Chevron Chemical Co.

National Labor Relations Board - Board Decisions

Jun 18, 1971

191 N.L.R.B. 292 (N.L.R.B. 1971)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chevron Chemical Company and Local Union 369, In-
ternational Chemical Workers Union . Case 19-CA-
4712
June 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 20, 1970, Trial Examiner Allen Sin-
sheimer, Jr., issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in the unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the
attached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in this case, and finds merit in the Re-
spondent's exceptions.
The complaint alleged and the Trial Examiner found
that Respondent suspended employee Dennis Britton
on March 19, 1970, in violation of Section 8(a)(1) and
(3) of the Act. In our view, the record fails to establish
the alleged violation.
The pertinent facts, briefly summarized, are as fol-
lows:
About 6:45 p.m., on March 17, 1969, Foreman Duffy
telephoned Britton at home and directed Britton to
report to work at 8 p.m.-4 hours ahead of the time
Britton's regular shift hours commenced. Duffy ex-
plained that he "needed" an operator to cover the job
and had been unable to reach any other operator to fill
the need.' Britton refused to come in ahead of schedule
and offered no explanation for the refusal except that
his reasons were "personal," and hung up on Duffy.
It is undisputed that Respondent's plant operates on a 24-hour basis and
that, in the event of absence of employees from their regular shifts or in
other unanticipated economic circumstances, Respondent has customarily
met its needs for additional employees either by holding employees beyond
the end of their regular shift or by calling them to report ahead of their
regular shift time. The latter kind of overtime work is described on the
record as "call-out overtime," while the former is referred to as "holdover"
overtime.
Duffy then filed a written report of the incident with
Plant Superintendent Shaner in which he described
Britton's conduct as rude and insubordinate. Wishing
to obtain Britton's side of the story, Shaner called Brit-
ton in for a conference on the morning of March 18. At
Britton's request, a union representative accompanied
Britton. While there is some disagreement over the
precise words which were used by each participant in
this conference and at the subsequent conferences on
the matter held on March 19, there is general agree-
ment that: (1) The union agent took the position that,
under the collective-bargaining agreement between Re-
spondent and the Union, Britton has a "right" to refuse
a "call-out overtime" work order at will; (2) Shaner
disagreed with that position, and noted that the only
provision in the contract on overtime was one requiring
management to offer employees equal overtime oppor-
tunities; (3) Shaner explained that he regarded Brit-
ton's refusal of Duffy's March 17 work order to be an
act of "insubordination" in the absence of an accepta-
ble excuse; (4) Britton expressed the willingness to
apologize to Duffy for any display of rudeness, but
insisted that he did not have to obey any supervisory
"call-out overtime" order if he did not wish to do so,
and that he was not obligated to explain his past refusal
to obey such an order and felt no obligation to do so
with respect to any similar order in the future, because,
as he put it, "it was none of the company's business."
It is also apparent, however, that at these meetings
which Respondent held with Britton and the union
representative on March 18 and 19, Britton, despite his
original positive assertion of an unqualified right to
refuse a request for "call-out overtime," nevertheless
was reluctant to continue to press this contention on his
own initiative and desired assurance of the Union's
support for this position. The union stewards were not
prepared to speak with finality as to the Union's posi-
tion and it was not until after the Union's attorney had
been consulted on March 19 that the Union's position,
which conformed with that earlier asserted by Britton,
was definitely and finally stated. Thereafter, upon Re-
spondent's inquiry, this was reasserted as his own posi-
tion by Britton. Accordingly, at the conclusion of the
March 19 conference, Shaner gave Britton a written
notice of a 1-day suspension, indicating that it was
based upon Britton's denial of any obligation to report
for overtime coverage work and a written warning that
"any future incidents of this or similar nature would
result in more serious disciplinary action."
