Condea Vista Co.

National Labor Relations Board - Board Decisions

Nov 16, 2000

332 N.L.R.B. 1275 (N.L.R.B. 2000)

CONDEA VISTA CO. 1275
Condea Vista Company, Lake Charles Chemical
Complex and Paper, Allied-Industrial, Chemi-
cal, & Energy Workers International Union No.
4-555, AFL–CIO, CLC. Case 15–CA–15219
November 16, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On April 5, 2000, Administrative Law Judge Pargen
Robertson issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed exceptions by way of a Motion for Clarifi-
cation, to which Respondent filed an answer.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions4
and to adopt the recommended Order as modified and set
forth in full below.5

1 The motion requested the Board to add a 8(a)(4) violation to the
judge’s conclusions of law. Since the motion conforms in all material
respects with a timely filed exception, we have treated it as such.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We also agree with the judge that the Respondent did not offer to
bargain through its letter of October 30, 1998, or at a December 1998
meeting. Ohio Power Co., 317 NLRB 135 (1995). We do not rely,
however, on the judge’s speculation that Darren Appleby, the union’s
representative at the December 1998 meeting, refused to discuss unpaid
union leave for fear of a potential disciplinary inquiry.
4 The judge found, based on the credited testimony of union interna-
tional representative Gary Beevers, that Respondent’s human resources
director Michael Glackin told Beevers that unpaid leave for union-
related business had been canceled because local union president Daren
Appleby had been using this leave to prepare, inter alia, “frivolous
complaints with the NLRB.” In light of this finding, and in the absence
of evidence of frivolous complaints, we conclude, in accord with the
General Counsel’s exception, that the Respondent’s termination of
unpaid leave for employees’ off-premises union activity violated Sec.
8(a)(4), as well as 8(a)(5), (3), and (1). In so finding, we note that the
complaint alleged that the Respondent’s actions violated Sec. 8(a)(4)
and that the allegation was fully litigated.
Member Hurtgen does not pass on the issue of whether the Respon-
dent’s termination of unpaid leave for off-premises union business was
unlawful under Sec. 8(a)(5). He agrees that said termination was
unlawful under Sec. 8(a)(3) and (4), and a Sec. 8(a)(5) conclusion
would not materially alter the remedy.
ORDER
The National Labor Relations Board orders that the
Respondent, Condea Vista Chemical Company, Lake
Charles, Louisiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with change of its policy
of granting unlimited unpaid leave for certain employees
to conduct union business off its plant premises.
(b) Discriminating against an employee in regard to its
policy of unlimited unpaid leave to conduct union busi-
ness off its plant premises because the employee has en-
gaged in protected union activity and/or has filed unfair
labor practice charges.
(c) Refusing to bargain collectively with the Paper, Al-
lied Industrial, Chemical & Energy Workers Interna-
tional Union No. 4–555, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit described below, regarding the policy of
granting unlimited unpaid leave for certain employees to
conduct union business off its plant premises:
All employees of CONDEA Vista Company’s Lake
Charles East Plant, except and excluding all executives,
division heads, office clerical employees, warehouse is-
suemen, chemists, engineers working in their profes-
sional capacity, safety supervisors, technicians, inspec-
tors, fire marshals, salaried warehousemen, guards, and
watchmen, professional employees, foreman [sic] and
all other supervisor [sic] employees as defined in the
Act.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days of this Order, reinstate its policy of
granting unlimited unpaid leave to conduct union busi-
ness off its plant premises.
(b) Within 14 days after service by the Region, post at
its place of business in Lake Charles, Louisiana, copies
of the attached notice marked “Appendix.”6 Copies of the
5 We shall modify the Order and substitute a new notice to include
provisions addressing the discriminatory aspects of the Respondent’s
unlawful conduct and providing for the contingency of notice-mailing
in the event that the Respondent ceases operations at its Lake Charles,
Louisiana plant.
6 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 Judg-
332 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1276
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 Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 30, 1998.
(c) Within 21 days after service by the Region, filed
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten our employees with a change of
our policy of granting unlimited unpaid leave to conduct
union business away from our plant.
WE WILL NOT discriminate against an employee in re-
gard to our policy of unlimited unpaid leave to conduct
union business away from our plant because the em-
ployee has engaged in protected union activity and/or has
filed unfair labor practice charges with the Board.
WE WILL NOT change our policy of granting unlimited
unpaid leave to conduct union business away from our
plant, without bargaining with Paper, Allied Industrial,

