Chevron Chemical Co.

National Labor Relations Board - Board Decisions

Mar 4, 1969

174 N.L.R.B. 982 (N.L.R.B. 1969)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chevron Chemical Company and Local Union 369,
International Chemical Workers Union , AFL-CIO.
Case 19-CA-3956
March 4, 1969
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On October 9, 1968, Trial Examiner Herman
Marx issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in
the attached Trial Examiner ' s Decision . The Trial
Examiner further found that the Respondent had
not engaged in other unfair labor practices alleged
in the complaint , and recommended that those
allegations be dismissed . Thereafter, the Respondent
filed exceptions to the Trial Examiner ' s Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case , and hereby adopts the
findings, conclusions , and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Chevron
Chemical Company, Finley, Washington, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
'We agree with the Trial Examiner that the entry on employee James
Watts' "A&D" form in his personnel file was in reaction to his protected
union activities "with possible adverse effect upon his promotional or other
employment opportunities , . " We find that the entry further violated
Section 8 (a)(I) by interfering with Watts ' protected activity as the Union's
steward in the shop and as a member of the negotiating committee , in that
it would clearly tend to interfere and restrain and coerce him in performing
his duties and functions in these capacities
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner The complaint alleges
that an employer, Chevron Chemical Company (herein the
Respondent or the Company), and a labor organization,
Local Union 369, International Chemical Workers Union,
AFL-CIO (herein the Union), maintain a
collective-bargaining relationship, and are parties to an
agreement, affecting employees of the Company at one of
its plants; that the Company has abridged rights
guaranteed such employees by Section 7 of the National
Labor Relations Act, as amended (herein the Act),' thus
violating Section 8(a)(1) of the Act, by warning and
directing one of them, James Watts, who serves as the
Union's chief shop steward and chief negotiator at the
said plant not to discuss with members of the Union's
negotiating committee and employees at the plant a
training program proposed by the Company at other
plants' in negotiations with labor organizations, and by
inserting a "derogatory entry" regarding Watts in its
personnel records because of his activities as a
representative of the Union 2
The Respondent has filed an answer denying, in
material substance, that it committed the unfair labor
practices imputed to it
A hearing on the issues was held before me, as duly
designated Trial Examiner, in Richland, Washington, on
July 11, 1968. The General Counsel, the Union, and the
Respondent appeared through respective counsel and were
afforded a full opportunity to adduce evidence, examine
and cross-examine witnesses, and submit oral argument
and briefs
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and
considered the briefs filed with me since the close of the
hearing, I make the following findings of fact-
FINDINGS OF FACT
I NATURE OF THE RESPONDENT'S BUSINESS,
JURISDICTION OF THE BOARD
The Company is a California corporation, maintains
manufacturing plants in various of the states, including
one at Finley, Washington, where it is engaged in the
manufacture, sale, and distribution of fertilizers and
chemical products; and is, and has been at all material
times, an employer within the meaning of Section 2(2) of
the Act The material issues here involve only the Finley
plant.'
