Basf Wyandotte Corp.

National Labor Relations Board - Board Decisions

Jan 22, 1986

278 N.L.R.B. 173 (N.L.R.B. 1986)

BASF WYANDOTTE CORP.
BASF Wyandotte Corporation and Local 227, Inter-
national Chemical Workers Union, AFL-CIO.
Cases 3-CA-11270, 3-CA-11322, 3-CA-
11374, and 3-CA-11511
22 January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 15 February 1984 Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent, the General Counsel, and the Charging
Party 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,
and conclusions and to adopt the recommended
Order.2
ORDER'
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, BASF Wy-
andotte Corporation, Rensselear, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
i The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 At fn 17 of his decision the judge cited Sheet Metal Workers (Florida
Sheet Metal), 234 NLRB 1238 (1978), for the proposition that he was
without jurisdiction to decide issues raised under Sec 302 of the Labor
Management Relations Act Subsequent to his decision Sheet Metal Work-
ers was overruled BASF Wyandotte Corp., 274 NLRB 978 (1985). In that
case the Board found an identical contract clause came within the excep-
tion of Sec 302(c)(1) Additionally, a district court reached the same con-
clusion regarding the same clause and involving the same parties as here
BASF Wyandotte Corp. v. Chemical Workers Local 227, 591 F.Supp 339
(N.D N Y. 1984) We also note that the parties stipulated that deferral on
the underlying issues is not appropriate. Member Johansen, although in
agreement that the verbal warning issued to Scales constituted at least a
technical violation of the Act, regrets that such minor matters must take
up the Board's valuable time He finds it unfortunate that Scales reacted
with pique to a legitimate bargaining proposal and ignored the Employ-
er's specific request He finds it equally unfortunate that the Employer
reacted to Scales' display of pique in a disproportionate manner, and that
the parties failed to amicably resolve this issue short of formal litigation.
Alfred M. Norek, Esq., for the General Counsel.
Joel Spivak, Esq. (Solotoff & Spivak, Esgs), of Great
Neck, New York, for the Respondent.
Dominick Tocci, Esq., of Albany, New York, for the
Charging Party.
DECISION
173
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to certain charges and amended charges filed in October,
November, and December 1982, and a charge filed on
March 21, 1983, by Local 227, International Chemical
Workers Union, AFL-CIO (the Union), an amended
consolidated complaint was issued by Region 3 of the
National Labor Relations Board on April 7, 1983, against
BASF Wyandotte Corporation (Respondent).
The complaint alleges essentially that Respondent uni-
laterally (a) modified its collective bargaining agreement
with the Union by failing to honor a provision which
provided for the payment by the Respondent for time
spent by union officers in performing "union business,"
other than authorized meetings with Respondent's offi-
cials, (b) promulgated a rule requiring that certain em-
ployees who use respirators must refrain from wearing
facial hair, and disciplined certain employees in enforce-
ment of the rule, and (c) modified the "grievance resolu-
tion practice" by restricting the, Union's means of com-
munication and investigation, all in violation of Section
8(a)(5) of the Act.
The complaint also alleges that Respondent (a) issued
an oral warning to employee Roger Scales,in violation of
Section 8(a)(3) of the Act, (b) is seeking a remedy in a
U.S. district court action that Joseph-La Mountain and
Scales withdraw certain Board charges, in violation of
Section 8(a)(4) of the Act, and,(c) reduced the work
hours of La Mountain and Scales, in violation of Section
8(a)(3) and (4) of the Act.
Respondent's answer denies the material allegations of
the complaint.
The case was heard on April 11-14 and May 9, 1983,
in Albany, New York.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by all parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Michigan corporation, having its princi-
pal office and place of business at 100 Cherry Hill Road,
Parsippany, New Jersey, and a plant located at 36 River-
side Avenue, Rensselear, New York, is engaged in the
manufacture, sale, and distribution of chemicals and re-
lated products. During the past year, in the course of its
operations, Respondent purchased and received chemi-
cals and other goods valued in excess of $50,000 directly
from suppliers located outside New York. In the same
period, in the course of its operations, Respondent manu-
factured, sold, distributed, and shipped products valued
in excess of $50,000 directly to purchasers located out-
side New York.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
278 NLRB No. 28
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent purchased its facility from GAF Corpora-
tion on April 1, 1978. GAF and the Union had a collec-
tive-bargaining relationship for many years. On its pur-
chase of the facility, Respondent recognized the Union
and engaged in collective-bargaining negotiations , as will
be discussed , infra.
Respondent employs about 380 employees at its facili-
ty, of which about 210 are represented by the Union in
the unit involved. Local 227 is composed entirely of em-
ployees employed by Respondent.
There are two main areas of dispute out of which the
complaint allegations arise.
The first is the elimination of the contractual provision
for paid time during which union officials could perform
union business . Related to that main issue is (a) the al-
leged modification of the grievance resolution practice
by restricting the Union's means of communication and
investigation, (b) the alleged reduction of work hours of
two union officers, and" (c) the U.S. district court action
seeking a remedy that the two union officers withdraw
certain Board charges.
The second is the promulgation by Respondent of a
rule requiring that certain employees who use respirators
must refrain from wearing facial hair. Related to that
main issue is (a) the enforcement of the rule and disci-
pline of certain employees who failed to comply with it,
and (b) an oral warning issued to a union official arising
out of his conduct at a meeting with Respondent relating
to that rule.
The various allegations will be discussed under two
broad headings.
B. The Union Time Issue
1. The failure to honor the contractual provisions
Pursuant to the collective-bargaining agreement be-
tween GAF and the Union, the union president and sec-
retary, who were both employees of GAF, received an
aggregate of 6 paid hours per day within which they
could conduct union business on company property.
From April 1, 1978, when Respondent purchased the fa-
cility, to August 1978, when Respondent reached agree-
ment With the Union on a new contract, the two union
officers continued to receive an aggregate of 6 paid
hours per day for the conduct of union business on com-
pany property.
During the negotiations for a new contract which
began in late June 1978, Respondent sought to eliminate
completely the paid union time provision. Union Interna-
tional Representative Paul Obermayeri told Respond-
ent's officials that if the clause were eliminated the "day
to day operations of grievances will bury you."
The negotiations resulted in the modification of the
provision to permit an aggregate of 4 hours' paid union
time. The relevant clauses as set forth in the 1978 agree-
i Obermayer is not an employee of Respondent. He is" an employee of
the International Chemical Workers Umon , AFL-CIO.
ment2 and continued in the 1981 agreement3 are as fol-
lOWS:4
Article II, Section 4-Union Representatives5
Official representatives of the union shall be permit-
ted time as necessary during scheduled working
hours to attend meetings with the Company. Repre-
sentatives released for these purposes shall be paid
for time spent in attending meetings with the Com-
pany to the extent that time spent at these meetings
is during their regularly scheduled working hours
6
The Company will permit the union president
and/or secretary time off to an aggregate of four (4)
hours each day for the purpose of conducting union
business during normal working hours on company
property, and will pay the time at the regular
straight time hourly rate . . . .7
The provision set at issue here is the third paragraph
of article II, section 4, set forth above, dealing with pay-
ment to the union president and/or secretary for 4 hours
daily for the conduct of union business (union time or
union-time clause). The second paragraph of article II,
section 4, involving payment for time spent in meetings
with Respondent, has continued to be honored by Re-
spondent and is not at issue here.