The Trial Examiner has noted in his Decision that
the testimony of both Britton and Plant Manager Hop-
kins indicates that Respondent's purposes in its con-
duct of the disciplinary conferences on March 19 con-
sisted first of seeking to ascertain Britton's position
with respect to the question of Respondent's right to
require performance of "call-out overtime" work as a
191 NLRB No. 53
CHEVRON CHEMICAL COMPANY 293
condition of employment and, second, to assure that
incidents such as that in which Britton had been in-
volved would not be repeated. But the Trial Examiner
nevertheless made no determination as to Respondent's
motive or its asserted reason for giving Britton a 1-day
suspension. The Trial Examiner found, rather, that
whether or not Respondent deliberately so intended, its
disciplinary action had the necessary effect of dis-
couraging membership in the Union. He based this
conclusion on a subsidiary determination that Re-
spondent had so coupled its imposition of the discipli-
nary suspension with the Union's assertion of Britton's
right to refuse overtime that Respondent had thereby
created the impression that Britton was suspended be-
cause the Union asserted his rights in the matter. Re-
spondent has excepted to the affirmative findings made
by the Trial Examiner on grounds that they are not
supported by the record as a whole and has further
excepted to the Trial Examiner's failure to find that
Respondent would have disciplined Britton as it did,
with or without the Union's intervention, so long as
Britton declined to give any assurance that he would
not again refuse to obey a managerial overtime work
order as he did. We find merit in the Respondent's
exceptions.
First of all, the record is devoid of evidence of posses-
sion by Respondent of union animus. There is not a
scintilla of evidence that Respondent, in respect to Brit-
ton or any other circumstance, opposed or tried to
discourage union representation of its employees. What
Respondent was seeking to discourage, so it seems to
us, was an employee's attempt to arrogate unto himself
a right to determine the propriety of a managerial over-
time work order and to refuse to perform the work
order until he could prevail.2 What coupling there may
have been of the Union's position in the matter with the
imposition of the suspension which resulted from the
disciplinary proceedings was attributable not to Re-
spondent, but to Britton who, not at, all improperly,
sought and relied upon the Union's assistance and ad-
vice, and was likewise attributable to the Union, which
advised him and supported his position. This appears
to us clearly to be the factual posture of the matter that
2 Contrary to the General Counsel's contention , Button's insistence on
his point of view was something more than the mere assertion of a contract
claim. For as to such a claim , the collective-bargaining contract provided
machinery to pursue it. Nothing in Respondent's history of dealing with its
employees and with the Union warrants the inference that Respondent was
unwilling to have such claims resolved at the grievance forum or that it
sought to discourage their presentation at such forum . On the contrary,
there is affirmative evidence that other management actions involving over-
time assignments became the subject of grievances and were resolved, with
management's cooperation , through the grievance-arbitration provisions of
the contract , Here, Respondent offered Britton every reasonable oppor-
tunity to explain his defiance of a supervisor 's work order and thereby to
avoid management's exercise of its right to discipline him for insubordina-
tion The General Counsel 's reliance on Bunney Bros. Construction Co.,
139 NLRB 1516, 1519, in litigating this case is, in our view, misplaced. See
Tech-Craft, Inc., 152 NLRB 1508
is presented by the record. We are reluctant to believe
that this was less apparent to any of the parties or their
representatives at the March 18 and 19 disciplinary
conferences. In this we find nothing which tends to
discourage union membership within the intendment of
Section 8(a)(3) and (1) of the Act.
As, in the context of the record as a whole, we find
no persuasive evidence that Respondent suspended
Britton for reasons proscribed by Section 8(a)(3) and
(1) of the Act, as alleged, we shall dismiss the com-
plaint.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER , JR., Trial Examiner : This proceeding
was heard at Richland , Washington , on September 15, 1970.
The complaint herein , issued on July 8, 1970 , based on a
charge filed March 23, 1970, alleges violation of Section
8(a)(3) and (1) of the Act by virtue of the suspension of one
Dennis Britton for 1 day. The issues will be more fully set
forth hereafter . Upon the entire record , including my obser-
vation of the witnesses and after due consideration of the
briefs filed by the General Counsel, the Charging Party, and
the Respondent , I make the following:'
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Chevron Chemical Company, herein called the Re-
spondent, is a Delaware corporation engaged in the operation
of a fertilizer production plant at Finley, Washington. During
the past year , sales to customers located outside the State of
Washington exceeded $50,000. The Respondent admits, and
I find, that it is engaged in commerce within the meaning of
the Act.
II THE LABOR ORGANIZATION INVOLVED
Local Union 369, International Chemical Workers Union,
herein called the Union , is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The complaint alleges that on March 17 the Respondent,
by its supervisor, George Duffy, telephoned to Dennis Britton
and "requested"2 that he report for work at 8 p.m. that
evening although his regular shift did not commence until
' The General Counsel on October 9 filed a motion to correct the record
in certain specified respects. No opposition has been filed. I have checked
each of the proposed corrections and find that all except the last one, No
9, are correct and should be granted. As to No. 9, that should be corrected
by placing quotation marks before the word I and after the word day. The
motion to correct the record is accordingly granted.