During the year preceding the issuance of the
complaint, the Company, in the course and conduct of its
business at the Finley plant, sold and caused to be
transported from the said plant to customers outside the
State of Washington goods and materials valued in excess
of $50,000. By reason of such transactions, the Company
is, and has been at all times material to the issues,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act Accordingly, the Board has jurisdiction
over the subject matter of this proceeding
'29 U S C 151, et seq
'The complaint was issued on May 14 , 1968, and is based upon a charge
filed with the Board on March 12, 1968, and an amended charge filed on
May 8, 1968 Copies of the charge, amendment thereof, the complaint, and
a notice of hearing have been duly served upon all parties entitled thereto
'Some witnesses refer to the location of the plant as Kennewick,
Washington , a community near Finley. The complaint alleges, and the
answer admits, that the location is Finley
174 NLRB No. 143
CHEVRON CHEMICAL CO 983
II THE LABOR ORGANIZATION INVOLVED
The Union admits employees of the Respondent to
membership , represents such employees in collective
bargaining with the Company , and is , and has been at all
material times , a labor organization within the meaning of
Section 2(5) of the Act
IlL THE ALLEGED UNFAIR LABOR PRACTICES
A Prefatory Statement
The Company employs approximately 50 production
and maintenance employees, including James Watts, at
the Finley plant These work under the general supervision
of a plant superintendent, David G Shaner, who is
subject, in turn, to direction by the plant manager, Glenn
Hopkins, who has overall responsibility for operations at
the plant 6
With a few exceptions, the production and maintenance
employees are members of the Union, which has been
their bargaining representative for about seven years
During that period, the organization and the Company
have negotiated and entered into successive annual
contracts prescribing terms and conditions of employment
for the employees
Watts, who entered the Company's employ about eight
years ago, is, and has been over a period of some years,
the Union's chief steward at the Finley plant, an officer of
the Union, and a member of its negotiating committees
In advance of its annual negotiations with the
Company, the Union customarily communicates regarding
matters of common interest with a labor organization that
represents employees at a plant operated by the Company
in Richmond, California In accordance with this practice,
anticipating negotiations for a new contract for 1968,
Watts was in touch with the Richmond union in August
1967, and in the course of such communication received
from a business representative of that organization a
printed outline of a proposed training and testing program
affecting the Richmond employees, which the Company
had submitted to the Richmond union as a subject for
contract negotiations In a subsequent telephone
conversation, the Richmond union's business agent told
Watts that he had gained an impression from the
Company that it intended to submit a similar proposal in
negotiations affecting the Finley employees
The issues here require no detailed outline of the
proposed program, and it will suffice for the purposes of
this proceeding to note that it contains provisions for
training and testing procedures aimed at improving
employees' performance, and furnishing criteria for their
classification and promotion, provides for new
classifications and wage rate structures, and contains
assurances that under the proposed terms, there would be
no demotions "in the transition to the new program,"
and, with some exceptions, that "section seniority" would
govern where a force reduction requires demotions In the
case of the specified exceptions, which require no
elaboration here, the Company would have a right to
retain in given classifications employees who had qualified
under the program even if the retention "results in down
grading ' of employees who had not thus qualified, but
hzid greater seniority than those retained
Hopkins and Shaner are, and have been at all material times,
supervisors within the meaning of Section 2(11) of the Act
'See G C Exh 2, p 8
In November 1967, the Union held a meeting, attended
by about 30 of the Finley plant's production and
maintenance employees, for the purpose of selecting a
negotiating committee, and discussing positions to be
taken by the Union in the negoiations which were to start
in the following month A committee that included Watts
was elected, and during the course of the meeting, he
brought up the subject of the proposed Richmond training
program, stating that he had heard from the Richmond
union's business representative that there was a possibility
that a similar proposal might be made by the Company in
the coming Finley negotiations Watts made his copy of
the proposed Richmond program available for
examination by those present, and there was a general
discussion of its provisions, with the result that the
membership decided to await the development of a
management proposal before taking any "concrete" steps
in the matter
For some days after the meeting, the applicability of
the program was a subject of general discussion among
the employees at the Finley plant, those with low
seniority, in the main, expressing approval because it
might aid their advancement, and others with substantial
seniority taking the position that such a program held no
advantage for them, but, instead, might jeopardize their
status The discussion also included some "kidding"
remarks by younger employees that they would score
better than older ones and thus be in a position to "boss"
their seniors
A number of employees, including one Gary Saylor,
who had not attended the meeting, questioned Watts
about the proposal at the plant, and making a copy of the
plan available for their examination, Watts told them that
the Union was uncertain whether a similar proposal would
be made for the Finley plant, but that he had been
informed by the Richmond union's business agent that
there was a good chance of its submission in the coming
Finley negotiations Some of the employees expressed
