Basf Wyandotte Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1985

274 N.L.R.B. 978 (N.L.R.B. 1985)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BASF Wyandotte Corporation and Oil , Chemical
and Atomic Workers International Union. Case
15-CA-9058
15 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 3 May 1984 Administrative Law Judge J.
Pargen Robertson issued the attached decision.
BASF Wyandotte Corporation (BASF) and the
General Counsel filed exceptions and supporting
briefs, and BASF filed an answering brief to the
General Counsel's exceptions.
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 only to the extent consistent with this
Decision and Order.
BASF's production and maintenance employees
at its chemical plant in Geismar, Louisiana, are rep-
resented by the Oil, Chemical and Atomic Workers
International Union and its Local 4-620. BASF ex-
cepts to the judge's conclusions that BASF's dis-
continuance of certain privileges previously grant-
ed to the Union constituted unilateral changes as to
matters that were mandatory subjects of bargaining
and thus violated Section 8(a)(5)1 of the National
Labor Relations Act.2 The General Counsel ex-
cepts to the judge's further conclusion that BASF's
practice of permitting the chairman of the Local's
workmen's committee to spend 4 hours of paid
time each workday conducting union business, in-
cluding grievance processing, was illegal and not a
mandatory subject of bargaining and, therefore,
BASF's unilateral discontinuance of this privilege
did not violate Section 8(a)(5). We find merit in
only the General Counsel's exceptions.
I.
We adopt the judge's finding that BASF's dis-
continuance of privileges that had previously been
granted to the Union was done unilaterally. In ad-
dition, other than the illegality argument, which is
addresed below, there is no contention that these
1 29 US C § 158(a)(5)
2 The changes instituted by BASF that the judge found to violate Sec
8(a)(5) were as follows (1) requiring the Union to cease using an office,
including office furnishings and telephone, previously provided by BASF
to the Union for the purpose of conducting union business concerning the
BASF bargaining unit employees, (2) requiring the Union to cease using
BASF's copying machine, (3) ceasing to pay union committeemen and
the chairman of the workmen's committee for worktime spent meeting
with employees to discuss grievances and complaints, (4) requiring the
chairman and committeemen to obtain the permission of BASF's manager
of human resources (as well as their own supervisors) before engaging in
union business
privileges concerned matters that were not manda-
tory subjects of bargaining, and we adopt the
judge's implicit finding that they were mandatory
subjects. American Ship Building Co., 226 NLRB
788 (1976) (employer's granting of paid time to
stewards to attend to grievances and employer's
providing of office to union for use by employees
held to be mandatory subjects); see Axelson, Inc.,
234 NLRB 414 (1978), enfd. 599 F.2d 91 (5th Cir.
1979) (payment of wages to employees while
taking part in contract negotiations held mandatory
subject). We decline to adopt, however, the judge's
finding as to what motives prompted BASF to in-
stitute these changes and his apparent finding that
BASF made these changes in bad faith, as the ques-
tion of motive is not relevant to the allegation of
unilateral changes in this case.
With respect to BASF's contention that the
Union's privileges that were discontinued by BASF
violated Section 3023 of the Labor Management
Relations Act (LMRA)4 and therefore were illegal
subjects of bargaining, we agree with the judge
that it was proper for him to address the merits of
this contention, but we reach this conclusion for
reasons other than those he stated. As outlined in
part II below, Section 302 generally makes it illegal
for an employer to pay money or other things of
value to a union or union officer, except in limited
circumstances. Authority to restrain violations of
Section 302 and to judge alleged criminal viola-
tions of this section is vested in the United States
district courts by Section 302(d) and (e). The stat-
ute does not authorize the Board to order parties to
cease and desist from violating Section 302, to
enjoin violations of Section 302, or to convict indi-
viduals for criminal violations of Section 302. Thus,
the Board does not have authority to enforce Sec-
tion 302.
Nevertheless, while the Board is not charged by
the statute with responsibility for enforcement of
Section 302, neither does the statute bar the Board,
in the course of determining whether an unfair
labor practice has occurred, from considering argu-
ments concerning Section 302 to the extent they
support, or raise a possible defense to, unfair labor
practice allegations. Moreover, there are substantial
reasons for the Board to entertain such arguments.
If it refused to consider a contention that a con-
tract provision violates Section 302, the Board
would risk placing a party in the position of being
required to comply with two conflicting statutory
mandates: adhere to the contract provision and vio-
late Section 302 or unilaterally cease to honor the
329USC §186
429USC §141-187
274 NLRB No. 147
BASF WYANDOTTE CORP
provision and violate Section 8(a)(5) or 8(b)(3). In
addition, because both Section 302 and the Nation-
al Labor Relations Act, as amended, are encom-
passed in the LMRA, it would be particularly in-
congruous for Section 8 of the National Labor Re-
lations Act to be interpreted and applied in isola-
tion from Section 302 5 Certainly provisions of the
same statute should be interpreted in such a manner
that compliance with one does not result in viola-
tion of another. Finally, as it is part of the LMRA,
the subject matter of Section 302 is not so remote
from matters dealt with by the Board that it is
beyond the Board's competence to interpret. Ac-
cordingly, the Board, in considering whether a
party has violated Section 8(a)(5) or 8(b)(3), has au-
thority to entertain arguments that an unfair labor
practice was, or was not, committed because cer-
tain contract provisions or practices in issue violate
Section 302 and thus constitute illegal subjects of
bargaining. Sheet Metal Workers (Florida Sheet
Metal), 234 NLRB 1238 (1978), is overruled to the
extent it holds to the contrary.6
II.
Having determined that it is appropriate to con-
sider the Section 302 argument, we now turn to
that issue. We conclude, contrary to the judge, that
none of the Union's privileges that BASF terminat-
ed was violative of Section 302. In general, Section
302(a) makes it unlawful for an employer to pay,
lend, or deliver, or agree to pay, lend, or deliver,
any money or other thing of value to, among
others, any representative of his employees, to a
union that represents or seeks to represent his em-
ployees, or to an officer or employee of such a
union. Section 302(b) also makes it unlawful for
any person to request or accept such a payment.