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Chemical & Energy Workers International Union, Local
Union 4-555 as the exclusive collective-bargaining rep-
resentative of the below described bargaining unit:
All employees of CONDEA Vista Company’s Lake
Charles East Plant, except and excluding all executives,
division heads, office clerical employees, warehouse is-
suemen, chemists, engineers working in their profes-
sional capacity, safety supervisors, technicians, inspec-
tors, fire marshals, salaried warehousemen, guards, and
watchmen, professional employees, foreman [sic] and
all other supervisor [sic] employees as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of this Order, reinstate our
former policy of granting unlimited unpaid leave to con-
duct union business away from the plant.
CONDEA VISTA CO., LAKE CHARLES
CHEMICAL COMPLEX

Stacey M. Stein, Esq., for the General Counsel.
James P. Gillece, Jr., Esq. and Robert R. Niccolini, Esq., of
Baltimore, Maryland, for the Respondent.
Bernard L. Middleton, Esq., of Houston, Texas, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
PARGEN ROBERTSON, Administrative Law Judge. This hear-
ing was held on January 26, 2000, in Lake Charles, Louisiana.
The charge was filed on March 5, and a complaint issued on
July 16, 1999.
Respondent, General Counsel, and Charging Party were rep-
resented.1 In consideration of the entire record and briefs,2 I
make the following findings.
I. JURISDICTION
Respondent is in Westlake, Louisiana, where it is engaged in
manufacturing and processing chemicals. During the 12 months
ending May 31, 1999, its business included the purchase and
receipt of goods valued in excess of $50,000 directly from
points located outside Louisiana. Respondent has been an em-
ployer engaged in commerce within the meaning of section
2(2), (6), and (7) of the National Labor Relations Act (Act), at
all material times.
1 Except as specifically noted herein the evidence is not in dispute.
Respondent admitted, stipulated, or did not contest competent evidence,
regarding matters including jurisdiction, labor organization, and super-
visory status.
2 Charging Party moved to strike Respondent’s brief and Respondent
responded to that motion. After full consideration Charging Party’s
motion is denied.
CONDEA VISTA CO. 1277
II. LABOR ORGANIZATIONS
Charging Party (Union) has been a labor organization within
the meaning of Section 2(5) of the Act, at all material times.
III. UNFAIR LABOR PRACTICE ALLEGATIONS
At issue is an alleged unilateral change. The change dealt
with Respondent’s policy of permitting its employees in union
office including its president and committeemen, to take unpaid
leave to conduct union business outside the plant.
The Union represented the following described bargaining
unit since about 1969:

All employees of CONDEA Vista Company’s Lake Charles
East Plant, except and excluding all executives, division
heads, office clerical employees, warehouse issuemen, chem-
ists, engineers working in their professional capacity, safety
supervisors, technicians, inspectors, fire marshals, salaried
ware–housemen, guards and watchmen, professional employ-
ees, foreman [sic], and all other supervisor [sic] employees as
defined in the Act.

The Union and Respondent were parties to several collec-
tive-bargaining agreements. The most recent is effective from
August 21, 1996 to October 15, 2002.3 There is nothing in that
agreement regarding unpaid leave for union business outside
the plant. The agreement does provide for paid leave for the
handling of union business in the plant (JX 1, art. 22–24).4
Respondent permitted unpaid leave for union business out-
side the plant, before October 1998. Daren Appleby5 testified
that Respondent permitted him to take unlimited unpaid leave
to conduct union business including processing grievances,
arbitration, organizing, international union meetings, conven-
tions, and processing unfair labor practice charges. Respondent
did not require Appleby to inform it why he took unpaid union
leave and Respondent placed no limitation on the amount of
unpaid leave.6 The Union reimbursed Appleby’s loss of pay to
conduct union business away from the plant.
Daren Appleby recalled that he needed two days of paid un-
ion leave to go through documents in a warehouse and human
resources administrator Ely told him that Respondent was will-
ing to pay for only 1/2 that time under article 22–24 of the col-
lective-bargaining agreement. Appleby met with Ely in October
and asked for cooperation in investigating problems that would
require more on–site leave than normal. Appleby asked Ely for
his thoughts on the meaning of article 22–24.

Jim Ely wrote Daren Appleby on October 30, 1998:

3 JX 1.
4 James Ely, Respondent’s human resources administrator, testified
that a 1990 grievance resulted in use of a “reasonable amount” of paid
leave to conduct on–site union business.
5 Appleby has been the union president since 1997.
6 James Ely testified, that occasionally requests for unpaid union
leave had been denied. Those occasions occurred because of business
considerations such as big projects, turnarounds, when units were being
worked on and similar situations. On cross–examination it was revealed
that Ely had no first-hand knowledge of a specific instance of Respon-
dent denying a request for unpaid leave.
You had a question recently about what the Company
thought was reasonable Union business time as defined in
Article 22–4.
We took a look at the amount of time you have
claimed as Union business for 1997 and 1998 to date and
found that you have missed more than a third of your
scheduled shifts, 54 so far in 1998.
We also read Article 22–4 and were reminded that it
has to do only with on–site Union business.
. . . .
Most of the time you have been on Union business has
not been during your shift to investigate, present or proc-
ess grievances on Company property. Most of your Union
business days have been complete shifts that you spent off
Company property.
To answer your question, we know that 36 percent ab-
sence for off–property Union business is too much and we
expect to approve less of this type in the future.
We will approve a reasonable amount of Union busi-
ness time for on–site Union business as specified in Arti-
cle 22–4, as possible given the nature of Operations and
Maintenance work here at CONDEA Vista, and only with
prior approval of each Committeeman’s immediate super-
visor. (GC Exh. 3)

Daren Appleby responded to Ely by November 5, 1998, let-
ter which included the following:

I also found interesting, your threats to curtail unpaid Union
leave. Historically, unpaid Union leave has always been
taken. You have encouraged it by forcing me to take Union
leave time for the research I did on the 12 hour shift arbitra-
tion preparation as an example. This was per your own sug-
gestion, as you intended on not paying it contrary to Article
22–4. It would be good for our Local Union to be able to cut
back on unpaid Union leave, but we believe the company’s
misconduct when it comes to our CBA is the cause for the so
called “too much” time off as you referred to it in your e–
mail. Our Union would like to suggest the company take a
new and improved approach and cease violating our Collec-
tive Bargaining Agreement and bargain in good faith. Not
only would our Local Union be able to minimize lost time
wages, it really would benefit us all, as we would have better
employee relations. (GC Exh. 4)

Jim Ely responded on December 1, 1998, that Appleby’s ac-
cusations are not specific enough.
Around Christmas 1998 there was a meeting involving Ap-
pleby from the Union and Complex Manager Christopher
Turner, human resources director Michael Glackin and Jim Ely
from Respondent. Turner, Glackin, and Ely recall that Turner
brought up a question about a reasonable amount of time for
unpaid leave and Appleby responded that he did not have to
talk about that issue. Appleby admitted that the issue of unpaid
leave came up in one meeting but he did not recall if it was the
Christmas meeting. He denied that he refused to discuss exces-
sive unpaid union leave.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1278
Daren Appleby recalled a February 1999 meeting. Mike
Thomas7 told Appleby that he wanted outlines of specific
places and reasons for taking union leave including when meet-
ings were to start and finish.

Respondent notified the Union on February 26, 1999, that,

Effective March 15, 1999,8 we will administer Article
22–4 as written. There is no provision in 22–24 for ex-
cused time off for Union–related matters off Company
property. (GC Exh. 15)

On March 4 Appleby wrote Complex Manager Turner:

On March 3, 1999, the Union received a letter from Mr. Jim
Ely, a copy which is attached, here to, informing the Union
that effective March 15, 1999, and then set back to March 22,
1999, Condea Vista will no longer approve a request from the
Union for time off to handle Union related matters off com-
pany property.

The Union hereby request that you rescind this announcement
and that you not proceed with the proposed change

Further, the Union request that you meet and bargain with it
as required by NLRB concerning your proposed changes set
forth in your February 26, 1999, and March 3 and 4, 1999
correspondence. We are prepared to meet and bargain with
you at any reasonable time and place. (GC Exh. 19)

Turner wrote Appleby on March 10:
. . . .
Requests for off–site Union matters on scheduled work days
for such things as Union conferences, Union training, travel to
out–of–town Union meetings, arbitration preparation, Union
organizing campaigns, work or meetings at the Union Hall
and meetings at Conoco will not be approved as they are not
covered by Article 22–4. Requests for time off to attend mu-
tually agreed upon meetings, such as Grievance Meetings
with Management on the actual days of arbitration should be
addressed in writing to Mr. Jim Ely well ahead of time for ap-
proval.

With respect to your alleged demand for bargaining over this
“change,” no change is being implemented. To the contrary,
the Company is simply applying Article 22–4 as written. (GC
Exh. 22)

On June 29, 1999, Glackin wrote Appleby and stated that
Respondent was willing to negotiate the issue of unpaid union
leave.
CONCLUSIONS
Credibility
As to the question of Respondent’s policy on leave for union
business, in–plant business was handled under article 22–24 of
the contract as paid leave. As to unpaid leave away from the
plant, Respondent took the position that it had not changed its
position regarding leave for union business (GC Exh. 22).