concern to Watts about their ability to pass the tests in
such a program, and he told them that the examinations
did not worry him because of his background and
familiarity with mathematics (he had had two years of
college), but that employees who had been out of school
for some time might have a problem, although the
training program would provide them with "some
classroom preparation "
According to Saylor, Watts told him during their
discussion that an employee "could be demoted" under
the program 6 Watts denies that he made that remark, and
asserts, in that connection, that he referred Saylor to the
statement on demotions in the outline, but told him that
one should consider the possibility that a low score in the
tests"might hold a man back from future advancements "'
'Saylor gave the following version of his conversation with Watts
There was nothing that I recall in any of his ( Watts') statements just
off-hand that anyone would be laid off It may have resulted at that, but
1 don't recall that he said anything like that, but he did say that a
person could be demoted because [sic ] he was concerned I said, "well, I
don't have much, I haven ' t had any schooling since I have been out of
school Being over 40 its been quite a while " He said, "I realize it " He
said, "I think it would be a lot easier for myself than for some of you
because I had some college and I'm younger than you " He said, "1
don't want to see this enter into the contract any more than you do " He
said, "and I wouldn ' t want to take a test for it either , although I'm sure
1 have a better chance than you because of more schooling, more
recently "
'The transcript erroneously quotes Watts as telling Saylor that "as it
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The differences between Watts' version and Saylor's are
of little or no moment, particularly as a statement that "a
person could be demoted" under the Richmond program
would be literally true in view of the force reduction
provisions previously noted, but an evaluation of the
credibility of both witnesses is appropriate Watts
appeared to me to have substantially better powers of
recall than Saylor, and as I see no reason to disbelieve
Watts' testimony, but, in contrast, as pointed out in the
margin, find much amiss with Saylor's testimony I credit
Watts' account of their discussion 8
B The Alleged Warning and Derogatory Personnel
Entry
On November 27, 1967, Plant Manager Hopkins
summoned Watts to his office and, in the presence of
Superintendent Shaner, told Watts, in substance, that the
latter had spread a rumor among the employees that the
Company was going to install a training program at the
Finley plant, that the rumor had no basis in fact and was
having an adverse effect upon the morale of employees,
and that he was concerned by this and wished to see an
end "to this type of thing " Watts said that he had a duty
as chief steward at the plant, and as an officer of the
Union, to bring matters such as the program to the
attention of the employees, and Hopkins agreed, but said
that the information given the employees was not the fact
Watts explained that he had been informed by the
Richmond union 's business agent that there was a good
possibility that such a program would be installed at the
Finley plant, and that the matter had been discussed with
the employees, who had been told the program might be
proposed for Finley, and not that that was a certainty He
offered Hopkins a copy of the outline of the Richmond
proposal, but Hopkins declined to take it, stating that he
had a good idea of what the Company's course was going
to be in the Finley negotiations Watts then stated that if
Hopkins would assure him that there would be no training
program in Finley, he would convey that information to
the employees Hopkins replied that he could not give
such a guarantee, but that he was positive that it would
not be proposed in the coming negotiations'
says in here (the printed outline), there would be no negotiations" As is
obvious from the context , the word "negotiations" should be "demotions,"
and I so treat it The transcript is garbled at a number of other points, but
as the record adequately reflects the material facts, issues, and meaning of
the witnesses , I see no need for an order correcting the transcript
The record reflects substantial self-contradictions by Saylor In a sworn
pretrial statement he gave the General Counsel in April 1968, he stated
that he spoke neither to Plant Manager Hopkins nor any other "company
official" about the program , yet he testified that on his way home from
work on the day that he spoke to Watts, he accidentally "ran into"
Hopkins at the plant and expressed his concern about the program and
related what Watts had told him (Hopkins claims that he sent for Saylor,
although stating elsewhere that no employee "came directly" to him to tell
him of any discussion of the Richmond proposal ) According to Saylor,
Watts mentioned "some discrepancy about the amount of men laid
off" at a plant of the Company in Fort Madison, Iowa, and Saylor
testified that he quoted Watts in that regard to Hopkins Saylor's reference
to layoffs at Fort Madison is vague, and it does not appear from his
account that Watts linked such layoffs to a training and testing program
Watts denies making any reference to layoffs at the Iowa plant, and the
denial is supported by Saylor's pretrial statement , which says , "Watts did
not say anything about people losing their jobs here (Finley ) or in other
plants ." Moreover , Saylor took a curious course regarding the statement
When interrogation by the General Counsel turned to it, he deposited a
sealed envelope bearing the initials "N.L R B " on the table before the
General Counsel . The envelope contained a note signed by Saylor stating
that he had made "an error" in the statement in that it should have read
Contract negotiations between the Company and the
Union regarding the Finley employees began several
weeks later and culminated in the execution of an
agreement early in January 1968 The Company proposed
no training program in the negotiations, and none is
embodied in the contract.