Section 302(c)(1) excepts from these prohibitions
payments by an employer to any representative of
his employees or to any officer or employee of a
union when that person also is an employee of the
employer and the payment is made as compensa-
tion for, or by reason of, his services as an employ-
ee of the employer. In finding violative of Section
302 BASF's practice of allowing the chairman of
the Union's workmen's committee to devote 4
5 The Board has considered the effects of other provisions of the
LMRA in determining whether a violation of Sec 8 has occurred See,
e g , Combustion Engineering, 224 NLRB 542 (1976), where the Board
took into account Sec 502 of the LMRA in determining whether an em-
ployer's discharge of six employees violated Sec 8(a)(1)
6 Both before and after its decision in Sheet Metal Workers, the Board
has considered arguments that various contract provisions violated Sec
302 without questioning its authority to rule on such arguments See
Turnbull Enterprises, 259 NLRB 934, 940 (1982), Starco Farmers Market,
237 NLRB 373 (1978), Wayne's Dairy, 223 NLRB 260, 264 (1976), John
F Boyle Co, 222 NLRB 1309 (1976), New Orleans Public Service, 197
NLRB 725 (1972)
979
hours of paid time per day to union business, the
judge relied on the court of appeals decision in
Iron Workers Local 426 v. Bechtel Power Corp., 634
F.2d 258 (6th Cir. 1981). In that case, an industry
steward fund to which employers were to contrib-
ute was found to violate Section 302 when the
stewards whose compensation was derived from
the fund were not employees of any of the contrib-
uting employers. That case is significantly different
from the one before us, in that here the recipients
of the various privileges extended by BASF were
employees of BASF who served as union stewards,
committeemen, or chairman. These individuals
would not have received these privileges, such as
paid time to attend to grievances of unit employ-
ees, but for the fact that they were employees of
BASF. Accordingly, we conclude that the money
or other things of value that BASF provided in the
way of privileges are encompassed within the ex-
ception set forth in Section 302(c)(1) for payments
made as compensation for, or by reason of, the
services of union officers as employees of the em-
ployer.7 See Employees' Independent Union v.
Wyman Gordon Co., 314 F.Supp. 458 (N.D. Ill.
1970) (employer's payment to employees serving as
union representatives at grievance board meetings
held not to violate Sec. 302); U.S. v. Motzell, 199
F.Supp. 192 (D.N.J. 1961) (employer's payments to
union 's assistant business agent employed by em-
ployer to obtain workers and to discuss grievances
held to be payments as compensation for, or by
reason of, agent's services as employee and not vio-
lative of Sec. 302). We note that a contrary hold-
ing, finding violative of Section 302 the provision
by an employer of privileges such as paid time for
stewards to discuss grievances with employees,
would be inimical to the statutory goal of encour-
aging cooperative labor relations. Moreover, such
privileges in themselves hardly amount to bribery
of employee representatives or extortion of em-
ployers, the evils at which Section 302 is aimed.
See Arroyo v. U.S., 359 U.S. 419, 425-426 (1959).8
7 While this case was under consideration by the Board, a district
court reached the same conclusion in a case involving this respondent
presenting facts virtually identical to those before us BASF Wyandotte
Corp v Chemical Workers Local 227, 591 F Supp 339 (N D N Y 1984)
In that case, BASF brought an action contending that a clause in its con-
tract with a union at its plant in Rensselaer, New York, violated Sec 302
The contract clause provided the union's president and secretary with an
aggregate of 4 hours a day time off with pay to conduct union business
on company property during working hours The court found that the
payments provided for by this clause fell within the exception found in
Sec 302(c)(1) for payments made "by reason of' one's services as an em-
ployee
6 As we conclude that the privileges extended to the Union by BASF
came within the exception provided by Sec 302(c)(1), we need not reach
the judge 's holding that certain of these privileges do not violate Sec 302
because they are of de minimis effect
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III.
Additionally, contrary to BASF's contention, the
Union's privileges that BASF withdrew did not
violate Section 8(a)(2) as unlawful support of the
Union. The use of company time and property
does not per se establish unlawful employer sup-
port and assistance. Coaino Knitting Mills, 150
NLRB 579, 582 (1964); see Elias Mallouk Realty
Corp., 265 NLRB 1225, 1236 (1982). "[W]here a
union lawfully has been established as the employ-
ees' bargaining representative, and has been ac-
corded lawful recognition by an employer who,
following ,recognition, deals with that representa-
tive at arm's length," the Board has regarded the
use of company time and property, in the absence
of deeper employer involvement or intrusion in
union affairs, to be merely "friendly cooperation
growing out of an amicable labor-management rela-
tionship." Duquesne University of'the Holy Ghost,
198 NLRB 891 (1972). Indeed, permitting the use
of company time and property in such circum-
stances "serve[s] to permit an otherwise legitimate
labor organization to perform its functions for the
benefit of all concerned more effectively than oth-
erwise might be the case." Sunnen Products, 189
NLRB 826, 828 (1971). With regard to practices
similar to those' present in this case , former Chair-
man Edward B. Miller observed: "[T]o require em-
ployers to follow a practice of docking employees
for brief periods of time spent in conference with a
union representative whose duty it is to service em-
ployees in an organized plant would often create
an abrasive and wholly unnecessary interference
with a healthy contractual relationship." Long-
champs, Inc., 205 NLRB 1025, 1026 (1973) (dissent-
ing opinion). Because the Union here clearly is an
independent entity with a well-established history
of arm's-length dealing with BASF, we find that
the privileges that-BASF had granted to the Union,
like the similar privileges in Sunnen Products, supra;
Ladish Co., 180 NLRB 582 (1970); and Hesston
Corp., 175 NLRB 96 (1969), did not violate Section
8(a)(2).
Accordingly, as the various privileges that
BASF unilaterally discontinued did not violate
Section 302 or Section 8(a)(2) and the matters that
these privileges concerned were otherwise manda-
tory subjects of bargaining, BASF 's unilateral ter-
mination of these privileges violated Section
8(a)(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, Geismar,
Louisiana,' its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
"(a) Unilaterally changing established terms and
conditions of employment of the employees in the
bargaining unit by refusing to continue to provide
an office and appropriate furnishings including
heat, air conditioning, and furniture for the Union's
use on its premises at a convenient location; by re-
fusing to continue to provide the Union with unre-
stricted use of a copying machine for union busi-
ness; by refusing to continue to provide the chair-
man of the Union Local's workmen's committee
with 4 hours of paid time each workday for con-
ducting union business on company property; by
refusing to permit the union local committeemen
and chairman to discuss complaints and grievances
with employees in accord with the terms of its col-
lective-bargaining agreement while on the clock;
and by refusing to permit the chairman and com-
mitteemen to engage in union business without se-
curing permission from its director of human re-
sources (industrial relations manager)."