The answer asserts he was "ordered" to report.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
midnight. Britton declined to report ahead of his regular
shift. The complaint further alleges that on or about March
19 the superintendent of Respondent held a meeting with
Britton and the shop steward at which Britton and the Union
took the position that the Respondent could not require an
employee to report for work during the employee's off-hours.
The complaint further alleges that at the close of this meeting
the Respondent through Shaner suspended Britton from
work for 1 day because of the position taken by Britton and
the Union.
The proof herein relates to the circumstances surrounding
the refusal by Britton to report to work and the discussion
which occurred at certain meetings thereafter in which he
and a union representative met and participated with man-
agement representatives. The testimony is-fairly lengthy as to
a number of matters which I shall describe only briefly be-
cause I believe this case can be resolved on the basis of certain
statements made by Shaner, the plant superintendent.
The Respondent was presented with a situation which re-
quired skill, technical knowledge, and care to avoid certain
pitfalls. I do not believe it was successful in so doing. When
an individual employee refuses an order to report for "call-
up" overtime work, thereafter contends he is not required to
do so, requests that a union representative be present when
management summons him for his refusal, and delegates to
the union representative the function of answering for him,
management is presented with a difficult problem when it
seeks to elicit an answer as to whether the individual will
thereafter respond in the same manner, as distinguished from
(either his) or the union's position as to his right to do so.
When Respondent elicited a certain response, post, and then
took action, I believe it erred. There is evidence that' Re-
spondent may not have intended to take a position which was
stated. Nevertheless, certain utterances were made by the
superintendent which, in my opinion, resulted in a violation.
Respondent's position is that all it was seeking in the meet-
ings was to determine whether or not Dennis Britton would
again refuse to come to work for "call-up" overtime if or-
dered to do so and that it had a legal right to determine this
and condition its disciplinary action on Britton's response
thereto.
The General Counsel claims that Respondent suspended
Britton following and because (he and) the Union had as-
serted the right to refuse to come in when called.
B. The Facts
At or about 6:45 p.m. on March 17, employee Dennis
Britton received a telephone call from Foreman George
Duffy. Britton was due to report for work at midnight to
work until 8 a.m. At the time he was home and about to go
out. Duffy told Britton that he had unsuccessfully tried to
find two other operators with less overtime than Britton and
that he needed him to come in to report by 8 o'clock that
evening. Britton told Duffy he had personal matters to attend
to and would not be able to come in before -the regular shift.
Duffy told Britton he would have to come in, asserting it was
a condition of employment that Britton report prior to the
scheduled shift upon demand by the Company. Britton tes-
tified Duffy had referred to a "contractual agreement as a
condition of employment" that he would have to report for
work. Duffy testified that he told Britton "this is a condition
of employment" that he be available as a "call-out."
According to Duffy there had been a management discus-
sion about the problem of call-out overtime at a supervisors'
meeting, and the supervisors had been informed that it was
a condition of employment that the employees report to work
when required for such purpose. There is no question that the
plant operates 7 days a week and does require continuous
attendance on the part of employees. However, there have
been a number of issues in the past as to the requirements
appertaining to, rules applicable to, and procedures to be
followed as to overtime whether "holdover" or "called-out"
overtime. According to uncontradicted record testimony
which I credit, until the Britton incident, employees had been
requested, but not ordered, to come in for call-up overtime.
Britton testified that he did not feel he was obligated to come
in, and he believed that the labor agreement did not require
him to report.'
Britton, at the time, had more overtime to his credit than
anyone else in his classification. During the discussion with
Duffy, Britton five times stated that he could not or would not
come in. According to Duffy, Britton said "forget it" and
hung up. Britton admitted that he hung up, denied that he
said, "forget it," and testified he told Duffy "George, I'm
sorry, I will not be able to come in." Duffy obtained someone
else to do the work and reported the incident to Shaner, the
plant superintendent. With respect to the matter of overtime,
there is no question there have been prior incidents which
resulted in discussions, negotiation, and an arbitration deci-
sion. There were also various contentions on the part of Brit-
ton, the Union, and the Respondent as to who should have
been called out and why someone else wasn't called out, but
I do not believe these are essential to a resolution of the
instant case.