The Company has a practice of making a periodic
evaluation of an employee's performance on a so-called
"A & D" form. The appraisal is usually made once a year
at about the anniversary of the date the employee was
hired, and substantially covers the preceding year. As
Superintendent Shaver, who has the ultimate
responsibility for the evaluation of the production and
maintenance employees, described the appraisal practice,
each foreman who has supervised an employee during the
given period fills out an "A & D" form for the employee,
and turns it over to Shaner who then prepares a
composite of the information on another "A & D" form,
which, upon completion, is routed to the employee's
current foreman The latter then discusses the evaluation
with the employee for the purpose of informing him of the
areas in which his performance is satisfactory, and where
improvement is required, as Hopkins put it, "to develop
the man into a better employee, and provide him for [sic]
promotional opportunities." The employee may have his
disagreement with any appraisal, or any other comment
he wishes to make, recorded in a place provided on the
form The completed document is kept in the personnel
file maintained by the Company for the employee, and,
according to Hopkins, is treated as "confidential."
Watts' employment anniversary date is January 4, and
the last appraisal form, substantially covering almost all
of 1967, was prepared by Shaner on December 20, 1967,
and shown to Watts by his shift foreman, John Steward,
Jr , on January 31, 1968 The front of the form contains a
specification of his strengths and weaknesses in prescribed
areas (such as "Initiative" and "Quality of Work," for
example) and on the rear in a space reserved for
"Additional Comments," Shaner entered the following
Jim (Watts) is a good employee but his performance
would, improve if he would become more consistent
during normal operations. During these periods his
attention is not on unit operation One other problem is
his tendancy (sic) to stretch facts at times and this has
caused other employees some concern.
In his interview with Stewart, Watts asked the foreman
for the meaning of the sentence charging him with a
tendency "to stretch facts," and to what the entry
referred, and Stewart said, in substance, that he did not
know, that "it could be about all those rumors and stuff
that you are spreading about those tests," but that he was
not sure that the sentence had that meaning, and that
Watts would "have to talk to somebody else about it."
"Yes, I did see and consult Glen Hopkins " According to Saylor, he had
written the note, enclosed it in the sealed envelope, and given it to
Superintendent Shaner for mailing to the General Counsel on the day after
the sworn statement was given to the latter Shaner did not mail the
envelope, returning it to Saylor about a month later , according to Saylor,
who professes an inability to explain why he did not himself mad the note
to the General Counsel Shaner does not tell us why he did not comply
with the alleged request , nor why he accepted the envelope in the first
place . I am far from satisfied that Saylor has told the whole truth as to the
circumstances that led him to write the note and commit it to Shaner's
custody, and , more to the point, Saylor's testimony has so many earmarks
of unreliability that I am unable to regard it as a suitable basis for findings
in the absence of corroboration by credible evidence from another source
'Findings as to the discussion in Hopkins ' office are based on Watts'
version According to Hopkins, whose account to a large extent is much to
CHEVRON CHEMICAL CO
Watts said that in his view the entry bordered on an
unfair labor practice, and that he would have to discuss
the matter with Shaner
Upon close of the interview, Stewart made the
following entry on the form- "Jim does not like the item
about his stretching facts [sic] he would like it removed
from his 'A & D' report Jim agrees with the rest of his
report We talked about staying on top of unit and staying
out of control room "
Watts took the matter up with Shaner on the following
day, with results that will presently appear
C Dicussion of the Issues; Concluding Findings
The General Counsel reads the entry that Watts has a
tendency "to stretch facts" as a reference to his
discussions with employees regarding the Richmond plan
and the possibility of a similar proposal for the Finley
plant, and maintains that the entry was a reprisal for such
activities, and an unlawful abridgement of his Section 7
rights
The Respondent offers a different explanation of the
entry through Shaner who made it He testified that he
had three reasons for making it, and, according to him,
two of them were "prime," one of these consisting of an
incident involving an employee named Harmon, and the
other an incident involving an employee named Hallsey.
