaried. The company representatives gave
union representatives copies of the employee handbook
explaining benefits received by salaried employees. Re-
spondent 's representatives asked if the union officials
were authorizing them to pass out the information on
salary benefits to unit employees . Draheim and Koz-
lowski gave Respondent permission to do so.
Company negotiators Henry Kramer and Walter
Krudwig sent Union Negotiation Chairman Kozlowski a
letter dated June 15 , 1983, contesting the Union's inclu-
sion of Secretary-Treasurer Kanthack and International
Representative Sartin on the union negotiating commit-
tee. Respondent stated its position that the union negoti-
ating committee must consist of the president and the
two committeemen. The letter also stated that Respond-
ent considered Local 7-627, as the only party to the bar-
gaining agreement and that the International had no in-
dependent bargaining rights.
On June 17, 1983, unit employees Julius Kucia and
Frank Tarnowoski met with Charles Caldwell after call-
ing for an appointment . Kucia gave Caldwell a stack of
cards which read:
We, the employees, no longer want to be represent-
ed for purposes of collective bargaining by the Oil,
Chemical, and Atomic Workers International Union
and/or it Local No. 7-627.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The cards had a line for the employees' signature, identi-
fication number, and date. Caldwell took the cards to
Attorney Henry Kramer, who counted them and com-
pared them with the seniority list. The seniority list
showed 102 bargaining unit employees. Fifty-seven cards
had been signed and delivered to Respondent. A clear
majority of the bargaining unit employees wished to de-
certify the union.
By letter, dated June 20, 1983, Respondent informed
the Union that it had received cards from a majority of
the unit employees stating they no longer wished to be
represented by the Union. Respondent stated its intention
to honor the current agreement until July 22, 1983, at 3
p.m. when it was due to expire, and announced its with-
drawal of recognition from the union effective at 3:01
p.m. on that date. Bargaining unit employees were sent a
copy of this letter along with a letter announcing that
production and maintenance employees would be placed
on salary status and given salaried benefits effective July
22, 1983. Thereafter a salaried production and mainte-
nance handbook was sent to the unit employees and a
series of meetings to advise employees of their new bene-
fits were held.
Analysis
The "utility technicians " case and the "paid release
time" case are the types of disputes ' which could have
and probably should have been disposed of under the
grievance-arbitration clause of the collective-bargaining
agreement between Respondent and the Union . United
Technologies Corp., 268 NLRB 557 (1984). However, de-
ferral to the arbitral process is inappropriate in this case
since Respondent refused to accept and process the
grievances filed with respect to the "utility technicians"
and "paid release time " cases. Their failure to accept the
two grievances was not itself an unfair labor practice.
Jacobs Mfg. Co., 94 NLRB 1214, 1225 (1951).
A. Utility Technicians Case
It is undisputed that the 1980 collective-bargaining
agreement removed technician positions from the bar-
gaining unit. The issue is therefore only whether the new
utility technician' was not a technician position but
merely given that title to justify its removal from the
bargaining unit.
At the hearing, the General Counsel vigorously assert-
ed that the utility technicians were really just boiler op-
erators monitoring hewer and more sophisticated equip-
ment. The original job description which contained func-
tions similar to those performed by boiler operators and
called for the position to be hourly, and the fact that all
five utility technicians had previously worked in the
boiler house were advanced as proof that this should
have remained a bargaining unit position. The change in
the job description following the Union's objections to
the Respondent's proposal to include maintenance func-
tions in the boiler operator functions for the new steam
facility tends to support the General Counsel's position.
The credible and unchallenged testimony, however, of
Tom Burkhart, the engineering superintendent in charge
of the steam facility, explains the need for the change. It
is apparent that the original job description was inaccu-
rate. Once Burkhart, who knew what the job entailed,
wrote a proper job description it became obvious that
the job fit under the technician classification. Despite the
comment by Anne Marie Bieniewski that the position
was made salaried because of the Union's objections to
the inclusion of maintenance functions in the job descrip-
tion, I find that the position was a technician position as
classified in the 1980 agreement which excluded all tech-
nicians from the bargaining unit. There was therefore no
violation of the Act when this new position in the new
steam facility ws accurately designated as a technician
job, made salaried, and taken outside of the bargaining
unit. There was no legal duty on the part of Respondent
to negotiate concerning this. Only hourly personnel are
in the bargaining unit and all others were excluded under
the 1980 agreement to include "instrument control and
other technicians."
The "utility technician" position was a new job classi-
fication to maintain, calibrate, and repair microprocessors
and other advanced electronic equipment. It is different
from the boiler operator, classification which was an
hourly position.