The following morning when Britton reported, he received
a call from a foreman, Coldiron, that Plant Superintendent
Dave Shaner desired to see him. Britton requested that the
chief steward, James Watts, be allowed to accompany'him.
Shaner, Watts, and Britton then met in the plant lunchroom.
According to Watts, whose testimony is essentially uncon-
tradicted except where otherwise indicated, the subject of the
discussion was Britton's refusal to report for called-out over-
time as instructed by Duffy. Watts and Shaner discussed
whether or not Britton had the right not to report for the
"called-out overtime," and asked Britton if he would be will-
ing to apologize to Duffy. Britton agreed. At this point, Watts
said to Shaner that an oral apology would be sufficient
method of resolving the situation, because under the agree-
ment Britton did have the right to refuse "called-out over-
time." According to Watts, Shatter then said, "Well now,
wait a minute, this puts a little different light on the whole
thing, pardon me a minute." Shaner then got up and went
into the office where the plant manager was sitting. He came
back shortly and asked "Well, where do you under what
provision of the agreement do you base your idea that the
Union or the man has the right to turn down overtime."
Watts quoted him the Union's position. Shaner then said,
according to Watts, "This puts a different light on the whole
thing, I will get back to you in a couple of hours." There was
evidently no further discussion and the meeting adjourned.
At this meeting, there was no mention of any disciplinary
action whatsoever against Britton. Shaner testified on direct
examination that at this meeting on March 18:
. And Dennis substantially told me the same thing,
that George had called him about 6:45 in the evening,
that George had insisted no less than five times, that
Dennis report to work on the 8 o'clock swing shift for
overtime assignment . That George had told him that it
was a condition of employment that he do show up. And
' The labor agreement provides as to the distribution of overtime: ARTI-
CLE 4 Section 10. Insofar as practicable, overtime work will be divided
equitably among employees within their respective job classifications " It
also contains a "Management Right" clause in art. 16, sec 1, giving manage-
ment the right to direct the work force "and the assignment of employees
to jobs and allocation of work to employees."
CHEVRON CHEMICAL COMPANY 295
he said at that time was irritated, said forget it and hung
up and terminated the conversation.
Q. Did you ask Britton at this meeting if he at any
time had explained to Duffy the reason for not coming
in?
A. Yes, I did, I asked Dennis a couple of questions.
I asked him to relate his conversation. I asked him if at
any time during his conversation with George if he had,
in fact, given George any reason for not reporting. Den-
nis said no, he had not, that it wasn't any of the com-
pany's business . And I asked Dennis, "Wasn't that being
insubordinate to George?" And he said, "No, at no time
during the conversation was I abusive, used any swear
words." All he said was that he was sorry, and "I don't
have to give George any reasons for not reporting for
work."
Q. What statement did you make at the close of the
meeting, the meeting of 3/19?
A. Well, Jim, of course, was there and Dennis was
there. And I told him that I would sit down and think
about the meeting and the incident, information I had
from George and his answer and give an answer.
On cross-examination, he was asked if Watts had stated the
Union's position and responded "Yes." He was asked if he
considered this something new and answered:
A. Well, Mr. Watts told me that the union's position
was that they would prefer or expect us to call in, or I
should, excuse me, to hold over a man 16 hours, which
was rather surprising to me, yes, because we had dis-
cussed this at different times in negotiations and I
thought it was very specific what we would attempt to
do, and that was that we would not hold a man 16 hours
unless it was an emergency, that we would not call a man
back in on a scheduled day off unless it was an emer-
gency, that we would not call a man back in who has
already worked his scheduled eight hours, to work a
shorter amount of time in overtime coverage situation.
Q. So that the position taken by Mr. Watts did come
as somewhat a surprise to you at your first meeting on
the 18th, is that not right?
A. That is true.
It appears from the foregoing that Watts' and Shaner's
versions differ as to the precise cause of the "surprise" on the
part of Shaner at the Union's position concerning Britton's
asserted "right" not to report. There seems to be a somewhat
different emphasis as between the two versions. The General
Counsel stresses "surprise" at insistence by the Union of a
"right" not to report while Shiner's version indicates "sur-
prise" at the reason for the assertion which to him involved
a changed position by the Union with respect to the handling
of overtime.