The third factor, according to Shaner, were Watts'
discussions of the Richmond training and testing proposal
with other employees
The Harmon incident, as Shaner relates it, occurred in
December 1966, and arose when Shaner noticed that
Harmon, who was working "under" Watts (who has the
title of "head operator"), was absent from his duty
station, leaving some equipment unattended Shaner
instructed the shift foreman to make an investigation and
an "in depth report " The foreman subsequently reported
the same effect as Watts ', he told Watts that there were "vicious rumors"
going around that employees in other plants of the Company had lost their
jobs or been laid off as a result of such a training program Watts denies
that Hopkins mentioned such "rumors " I credit that denial Hopkins'
reference to the "vicious rumors" appeared to me to have a somewhat
tentative air, notwithstanding the descriptive terminology It was not until
he had given much of his version of the conversation that he testified that
he "think (s)" that he said that "vicious rumors" of job losses and layoffs
were going around More concretely , his testimony as to the source of the
alleged "rumors" runs a singular course He testified that they reached
him not "directly," but through "supervisory personnel," including Shaner,
and that he does not "think" that any employees "came directly to me"
regarding any discussion of the program But no "supervisory personnel"
testified to such "rumors" or their source , and Shaner, who was present in
Hopkins' office "as a witness ," as he put it , did not even testify to any
details of that discussion Moreover , when shown a sworn pre-trial
statement he had made to the effect that Saylor and an employee named
Frank Crul "were the ones that came and told (him) that Watts had said
these things ," Hopkins changed course with a tenous distinction that
Saylor and Crul "came to me at my request," and that they "didn't come
on their own " This shifting about reflects on Hopkins' credibility It is
also noteworthy that the Respondent called not a single employee on the
subject of the alleged "rumors" or their source Saylor was called by the
General Counsel , and did, do the latter ' s evident surprise , testify, in
contradiction of his prior sworn statement , that he had quoted Watts to
Hopkins with respect to layoffs at the Fort Madison plant However, even
Saylor makes no claim at any point that Watts told him that layoffs there
were due to a training program , and, according to Saylor, he quoted Watts
to Hopkins as saying that he did not know whether layoffs at Fort
Madison had any connection with a training program Be that as it may,
for reasons I have stated , Saylor ' s testimony regarding his conversation
with Watts , and his alleged discussion with Hopkins , is not entitled to
credence , in the absence of credible corroboration I find no such support
in Hopkins ' testimony in view of the shortcomings it reflects
985
that Harmon claimed that he was in the restroom during
his absence, and had so informed Watts, asking Watts "to
keep an eye" on the unattended equipment; and that
Watts denied that Harmon had notified him of the
absence The upshot was that Shaner adjudged Harmon to
have been "negligent on the job," and a statement to that
effect was placed in Harmon's personnel file
The sum of the Hallsey affair, described by Shaner, is
that Hallsey, a maintenance employee, became a member
of the Union's negotiating committee in the fall of 1967,
that shortly thereafter, Shaver learned from some
employees (whom he does not identify) that Watts, also a
member of the committee, had told Hallsey that a
maintenance employee had been elected to the committee
each year, and that soon after his election, or following
contract negotiations, he was "out of a job", that upon
inquiry by Hopkins, Watts denied having made the
remarks attributed to him, and that Hallsey's supervisor
was instructed (by Hopkins or Shaner, presumably) to tell
Hallsey that no employee at the plant had "ever been
terminated for union activity " Shaner admittedly has
never mentioned the Hallsey incident to Watts, nor
"entered it in any personnel report," apart from the "A &
D" form involved here, nor "disciplined" Watts in
connection with the matter
Examined in the light of the total record, the
interpretation of his entry Shaner now offers burdens
one's credulity Passing the Hallsey incident for the
moment, it is a significant fact that in the Harmon affair,
which occurred about a year before the entry, Shaner,
following investigation of the matter, admittedly had
believed Watts' denial of any advance knowledge that
Harmon intended to absent himself, had found no fault
with Watts in the affair, and had placed the sole blame
for the incident on Harmon There is not a bit of evidence
that Watts was in any way blameworthy in the matter,
and in the face of Shaner's prior judgment, his claim that
he now disbelieves Watts appears to me to be wholly
arbitrary and undeserving of credence
Moreover, that the Hallsey incident, as well as that
involving Harmon, had no connection with the entry
becomes abundantly clear upon consideration of the
course the management, notably Shaner, followed when
Watts endeavored to ascertain its meaning. As it is a
major purpose of the annual evaluation and the related
supervisory interview to improve the employee's