During the negotiations for the 1978 and 1981 con-
tracts, there was no discussion regarding what activities
could be performed by the union president and secretary
while on their 4 hours' paid union time.
There was an office with a telephone located near the
Respondent's personnel office for some time prior to
April 1982, which the union president and secretary used
during their paid union time. About April 1982, the Re-
spondent told the Union that it was obtaining a new
phone system, was consolidating telephones, and was re-
moving unnecessary ones including the phone in that
office. The Union was also told that one reason for the
removal of the phone was that it was not wise to have
the Respondent's phone number listed on an information
card issued by the Union which contains the names of
the officers of the Union, questions and answers concern-
ing job problems, and benefits of union membership.
About 1 or 2 weeks later the phone was removed despite
Union Official La Mountain's offer to pay for its use.
About the same time, Respondent advised the Union that
it could not legally provide that office and requested that
it be vacated. La Mountain offered to pay- rent for the
space. Respondent's works control manager, Ronald
Cole, replied that the office would be utilized for an ex-
panded smoking area and that no other space was avail-
able. The union president and secretary thereafter took
2 The 1978 contract ran from August 27, 1978, to August 28, 1981
3 The 1978 contract runs from August 28, 1981, to August 31, 1984
4 The 1981 agreement was modified in a manner not material herein
5 Par. 1, not being relevant, had been omitted
fi This is par 2, art II, sec 4.
7 This is par. 3, art II, sec 4.
BASF WYANDOTTE CORP.
their paid union time in the cafeteria or in other areas of
the plant.8
There is no allegation that by removing the phone and
office, the Respondent violated the Act.
Until September 7, 1982, the union president and sec-
retary each worked 6 'hours per day, from about 7:30
a.m. to 1:40 p.m., and then took their paid union time
from 2 to 4 p.m. Prior to September 7, 1982, such union
time would be spent in attending meetings in the person-
nel office with Respondent's personnel and labor rela-
tions officials regarding grievances, in meeting with su-
pervisors and employees in the cafeteria and elsewhere
on the premises concerning grievances, potential griev-
ances, and problems on the job, and meeting with Re-
spondent's supervisors regarding actual or potential
grievances.
The current contract provides for a grievance proce-
dure, with a grievance being defined as "any dispute or
difference arising out of the specific terms of this agree-
ment." According to the contract, a grievance, in order
to be timely, "must be raised within 10 working days of
the date the claimed- grievance first occurred." The first
step of the grievance procedure provides that "the griev-
ant accompanied at the grievant's option by the designat-
ed union representative shall discuss the matter orally
with the grievant's immediate supervisor."
Steps 2 and 3 provide for the filing of a written appeal
and attendance at a meeting of union and Respondent's
representatives. The final step is arbitration by the Feder-
al Mediation and Conciliation Service.
On September 7, 1982, Union President Joseph La
Mountain and Union Secretary Roger Scales attended a
meeting with Respondent's works control manager,
Ronald Cole, at which Cole gave them a letter, dated
September 3, 1982, which stated:
We have been advised by council [sic] that pay-
ment for union representatives except for time spent
in meetings with management is a misdemeanor
under Section 302 of the Taft-Hartley Act, and vio-
lates Section 8(a)(2) of the National Labor Relations
Act. We have been told that your acceptance of
such payment is also a violation of 302 and a misde-
meanor under the Act as quoted below:
Sec. 302. (a) It shall be unlawful for any employ-
er or association of employers or any person who
acts as a labor relations expert, adviser, or consult-
ant to an employer or who acts in the interest of an
employer to pay, lend, or deliver, or agree to pay,
lend, or deliver, any money or other things of
value-
(1). to any representative of any of his employees
who are employed in an industry affecting com-
merce; or
(2) to any labor organization, or any officer or
employee thereof, which represents, seeks to repre-
sent, or would admit to membership, any of the em-
ployees of such employer who are employed in an
industry affecting commerce;
S There was a telephone in the cafeteria which was used by the Union
but about the summer of 1982 that phone was removed
175
(3) to any employee or group or committee of
employees of such employer employed in an indus-
try affecting commerce in excess of their normal
compensation for the purpose of causing such em-
ployee or group or committee directly or indirectly
to influence any other employees in the exercise of
the right to organize and' bargain collectively
through representation of their own choosing; or
(4) to any officer or employee of a labor organi-
zation engaged in an industry affecting commerce
with intent to influence him in respect to any of his
actions, decisions, or duties as a representative of
employees or as such officer or employee of such
labor organization.
(b)(1) It shall be unlawful for any person to re-
quest, demand, receive, or accept, or agree to re-
ceive or accept, any payment, loan, or delivery of
any money or other thing of value prohibited by
subsection (a).
Therefore effective September 13, 1982 we are
no longer able to provide paid time under Article 2,
Section 4 except for time spent in meetings with
management , which have been authorized by
Human Resources and which occur during your,
regular scheduled working hours.
The law does not prohibit our releasing you
without pay for the time provided for in Article 2
section [sic] and I ask that you let me know by Sep-
tember 10, 1982 if you would prefer to take the
time or to work the hours involved. For operational
reasons this decision must be fixed as we cannot
change from day to day.
Prior to receipt of the letter, the Union had no notifi-
cation that Respondent was considering this action.
In other words,' Respondent refused to honor the third
paragraph of article 2, section 4 of the contract permit-
ting them to be paid for the conduct of union business up
to 4 hours. The second paragraph, providing for pay for
time spent in meetings with management, remained in
effect.
At the meeting, Cole told La Mountain and Scales that
after that week they would no longer be paid for non-
prescheduled direct meetings with Respondent, and
added that they could either work 8 hours, per day and
not take union time, or take 2 hours' union time without
pay.
The following week, La Mountain and Scales worked
8 hours on certain days and on other days each took 2
hours' union time which was not paid by Respondent
unless they were attending meetings with management.
Since September 7 there has been no paid union time
for other than scheduled meetings with Respondent's of-
ficials.
On September 27 Union Attorney Dominick Tocci
sent a letter to Cole which stated his client's belief that
the contractual clause at issue was legal and warned that
if Respondent did not honor it, the Union would take ap-
propriate legal action, including a Board proceeding.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Alleged restriction of means of communication
and investigation
On September 29 La Mountain and Scales met with
Jerry Marshall , Respondent's human resources supervi-
sor, who was the assistant to Jane Wittig, the human re-
sources manager . La Mountain informed Marshall that
he was advised by counsel that the contractual clause at
issue was legal and that he and Scales would be taking
the contractually prescribed aggregate of 4 hours' union
time each day until further notice . La Mountain told
Marshall that he and Scales were available to meet with
him and Wittig on a daily basis from 2 to 4 p.m., adding
that it was imperative that such meetings be held so that
certain problems could be discussed . La Mountain fur-
ther told Marshall that if he and Wittig were unavailable,
they (La Mountain and Scales) would continue to talk to
employees , stewards, and supervisors regarding problems
and they would "walk around" talking to supervisors
concerning grievances. He also threatened to file a
charge with the Board if the union-time clause was not
honored.