From the foregoing, it appears that something arising from
the discussion which related to rights with respect to overtime
caused the adjournment of the meeting rather than accepting
the apology and concluding the matter. The meeting ad-
journed with Shaner commenting he would consider the inci-
dent and give an answer sometime later. As set forth, supra,
Shaner testified that during the meeting Britton admitted he
had told Duffy to "forget it" and hung up. Although Britton
denied he told Shaner his reasons for not reporting were none
of the Company's business, Watts testified that Britton did
tell Shaner that what he did was "none of the Company's
business." According to Shaner, Britton said that he didn't
have to give Duffy any reasons for not reporting.
Following the March 18 meeting, Shaner reported to Plant
Manager Hopkins what had occurred. Hopkins' reaction was
that Britton should be suspended for 3 days for insubordina-
tion. However, Hopkins testified that before reaching a deci-
sion he called the labor relations department of the Company
in San Francisco and discussed the problem. Hopkins said the
department told him that the suspension should be for 1 day
instead of 3 days. According to Hopkins, an incident report
was prepared, but the last two paragraphs' were not typed at
that time but held to determine whether Britton's insubordi-
nate conduct was deliberate or the result of a misunderstand-
ing. Hopkins said he gave the incident report minus the last
two paragraphs to Shaner with instructions and guidelines to
follow to make sure there were no misunderstandings or
mitigating circumstances. Exactly what Hopkins expected to
ascertain after Shaner's report of the original meeting is not
clear.
On March 19, a further meeting occurred at which were
present Shop Steward Jerry Cramer since Watts was off that
day, Britton, Shaner, and Foreman John Stewart. The meet-
ing commenced with Shaner handing Britton and Cramer the
incident report against Britton concerning his conversation
with Foreman Duffy. Cramer and Britton read the report.
Shaner asked Britton to sign it. At this point, the last two
paragraphs were not contained therein. So there was no refer-
ence to suspension. Cramer and Britton took exception to
certain statements, and Cramer advised Britton not to sign it.
Britton refused to sign the report. According to Cramer, he
advised Shaner that the Union "felt that a man's home is his
private life and that he doesn't have to come in." According
to Shaner, whenever he tried to ascertain from Britton
whether there was a misunderstanding or whether Britton
would do it again, he received no response from Britton who
looked at Cramer. Shaner said he accordingly assumed
Cramer was Britton's spokesman. Cramer testified that in
response to his statement of the Union's position, Shaner said
"If the Union takes the position that Dennis Britton can
refuse overtime when called at home I am going to add a
day's suspension to this report."5 According to Cramer he
told Shaner, "Gee, this is unfair labor." Shaner thought for
a minute and said, "Aw, forget it, just forget it," Cramer said
"I'm going to forget it" and Shaner turned to him and said,
"I still want your position." Cramer testified he then said, "I
can't make the decision for the Union. I will have to get an
answer." Cramer and Britton then went out to make a phone
call to Chief Steward Watts. Cramer informed Watts of Sha-
ner's statement about suspending Britton for 1 day if the
Union's position was that Britton had the right to refuse
called-out overtime. Watts did not desire to take a position
without first consulting the union attorney whom he called.
Shaner was questioned by the Trial Examiner about the
above-claimed statement as to suspending Britton, and tes-
tified as follows:
TRIAL EXAMINER You are talking now about Den-
nis. My question is related to this question which I will
repeat again, whether you made a statement such as or
like it, "if the union wouldn't agree that the company has
the right to have a man come in when called, then I will
suspend Dennis for one day."
THE WITNESS I don't recall saying it exactly like that,
sir.
Which refer to reading and discussing the report and the incident and
then specifies a 1-day suspension.
5 Britton on direct examination testified that Shaner said , "If the Union
doesn't agree with the Company that the Company has the right to insist
a man come in when called," then he would suspend him for 1 day
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER• Did you make any statement like
that?
THE wrrNESS.I may have, yes. [Emphasis supplied]
TRIAL EXAMINER: What did you say?
THE WITNESS: During our meeting prior to, this is a
meeting of the 19th, prior to Jerry making his phone call,
and I couldn't get an answer from Dennis and I asked
Jerry what the union 's position may have been at this
time.
TRIAL EXAMINER: What did he say?
THE WITNESS: And I said it depends on what Dennis'
answer is or what the answer is as to what discipline Mr.