performance and his qualifications for promotion, it is
indeed peculiar that when Watts asked Foreman Stewart
for an explanation, the latter either could not or would
not give one beyond a statement that the entry "could be
about all those rumors and stuff that you were spreading
about those tests " In view of Stewart's obligation, by
means of the interview, to help Watts improve his
performance, one would think that if the Harmon and
Hallsey incidents were factors in the entry, particularly if
they were the "prime" reasons for it, Stewart would not
only have known that such was the case, but would have
mentioned the incidents in response to Watts' request for
an explanation of the vague generalization that he had a
tendency "to stretch facts at times "
What is more, Shaner, who authored the entry, said
nothing about the Harmon and Hallsey incidents when
Watts asked him, on the day following the interview with
Stewart, what the entry "referred to," pointing out that if
it related to his activities connected with the "qualification
tests," that was part of his "union work," and that it was
not fair to evaluate him on that basis Shaner replied that
he did not know which foreman was responsible for the
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entry, and that he would find out what it meant, and give
Watts an answer at a later point.10 A day or two later,
having received no explanation from Shaver, Watts filed a
written grievance with the management, under the
collective-bargaining agreement in effect, seeking removal
of the entry Shaner returned the grievance to Watts,
expressing the position (also endorsed on the document)
that the Company was rejecting the grievance because no
violation of the agreement was involved. On this occasion,
also, Watts asked Shaner for an explanation of the entry,
but Shaner gave him none, and, so far as appears, he gave
none to Watts prior to the hearing in this proceeding
Shaner had authored the entry and, obviously, as he
concedes, knew the basis for it Thus his disclaimer of
knowledge when Watts asked him what the entry
"referred to" was an untruth, and, clearly, Shaner's
deliberate failure to supply the requested information was
at odds with the management's policy of using the
evaluation, and the related supervisory interview, as a
means of improving an employee's performance and
promotional opportunities
One may understand (without condoning) Shaner's
failure to tell Watts that his discussions of the Richmond
proposal with employees were a factor in the entry, for a
disclosure of such a connection could bring unwanted
consequences for the Company (a proceeding such as this,
for example), but if the Harmon and Hallsey incidents
were reasons for the entry, especially if they were the
primary factors, as Shaner now claims, why would he
conceal such a fact from Watts? The excuse he gives is
that he "did not want to bring specific people into the
core of this thing," and thought he could "satisfy" Watts
without mentioning others. Watts' dissatisfaction should
have been obvious from the grievance, if from nothing
else, but be that as it may, Shaner does not identify the
"people," nor does he say why or how a disclosure that
the Harmon and Hallsey incidents were factors would
involve the "people" concerned in them any more than
they were already involved, nor does it appear how the
untruth he told Watts, and his failure to give Watts the
promised information, could effectuate the underlying
policy of the evaluation program The excuse is palpably
thin, and I do not credit it, nor, in the light of the purpose
of the evaluation policy, and of the failure by Stewart and
Shaner to mention the Harmon and Hallsey incidents, do
I credit Shaner's claim that these incidents were factors in
the entry On the contrary, I am convinced that the claim
is a tailored afterthought designed to provide the entry
with trappings of a managerial judgment on Watts'
performance as an employee, with a purpose of playing
down or blurring the meaning of the entry as a
managerial reaction to Watts' discussions of the
Richmond proposal as a union functionary
That these discussions were at least a factor in the
entry is beyond dispute, for even Shaner concedes as much
in his testimony, although hiding the fact from Watts, but,
beyond that, the record amply warrants a conclusion that
the discussions were the reason for the entry It was made
" it is clear from the testimony of both Watts and Shaner that Watts
asked Shaner for an explanation , that Shaner said he did not know what
the entry " referred to," and would get that information from the foreman
involved, and that Shaner said nothing about the Harmon and Hallsey
incidents These are the important features of the conversation , and I deem
it unnecessary to resolve or outline various differences between the two
versions, although I note my view that Watts' testimony in general has a
greater claim on one ' s belief than Shaner ' s, which is markedly deficient in
highly material respects , as will presently appear
within a period of several weeks after the discussions,
which, plainly, had led Hopkins to summon Watts to his
office and charge him with spreading an unfounded rumor
that the Company was going to inaugurate a training
program at the Finley plant At least on that occasion,
Hopkins was made aware that Watts had acted as a union
functionary in discussing the Richmond proposal with