2. Substitute the following for paragraph 2(a).
"(a) On request from the Union, reinstitute its
former practice of providing an appropriate office
and furnishings on its premises for the Union's use
in conducting union business; reinstitute its former
practice of providing the Union with a telephone
for use in union business in the office provided for
the Union; reinstitute its former practice of provid-
ing the Union unrestricted use of a copying ma-
chine; reinstitute its former practice of providing
the chairman of the Union Local's workmen's com-
mittee with 4 hours of paid time each workday for
conducting union business on company property;
reinstitute its former practice of permitting the
chairman and committeemen to confer with griev-
ants and complainants during working times as pro-
vided in the collective-bargaining agreement; and
reinstitute the practice' of permitting the chairman
and committeemen to conduct union business fol-
lowing permission from their immediate supervisor
without requiring permission from the industrial re-
lations manager, in accord with the provisions of
the collective-bargaining agreement."
3. Substitute the attached notice for that of the
administrative law judge.
BASF WYANDOTTE CORP 981
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.
WE WILL NOT refuse to recognize and bargain
collectively with Oil, Chemical and Atomic Work-
ers International Union, or its Local 4-620, as the
exclusive bargaining representative of our employ-
ees in the following appropriate unit:
All production and maintenance employees
employed in the Geismar works at Geismar,
Louisiana, but excluding instrument techni-
cians, laboratory technicians, office porters, all
clerical employees, professional employees, se-
curity guards and supervisors as defined in the
Act, as amended.
WE WILL NOT unilaterally change existing terms
and conditions of employment of the employees in
the above-described appropriate unit by discontinu-
ing our practices (1) of providing the Union the
use of an office and furnishings for union business
and the use of a phone in that office; (2) of provid-
ing the Union with unrestricted use of our copying
machine for use in its business; (3) of providing the
chairman of the Union Local's workmen's commit-
tee with 4 hours of paid time each workday for
conducting union business; and (4) of permitting
the Union Local committeemen and chairman to
discuss grievances and complaints in accord with
our past practice, and the terms of the collective-
bargaining agreements, without securing permission
from our industrial relations manager.
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, on request from the Union, reinstitute
our former practice of providing the Union with an
office, furnishings, and telephone for use in con-
ducting union business; of providing a copying ma-
chine for union business; of providing the chairman
of the Union Local's workmen's committee with 4
hours of paid time each workday for conducting
union business; and of permitting the union local
committeemen and chairman to discuss grievances
and complaints with employees during working
time, following permission from their supervisors
and without securing permission from the industrial
relations manager.
BASF WYANDOTTE CORPORATION
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
The instant complaint which is based on a charge filed
on July 26, 1983, and amended on August 26, 1983,
issued on January 18, 1984. On February 7, 1984, amend-
ments to the complaint issued. Subsequently during the
hearing herein, which was held in Baton Rouge, Louisi-
ana, on February 23 and 24, 1984, the complaint again
was, amended The complaint alleges that on July 18,
1983, and subsequently, Respondent engaged in activity
violative of Section 8(a)(1) and (5) of the Act by unilat-
erally terminating privileges formerly extended to the
Union as the exclusive collective-bargaining representa-
tive of various employees of Respondent.
On the entire record and from my observation of the
witnesses, and after due consideration of the briefs filed
by the General Counsel and Respondent, I make the fol-
lowing
FINDINGS OF FACT'
Respondent acquired its Geismar, Louisiana facility on
January 1, 1971. From that time to the present Respond-
ent and the Union, Oil, Chemical and Atomic Workers,
International Union (the Charging Party), and the
Union's Local (Local 4-620) have been parties to several
collective-bargaining agreements including agreements
dated February 12, 1971, December 15, 1972, June 15,
1975, June 15, 1978, and June 15, 1981 2
The unit, which is outlined in section 1.2 of the June
15, 1981 collective-bargaining agreement, is as follows:
All production and maintenance employees em-
ployed in the Geismar works at Geismar, Louisiana,
but excluding instrument technicians, laboratory
technicians, office porters, all clerical employees,
professional employees, security guards, and super-
visors as defined in the Act, as amended.
Each of the above-mentioned collective-bargaining
agreements contains terms dealing with the practice of
permitting employees who are union officials to engage
in union activities during working time. The February
12, 1971 contract included the following provision in
section 6.6.
6 6 Time allowed-Conferences
i The commerce facts and conclusions are not in issue Respondent ad-
mitted that it is a Michigan corporation with a place of business in Geis-
mar, Louisiana, where it is engaged in the manufacture of organic chemi-
cals and is an employer engaged in commerce within the meaning of Sec
2(2), (6), and (7) of the Act Respondent also admitted that the Charging
Party is a labor organization within the meaning of Sec 2(5) of the Act
2 In view of the parties' agreements, I find that the International and
Local 4-620 are joint collective-bargaining representatives of the unit em-
ployees
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workmen's committeemen and stewards shall be
allowed a reasonable amount of time during work-
ing hours, without loss of pay, for the purpose of
conferring with aggrieved employees or complain-
ants and/or representatives of the company relevant
to any complaints or grievances filed by an employ-
ee or employees. A committeeman or a steward
leaving his work for these purposes shall first obtain
permission of his foreman, and the foreman shall
grant permission as soon as working conditions rea-
sonably permit. Committeemen or stewards upon
returning to their work shall report to their foreman
immediately.
A similar provision was included at section 3.6 in the
December 15, 1972 and the June 15, 1975 collective-bar-
gaining agreements.
During material times the local official charged with
ultimate operative authority short of the International
was the chairman. Until January 1, 1976, the chairman
was employee C V Kirkland. On January 1, 1976, em-
ployee Harold "Doc" Nickens became chairman. Nick-
ens worked for Respondent as a chemical maintenance
mechanic.
During the time of Nickens' administration as chair-
man, the privileges furnished the chairman by Respond-
ent evolved to include the following:
(1) A small portable building on the Respondent's
premises was provided as exclusive office of the
chairman, which included a desk, filing cabinet,
telephone, and other furniture.
(2) Four hours of paid time was provided to the
chairman each day to conduct "union business."
(3) The chairman was provided the use of other
telephones at Respondent's facility and the use of a
copying machine for union business.
It had become the practice of Respondent to furnish
the above-mentioned services and privileges to the local
chairman near the time the parties began negotiations
toward the 1978 collecitve-bargaining agreement. Those
negotiations included, among other things, discussions
about the local chairman. At least three written propos-
als were exchanged dealing with the local chairman. On
May 2, 1978, the Union submitted a written proposal to
Respondent which included the following:
Article 3, Paragraph 3.8-the employee who is elect-
ed as chairman of the committee shall be carried by
the Company as an extra employee. Such employee
shall be assigned to work the straight day shift and
shall handle union activities during his normal shift.