Britton is going to receive, whether it may be a one-day
suspension or incident report without suspension.
After Cramer and Britton had called Watts, they returned
to the lunchroom and there is a conflict at this point as to
what occurred . According to Cramer and Britton , Cramer
told Shaner that Watts would phone him later in the morning
and relate the Union's position and the meeting terminated.
According to Respondent witnesses Shaner and Stewart,
Britton was notified he was suspended after Cramer and Brit-
ton returned to the lunchroom after placing the phone call
and after Cramer had told Shaner that the Union's position
was that Britton had the right to turn down "called-out"
overtime . Britton and Cramer contend that Britton wasn't
notified he was suspended until subsequently when they were
leaving an office after cashing some meal tickets at which time
Shaner came out of his office and told Cramer that Watts was
on the phone. According to Cramer, Watts told him that the
union attorney advised Watts that the Union should maintain
the position that the employee had the right to refuse called-
out overtime . According to Britton and Cramer , at this point
Shaner asked Cramer for the Union position , and Cramer
told him it was the Union 's position that a man and Mr.
Britton had the right to refuse overtime when called at home.
Shaner then turned to Button and asked him if that was his
position and Britton said , "I go along with the Union."
Shaner then told Britton that he was suspended for 1 day and
would have to add the suspension to the incident report.
Watts testified that he talked to Shaner on the phone after
speaking to the Union 's attorney and that he told Shaner, "It
is my understanding that if the Union takes the position that
a man has the right to turn down called -out overtime that you
are going to suspend Dennis Britton if he agrees with the
Union" and that Shaner responded to Watts "That is abso-
lutely right, that is our position."
Shaner stated that Britton was suspended in the lunchroom
at the close of the meeting. Shaner testified:
Well, up, to this time , I had not received any answer from
Dennis. And when Jerry came back from his phone
conversation , he said , "This is going to be the union's
position , I think." And I told him at that time, would
Dennis again , I posed the question to Dennis , "Would
you, given the same set of circumstances , would you
refuse to come in as you did on the night of the 17th?"
And this is the reason we gave him the suspension.'
With respect to the call from Watts, Shaner testified that
Watts simply asked Shaner if they didn't have the problem,
and Shaner replied , "Yes," and when asked by Watts what
had happened , Shaner told Watts that he had suspended
Britton for I day. Shaner said he then went out to get Cramer.
Stewart, who was at the March 19 meeting in the lunchroom,
testified:
6 Shaner added that he said "If this is your position that you would do
the same action again, then I am giving you a one-day suspension." Shaner
believed Britton said "If this is going to be the Union 's position , then it will
have to be my position."
... And finally Mr. Shaner asked "Jerry" if he could get
an answer . And "Jerry" said , "Well, what do you
mean?" And Dave said, "I would like an answer to this
question . So I am going to refer to you now, what is the
union 's position on Mr. Britton 's attitude. " He said, "I
would like to get an answer from somebody so that I
would know what to do, how to handle this ." [Emphasis
supplied] . Somewhere in the conversation Mr. Cramer
said, "Now wait a minute Paul, you are stepping on the
grounds of an unfair labor charge." Dave said, "No, I
don't think I am. All I want is an answer so I know how
to handle this." And it was kicked back and forth and
Mr. Cramer says, "Well, may I have an adjournment? I
would like to make a phone call ." Mr. Shaner granted
it. Mr . Britton and Mr. Cramer went into the shipping
foreman's office, made a phone call, come back and Mr.
Shaner asked them again , what was their position. Jerry
says, "The union's position is that Dennis had the right
to refuse the overtime. " Dave asked Dennis again what
his position was. Dennis says, "If that is the union's
position that is myposition. " Dave said, "Thank you, you
have one day's suspension. " He said , "I will take this,"
that is that report, "up to the office and have the com-
ments put on the bottom that this did result in suspen-
sion ." And that is all I know. They walked out. [Empha-
sis supplied].
Shaner testified on cross-examination:
Q. All right. I will ask you again. When Mr. Cramer
came back from the phone conversation that he had, he
and Dennis returned to the lunchroom , it is your tes-
timony-and Mr. Cramer said that he thought it was the
union 's position that Dennis could refuse the overtime
and that Dennis said that he was going to agree with
whatever the union 's position was, and it was at that
point that you told him of his one day's suspension?