employees. Against the background of the conversation
with Hopkins, in the absence of a credible explanation by
the Respondent of the meaning of the entry, and taking
into account Shaner's deliberate effort to conceal the
meaning from Watts, I am convinced, and find, that the
"fact-stretching" to which the entry refers were Watts'
union activities in apprising the Finley employees of the
Richmond proposal, and telling them that it was possible
that a similar proposal would be made by the Company in
the coming negotiations affecting them
In its brief, the Respondent brushes the matter aside as
"petty" and "de minimis ." But what is one man's trivia
may be another's substance, especially if it may affect the
latter's livelihood That the evaluation reports are used to
inform employees of their strengths and weaknesses does
not alter the fact that they are maintained as part of the
Company's personnel records. Bearing that in mind, the
entry in question amounts to a permanent personnel
record by the Company to the effect that Watts is a
prevaricator, or loose with the truth, and it is fair to
visualize the possibility that it would serve as a reminder
of such a judgment, and could have an adverse effect upon
his future promotional or other employment opportunities
with the Company That view of the matter is unaffected
by the claim that the entry is "confidential," if for no
other reason than that the Respondent does not tell us
who shares the confidence, and who is excluded from it
The sum of the matter is that I find no point in the claim
that the entry is "confidential," and no merit in the
position that it should be disregarded as "de minimis ""
As regards the legality of the entry, it matters not that
the Company had no intention of proposing a training
program for Finley, and that Watts was thus in error in
telling employees that such a proposal was possible. The
Company's wish to spare its employees uneasiness, and to
avoid for itself personnel difficulties or problems, that
could result from such a misconception of its intentions is
understandable, but the free exercise of Section 7 rights,
by their very nature, may cause personnel problems for
management, and the rights do not end where the
problems begin.
The statutory "right .. to bargain collectively .
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection"
necessarily includes a right of employees to express
opinions to one another regarding their
collective-bargaining aims or other matters of mutual
interest affecting their employment conditions, or what
they may conceive to be the aims or intentions of their
employer in such areas, and to say that the right of such
expression is only coextensive with its accuracy, is to
invite fear of management displeasyre or reprisal to sit as
a censor on the expression of opinions by employees in the
course of their union and other protected concerted
'' I note that the alleged "confidential" nature of the "A & D" reports
did not deter the Respondent from offering in evidence , and thus exposing,
an obviously immaterial "A & D" report on Watts made in 1960 It is
evident from Shaner's own testimony describing the three alleged reasons
for the 1967 entry in question that the 1960 report has no connection with
this case
CHEVRON CHEMICAL CO.
activities. Plainly, effectuation of the policies of Section 7
requires protection of such an expression, whether
accurate or not, and the corollary of that is that an
employer may not penalize or otherwise impose some
disadvantage upon the employee because in the course of
his union or other protected concerted activities, he has
expressed to other employees some inaccuracy or other
misconception regarding the employer's aims or intentions
affecting their employment
Applying these principles to the facts in this case, it is
clear that Watts' discussions of the Richmond proposal
with employees, including his statements that a similar
proposal might be made for the Finley plant, were
activities protected by Section 7 of the Act, that the entry,
although garbed as a managerial judgment on Watts'
performance as an employee, was, in substance, a
managerial reaction to his union activities, amounting to a
blot upon his employment record, with possible adverse
effect upon his promotional or other employment
opportunities, because he had engaged in them, and that
the entry thus abridged Section 7 rights. Hence I find that
by making and maintaining the entry, the Company has
violated, and is violating, Section 8(a)(1) of the Act
There remains for disposition the General Counsel's
claim to the effect that Hopkins unlawfully warned or
directed Watts in the office conversation not to discuss the
Richmond training program with other employees. The
record does not tell us why Hopkins, instead of
summoning Watts to his office, with Shaner present "as a
witness," to seek an abatement of a rumor that a training
and testing program was going to be installed at Finley,
simply did not announce to the employees, by posted
notice or otherwise, that the Company had no such
intention; and it would not be unreasonable for Watts, in
retrospect, after learning of the "fact-stretching" entry, to
regard Hopkins' remarks about the rumor and his wish to
see an end to "this type of thing" as a warning to
discontinue his discussions of the Richmond proposal or
suffer reprisal such as the derogatory personnel entry.