Subsequently Respondent submitted a written counter-
proposal:
3.6 Time Allowed-Conferences
a. Workmen 's committeemen and steward shall
be allowed a reasonable amount of time during
working hours , without loss of pay, for the purpose
of conferring with aggrieved employees or com-
plainants and/or representatives of the Company
relevant to any complaints or grievances filed by
employee or employees.
b. The chairman of the workmen's committee shall
be allowed a reasonable amount of time during work-
ing hours, without loss of pay, for the purpose of con-
ferring with aggrieved employees or complainants
and/or representatives of the Company relevant to any
complaints or grievances filed by an employee or em-
ployees.
c The chairman, a committeeman or a steward
leaving his work for these purposes shall first obtain
permission as soon as working conditions reason-
ably permit. The chairman, a committeeman, or a
steward upon returning to their work shall report to
their foreman immediately.
The Union then proposed in writing:
3 6 B. (Add to Company proposal) The employee
who is elected as chairman of the workmen's com-
mittee shall be assigned by the Company to a
straight day shift for the term of his office.
The agreement dated June 15, 1978, contained the lan-
guage indicated in the above-cited counterproposal of
Respondent. There is an evidentiary dispute over what
was said during the 1978 negotiations regarding the
above-mentioned proposals. This decision will consider
that evidence below. However, there is no dispute that
subsequent to those negotiations Local Chairman Nick-
ens continued to enjoy all the facilities and privileges
outlined above. It is also undisputed that the 1981 collec-
tive-bargaining negotiations did not involve efforts to
change section 3.6.
On July 15, 1983, Harold Nickens resigned as local
chairman Nickens' successor to that office was employee
Esnard Gremillion. Gremillion also worked as a chemi-
cal maintenance mechanic.
On July 19, 1983, Respondent, through its industrial
relations manager , Francis Richard Donaldson , informed
Gremillion that he would no longer have the use of an
office on Respondent's premises, that he would have to
evacuate the small building then being used, that the
phone in that office would be discontinued, that Gremil-
lion was prohibited from conducting union business on
any of Respondent's phones, that Gremillion could not
conduct union business on the premises without approval
from his supervisor and the industrial relations manager
and, when approval was granted, all union business other
than discussions involving management would necessitate
that Gremillion clock out and be docked for the time he
was engaged in union business. Gremillion threatened to
file, and subsequently did file, a grievance regarding Re-
spondent's rescinding the privileges mentioned above
However, Respondent refused to accept the grievance.
Industrial Relations Manager Donaldson told Gremillion
the matter did not involve a contractual dispute but was
a legal matter.
BASF WYANDOTTE CORP
CONCLUSIONS
Respondent does not contest that it made changes al-
leged herein. However, Respondent did offer evidence in
defense of the allegations.
According to Industrial Relations Manager Donaldson,
he was told by Respondent's legal department in the first
or second quarter of 1982 that the privileges it was ex-
tending to Chairman Nickens violated the provisions of
Section 302 of the National Labor Relations Act.
Respondent's general manager at Geismar, Leslie
Story, testified he had a conversation with Chairman
Nickens3 in the fall of 1982 in which he told Nickens
that Respondent's legal department contended that Nick-
ens' use of the office and facilities provided by Respond-
ent was illegal and Respondent might be forced to termi-
nate that practice.
Although Respondent concedes that none of the privi-
leges extended to Chairman Nickens were affected until
Nickens resigned, over a year after it allegedly learned
those privileges were unlawful, it nevertheless contends
that its July 1983 unilateral changes were necessitated by
Sections 8(a)(2) and 302 of the Act. (Respondent, in its
brief, contends that the privileges extended before July
19, 1983, violated Secs. 8(a)(2) and 302 of the National
Labor Relations Act )
According to Respondent, Sections 8(a)(2) and 302
prohibit payments in cash, goods, and services to the
union or to union representatives unless, in the instant
case, those payments are for work actually performed as
an employee of the employer It contends that the office,
phone, furniture, etc , provided the Union plus wages to
the chairman for the time involved in strictly union af-
fairs are, therefore, illegal Accordingly, that matter
cannot constitute a mandatory subject for bargaining
and, therefore, unilateral change is not prohibited by
Section 8(a)(5).
The General Counsel, on the other hand, countered on
several fronts. Firstly, the General Counsel offered evi-
dence that Respondent was motivated by something
other than Sections 8(a)(2) and 302 to make the unilateral
changes alleged herein. Secondly, the General Counsel
contends Respondent's practice before July 15, 1983, did
not constitute Section 8(a)(2) or Section 302 violations.
As to the first point of contention, the General Counsel
points to the disputed testimony of Chairman Esnard
Gremillion According to Gremillion when he was ad-
vised of Respondent's unilateral changes on July 19,
1983, Industrial Relations Manager Donaldson comment-
ed:
We don't need a union out here, and we intend to
get rid of the union out herein. We don't want to
see Ernie now-I mean Ernie Rousselle, excuse me,
run our plant.'
3 Nickens died before the hearing in this matter An affidavit given by
Nickens to the Regional Office was offered by Respondent and received
in evidence The affidavit makes reference to conversations with Story in
which Story told Nickens that Respondent's legal department was ques-
tioning the legality of privileges extended to Nickens
" Ernie Rousselle is the Union's International representative Rousselle
services the instant contract
983
Donaldson denied making the above comment to Gre-
million. However, the General Counsel introduced the
outline of a speech Donaldson admittedly gave to Re-
spondent's first line supervisors shortly after the July 19,
1983 changes, in which he stated as follows:
Why did we (make the change in our treatment
of the local chairman).
(1) We view Nickens' resignation as a loss of
local control over the Union and the rising control
by the International Union, specifically Internation-
al Representative E. J. Rousselle.
(2) We believe that Gremillion's replacement of
Nickens is a change from the role of a moderate to
a strong unionst [sic]. But worst yet, we believe that
E. J Rousselle will control Esnard Gremillion.
(3) We are looking toward the 1984 negotiations.
We are concerned about E J Rousselle because of
his record in negotiations. For example, Rousselle
told the Industrial Relations Director, W. L. Jen-
kins, on Monday, July 18, that he is presently in ne-
gotiations for three companies and the contracts of
all of these companies have expired. We don't be-
lieve that kind of record is good for employees or
companies for we are also concerned about Rous-
selle's attitude toward arbitration. While Rousselle
has a poor win-loss record in arbitration, he consist-
ently takes grievances to arbitration that have no
merit. This is extremely time-consuming and waste-
ful Expensive.
Additionally, the record demonstrates Respondent's
July action exceeded those necessary to correct what it
contends was a Section 8(a)(2) and 302 problem.