B. Paid Release Time Case
When Respondent announced its unilateral decision to
discontinue payment of bargaining committeemen for re-
lease time used in administering the collective -bargaining
agreement on September 16, 1982, it did so with the ex-
planation that such practice was deemed to be a viola-
tion of Section 8(a)(2) and Section 302 of the Act. Re-
spondent further asserted that the Union would be vio-
lating the Act to demand or accept continued paid re-
lease time . Finally Respondent relies on the silence in the
contract which does not mention payment, only release
time.
Section 8(a)(2) of the Act makes it an unfair labor
practice or an employer "to dominate or interfere with
the . . . administration of any labor organization or con-
tribute financial or other support to it, [except that] .. .
an employer shall not be prohibited from permitting em-
ployees to confer with him during working hours with-
out loss of time or pay."
The Board requires that we examine each case to de-
termine if an employer's action amounts to domination of
the union. Not every payment to a union official will be
considered to violate Section 8(a)(2).
In the instant case, the employer most definitely did
not dominate this Union, Quite the contrary, the union
committeemen used their paid release time to hear and
investigate complaints and to attempt to settle complaints
or assist employees in drafting grievances.
The Board has held that payment of union representa-
tives for time spent conducting internal union business on
company time and using company facilities did not vio-
late Section 8(a)(2) of the Act. Hesston Corp., 175 NLRB
96 (1969). In another case very similar to this one, the
Board held that where employee advisory board mem-
bers received their regular pay for time spent in closed
monthly meetings of the board, there was no violation of
Section 8(a)(2). The Board found this conduct "not at all
BASF WYANDOTTE CORP.
unusual where affiliated unions are involved and not in-
herently coercive" since it serves "to permit an other-
wise legitimate labor organization to perform its func-
tions for the benefit of all concerned more effectively
than otherwise might be the case." Sunnen Products, 189
NLRB 826, 828 (1971).
The Board has explained it's position where it stated in
Duquesne University, 198 NLRB 891 (1972):
Indeed, where a union lawfully has been established
as the employees' bargaining representative, and has
been accorded lawful recognition by an employer
who, following recognition, deals with that repre-
sentative at arm's length, we have sometimes char-
acterized benefits of the type found herein merely
as friendly cooperation growing out of an amicable
labor-management relationship.
Respondent's assertion that the collective-bargaining
agreement requires release time but not payment for such
time is without merit. It is clear that the matter was a
mandatory subject of bargaining. During the period from
July 22, 1980, through September 16, 1982, Respondent
paid the union committeemen for their release time as
they had for many years. By this action, Respondent sig-
nified its interpretation of the clause in the 1980 agree-
ment as only reducing the hours (from 25 to 8) but not
eliminating payment. After interpreting the clause this
way for over 2 years of a 3-year agreement, Respondent
cannot now argue that it was never obligated to pay
union committemen for this time. This was clearly a uni-
lateral change during the terra of an existing collective-
bargaining agreement. Respondent therefore violated its
duty to bargain in good faith where it unilaterally imple-
mented its position that release time would be paid only
when the committeemen were in meetings with manage-
ment.
William Jenkins, an attorney for Respondent who
headed up Respondent's negotiating team for the 1980
agreement, testified that during discussions on the release
time clause in 1980 that he told the union representatives
that paid-release time clause would be changing and
committeemen would not be paid to just walk around
the plant. However, what is said during negotiations is
not as good a way to determine what the parties intend-
ed as is the practice of the parties under the clause. For
2 years the parties interpreted the clause to require paid-
release time.
The Board has clearly stated in Axelson, Inc., 234
NLRB 414, 415 (1978), that:
[W]e have found that wages paid to employees
during the presentation of grievance constitutes a
mandatory subject of bargaining and that the unilat-
eral abrogation of such a contractual term or past
practice violates Section 8(a)(5) and (1) of the Act.
These union-related matters inure to the benefit of
the members of the bargaining unit by contributing
to more effective collective-bargaining representa-
tion and thus "vitally affect" the relations between
an employer and employee.
1583
We see no distinction between an employee's in-
volvement in contract negotiations and involvement
in the presentation of grievances. In one situation an
employee is implementing a contractual term or
condition of employment and in the other situation
an employee is attempting to obtain or improve
contractual terms or conditions of employment. In
both situations the activity is for the benefit of all
the members of the bargaining unit. [See also Me-
harry Medical College, 236 NLRB 1396, 1406
(1978).]