On October 5 Respondent's official, Cole, met with La
Mountain and Scales and ' gave them a letter which
stated , inter alia, that:
You are reminded (as you have previously been
informed) that the Company has designated only
the following people as its authorized representa-
tives to deal with the union through its officers:
Mrs. Wittig and Mr . MarshalL Any attempt to seek
out supervisors to deal with labor relations matters
is a clear attempt to circumvent our appointed rep-
resentative , thereby attempting to dictate to us who
will represent the Company . Such conduct consti-
tutes bad faith bargaining and is an attempt to re-
strain and coerce the Company in the selection of
its representatives for the purpose of collecitve bar-
gaining and the adjustment of grievances in viola-
tion of the National Labor Relations Act.
You are also reminded that Article IV of our
labor agreement prohibits interferences with work.
Because you have announced an express intent to
meet with supervisors , which you know is unau-
thorized and which would result in interfering with
their work and plant operations, you are hereby
warned that such conduct is a violation of Article
IV and, as such, subject to discipline including pos-
sible discharge.
The Company will make itself available on a
scheduled basis at reasonable times and places to
meet its obligation to bargain under the law. You
should contact Mrs. Wittig or Mr . Marshall for pur-
poses of scheduling necessary meetings,
Because you have rejected our offer of work,
please be advised that the Company withdraws this
offer, which would have allowed you to work in-
stead of taking the contractual union time allowed
for in Article II, Section 4. Therefore, you will not
be included on the afternoon work schedule. You
will 'punch , out immediately following your sched-
uled work time on your regular building clock. rate manager of labor relations and legal services of Respondent
To avoid interference with plant operations, for
insurance and safety reasons and because you will
not be at work, you are to limit your release time
location to the cafeteria unless otherwise authorized
by Mrs. Wittig or Mr. Marshall.
Your grievance insisting that the Company-make
payments to you as a union representative that are
illegal and a criminal misdemeanor and your`persist-
ence in demanding that the Company commit a mis-
demeanor , is not only a criminal violation but bad
faith bargaining . Since you have been warned, you
are also in a knowing violation of the criminal law,
Mr. Tocci's letter notwithstanding.
I am surprised that in these difficult economic'
times you would choose to make an issue out of this
matter. This whole process is non-productive, does
nothing for our employees, and seeks only to serve
the union 's individual interest.
La Mountain conceded , that when he told Cole that he
would meet with supervisors , Cole appeared surprised, as
if he were not aware that La Mountain had been meeting
with supervisors , and it was La Mountain 's opinion that
Cole did not know about such meetings.
La Mountain stated that when an employee came to
him with a potential grievance , he would investigate the
problem quickly in view of the 10-day time limit on
filing grievances . He testified without contradiction that,
as part of such investigation, he met with supervisors,
not on working time , to determine their version of the
event in question and, based on the investigation , a deci-
sion was made whether a grievance should be filed. La
Mountain further noted that he has participated in some
step I grievances.
La Mountain and Scales continued to each take 2
hours' unpaid union time daily.
3. Alleged reduction of work hours
On October 7, La Mountain requested permission to
work a full 8 -hour day instead of working 6 hours and
taking 2 hours ' union time which was not paid by Re-
spondent. Such permission was refused.
On October 15 the instant charge was filed alleging
the abrogation of the union -time clause in dispute.
On November 16, at an unrelated arbitration hearing,
La Mountain asked Henry Kramer9 When Respondent
would pay him and Scales for union time, adding that
the Union would prevail in an arbitration on the issue.
Scales was also present . Kramer replied that an arbitra-
tor and the Board have no jurisdiction to decide a ques-
tion involving a violation of Section 302'. Kramer further
said that if they do not watch what they are doing, and
if they continue to push the matter with the Board and
arbitration , they would find themselves in serious legal
trouble , adding that criminal charges could be filed, and
that "people go to jail, not companies." Kramer did not
testify.
9 It was stipulated that on December 16, 1982, Kramer was the corpo-
BASF WYANDOTTE CORP.
In December Scales requested permission to work 8
hours and was refused . He filed a grievance.
On January 17, 1983, La Mountain began work on the
midnight to 8 a .m. shift and did not take union time
thereafter. 1 ° He resigned , as union president on March
15, 1983.
On January 24, 1983, Scales' supervisor, told him he
was required to take 4 hours' union time daily , apparent-
ly because La Mountain did not take any union time
after his transfer to the midnight shift. Accordingly,
Scales worked 4 hours and took 4 hours' union time
daily.11 Thereafter, Scales requested to work a full 8-
hour day but was refused . Consequently , Scales worked
a 4-hour day until March 16, 1983, when Nicholas Crudo
became the president of the Union. Thereafter, Scales
and Crudo have each worked 6 -hour days and have each
taken 6 hours' union time daily-the union time not
being paid by Respondent.
4. The district court action
On December 21, 1982, Cole told La Mountain and
Scales that he was informing them as a "courtesy" that
they would be receiving a summons for their "two-
pronged attack" against Respondent, specifically the
filing; of a grievance and a Board charge about the union
time issue.
On December 20 a civil action was filed by Respond-
ent in the U.S. District Court for the Northern District
of New York against the Union, and against La Moun-
tain and Scales as union president and secretary, respec-
tively, and in their individual capacities. The suit seeks a
declaratory judgment that (a) the union-time clause vio-
lates Section 302 of -the Labor Management Relations
Act and (b) the payments received by La Mountain and
Scales violate Section 302, and seeks as a remedy that
the court direct that La Mountain and Scales (1) repay
all the sums received from Respondent, and (2) "rescind
all action and take no further action to force the Compa-
ny to make such payments, including but not limited to
withdrawing the National Labor Relations Board
charges and Union grievances."
The case is pending before the court.
C. The Respirator Seal Rule
1. Background relating to the rule
The parties' current and past collective-bargaining
agreements provide for a safety committee, consisting of
four unit employees and Respondent's representatives,
which is to meet about monthly to make recommenda-
tions on safety matters and conditions and review the
status of prior recommedations. "The Committee's re-
commedations may be based on periodic scheduled plant
10 in fact, when Respondent refused to pay the union president and
secretary for union tune, the Union began making such payments and
continued to do so
11 There was no evidence that La Mountain was unable to take the
union time because of his change of shift Scales rejected Wittig's offer to
have Michael O'Sullivan take 2 hours' union time so that Scales need also
take only 2 hours ' union time . To do so,' O'Sullivan would have to be
named as acting president of the Union Scales was unwilling to have
O'Sullivan involved in the Federal court lawsuit.