For example, Donaldson testified that on those occa-
sions after July 19, when Esnard Gremillion requested
time off to conduct union business, he applied contract
provisions requiring 5 days' notice by an employee for
time off and denied Gremillion's request when the re-
quest was for time off within 5 days. Before July 15, that
was not Respondent's practice. Donaldson admitted that
former Chairman Nickens frequently asked for time off
on the very day he made the request and that Donaldson
invariably granted those requests for Nickens. Moreover,
Donaldson admittedly does not closely police union busi-
ness on company time by union committeemen and stew-
ards other than the chairman. Obviously Sections 8(a)(2)
and 302 do not require that disparate treatment Addi-
tionally, Respondent ignored specific contract provisions
in its July changes Contract section 3.6(b) indicates that,
among other things, the chairman shall be allowed rea-
sonable time to confer with "aggrieved employees or
complainants . . . relevant to any complaints or griev-
ances . .. " After July 19, 1983, Gremillion was not al-
lowed those times while on the clock
I was impressed with Gremillion's demeanor. I was
not as impressed with the demeanor of Industrial Rela-
tions Manager Donaldson. The full record, including
Donaldson's extensive efforts to explain his thoughts
about International Representative Ernie Rousselle, dem-
onstrates that Donaldson was motivated to prevent Ernie
Rousselle from having more input into the functions of
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Local Union Therefore, I credit Gremillion's testi-
mony regarding his July 19, 1983 meeting with Donald-
son
Gremillion's testimony, those matters mentioned
above, the long delay between Respondent's admitted
knowledge of the 8(a)(2) or 302 problem, and its July
1983 unilateral changes, and the full record illustrate that
Respondent was motivated to engage in the alleged July
1983 unilateral activities because of the resignation of
former Chairman Nickens and Respondent's perception
of the imminent added influence of International Repre-
sentative Rousselle on the Local Union's activities
Respondent also contends that its July 1983 changes
do not represent a departure from its understanding with
the Union
Respondent's corporate director of industrial relations
William Jenkins testified that he specifically offered the
following during the 1978 negotiations regarding the
chairman being permitted 4 hours per day to conduct
union business-
For Mr Nickens, while he's chairman, we will in
essence guarantee the four hours of paid time for
him to conduct business I said, but that's only for
Mr Nickens I said, and when Mr Nickens leaves
office, we are no longer bound by that commitment.
According to Jenkins, Nickens seemed pleased with
Jenkins' comments above and shortly thereafter the ap-
propriate contract provisions were removed as an item in
issue.
There is substantial disagreement regarding Jenkins'
above-cited testimony.
Harold "Doc" Nickens, whose affidavit was offered
by Respondent, testified.
Bill Jenkins suggested that I have four hours to
consult with grievants and do union business. It was
implied that the Company would reserve the right
to take the 4-hour consulting time away Bill told
the union negotiating committee that he knew me
and that he could trust me with four hours of con-
sulting with grievants, but he did not know if he
could trust the next chairman after me
One other witness for Respondent, Richard Donald-
son, testified as follows regarding the 1978 negotiations:
We also talked about the fact that while we trust-
ed Doc Nickens-we'd dealt with him for the past
couple of years, and we knew how he operated
And we felt like that, you know, we could trust a
guy like that.
But we didn't know who was going to come
after him, and so we weren't about to put any kind
of guarantee that the person who held his office
would be-could devote eight hours of time just to
union business, because he could do-as the testi-
mony went yesterday-go around and rile up the
troops
So we just-we didn't want to agree to this
thing
Later, on cross, Donaldson was asked if Respondent
ever told the Union during the 1978 negotiations that the
4 hours per day would be restricted to Doc Nickens
Donaldson testified
THE WITNESS- That was communicated I was
not the spokesman and didn't say that That was
communicated, yes
By Mr. Kennington . (Resuming)
Q. How was that communicated , specifically?
A By one of the spokesman for the company ne-
gotiating team.
Q What was said, exactly , on that point?
A. Just what you said, that "We're going to give
this to Doc."
Q And Doc only?
A And Doc only.
Q Is that what was said?
A Yeah
Q Who said it?
A Mr. Jenkins
The Union 's International Representative Ernest Rous-
selle testified:
Q. Mr Jenkins, who was on the Company's ne-
gotiationg team-And who is Mr Jenkins?
A. He's the attorney, corporate attorney, for the
company-took the position "What happens if we
get a bastard Chairman who continually goes
around the plant and keeps stirring up the troops?"
That he didn't want to put the four hours in there
because of that
Of course, I told him at the time it was also pos-
sible we could have a bastard Plant Manager or a
bastard Employee Relations Manager.
So basically the company then proposed the lan-
guage that you see here, with the understanding
that if we had a wound-up with a bastard Chair-
man, the company would not be obligated to con-
tinue the four hours, if the employee didn't have to
confer with unions and things like this-I mean
union members relative to grievances, et cetera.
But that was if we ever got a Chairman that was
a bastard That was the context in which the com-
pany agreed to this language on the basis they
would continue doing what they were doing at the
time, and that was in fact, the furnishing of an
office, the supplying of the time, and the allowing
of the Chairman to have access to the plant.
John Dagle, a current employee of Respondent and
president of Local 4-620, was on the 1978 negotiation
committee Dagle testified regarding those 1978 negotia-
tions material to the issue at hand
And the company said they was reluctant to put
in the contract, because someone might get elected,
some radical would use the time to stir people
against the company
Q Okay So what did you all agree upon?
BASF WYANDOTTE CORP
A. Well, we agreed to the insertion of the Chair-
man having the time to do union business. We al-
ready had the committeemen and the stewards, and
we put the Chairman 's name in there , and the com-
pany said we wouldn't have any problems with it,
you know, that it would continue as it was at that
time, the Chairman would have four hours to do-
Q. Was it ever restricted just to Mr. Nickens?
A. No.
After Respondent rested, the General Counsel called
in rebuttal two additional members of the Union's 1978
negotiating team, Thomas Landaiche and Gustaf Nord-
strom. Both Landaiche and Nordstrom denied that Jen-
kins ever said that the 4 hours per day to attend to union
business was being extended solely to Doc Nickens
Nordstrom did agree on cross that Respondent expressed
concern during negotiations that they would not want to
give the 4 hours' guarantee to anybody who was union
chairman but they were willing to give the 4 hours to
Nickens because they trusted him.
There is other evidence in the record which deals with
the instant issue . For example, Richard Donaldson's July
1983 speech to Respondent's supervisors purports to spe-
cifically answer why the July changes were made re-
garding the local chairman. Neither in that section of the
speech, nor elsewhere, did Donaldson indicate that the
changes were made pursuant to Respondent's 1978
agreement with the Union.