The release time clause in the contract provided, inter
alia, that committeemen "shall administer the grievance
procedure per Article V." While article V does not spe-
cifically talk about committeemen until step 3, it is as il-
logical to suggest that the committeeman has nothing to
do with grievances until step 3 as it is illogical to suggest
that a trial attorney has nothing to do until the trial
starts. The stated purpose of the grievance procedure
agreed to by these parties was to resolve the dispute at
the lowest possible level and that is exactly what the
committeemen were doing on their release time and
were legally entitled to be paid for doing so.
I therefore find that Respondent's refusal to pay union
committeemen for their 8 hours of release time and its
unilateral elimination of paid release time after paying it
for 2 years of a 3-year contract violated Section 8(a)(5)
and (1) of the Act.'
C. Withdrawal of Recognition Case
The complaint alleges several violations of Section
8(a)(1) including promising benefits, coercively interro-
gating employees, and assisting employees soliciting de-
certification card signatures. It also alleges several viola-
tions of Section 8(a)(5) by Respondent including refusal
to recognize, the Union's negotiating committee because
it included the secretary-treasurer of the Union and be-
cause the International representative was chief spokes-
man; refusing to recognize the International Union's
status as joint bargaining agent, and meeting with em-
ployees and offering various benefits of being salaried
which were implemented unilaterally following the with-
drawal of recognition from the Union.
I credit the testimony of employee Rodney Hinzman
concerning his conversations with Foreman Al Gill. On
numerous occasions between January and June 1983, Gill
stated to Hinman that unit employees would be better
off if they became salaried, nonunion employees. It was
Gill, and not Hinzman, who brought up the subject in
the beginning but later on they would alternately bring
up the subject. In addition, Gill also gave permission and
escorted another employee, Julius Kuzia, to Hinzman's
' I do not express an opinion on whether the paid-release time clause
violates Sec 302 since I have no such jurisdiction. Sheet Metal Workers,
234 NLRB 1238 (1978) However, I note that Respondent Instituted suit
in U S. District Court in New York seeking to have a paid-release time
clause in a separate and distinct collective-bargaining agreement declared
in violation of Section 302. The clause provided that union offices would
get paid for attending to union business on company time The court
found the clause to be perfectly legal BASF Wyandotte v. Local 227, 116
LRRM 3115 (1984)
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restricted work area where Kucia solicited Hinzman's
signature on a card to decertify the Union. Furthermore
Gill remained present while this solicitation was taking
place. In these circumstances , I find that Respondent,
through its agent Gill, violated Section 8(a)(1) of the
Act.
I credit the testimony of Ray Andres concerning his
conversation with Foreman Dan Barton. Barton's ques-
tioning of Andres concerning whether or not he had
signed a card to decertify the Union was unquestionably
the type of interrogation forbidden by the Act. I credit
Andres over Barton. Barton denied that he ever asked
Andres if he signed a card to decertify the Union. I
credit Andres over Barton because Andres appeared
credible and had no motives to fabricate. Andres is still
an employee of Respondent and, if anything, had a
motive to say the opposite of what he said.
I find, however, that Andres' conversation with Super-
visor Burkhart was not a violation of Section 8(a)(1).
Andres was concerned that if the Union was decertified
he might lose his job. He said he might be on a "hit list."
Burkhart told Andres that there would be no "hit list."
Burkhart's credited testimony as to the date of their con-
versation shows that it was not until after Respondent
had objective evidence to support its claim of a good-
faith reasonably grounded doubt as to the Union's con-
tinued majority status that Burkhart spoke with Andres.
Andres himself could not remember when the conversa-
tion took place. Caldwell and Kramer received signed
cards from 57 of the 102 unit employees expressing their
desire not to be represented by the Union on June 17,
1983. Burkhart spoke to Andres only after Caldwell as-
sured him it was okay to do so. Their conversation took
place on June 24 or 25, 1983. Burkhart' s assurance to
Andres that there was no hit list with his name on it was
not violative of the Act.
The disagreement between Respondent and the Union
concerning the composition of the union negotiating
committee is a matter, controlled by the collective-bar-
gaining agreement. Both Respondent and Union cite arti-
cle II , section 3-C of the 1980 collective-bargaining
agreement as providing that the Union shall have a nego-
tiating committee of up to three persons who are em-
ployees actively at work. The three members of the
committee were to be the two committeemen and the
secretary-treasurer . Obviously this language would ex-
clude any person who was not employed at the BASF
Wyandotte site at the time of negotiations, including the
International representative. The language of the agree-
ment is evidence of a clear and unmistakable waiver by
the Union of any right to have other representation at
the negotiating table. The contract next states that the
"committeemen and the President of the Local shall be
paid for lost time spent during regular working hours,
excluding overtime opportunities, at their regular rate of
pay, in attending negotiations meetings with the Compa-
ny during the sixty-day period predating the expiration
date of this Agreement."