However, the fact remains that Hopkins did not express
himself in directive or warning terms, and his relevant
remarks do not take on the posture of a warning or
direction simply because they were made in his office in
the presence of the plant superintendent "as a witness."
What he did, in substance, was to charge Watts with
spreading a rumor that the Company was going to install
a training program in the Finley plant, express his concern
over the matter, and a wish to see an end "to this type of
thing," or, in other words, to such rumor-spreading, and
assure Watts that the Company had no intention of
proposing such a program in the coming negotiations,
and, although the allegation against Watts was inaccurate,
I find all that Hopkins said in the conversation to be
within the privilege expressed by Section 8(c) of the Act
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several states, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
987
Having found that the Company has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend below that the Company cease and
desist from the unfair labor practices found, and take
certain affirmative actions designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law:
I Chevron Chemical Company is, and has been at all
material times, an employer within the meaning of Section
2(2) of the Act
2 Local Union 369, International Chemical Workers
Union, AFL-CIO, is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act
3. James Watts is, and has been at all times material
here, an employee of the said Company within the
meaning of Section 2(3) of the Act
4. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the said Company
has engaged, and is engaging, in unfair labor practices
within the meaning of Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Chevron Chemical
Company, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Punishing, engaging in any reprisal against, or
making any derogatory entry in its records pertaining to,
or in any manner affecting the status of, any employee at
its plant in Finley, Washington, because he has exercised
any right set forth in Section 7 of the National Labor
Relations Act, as amended
(b) Or in any like or related manner interfering with,
restraining, or coercing employees employed at its said
Finley plant in the exercise of any of the rights guaranteed
them by Section 7 of the said Act.
2 Take the following actions which, I find, will
effectuate the policies of the Act:
(a) Expunge from its records, and disregard for all
purposes, entries concerning James Watts in words,
substance or effect that "one other problem is his
tendancy (sic) to stretch facts at times, and this has
caused other employees some concern"; and that "Jim
does not like the item about his stretching facts He would
like it removed from his A and D report "
(b) Post at its plant and place of business in Finley,
Washington, copies of the attached notice marked
"Appendix A." Copies of said notice on forms provided
by the Regional Director for Region 19 of the National
Labor Relations Board shall, after being duly signed by
the Company's authorized representative be thus posted
by it immediately upon receipt thereof and maintained by
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to insure that said notice is not altered, defaced
or covered by any other material '=
(c) Notify the said Regional Director, in writing, within
20 days from the receipt of a copy of this Decision, what
steps the Respondent has taken to comply therewith."
IT IS FURTHER RECOMMENDED that so much of the
complaint be dismissed as alleges that the Company
warned and directed James Watts not to discuss "a
program of training and reevaluation of employees"; and
that the Company thereby violated the Act
"In the event that this recommended order is adopted by the National
Labor Relations Board , the words "a Decision and Order " shall be
substituted for the words "the Recommended Order of a Trial Examiner"
in the notice in the additional event that the Board 's order is enforced by
a decree of the United States Court of Appeals , the words "a Decree of
the United States Court of Appeals , Enforcing an Order" shall be
substituted for the words "a Decision and Order "
"In the event that this recommended order is adopted by the Board, this
paragraph shall be modified to read "Notify the said Regional Director,
in writing , within 10 days from the date of this order what steps the
Respondent has taken to comply therewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT punish, engage in any reprisal against,
or make any derogatory entry in our records pertaining
to, or in any manner affecting the status of, any
employee at this plant, because he has exercised any
right given him by the National Labor Relations Act,
as amended
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any employees at this plant in
the exercise of any rights guaranteed them by the
National Labor Relations Act, as amended
WE WILL expunge from our records, and disregard
for all purposes, an entry concerning James Watts in
words, substance or effect that "one other problem is
his tendency to stretch facts at times, and this has
caused other employees some concern " The reason
why we are removing the entry and disregarding it is
that the National Labor Relations Board has found,
after a hearing, that we violated the National Labor
Relations Act by making the entry, and has directed us
to remove and disregard it
Dated By
CHEVRON CHEMICAL
COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 327 Logan
Building, 500 Union Street, Seattle, Washington 98101,
Telephone 583-7473