A. Yes, that is when I gave him the one day's suspen-
sion . I asked Dennis again;
It is evident that Britton was suspended and the suspension
added to the incident report following Cramer's statement of
the union position as to the right to refuse overtime which
Britton adhered to. I do not consider that it made any differ-
ence whether this occurred in the lunchroom as testified to
by Stewart and Shaner , or later as testified to by Britton and
Cramer . No matter which time is correct' I am crediting
Britton and Cramer supported by Shaner 's admission , supra,
on examination by the Trial Examiner , and by the reference
in Stewart 's testimony to "the Union's position" that Shaner
predicated or gave the appearance ' of predicating the suspen-
sion on the Union 's assertion of Britton's right not to report.
Also to be noted in connection with the testimony of Brit-
ton is the following:
So we went in and Mr. Cramer talked to Watts on the
telephone . I assume it was Watts. After speaking on the
telephone Mr. Shaner asked Mr. Cramer what the
union 's position was and Cramer told him that the
union 's postition was the company didn't have the right
to insist a man come in. Mr. ' Shaner turned to me and
asked me what my position was. I told him I would have
to go along with the union . At that time he told me that
I was suspended for one day starting tomorrow, the next
day.
It appears from the foregoing that the Respondent was
seeking to obtain Britton 's position, and from Hopkins' tes-
timony, that Respondent was seeking to assure that the inci-
' If a finding were necessary as to this I would be inclined to credit Britton
and Cramer as to the time , since it is evident that Cramer was not prepared
to take a definitive position during the lunchroom meeting.
CHEVRON CHEMICAL COMPANY
dent would not be repeated . Respondent 's contention and
version is that it was endeavoring to have Britton commit
himself as to his not refusing to work when called in. In
essence, Respondent 's view is that an employee is expected to
work and then protest the matter of his right under the agree-
ment or practice . The latter is the customary approach to
industrial relations . Normally an employee performs the job
assigned and protests the order to do so as a grievance. The
difficulty with the Respondent 's position , as I see it, is that,
whatever it may have been trying to do, that in the process
thereof, as set forth above in the testimony of Cramer, Brit-
ton, Watts, and Shaner in part, that the Respondent through
Shaner proceeded to couple the matter of Britton 's refusal to
work if ordered to come in on called-up overtime with the
Union's position as to his right to so refuse . Respondent then
proceeded to suspend Britton following the Union 's assertion
that Britton had a right not to come in, with both the Union
and Britton adhering to the Union 's position. As previously
set forth, the foregoing involves three possible situations: (1)
Britton 's refusing to come in as such, (2) Britton 's assertion of
a right not to have to come in as distinct from his refusal to
come in, and (3) the Union 's assertion of his right as an
employee not to come in. The sequence of events and tes-
timony above all point to a coupling of what may have been
intended as a position with respect to claimed insubordina-
tion by Britton with the Union's assertion of his right as an
employee. These include the absence of discussion of disci-
pline at the first meeting on March 18 ; omission of suspension
in the initial presentation of the incident report; an indicated
ambiguity in the incident report itself' as to "obligation to
report" versus "right to insist" on his reporting under par-
ticular circumstances ; the repeated reference to "union posi-
tion" in the testimony of all witnesses ; the specific testimony
of Watts, Cramer, and Britton as to Respondent 's condition-
ing the suspension of the Union 's position which is further
supported by Stewart 's testimony concerning Shaner 's refer-
ence to union position ; and Shaner's admission in questioning
8 The incident report reads as follows: At 8 a.m., 3-18-70, a discussion
was held with this employee . For reason of possible misunderstanding as to
an employee's obligation to report for work for overtime coverage when all
other avenues of obtaining qualified and available personnel were exhausted.
It was apparent from this discussion that there was no misunderstanding
on the part of the employee even though he was aware he was the only
qualified available man within classification to provide the shift coverage.
This employee felt the Company did not have the right to insist on his
reporting for the overtime work. This was partially based on the fact he was
the high man on the overtime list at this point in time.
By years of past practice the Company has canvassed all qualified availa-
ble employees in respective job classification to obtain call out overtime shift
coverage. On occasion when this overtime coverage was refused by all
qualified available employees in the respective job classification , the over-
time was assigned to another available qualified employee by upgrading
from a lower classification Also, by past practice , when there was no lower
available qualified classified employee and all qualified available employees
in the respective classification had refused overtime, the assignment was
made to the low overtime man in the classification to be covered and these
employees have reported for work.