The history of collective bargaining and agreements
between these parties show that Respondent recognized
and dealt with both the Local and the International. It is
apparent that at times Respondent bargained with the
International representative when they felt the Local
representatives were not sufficiently responsive. Howev-
er, when it served their purposes, they chose to exclude
the International representative. I have found that the
Local and International were and had always been joint
bargaining representatives of the unit employees at
BASF Wyandote and ordinarily while Respondent could
not dictate who would be on the Union's negotiating
team we have a situation here where in clear and unmis-
takable language the Union limited their choice of repre-
sentatives. Respondent did not violate the Act when it
stated in a letter to the Union that Larry Sartin, the
International representative, was not eligible and ques-
tioned whether the president or secretary-treasurer
should be the third member of the union negotiating
team since Respondent was merely requesting the Union
to comply with the contract.
The General Counsel contends that Respondent violat-
ed Section 8(a)(5) and (1) by 'meeting with only two
union representatives to explain and offer them benefits if
the unit employees became salaried. This contention is
premised on the faulty assumption that Union President
Draheim and committeman Kozlowski were not meeting
in their representative capacity when they met on June
14 and 15 with Respondent's representatives. Despite
Draheim's assertion that he said at the very beginning of
the meeting that he was there as an individual, and not
as president of the local, his actions and discussions with
representatives of management belie that assertion. First
and foremost, the meeting was requested by the Union.
Committeeman Kozlowski said they needed information
to give to their members because they had been getting
questions about salaried benefits. Furthermore the discus-
sions, while not actually negotiations, were representa-
tive in nature, as evidenced by suggested alternatives for
retirement, assurances against bumping, etc. Finally, Re-
spondent's representative asked if the union officials
were authorizing them to distribute the information on
salaried benefits to employees and such permission was
given. Clearly this was within their authority as union
officials and having received such permission, Respond-
ent's distribution of information on salaried benefits to
the unit employees did not violate Section 8(a)(5) and (1)
of the Act.
Respondent announced its withdrawal of recognition
effective on the date and time of the expiration of the
collective-bargaining agreement, following its receipt of
57 cards from employees stating they no longer wished
union representation. It is undisputed that this was a ma-
jority of the 102 unit employees. In addition, another 10
cards to decertify the Union were received by. Respond-
ent during the next several days after it withdrew recog-
nition. Respondent therefore had a reasonably grounded
good-faith doubt of the Union's continued majority
status, justifying its withdrawal of recognition. Since the
Union was well beyond its first year of certification it
enjoyed only a rebuttable presumption that its majority
representative status continued. Terrell Machine, 173
NLRB 1480, 1481 (1969). The presumption was rebutted
when Respondent received the cards.
BASF WYANDOTTE CORP.
Unit employees Hinzman and Kathack saw the May
24, 1983 "salaried confidential" memo, which discussed
decertification, lying around the plant at points where it
was possible for other unit employees to see it as well.2
This was most unfortunate but does not rise to the level
of misconduct such that it negates or taints Respondent's
reasonably grounded good-faith doubt as to continued
majority status of the Union. In addition, the decertifica-
tion cards signed by the unit employees who wanted to
decertify the Union was written in language identical to
the language in the "salaried confidential" memo which
gave an example of a decertification card. The unit em-
ployees most directly involved in the decertification
effort were Julius Kuzia, Frank Tarnowski, and Clarence
Sturgill. No one called any of them as witnesses. I must
conclude from circumstantial evidence that they got the
language for the decertification card from the "salaried
confidential" memo which was carelessly left about. But
even if I assume that the "salaried confidential" memo
was deliberately left out to be found by unit employees I
can not conclude that altthough improper this so taints
the process that the will of 57 unit employees to decerti-
fy the Union could be ignored by Respondent. I would
note in passing that a decertification election may have
been the best way to resolve this matter but there is no
evidence of record that either Respondent or the Union
wanted such an election.
I credit Sartin when he testified that Caldwell told him
that corporate headquarters in Germany wanted to get
rid of the unions.
I do so because Sartin appeared to be a credible
person. In addition, if Caldwell had not said this to
Sartin it is doubtful that Sartin would have called Wil-
liam Jenkins back in Parsippany, New Jersey, to find out
if this was true, i.e., that Germany had a policy to get rid
of the unions. Jenkins admitted that. Sartin called him.