177
inspections and will also include specific proposals for
future safety training and education needs ." Safety com-
mittee members are paid for their time in attending meet-
ings. Many safety issues were resolved in the course of
the meetings.
Scales conceded that Respondent is not required to
accept any recommedations made by the safety commit-
tee. Moreover, from July 1982 to December 1982, the
Union 's safety committee representatives refused to par-
ticipate in committee meetings , withdrew from it, and, as
a result , there were no safety committee meetings held
during that period of time.
Booklets entitled "General Safety Rules and Plant
Regulations," effective since at least 1977, when GAF
operated the facility, and reissued in 1981 and 1982 by
Respondent, provide generally for the wearing of ap-
proved respirators "or other special protective equip-
ment . . . where indicated in the process , or when in-
structed to do so by a member of supervision."
In addition, a list of 34 rules were posted in the plant
when GAF operated it and have remained posted
through Respondent 's ownership . The list includes a pro-
hibition against disregarding or violating safety rules and
regulations , violations of which may lead to discipline or
discharge . The document states that the listed rules may
be supplemented at any time.
The issue of a rule prohibiting the wearing of facial
hair when using respirators was first raised in July 1950
at a meeting of the safety committee . Respondent Offi-
cial Cole stated that he was interested in starting such a
program . Union Official Scales replied that he did not
see a need for such a program adding that a fitness test
was required before any such rule was implemented. The
following month the Union made a request for informa-
tion. A couple of weeks later Scales met Cole in a bar.
Cole offered to give Scales monthly monitoring results
of respirators in use , and Scales agreed to accept them.
Scales did not pursue the information request.
In August 1980 , a respirator fitness test was given to
unit and supervisory employees . Two employees failed
the test-one because of facial hair . He was asked to
shave and he did.12 One of the items on the agenda of
the safety committee on August 27, 1980, was the "site
respiratory protective equipment program modification."
2. Implementation of the rule and its enforcement
Apparently the facial hair issue was not raised again
until late April 1982, when Cole announced at a meeting
with La Mountain and Scales that Respondent was inter-
ested in making a decision on the issue as to implement a
no-beard policy that was in effect at Respondent's other
locations . Cole asked for suggestions from La Mountain
and Scales . La Mountain replied that the issue had been
raised before (apparently referring to the 1980 events)
and that Respondent had not demonstrated a need for a
no-beard policy, but that he and Scales would discuss the
issue with Respondent.
12 The other employee, who had no facial hair, failed the test because
the respirator mask did not fit due to the size and shape of his head.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In early May 1982, Cole told La Mountain and Scales
that he was under pressure to implement a respirator seal
rule. He stated that he wanted to put into effect such a
rule in only certain plant buildings. La Mountain replied
that there was no need for the rule but that they would
discuss it. Cole replied that the manufactures of the res-
pirators claim that in "upset" conditions the seals around
the face may not be effective if the user has a beard. Fol-
lowing the meeting , on May 6, 1982, the Union present-
ed Respondent with an extensive request for information
relating to respirators and a prospective respirator
rule.13
On Friday, May 21, 1982, Cole told La Mountain and
Scales at a meeting that, after having carefully consid-
ered the concerns of the Union and employees and the
Respondent's concern for the safety of its employees, a
respirator seal rule was being implemented. Copies of the
rule were given to La Mountain and Scales. It provides
as follows:
[a]ny employee whose job may, on occasion, necessi-
tate the wearing of respiratory protective equipment,
must refrain from wearing any growth of hair
which could come between the wearer's skin and
the sealing surface of such equipment at all times
while at work.
Cole told the two men that the rule would be distrib-
uted to employees on Monday, May 24, and that they
were being given an opportunity to see it in advance.
However, Cole told them that the document was compa-
ny property and he wanted it returned because he did
not want it seen by employees before its distrubution on
Monday. La Mountain read the rule, chuckled, and said:
"You've got to be kidding." Scales read it, said, "This is
bullshit," tore it, and threw it into a garbage can in
Cole's office. Scales asked Cole if he would answer the
Union's May 6 request for information. Cole replied that
Respondent has the right under the contract to make and
enforce rules and, because this was such a rule, a request
for information concerning a plant rule need not be an-
swered.
The new rule was distributed to employees on
Monday, May 24, 1982.
The complaint alleges, and the answer admits, that
since June 9, 1982, Respondent, in enforcement of the
new respirator seal rule , disciplined five named employ-
ees.
3. The oral warning given to Scales
On June 1, 1982, Cole issued an oral warning to Scales
for his conduct at the May 21 meeting. The oral warn-
ing, which is the least severe form of discipline available,
was memorialized in writing, as follows:
Nature of Violation: Improper conduct (Destruction
of company property)
We want you to understand that the conduct you
displayed at the meeting held on Friday, May 21, at
which the Company extended to you the courtesy
of an advance look at certain Company materials to
be distributed later, was totally unacceptable.
After having been told specifically that we
wanted the packet of materials returned to us after
you had an opportunity to read it, you proceeded to
destroy and dispose of the packet in the waste con-
tainer.
It is not the value of the Company property that
is at issue. It is the principal that you have no right
to destroy what you do not own.
Continued conduct of this nature will result in
more severe disciplinary action being taken up to
and including suspension and or discharge.
On issuing the oral warning, Cole told Scales that his
behavior raised the level of antagonism in their meetings
and made it difficult to work together. Scales told Cole
that he believed that the warning was intended to restrict
his behavior, adding that at future meetings he would
feel restricted in his actions.
Analysis and Discussion
A. The Failure to Honor the Union-Time Clause
It is undisputed that the Respondent announced on
September 3, 1982, that it would no longer honor the
union-time clause. The General Counsel alleges that this
conduct violates Section 8(a)(5) of the Act.
Respondent argues that the clause violates Section
8(a)(2) of the Act, and it therefore properly refused to
make payments to employees pursuant to it.
Section 8(a)(2) of the Act makes it an unfair labor
practice for an employer "to dominate or interfere with
the ... administration of any labor organization or con-
tribute financial or other support to it," except, however,
that "an employer shall not be prohibited from permit-
ting employees to confer with him during working hours
without loss of time or pay."
Payments to union officials do not, per se, violate Sec-
tion 8(a)(2) of the Act. The Board has historically looked
at all the facts in the case to determine whether the con-
duct at issue amounts to assistance to or domination of
the Union.
The facts here reveal an aggressive, independent labor
organization which, during collective-bargaining negotia-
tions, lawfully entered into an agreement with Respond-
ent containing the union-time clause which provides for
an aggregate of 4 paid hours per day for the conduct of
union business.
Payments by an employer for time spent on union
business have been found not to violate Section 8(a)(2) of
the Act, 14 on the basis that "they serve to permit an oth-
erwise legitimate labor organization to perform its func-
tions for the benefit of all concerned more effectively
than otherwise might be the case."15 Indeed, the evi-
13 The opening paragraph of the letter states . "With regards to the
recent meeting between the Company and the Union pertaining to the
possible negotiation of a `no-beard' policy we hereby request the follow-
ing information necessary to our bargaining position."