The current Articles of Agreement , Article 16 , provide management with
the rights to the assignment of employees to jobs and allocation of work to
employees. It also provides for the call out of employees and compensation
for the work performed under these circumstances as set forth in Article 4,
Sec. 4.
This incident report was read and discussed with the employee on
3/19/70 to again determine if there was any misunderstanding on the part
of employee as to his obligation to report for overtime coverage work. As
a result of this discussion , it was found there was no misunderstanding, the
employee's position remains unchanged from the above.
This being the case, Britton is being suspended one day without pay,
effective 3/20/70 Any further incidents of this or of similar nature will
result in more severe disciplinary action. [Emphasis supplied]
297
by the Trial Examiner, supra, that he "may have, yes" condi-
tioned the suspension on the union's taking a position that
Britton could refuse overtime.
Whether it was intended or not , it is evident and I find that
the Respondent caused Britton , Cramer, and Watts to believe
that the suspension of Britton was the result of the Union's
assertion of his right as an employee not to come in. The
suspension , therefore, would have the effect of discouraging
membership in the Union .' It also would restrain and coerce
Britton and other employees in the exercise of rights guaran-
teed in Section 7 of the Act in violation of Section 8(a)(1). The
foregoing would be true whether or not the Respondent actu-
ally intended to take the action because of the Union's asser-
tion of the right of an employee not to come in. Accordingly,
the Respondent, by suspending Britton, and adding the sus-
pension to the incident report , violated Section 8(a)(3) and
( 1), and I so find.
In this light, I do not consider it necessary to reach a
conclusion as to what Respondent intended to do whether
deliberately or inadvertently through its coupling of several
matters. The General Counsel asserts that it clearly intended
to suspend him because of the Union 's assertion of his right
not to come in and that he wouldn't have been suspended if
the Union hadn't made such assertion . There is good ground
to make such an argument in view of the fact that the suspen-
sion wasn 't raised at the initial meeting , the adjournment of
that meeting following the asserted differences as to handling
of overtime, the fact nothing was said about suspension even
on March 19 until after the Union 's position was asserted, the
indicated ambiguity of the incident notice , and all of the
testimony set forth , supra, as to the statements made by
Shaner.
As stated earlier , great skill is required to differentiate
between dealing with the discipline of an individual and with
a union where there is involved a claimed right either as a
condition of employment or under a contract . In this case, I
have found and concluded Respondent suspended Britton
under circumstances which could cause Britton , Watts and
Cramer to believe that such was because of the Union 's asser-
tion of the right of an employee to refuse to come in to work.
I have also found that, under these circumstances, the action
by Respondent of suspending Britton and adding the suspen-
sion to the incident report10 was in violation of Section 8(a)(3)
and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent , set forth in section III, above,
occurring in connection with the operations of Respondent
Employer described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce
among the several States, and the unfair labor practices al-
leged to have occurred tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
See Radio Officers Union, AFL v. N..L.R .B., 347 U.S. 17
10 Nothing , herein, is intended to imply that Britton was correct in refus-
ing to report when called upon to do so Nor that a penalty , therefor, would
be improper . The General Counsel did not question the incident report but
only the suspension resulting from positions asserted by the Union and
Britton and the response of Shaner
Nor have I made any finding as to the right of Respondent or an employer
to require an employee to work in a given situation pending disposition of
a grievance he may have with respect thereto.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, it will be recommended that Respondent
be required to cease and desist therefrom.
I shall also recommend the following affirmative action
necessary to effectuate the policies of the Act: That Respond-
ent strike from the incident report the last two paragraphs
thereof and accordingly remove the suspension of Britton and
that Respondent further make Britton whole by payment to
him of 1 day's pay with interest at the rate of 6 percent per
annum from the date of the suspension.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By suspending Dennis Britton under the circumstances
set forth above, Respondent discriminated in regard to the
hire and tenure of employment of Dennis Britton to discour-
age membership in a labor organization in violation of Sec-
tion 8(a)(3) and (1) of the Act.
4. By suspending Dennis Britton under the circumstances
set forth above, Respondent restrained and coerced Britton
and other employees in the exercise of rights guaranteed in
Section 7 of the Act in violation 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 omitted from publication.]