Jenkins denied that such a policy existed. This is prob-
ably a matter of semantics. A company has a legal right
to "think" whatever it wants about unions but it has no
right to engage in unfair labor practices to undercut the
union's support among its employees or engage in any
unfair labor practices. I am deciding this case with that
philosophy in mind. A company does not violate the Act
if it wants to get rid of the union but only if it does
something illegal to get rid of the union.
Respondent's violation of the Act in unilaterally termi-
nating paid release time after September 16, 1982, is not
such a grievous violation of the Act that it taints Re-
spondent's good-faith reasonably grounded doubt of the
continued majority status of the Union. No employee tes-
tified that it was this event which persuaded them to
vote for decertification nor did any union official testify
or was there any other evidence of complaints from unit
employees that they no longer were being looked in on
by the committeemen so that the inference could be
drawn that this violation of the Act underminded the
support the Union had such that a withdrawal of recog-
nition would be inappropriate even though 55.8 percent
of the unit employees signed decertification cards prior
to the withdrawal and within 3 days after the withdraw-
S Neither Hinzman nor Kathack signed decertification cards
1585
al a little over 65 percent of the unit employees had
signed decertification cards. While a reasonably ground-
ed good-faith doubt as to continued majority status
should take place in an atmosphere free of unlawful
labor practices before recognition can be withdrawn the
unlawful labor practices must be "sufficiently serious to
warrant a determination that they possessed an inherent
tendency to produce disaffection and, thereby , contribut-
ed to the union 's loss of majority status." Chicago Magne-
sium Castings , 256 NLRB 668 , 674 (1981).
With respect to the 8 (a)(1) violation there was no evi-
dence introduced which indicated that any other em-
ployees knew of or were influenced by the interrogation
of Hinzman or Andres. Furthermore , despite the interro-
gation neither Hinzman nor Andres signed cards to de-
certify the Union. There was no showing that the viola-
tions of Section 8(u)(1) had any effect on the majority of
the unit employees ' decision not to be represented by the
union.
Because I find that Respondent had a reasonably
grounded good-faith doubt as to the continued majority
status of the Union it had a right to withdraw recogni-
tion. Bennington Iron Works, 267 NLRB 1285 (1983).
CONCLUSIONS OF LAW
1. BASF Wyandotte Corporation is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO-CLC and its Local 7-627 are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By unilaterally discontinuing payment to union com-
mitteemen for 8 hours a week release time Respondent
violated Section 8(a)(5) and (1) of the Act.
4. By coercively interrogating employee Ray Andres
in early June 1983 regarding whether or not he had
signed a card to decertify the Union, Respondent violat-
ed Section 8(a)(1) of the Act.
5. By granting an employee access to a restricted area
of the plant during working hours to solicit Rodney
Hinzman's signature on a card to decertify the Union,
Respondent violated Section 8(a)(1) of the Act.
6. By promising employee Rodney Hinman that his
benefits would be better if he went nonunion, Respond-
ent violated Section 8(a)(1) of the Act.
7. The unfair labor practices of the Respondent de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act, I shall recommend that they be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully refused to
pay union committemen for 8 hours a week release time
spent administering the collective-bargaining agreement,
I recommend that Respondent be ordered to make them
whole for any loss of earnings they may have suffered
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of this unlawful unilateral change, by paying
them a sum of money equal to the amount they would
have normally earned as wages from September 16, 1982,
until July 22, 1983, with interest computed in a manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).3
I shall further recommend that Respondent be re-
quired to preserve and make available to Board agents,
on request, all pertinent records and data necessary to
analyze and determine whatever backpay may be due
union committeemen.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, BASF Wyandotte Corporation Wy-
andotte, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally discontinuing payment to union com-
mitteemen for 8 hours a week release time.
(b) Coercively interrogating employees regarding
whether or not they have signed cards to decertify the
Union.
(c) Allowing employees access to restricted areas of
the plant during working hours to solicit employees' sig-
natures on cards to decertify the Union.
(d) Promising employees better benefits if they chose
to become nonunion.
3 See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1961).
4 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following -a irmative action necessary to
effectuate the policies of the Act---
(a) Make whole union committeemen Alex Kozlowski
and Frank Hrabelski for any loss of pay they may have
suffered as a result of its unlawful conduct, in the
manner set forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Wyandotte, Michigan facility, copies of
the attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
5 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
* U.S. GOVERNMENT PRINTING OFFICE : 1987 0 - 165-945