14 Sunnen Products, 189 NLRB 826, 828 (1971); Hesston Corp, 175
NLRB 96 (1969).
15 Sunnen , supra at 828
BASF WYANDOTTE CORP.
dence demonstrates that the union president and secre-
tary utilized the time to investigate complaints and in
certain cases recommend that the employee not file a
grievance.
The Board has stated:
[W]here 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 representative
at arm's length, we have sometimes characterized
benefits of the type found herein merely as friendly
cooperation growing out-of an amicable labor-man-
agement relationship. 16
Respondent takes issue with those cases in which
8(a)(2) violations were not found, on the ground that the
payments there were minor and infrequent, whereas here
the sums paid were substantial, involving the payment of
4 hours pay per day. The answer to Respondent's con-
cern is that the payments- were lawfully made pursuant
to the parties' contract.''
It is clear that the union-time clause constitutes a man-
datory subject of bargaining. It is part of'the parties' col-
lective-bargaining agreement, and any unilateral change
in that clause would violate the Employer's duty to bar-
gain in good faith. It is undisputed that the Union had no
notice, prior to September 7, 1982; that Respondent in-
tended to refuse to honor the union-time clause.
The Board has stated that:
[Wle have found that wages paid ' to 'employees
during the presentation of grievances 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
all the members of the bargaining unit by contribut-
ing to more effective collective-bargaining represen-
tation and thus "vitally- affect" the relations be-
tween an employer and employees.
I therefore find and conclude that Respondent's refusal
to honor the union time-clause and its unilateral elimina-
tion of it violates Section 8(a)(5) of the Act.' 8
B. The Reduction of Work Hours
The complaint alleges that since October 7, 1982, Re-
spondent reduced the work hours of La Mountain and
Scales in violation of Section 8(a)(3) and (4) of the Act.
When the union-time clause was abrogated by Re-
spondent on September 7, 1982, La Mountain and Scales
were given the following choice: (a) work a paid 8-hour
day and not take union time or (b) work 6 paid hours per
16 Duquesne University, 198 NLRB 891 (1972) '
14 1 do not express an opinion whether the union-time clause violates
Sec. 302, as I am 'without jurisdiction to do so Sheet Metal Workers (Cen-
tral Florida Sheet Metal), 234 NLRB 1238 (1978).
18 Axelson, Inc, 234 NLRB 414, 415 (1978). See also Meharry Medical
College, 236 NLRB 1396, 1406 (1978), American Ship Building Co, 226
NLRB 788 (1976) '
179
day and take 2 hours' unpaid union time.19 They were
asked to make that choice and adhere to it because "for
operational reasons this decision must be fixed as we
cannot change from day to day."
On September 29 La Mountain and Scales informed
Respondent that they would, "until further notice," take
the contractually prescribed aggregate of 4 hours' union
time each _day. - -
On October 5 Respondent advised the two men that
because they rejected its offer of 8 hours' work without
taking union time (option "a," above), Respondent with-
drew that offer. La Mountain and Scales accordingly
worked 6 hours and' each took,2 hours' unpaid union
time daily.
On October 7 La Mountain requested and was refused
permission to work an 8-hour day. On October 15 the in-
stant charge was filed. In December Scales requested
and was refused permission to work an 8-hour day.
On January 17, 1983, La Mountain began work on the
midnight shift and did not take union time. On January
24 Scales was directed to take 4 hours' union time daily.
He accordingly worked 4 hours per day and took 4
hours' union time. Scales' renewed request to, work 8
hours was again refused and he worked 4 hours each day
until March 16 when Crudo became union president.
Thereafter, Scales worked 6 hours daily and took 2
hours' union time per day.
La Mountain and Scales each legitimately expected,
and had a right to receive, 8' hours' pay per day from
Respondent. As had occurred prior to the events of Sep-
tember 7, 1982, pursuant to the parties' agreement, La
Mountain and Scales had each worked 6 hours daily, and
had each taken 2 hours' union time daily, for which they
were each paid a total of 8 hours. However, beginning
on October 7, as a direct outgrowth of the unlawful, uni-
lateral conduct of refusing to honor the union-time
clause, La Mountain and Scales were no longer permit-
ted to receive 8 hours pay from Respondent.
Although it is true that Respondent initially offered
the two men an opportunity to work an 8-hour day, that
was done at the expense of their abandoning a contrac-
tual right to be paid for activities pursuant to the union-
time clause. Their initial reluctance to accept that option
is understandable. However, in any event, the option was
withdrawn by Respondent on October' S, and the men
were permitted to work 6 hours only, and later Scales
was authorized to work only 4 hours daily.
I accordingly find and conclude that the reduction of
the work hours of La Mountain and Scales violated Sec-
tion 8(a)(1) and (3) of the Act.
I do not find that this conduct violated Section 8(a)(4)
of the Act inasmuch as it occurred prior to the' filing of
the charges. It is clear that the 'reduction 'of the hours
was implemented as 'a' result of the elimination of the
union-time clause and not because charges were' filed or
threatened to be filed.
19 Of course if they met with Respondent's authorized officials at ap-
thonzed meetings during their 2 hours' union tune, they would be,paid
for time spent at such meetings. -
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged modification of the grievance resolution
practice
The complaint alleges that since about October 5,
1982, Respondent unilaterally modified the grievance res-
olution practice by restricting the Union's means of com-
munication and investigation in violation of Section
8(a)(5) of the Act.
After being told that they would no longer be paid
pursuant to the union-time clause , but would only re-
ceive payment for authorized meetings with manage-
ment, La Mountain and Scales, on September 29, told
Respondent's official that if management's officials were
unavailable, they would continue to "walk around" talk-
ing to supervisors, employees, and stewards concerning
grievances.
On October 5 La Mountain and Scales were restricted
to the cafeteria during union time and were also prohibit-
ed from speaking with supervisors.
The General Counsel argues that such restrictions con-
stitute a unilateral change of an existing practice regard-
ing union time and the contractual grievance proce-
dure-the alleged practice being the unrestricted walking
about the plant by the union president and secretary
during which they spoke to employees, supervisors, and
stewards regarding problems, potential grievances, and
actual grievances.
Respondent argues that (a) no past practice was
proven, (b) it was not aware of any such practice, and
(c) the contract does not provide for such a practice, and
indeed expressly states that past practices are not binding
on it unless agreed to in writing.
The General Counsel does not rely on the contract20
but relies on the alleged past practice which permitted
unrestricted access to the plant and supervisors, during
work hours, by the union president and secretary who
were then conducting their activities pursuant to the
union-time clause.