On July 19, Donaldson told Esnard Gremillion about
the changes. According to Donaldson's testimony, the
only reason given Gremillion for the changes was Re-
spondent's advice from lawyers that the practices were
illegal. Gremillion's version, which I have credited, in-
cludes another reason (i.e., Respondent's desire to get rid
of the Union and concern about Ernie Rousselle) but nei-
ther version included any reference to the 1978 negotia-
tions.
Discussion
Despite the above variations in testimony, it is ques-
tionable whether they affect a material issue. All the tes-
timony demonstrates that in the 1978 negotiations Re-
spondent expressed concern with extending substantial
privileges to the chairman in writing due to the uncer-
tainty of the type of individual that would follow Doc
Nickens in that post According to William Jenkins' ver-
sion of the negotiations, Respondent agreed to extend the
4 hours per day until Nickens left office; at that time Re-
spondent would not continue to be bound by its agree-
ment. The Union contends that Respondent agreed to
continue that benefit until an undesirable became chair-
man.
I find that the record as a whole does not support the
testimony of Jenkins but, regardless of which version is
accepted, it is clear that in July 1983, when Nickens re-
signed, the parties were, at the very least, in the same
position they occupied during the 1978 negotiations (i e.,
Resondent had voluntarily extended the practice of
granting 4 hours per day for the chairman to conduct
union business and there was no proposal to terminate
that practice). According to Jenkins' testimony, Re-
985
spondent had expressed that it reserved the right to with-
draw from its agreement to continue the 4-hour practice
when Nickens left office Nevertheless, it is clear from
Jenkins' testimony that he did not propose in 1978 or
later that the practice would automatically be terminated
upon the resignation of Nickens. Therefore, Jenkins' tes-
timony evidences nothing more than an opportunity for
Respondent to initiate negotiations over continuation of
the 4-hour practice upon Nickens' leaving office. How-
ever, the record is clear that Respondent took no action
to initiate negotiations.5 Instead, without warning to the
Union, Respondent unilaterally terminated that and other
benefits previously accorded the chairman.
On the basis of the above and the entire record, it is
apparent that, at the very most, there was an understand-
ing in 1978 that, upon Nickens leaving the office of
chairman, Respondent had the right to reconsider the
privilege of extending 4 hours per day to the chairman.
However, if the matter involved a mandatory subject of
bargaining,6 the Union had a corollary right to consulta-
tion and negotiations before Respondent effected that
change. Respondent failed to give the Union that corol-
lary right.
Secondly, of course, the record reveals that the July
1983 changes did not occur pursuant to a 1978 agree-
ment between Respondent and the Union The record
taken in the light most favorable to Respondent showed
two reasons for the change, i e, because of Respondent's
concern for Section 8(a)(2) or 302 of the National Labor
Relations Act and because of its concern for Internation-
al Representative Rousselle's influence over the Local.
Neither of those reasons include Respondent's purported
1978 understanding with the Union Therefore, I find
that the July 1978 changes were not made because of an
agreement between Respondent and the Union
Finally, the General Counsel contends that it is not
clear that Respondent's extension of privileges to the
Union's chairman before July 19, 1983, violated provi-
sons of the National Labor Relations Act.
In consideration of that question, I must first resolve
how that particular question relates to the issues before
me. Of course, a Section 302 question normally involves
criminal proceedings and, as such, would not be subject
to litigation in this forum. However, no employer may
be required to engage in illegal activity even if that ac-
tivity is necessary to comply with the terms of a collec-
tive-bargaining agreement, Iron Workers Local 426 v.
Bechtel Power Corp., 634 F.2d 258 (6th Cir. 1981), and for
that reason, according to Respondent, the issues herein
do not involve mandatory subjects for bargaining.
Here the 8(a)(2) and 302 question arises against a back-
ground of Respondent's failure to deal openly with its
employees' labor representative. Using Respondent's ver-
sion of the facts, it is apparent that Respondent was fully
aware of what it found to be an 8(a)(2) and 302 problem
over a year before the July 1983 changes. Nevertheless,
5 Respondent does contend that it did negotiate through Leslie Story's
conversation with Doc Nickens about discontinuance of the Union's
office See below
0 See below for consideration of the question of whether a mandatory
subject of bargaining was involved
986 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
that issue, was never presented to the ,Union for the pur- Respondent in its brief- cited Plasterers Assn. v. Plaster-
pose `of negotiations 7 ers Local 15, 279 F 2d- 92 (7th Cir. 1960). That case
Whet', Respondent made the changes it did so without .,. shows that minor compensation for services which have
prior notice to the Union. Additionally, as shown above,, , - a de,minimis effect do -not violate Section 302. That is
the` changes went beyond those required to correct an. -
8(a)(2) or 302 problem. -
Moreover , the Union was not presented with ; any, au-
thority supporting Respondent 's assertion , that the pre-
July 1983 practices violated Section 8(a)(2) or 302. Cor-
porate Industrial . Relations Director Jenkins admitted
that he was not familiar with any cases showing Re-
spondent was violating the Act; instead Jenkins relied on
the representations of outside counsel and an , associate.
Nevertheless , Respondent 's bad faith will not sustain
the finding of a violation if it is determined , that its uni-
lateral changes did not involve mandatory ,, subjects of
bargaining . Respondent correctly argues that an, unlaw-
fully activity cannot constitute a mandatory subject.
Therefore , a threshold question must concern whether
any of the withdrawn privileges involved 8(a)(2) or 302
violations . In essence , Respondent argues that those pro-
visions of the Act prohibit compensation or other sup-
port to the Union or its representatives unless the com-
pensation is for services performed in that representa-
tive's "service as an employee."
There is no question but that Esnard Gremillion, as
local chairman , was a "representative " of the Union.
[See cases cited by Respondent : Iron Workers Local 426
v. Bechtel Power Corp., 634 F. 2d 258 (6th Cir. 1981); U.S.
v. Kaye, 556 F . 2d 855 (7th Cir. 1977).] Therefore, accord-
ing to Respondent , the practice of providing compensa-
tion or other support to either Gremillion or the Union
for anything other than Gremillion's service to Respond-
ent as its employee cannot constitute a mandatory sub-
ject of bargaining.
In consideration of Respondent's argument, it is first
necessary to categorize the various privileges which
were withdrawn in July 1983:
(1) The Union 's office and furniture; the prohibition
against conducting union business on company time .and
premises,- the requirement of approval by Donaldson:
Respondent , through Industrial Relations Manager
Donaldson, attempted to establish that the office and fur-
nishings involved substantial cost by showing what simi-
lar items would cost in the open market . However, the
record established that the actual cost to Respondent was
not as significant as Donaldson asserted . The office
building was on Respondent 's premises but not in use
when provided for Doc Nickens and there was no show-
ing that Respondent incurred significant cost in the,loss
of use of the office during July 1983 or subsequently.