The testimony of La Mountain and Scales was quite
vague and occasionally unresponsive when, on cross-ex-
amination , they were asked specific questions regarding
the nature and extent of their discussions and meetings
with supervisors while on union time. Moreover, it is un-
disputed that Respondent's officials were unaware of
their activities while on union time, including any discus-
sions with supervisors. It is implicit in establishing a past
practice that the party which is being asked to honor it
be aware of its existence.21
Moreover, the parties negotiated and included in their
contract an extensive "complete agreement" clause
which abolishes past practices as follows:
20 See Dow Chemical Co, 215 NLRB 910, 916 (1974), in which the
Board noted that when the contract, as here, provided that employees
must first state their grievance to their-unmediate supervisor, in or out of
the steward's presence at the employee's option, such a provision consti-
tuted a waiver of the union's right to be present at the initial step of the
grievance procedure.
21 The following cases involving past practices all involved situations
where the employer was aware of and acquiesced in it: Mead Corp, 256
NLRB 686, 694 (1981), Smyth Mfg. Co, 247 NLRB 1139, 1153 (1980);
Peerless Food Products, 236 NLRB 161 (1978)
This Agreement contains the complete agreement
between the parties and any and all past practices,
memoranda of understanding, and written side
agreements not incorporated herein are void as of
August 28, 1981. No new practice shall be consid-
ered binding on the Company unless reduced to
writing and signed by the Company's Employee
Relations Manager and these written agreements
shall not be binding beyond the expiration of the
underlying labor agreement. The Company retains
those rights not expressly limited-by this agreement.
Accordingly, the alleged past practice, not having
been proven, and in any event not being recognized by
virtue of the complete agreement clause, was not elevat-
ed to a term of employment, and was therefore suscepti-
ble to unilateral change.
It should be observed that, even assuming a past prac-
tice has been proven,
[n]ot every unilateral change in work, or in this
case access, rules constitutes a breach of the bar-
gaining obligation. The change unilaterally imposed
must, initially, amount to "a material, substantial,
and a significant" one.22
I do not believe that the restriction imposed on the union
president and secretary had a substantial impact upon
their ability to investigate grievances. They were able to
meet employees and stewards in the cafeteria during
their union time. They had utilized the cafeteria for that
purpose even before the restrictions were imposed on
October 5.23 Although they could not meet with super-
visors, they still had meetings with management officials
for which they were paid, and although the number of
such meetings has declined, there is no evidence that
such reduction in the number of meetings has had an ad-
verse impact on the ability of the union president and
secretary to represent the employees.24
I accordingly fmd that Respondent's imposition of re-
strictions on October 5, 1982, did not violate the Act.
D. The U.S. District Court Action
On December 20, 1982, Respondent filed a civil action
in U.S. district court against the Union and against La
Mountain and Scales as union officers and individually.
The General Counsel alleges as a violation of Section
8(a)(4) of the Act, Respondent 's maintaining that part of
its lawsuit which seeks an order that La Mountain and
Scales withdraw the Board charges. The General Coun-
sel is not alleging as a violation the filing of the action.
The General Counsel claims that by seeking from the
district court an order requiring the withdrawal of the
22 Peerless Food Products, 236 NLRB 161 (1978).
23 I recognize that after October 5 much of their union time was spent
outside the plant in the Union's office Scales stated that they chose this
because they were restricted to the cafeteria and had no phone there. No
grievances were filed concerning the removal of the phone in the cafete-
ria months before.
24 Although certain unmentonous grievances have been filed because
of the Union's inability to learn the supervisor's version of the incident,
the grievance process would not suffer thereby
BASF WYANDOTTE CORP.
charges, Respondent attempts to (a) withdraw from the
Board its jurisdiction to consider whether the elimination
of the union-time clause violates Section 8(a)(5), and to
(b) chill employee desire to utilize the Board for fear of a
lawsuit.
Respondent argues that its attorney, in his professional
opinion, decided that in order to provide a full and com-
plete remedy for the relief requested in the lawsuit and
to avoid the necessity to defend duplicative Board
charges, properly included in the prayer for relief a re-
quest that the charging parties withdraw the Board
charges.
The Supreme Court, in Bill Johnson's Restaurants v.
NLRB,25 recognized that the institution of a lawsuit
against an employee who files Board charges "may be
used by an employer as a powerful instrument of coer-
cion or retaliation." However, the Court held that the
filing and prosecution by an employer of a meritorious
or "well-founded" lawsuit is not an unfair labor practice
even if the suit was commenced in retaliation for the em-
ployee's filing a charge against the employer.26 The
Court also held that an unfair labor practice may be
found where the employer prosecutes a "baseless" law-
suit with the intent of retaliating against an employee for
the exercise of his Section 7 rights.
In determining whether a lawsuit is baseless or lacks a
reasonable- basis, the Court stated that in a case such as
this, which turns on an issue of law-whether the union-
time clause violates Section 302-the Board "must not
deprive a litigant of his right to have genuine state law
legal questions decided by the state judiciary," It thus
appears that a bona fide legal issue exists.
I accordingly find that the Respondent's lawsuit, in
seeking to determine whether the union-time clause vio-
lated Section 302, has a reasonable basis.
The General Counsel does not allege that the filing of
the district court suit violates the Act, but rather asserts
that Respondent's maintenance of that part of the action
seeking an order requiring withdrawal of the charges
violates Section 8(a)(4). I cannot agree. Inasmuch as the
filing of the suit has a reasonable basis in that it seeks a
declaratory judgment on a genuine legal issue concerning
the validity of the union-time clause , it cannot be said
that part of the remedy sought in the action-the with-
drawal of the charges-lacks a reasonable basis. The
withdrawal of the charges was only part of the remedy
requested, which also included a withdrawal of the
grievances filed relating to the union-time clause, and
was properly included in an attempt to obtain a complet-
ed remedy in the event the union-time clause was held to
violate Section 302.
I do not find that the lawsuit was instituted in retalia-
tion for the filing of the charge on October 15, 1982, re-
lating to the union-time clause . In support of his argu-
ment that retaliation was the motive, the General Coun-
sel points to 'the comment made by- Respondent's official,
Kramer, on November 16, 1982, to La Mountain and
25 461 U S. 731 (1983)
26 Although Bill Johnson's involved a state court suit, it would appear
that the basic reasoning applies to a suit brought in Federal court, as is
the situation here
181
Scales , that if they continued to press the union-time
issue with the Board and at arbitration they would find
themselves in serious legal trouble, criminal charges
could be filed and that people go to jail; not companies.
The General Counsel also asserts, that unlawful motiva-
tion is shown in the December 21, 1982 statement by
Cole to the two men that they would receive a summons
and complaint because of the Union's two-prong
attack-the filing of the Board charge and grievance
concerning the union-time clause.
Rather, I find that the lawsuit was commenced by Re-
spondent in a good-faith attempt to determine the validi-
ty of the union-time clause, and not to retaliate against
La Mountain and Scales for filing the' charge alleging
Respondent's refusal to honor it. Thus, on September 3,
1982, 6 weeks before the filing of the charge, and 10-1/2
weeks before the November 16 comment by Kramer,
Respondent made clear in its letter to La Mountain and
Scales that it regarded the payment of money pursuant
to the union-time clause to be an unlawful misdemeanor.