Moreover the record did not show that Respondent; in-
curred anything more than minor cost for maintenance
of heat , air conditioning , and phone for the small office.
7 Although Leslie Story mentioned the question to Nickens in 1982,
regarding supplying an office to the chairman , Story's comments were
casual and did not evidence that the 8 (a)(2) or 302 question had been re-
solved by Respondent There was never an indication that the Union
should consider that Respondent had decided to make any changes
Moreover, Nickens' comments do not evidence a waiver of the Union's
right to bargain about those matters
precisely.the situation here.
As to, the use of • phones; the requirement that
chairmen/committeemenLmust secure Industrial Relations
Department, approval to,conduct union business, and the
requirement that the chairman and committeeman be
docked for previously permitted discussion with griev-
ants and complainants, in accord with contract provi-
sions, the record did not show that those items resulted
in significant measurable, cost to Respondent other than
that incurred through the,payment of wages for 4 hours
per day,8 which will be. discussed below. Therefore,
these matters do not rise Ito the level of support or con-
tributions prohibited by statute.
(2) Esnard Gremillion's.4 hours per day to conduct union
business:
An estimate of the actual allotment of the 4 hours pro-
vided the chairman before July 1983 to conduct union
business was provided through Industrial Relations Man-
ager Donaldson in his analysis of Doc Nickens' custom-
ary practice. Donaldson estimated that Nickens used less
than 25 percent of his 4 hours a day in union-related dis-
cussion with management representatives and grievants;
over 50 percent involved in other union-related business;
and approximately 25 percent in business not related to
the Union.
Esnard Gremillion testified that, since becoming chair-
man in July 1983, he has engaged in union business on an
average of approximately 20 hours per week during
normal working hours. Of that 20 hours, Gremillion esti-
mated he spends 7 to 9 hours speaking with union com-
mitteemen or grievants and 10 hours engaged in union-
related paperwork He spends 1 to 3 hours talking with
management representative Donaldson.
The time spent discussing union matters with manage-
ment is not in dispute since Respondent has continued to
pay Gremillion for that time. Moreover, Respondent per-
mits Gremillion 15 minutes for consultation with griev-
ants before step 3 of the. grievance proceedings. That
time is not in dispute. In consideration of those undis-
puted times and the timerwhich Gremillion may use in
discussions with grievants--and complainants, the remain-
der, some 15 hours per week," constitutes the contested
time Gremillion testified that his pay is at the rate of
$14.80 per hour. Therefore, at issue is pay which Gremil-
lion would have received from Respondent for union-re-
lated work in an amount. exceeding $222 per week under
Respondent's pre-July 1983 practice-some $11,544 over
52 weeks Obviously, that cost to Respondent cannot be
considered de minimis under applicable law and it does
8 As shown below, Francis Richard Donaldson estimated that the total
time used by the chairman in discussions with management and grievants
did not exceed 25 percent of, the 20 hours allotted the chairman each
week
8 Based on Donaldson 's estimate that 25 percent of the chairman's time
is spent in union-related discussion with management and grievants Gre-
million's estimate cannot be used, since he also include discussion with
union committeemen in his time e$imates Discussions between the chair-
man and committeemen are not permitted under the contract
BASF WYANDOTTE CORP
rise to the level necessary for consideration under appli-
cable statutes.
Therefore, I shall now examine Respondent's conten-
tion that its July 1983 unilateral action does not involve
mandatory subjects of bargaining in the only area which
is not de minimis or otherwise inappropriate (i.e., the
payment of wages totaling 4 hours per day to Esnard
Gremillion for union business other than meeting with
management and grievants or complainants).
Sections 8(a)(2) and 302
The General Counsel argues that the current definitive
Board law in this area rests in language set out in Sheet
Metal Workers (Central Florida Contractors), 234 NLRB
1238 (1978). (See also American Ship Building Co., 226
NLRB 788, 796, 797 (1976); Proctor & Gamble Mfg. Co.,
248 NLRB 953 (1980).) There the Board appears to ex-
press that an administrative law judge in consideration of
a refusal-to-bargain allegation may not consider whether
the issue involves illegal activity and, therefore, is not a
mandatory subject of bargaining unless the alleged illegal
activity falls squarely within the scope of Section 8 of
the Act. Specifically, the Board in the Sheet Metal Work-
ers case found that the administrative law judge could
not consider whether the collective-bargaining agree-
ment required action which was illegal under Section
302(c)(5) of the Act.
In reaching that conclusion the Board distinguished,
but did not reverse, Carpenters Local 22 (Graziano Con-
struction), 195 NLRB 1 (1972). The Carpenters decision
recognized the necessity of considering statutes which do
not customarily fall within the scope of issues considered
by it, when such consideration is essential to determine a
Section 8 issue.
It appears to me that the instant case falls more closely
within the rules enunciated in Carpenters than those ex-
perienced in Sheet Metal Workers.
Obviously, the issue for consideration is not directly
one of criminal import under Section 302. The question
must be limited to consideration of whether the General
Counsel sustained his burden of proving a violation of
Section 8(a)(5). One essential element to that burden is
the necessity that the General Counsel must prove that
each alleged unilateral change involved a mandatory sub-
ject of bargaining. As to the issue of paying Esnard Gre-
million for activities in his role of union representative
other than discussion with management, grievants, and
complainants, serious doubt arises as to whether the
General Counsel proved the "mandatory subject" ele-
ment . That doubt rests squarely on a determination of
whether the payment of wages for Gremillion's contest-
ed union time is unlawful.
That question in the context of litigation under Section
302 was considered in Iron Workers Local 426 v. Bechtel
Power Corp., 634 F.2d 258 (6th Cir 1981). In Bechtel a
collective-bargaining agreement provided that employer
members of an Associated General Contractors Chapter
contribute to a fund provided to pay the salaries and ex-
penses of a steward charged with investigating the em-
ployer's compliance with the collective-bargaining agree-
ment. The court found that the steward was either an
agent of a labor organization or a representative of an
987
employer's employees and that the payment of funds for
his salary and expenses violated the terms of Section 302.
I find that the instant question must be resolved in
accord with the Bechtel case. In regard to the questioned
portion of the previously allotted 4 hours per day to con-
duct union affairs, the local chairman, like the steward ins
Bechtel, was engaged in activity as representative of em
ployees or as an agent of a labor organization. Moreover,
the question time does not fall within the exceptions
noted in Subsection 302(c)(1) since that time was not
spent in the chairman's "service as an employee" of Re-
spondent (see United States v. Kaye, 556 F.2d 855 (7th
Cir. 1977).)