This was restated in a letter dated October 5. Its position
was therefore made clear long before the charge was
filed. The comments by Kramer and Cole, moreover, do
not show that the filing of the lawsuit or the mainte-
nance therein of a request for a remedy seeking with-
drawal of the charges, was done in order to retaliate
against them for filing charges with the Board.
I accordingly find and conclude that Respondent has
not violated the Act by its institution and maintenance of
a civil action in U.S. district court in which it seeks "that
the Court direct the defendants, La Mountain and Scales
... to withdraw the National Labor Relations Board
charges .. .."
E. The promulgation and enforcement of the respirator
seal rule
The complaint alleges that on May 24, 1982, Respond-
ent ' promulgated a respirator seal rule which had the
effect of prohibiting the wearing of facial hair for those
employees "whose job may, on occasion, necessitate the
wearing of respiratory protective equipment." The Gen-
eral 'Counsel alleges that the institution of the rule vio-
lates Section 8(a)(5) because it was put into effect with-
out ,prior notice to the Union and without affording it' an
opportunity to negotiate and bargain regarding the rule.
Respondent conceded during the hearing that it did
not 'negotiate to impasse with the-Union regarding imple-
mentation of the respirator seal rule . However it asserts
that the management-rights clause of the contract gave it
the authority to institute the rule.
The clause is as follows:
RECOGNITION OF MANAGEMENT'S
FUNCTIONS
The Union recognizes that except as expressly
limited by this agreement, the management of the
employees, the direction of the work force and the
operation of the plant are vested in the employer
and shall not be the subject- of arbitration. The
Union further recognizes that as an aspect of such
management rights, the employer may make and en-
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
force such rules as the Company may deem neces-
sary or proper for the conduct of its employees, and
the operation of the plant, except to the extent that
such rulings may conflict with the provisions of this
agreement.
An employer is obligated to bargain, pursuant to Sec-
tion 8(d) of the Act as to "other terms and conditions of
employment." Work rules, particularly when penalties
are prescribed for their violations, are included within
that phrase.27 In a recent case not involving the issue of
a union waiver, the Board held that an employer's unilat-
eral adoption of a no-facial hair rule with respect to the
wearing of respirators violated the Act.28
Thus the issue is simply whether, by virtue of the col-
lective-bargaining agreement, the Union waived its right
to bargain about the'implementation of the rule.
In evaluating Respondent's waiver argument, I have
also considered the principle that a waiver "will not be
lightly inferred but must be clearly evidenced either by
the terms of the parties' collective-bargaining agreement
or in the nature of the prior contract negotiations."29
Respondent asserts that it had the right to implement
the respirator seal rule by virtue of the management-
rights clause by which "the union recognizes that .. .
the management of the employees, the direction of the
work force and the operation of the plant are vested in
the employer .:. and that as an aspect of such manage-
ment rights, the employer may make and -enforce such
rules as the Company may' deem necessary or proper for the
conduct of its employees and the operation of the plant." I
agree with Respondent. Respondent had in effect, at
least since 1981, general safety rules and plant regula-
tions which provide essentially for the wearing of ap-
proved respirators "where indicated in the process or
when instructed to do so by a member of supervision."
In addition, a list of rules posted since Respondent began
operating the plant includes a prohibition against disre-
garding or violating safety rules and regulations, viola-
tion of which may lead to discipline or discharge. The
document states that the listed rules may be supplement-
ed at any time.
When viewed in the light of the general safety rules
and plant regulations, and the posted rules, both of
which the Union was aware of at the time of the con-
tract negotiations, I must conclude that the broad right
given to Respondent to "make and enforce such rules as
the Company may deem necessary or proper for the con-
duct of its employees and the operation of the plant"
constitutes a waiver of its right to bargain concerning
the implementation of the respirator seal rule.30
The General Counsel urges that Respondent lacks suf-
ficient justification for imposing the rule, asserting that
the two reasons given for the need for the rule-manu-
facturers' recommendations and upset conditions-are in-
sufficient. This argument is irrelevant inasmuch as the
Union has contractually waived its right to bargain about
the imposition of the rule. Moreover, I cannot find any-
27 Southern Florida Hotel Assn., 245 NLRB 561, 567 (1979).
28 Hanes Corp, 260 NLRB 557, 561 (1982)
29 Southern Florida, supra at 567-568.
30 Castle Pierce Printing Co., 251 NLRB 1293, 1303 (1980)
thing in the bargaining negotiations for the 1978 or 1981
contracts which supports the General Counsel's posi-
tion.31
I cannot agree with the the General Counsel's argu-
ment that assuming that the Union waived its right to
bargain concerning the implementation of the clause, it
must first be submitted to the health and safety commit-
tee for its resolution before being lawfully implemented
by Respondent. The evidence clearly demonstrates that
the committee is advisory only. It only has the power, as
set ` forth in the contract, to make recommendations to
Respondent, which may or may not be followed. In the
past the Union has withdrawn from the committee and
no meetings were held, apparently- because of that, for
several months. Under-these circumstances, it cannot be
found that the respirator seal rule must first be resolved
by the health and safety committee.
I accordingly fmd and conclude that Respondent did
not violate Section 8(a)(5) of the Act by its implementa-
tion of the respirator seal rule . Its admitted enforcement
of the rule, involving discipline to five employees named
in the complaint, must therefore be also found not to vio-
late the Act.
F. The Oral Warning Issued to Scales
The General Counsel alleges that the oral warning
issued to Scales violates the Act. I agree.
The warning was issued for the destruction of compa-
ny property. The only property destroyed was a copy of
the new respirator rule and perhaps certain accompany
documents relating to the rule. Thus, this was not a case
where Scales destroyed materials for production or arti-
cles related to his work product.32
Indeed, Respondent concedes that the value of the
property destroyed is not at issue, and it does not appear
that Respondent would have disciplined any of the 210
unit employees to whom it distributed the rule if they
discarded it in the same manner as Scales did after they
received it on May 24. Thus, the only reason that Scales
was disciplined was because of his conduct in destroying
the papers while at a meeting with Respondent in his ca-
pacity as union secretary.
The Board has long held that while, employees
are engaged in collective bargaining, including the
presentation of grievances, they are essentially insu-
lated from discipline for statements made to man-
agement representatives which, if , made in other
contexts, would constitute insubordination.33
The Board stated in Bettcher Mfg. Corp.:34
31 In the 1978 negotiations, the Unibn was told that the management-
rights clause was needed to show the. German owners of the plant and
that it would not be used to hurt the Union. The same clause was includ-
ed in the 1981 contract notwithstanding that the Union attempted to
obtain a modification of it
32 Sant-Sere, 252 NLRB 1336, 1338 (1980), cited by Respondent, is
therefore inapposite
33 Ryder Truck Lines, 239 NLRB 1009, 1010 (1978)
94 76 NLRB 526, 527 ( 1948).