Therefore, as to the allegation that Respondent unilat-
erally suspended its practice of providing a flat 4 hours a
day for the local chairman to conduct union business, I
find that the General Counsel has failed to prove that
that issue constitutes a mandatory subject of bargaining.
Since that proof is an essential element to the allegation,
I find that Respondent did not violate Section 8(a)(5) by
unilaterally terminating its practice of providing a flat 4
hours each day for the chairman to engage in union busi-
ness.
Other issues presented by Respondent
In consideration of the unilateral changes other than
the one above which I have found does not involve a
mandatory subject of bargaining , Respondent offers addi-
tional defenses.
(1) That the practice of permitting use of company tele-
phones does not rise to the level of established working con-
ditions. My finding is that Respondent should reinstitute
the previously provided office including a telephone for
the chairman. To the extent the complaint alleges that
additional phones should be available for the chairman
and that phone calls to the chairman should continue to
be referred to him by supervisors, I agree with Respond-
ent. The chairman previously used an answering device
on his office phone. The requirement that other phones
such as the one in the current chairman's work area
should be subject to his use for union affairs during
worktime involves nothing more than a nuisance to su-
pervision and to the work of unit employees including
the chairman. The phone in the chairman's office is ade-
quate for his needs and the use of other phones during
working times does not rise to the level of established
working conditions that cannot be changed without bar-
gaining in view of the record.
The record demonstrated that it is Respondent's prac-
tice, when the phone is answered by Gremillion's super-
visor, to note for Gremillion all calls for him and, on
those occasions when Gremillion is readily available
when the call is received, to call Gremillion to the
phone. That practice does not represent a significant and
material change which warrants a finding of an unfair
labor practice violation.
(2) That Respondent has not changed its practice of per-
mitting the Local to use its copying machine and that the
Union has made no further request for bargaining beyond
the meeting at Vince Sotile's.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the record revealed that Donaldson told
Gremillion that it was changing its practice of allowing
the chairman to use its copying machine. Only upon dis-
covering that the Union's use of the copying machine
was "de mimmis" did Respondent reinstate that privi-
lege.
Obviously, the publication of union notices through
use of the copying machine and bulletin boards consti-
tutes an important aspect of the Union's role as employee
representative, and the cancellation of that privilege,
even though for only a few days, constitutes a significant
unilateral change.
Moreover, Respondent's argument that no bargaining
was requested beyond the meeting at Vince Sotile's Res-
taurant is without merit Actually, the record shows that
the meeting at Vince Sotile did not constitute a bargain-
ing session. Although the Union requested to meet, it
was Respondent, not the Union, that set up the Vince
Sotile meeting, and the Union's request that International
Representative Rousselle be present during a meeting re-
garding the unilateral changes was summarily rejected
by Respondent. Rousselle was not invited to the meeting
at Sotile's.
Additionally, I specifically find that Respondent vio-
lated Section 8(a)(5) by unilaterally instituting a require-
ment that the industrial relations manager must approve
any requests by the chairman to engage in union busi-
ness. The addition to the practice under the contractual
provisions of obtaining permission from the appropriate
immediate supervisor represents a significant change re-
garding a mandatory subject of bargaining.
ADDITIONAL CONCLUSIONS OF LAW
1 At all times material the Union was, and is, the ex-
clusive bargaining representative of Respondent's em-
ployees in the bargaining unit described below within the
meaning of Section 9(a) of the Act.
All production and maintenance employees em-
ployed in the Geismar works at Geismar, Louisiana,
but excluding instrument technicians, laboratory
technicians, office porters, all clerical employees,
professional employees, security guards and supervi-
sors as defined in the Act, as amended.
2 Respondent, by unilaterally requiring the Union to
vacate and cease using a company office previously pro-
vided by Respondent, including all furniture, phone,
heating, and air conditioning, for the purpose of allowing
the Union to conduct union business related to its repre-
sentation of the above-described unit employees; by uni-
laterally refusing to permit the Union continued use of
the telephone provided in the above-described office for
union business in accord with its past practice; by unilat-
erally refusing to permit continued unrestricted use of its
copying machine for union business; by unilaterally re-
fusing to permit the union chairman and committeemen
to meet with employees for the purpose of discussing
employee complaints and grievances as had been the past
practice at Respondent's facility; and by unilaterally re-
quiring the chairman and committeeman to first receive
permission from Respondent's manager of human re-
sources before engaging in union business, violated Sec-,
tion 8(a)(5) of the Act.
3. Respondent did not violate the Act by unilaterally,
refusing to continue its practice of providing a flat 4 paid,
hours per day for the union local chairman to conduct,
union business.
THE REMEDY „
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) of the Act,
I shall recommend that Respondent be ordered to cease=
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act:
Since the appropriate remedy for Respondent's unilateral
action is to reinstate the status quo ante, I recommend
that Respondent be required to reinstitute all the prac-
tices noted above in the manner practiced before July
1983.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
ORDER
The Respondent, BASF Wyandotte Corporation, Geis-
mar, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unilaterally changing established terms and condi-
tions of employment of the employees in the bargaining
unit by refusing to continue to provide an office and ap-
propriate furnishings including heat, air conditioning, and
furniture for the Union's use on its premises at a conven-
ient location; by refusing to continue to provide the
Union with unrestricted use of a copy machine for union
business; by refusing to permit the Union Local's chair-
man and committeemen to discuss complaints and griev-
ance with employees in accord with the terms of its col-
lective-bargaining agreement while on the clock; and by
refusing to permit the chairman and committeemen to
engage in union business without securing permission
from its director of human resources (industrial relations
manager)
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by the Act
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) On request from the Union, reinstitute its former
practice of providing an appropriate office and furnish-
ings on its premises for the Union's use in conducting
union business; reinstitute it former practice of providing
the Union with a telephone for use in union business in
the office provided for the Union; reinstitute its former
practice of providing the Union unrestricted use of a
copying machine, reinstitute its former practice of per-
10 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
BASF WYANDOTTE CORP.
mitting the chairman and committeemen to confer with
grievants and complainants during working times as pro-
vided in the collective-bargaining agreement; and reinsti-
tute the practice of permitting the chairman and commit-
teemen to conduct union business following permission
from their immediate supervisor without requiring per-
mission from the industrial relations manager, in accord
with the provisions of the collective-bargaining agree-
ment.
(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 Geismar, Louisiana facility copies of the
attached notice marked "Appendix."" Copies of the
989
notice, on forms provided by the Regional Director for
Region 15, 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
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.
i i 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 "