BASF WYANDOTTE CORP.
A frank, and not always complimentary, exchange
of views must be expected and permitted the nego-
tiators if collective bargaining is to be natural rather
than stilted . . . . If an employr were free to dis-
charge an individual employee because he resented
a statement made' by that employee during a bar-
gaining conference, either one of two undesirable
results would follow: collective bargaining would
cease to be between equals (an employee having no
parallel method, of retaliation), or employees would
hesitate ever to participate personally in bargaining
negotiations.
Of course, an employee "may engage in conduct
during a grievance meeting which in so opprobrious as
to be unprotected." 35
The question thus raised is whether Scales' conduct on
May 21 in destroying a copy of the rule exceeded per-
missible bounds as established by the Board for an em-
ployee acting as a union secretary engaged in the admin-
istration of a contract.
It is apparent that the reason that Scales was instruct-
ed to return the rule to Cole after reading it was because
Cole did not want it seen by employees prior to its
formal distribution the following Monday. Scales did not
disobey that request. In an act of pique and upset at the
rule, Scales destroyed the paper and threw it in a gar-
bage can in Coles' presence. Nothing else is alleged. As
noted above, similar destruction of the paper, if per-
formed by unit employees after their receipt of the rule
on May 24, would not likely have brought any discipli-
nary action. Indeed, there was no evidence that such em-
ployees were warned that the document was company
property and that they were not to destroy it.
It thus appears that Scales was disciplined for his con-
duct because he was a union official acting in that capac-
ity at a meeting with Respondent's officials. It cannot be
said that his conduct was so outrageous or extreme to
warrant the denial of his statutory protection and the im-
position of discipline for it. On the contrary, it was quite
mild, and was not of insufficient severity, to cause any
discipline, even an oral warning, to be issued to him.
I accordingly find that Scales' conduct at the May 21
meeting was protected and the oral warning issued on
June i violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. Respondent BASF Wyandotte Corporation is and,
at all times material herein, has been an employer en-
gaged in commerce within the meaning of the Act.
2. Local 227, International Chemical Workers Union,
AFL-CIO is a labor organization within the meaning of
the Act.
3. By failing to continue in full force and effect the
terms of article II, section 4 of its collective-bargaining
agreement of August 24, 1981, by failing to honor para-
graph 3 thereof, which, inter alia, permits the union
president and/or secretary paid time off to an aggregate
of 4 hours each day for the purpose of conducting union
business during normal working hours on company prop-
as Hawaiian Hauling Service , 219 NLRB 765, 766 (1975).
183
erty, Respondent violated Section 8(a)(5) and (1) of the
Act.
4. By reducing the work hours of Joseph La Mountain
and Roger Scales since October 7, 1982, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
5. By issuing an oral warning to Roger Scales on June
1, 1982, Respondent violated Section 8(a)(3) and (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Respondent has not violated the Act, as alleged in
the complaint, by: (a) instituting and maintaining a civil
action in U.S. district court in which it seeks "that the
Court direct the defendants, La Mountain and Scales
... to withdraw the Board charges," (b) modifying the
grievance resolution practice by imposing restrictions on
October 5, 1982, upon the Union's access to the plant
and to supervisors, or (c) promulgating and enforcing the
respirator seal rule on May 24, 1982.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order the
Respondent to cease and desist therefrom and to take
certain affirmative action necessary to effectuate the poli-
cies of the Act.
Having found that Respondent has unlawfully failed to
continue in full force and effect the terms of article II,
section 4 of its collective-bargaining agreement of
August 24, 1981, by failing to honor paragraph 3, I shall
recommend that Respondent be ordered to continue to
honor such paragraph 3, the union-time clause, and to
make whole the union president and secretary for any
loss of earnings they may have suffered by reason of its
failure to honor the union-time clause. Having found that
Respondent unlawfully reduced the work hours of
Joseph La Mountain and Roger Scales since October 7,
1982, I shall recommend that Respondent be ordered to
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them.
Backpay shall be computed as prescribed in F W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as set forth
in Isis Plumbing Co., 128 NLRB 716 (1962), and Florida
Steel Corp., 231 NLRB 561 (1977).
On these findings of fact and conclusions,of law and
on the entire record, I issue the following recommend-
ed36
ORDER
The Respondent, BASF Wyandotte Corporation,
Rensselear , New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
36 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
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Failing and refusing to honor article II, section 4,
paragraph 3 of its collective-bargaining agreement of
August 24, 1981, the union-time clause, set forth as fol-
lows:
The Company will permit the Union President
and/or Secretary time off to an aggregate of four
(4) hours each day for the purpose of conducting
union business during normal working hours on
Company property, and will pay the time at regular
basic straight time rate, exclusive of all premiums
and differentials.
(b) Reducing the work hours of Joseph La Mountain
and Roger Scales because of its failure to honor the
union-time clause.
(c) Issuing warnings to Roger Scales because he en-
gaged in union activity.
(d) 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 affirmative action necessary to
effectuate the policies of the Act.
(a) Continue in full force and effect and honor and
abide by article II, section 4, paragraph 3 of its collec-
tive-bargaining agreement of August 24, 1981, the union-
time clause set forth in paragraph 1(a), above.
(b) Make whole the union president and secretary for
any loss of earnings they may have suffered by reason of
its failure to honor the.union-time clause.
(c) Make whole Joseph La Mountain and Roger Scales
for any loss of earnings they may have suffered by
reason of its reduction of their works hours.
(d) Remove from its files any reference to the unlaw-
ful warnings issued to Roger Scales on June 1, 1982, and
notify him in writing that this has been done and that the
unlawful warning will not be used against him in any
way.
(e) 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.
(f) Post at its facility in Rensselear, New York, copies
of the attached notice marked "Appendix."37 Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
37 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to honor article II, section
4, paragraph 3 of our collective-bargaining agreement of
August 24, 1981, the union-time clause, set forth as fol-
lows:
The Company will permit the Union President
and/or Secretary time off to an aggregate of four
(4)"hours each day for the purpose of conducting
union business during normal working hours on
Company property, and will pay the time at regualr
basic straight-time rate, exclusive of all premiums
and differentials.
WE WILL NOT reduce the work hours of Joseph La
Mountain and Roger Scales because of our failure to
honor the union-time clause.
WE WILL NOT issue warnings to Roger Scales because
he engaged in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL continue in full force and effect to honor
and abide by article II, section 4, paragraph 3 of our col-
lective-bargaining agreement of August 24, 1981, the
union-time clause set forth above.
WE WILL make whole the union president and secre-
tary for any loss of earnings they may have suffered by
reason of our failure to honor the union-time clause.
WE WILL make whole Joseph La Mountain and Roger
Scales for any loss of earnings they may have suffered
by reason of our reduction of their work hours.
WE WILL remove from our files any reference to the
unlawful warnings issued to Roger Scales, on June 1,
1982, and notify him in writing that this has been done
and that the unlawful warning will not be used against
him in any way.
BASF WYANDOTTE CORPORATION