7 Production manager of the ethylene unit and ethylene storage facil-
ity.
8 Respondent voluntarily reset the March 15 date back to March 22
at the union’s request.
However, Respondent’s records dispute that point. For example
Jim Ely wrote Daren Appleby on October 30, 1998 (GC Exh.
3), and pointed out that Appleby had missed over a third of his
scheduled shifts in 1997 and 1998 for union business off the
premises. I credit that evidence which shows that Respondent’s
policy before October 1998 was to grant unpaid leave for union
business away from its plant.
I am convinced on the basis of the full record that there was
a significant increase in the amount of unpaid leave for union–
related business for several months before Respondent changed
its policy on unpaid leave. Nevertheless, I find there was no
competent evidence showing that unpaid union leave was used
for anything other than union business. There was discussion of
unpaid leave taken either immediately before or immediately
after a weekend, holiday, or vacation. However, it was not
shown that that unpaid leave was used for anything other than
union business.
There were four different versions of a meeting near Christ-
mas 1998 between Daren Appleby, Christopher Turner, Mi-
chael Glackin, and Jim Ely. As shown below, I have consid-
ered all that testimony and in consideration of whether Respon-
dent offered to bargain over a change in the unpaid leave pol-
icy, I have credited its witnesses.
I have considered the testimony of International Union Rep-
resentative Gary Beevers that he met with Director of Human
Resources Michael Glackin and Jim Ely in April 1999. As
shown above, Glackin told Beevers that Respondent suspended
unpaid union leave because Daren Appleby was using that
leave to prepare untrue union leaflets (GC Exh. 23), and frivo-
lous complaints with the NLRB and numerous data demands.
Michael Glackin agreed that he met with Gary Beevers in April
1999. Glackin denied that he told Beevers Respondent had
revoked unpaid leave because of union activity or charges with
the NLRB. However, notes of that meeting prepared by Glackin
(R Exh. 9) tend to support the testimony of Beevers. For exam-
ple Glackin stated in the meeting notes, “I pointed out the ex-
amples of the Union grieves and arbitrates every issue, that they
have filed numerous info requests which are frivolous and
harassment . . . .” and “I further mentioned a charge that Jim
Ely had threatened the lives of Ray Reynolds and his family
and then would not allow me to properly investigate the
charges, is another example of the Union not Mgmt. straining
the possibility of establishing a better working relationship” (R
Exh. 9). In consideration of their demeanor and the full record,
I credit Beevers.
Findings
General Counsel contended that Respondent threatened its
employees with reduced leave for union business and changed
its policy of granting unpaid leave for union business in viola-
tion of section 8(a)(1), (3), and (5). As shown above, Respon-
dent’s action in that regard culminated with its February 26,
1999, notice to the Union,

Effective March 15, 1999,9 we will administer Article
22–24 as written. There is no provision in 22–24 for ex-
9 Respondent voluntarily reset the March 15 date back to March 22
at the union’s request.
CONDEA VISTA CO. 1279
cused time off for Union–related matters off Company
property. (GC Exh. 15)

In consideration of those allegations, the issues to be deter-
mined include whether Respondent had a policy of granting
unpaid leave for union business; did Respondent threaten its
employees to change that policy; did Respondent actually
change that policy without bargaining and did the Union refuse
to bargain about a change in the unpaid leave policy.
As to the first issue, I have determined that Respondent’s
policy before October 1998, was to grant unpaid leave for un-
ion business. That privilege was extended to certain union offi-
cials including especially the union president. The evidence
regarding that practice was substantial. An example of that
evidence is an October 30 1998,10 letter from Respondent Hu-
man Resource Administrator Ely to Union President Appleby,
which shows that Respondent granted Appleby a substantial
amount of unpaid leave for union business during 1997 and
1998. Respondent threatened its employees including Daren
Appleby, that it would change that policy and Respondent actu-
ally announced a change in that policy on October 30 (GC Exh.
3).
In addition to the above, General Counsel argued that Re-
spondent did not begin discussing changes in its unpaid leave
policy until after Appleby and the Union engaged in an increase
in protected concerted activities. General Counsel argued that
action constitutes a threat and a change of its unpaid union
leave policy because of its employees protected union and con-
certed activities.
In that regard, I shall consider whether General Counsel
proved through persuasive evidence, that the Respondent acted
out of antiunion animus. Manno Electric, 321 NLRB 278, fn.
12 (1996); Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
Jim Ely’s October 30 letter to Daren Appleby stated that
leave time taken offsite by Appleby for union business during
1997 and 1998 was “too much and we expect to approve less of
this type in the future.” According to Ely, Respondent had
granted Appleby unpaid union leave during 1997 and 1998 that
exceeded 1/3 of Appleby’s scheduled work time.
Appleby and other union officials were engaged in protected
activity when handling union business. In consideration of
Respondent’s motivation, I have considered the testimony of
international union representative Gary Beevers that he met
with Director of Human Resources Michael Glackin and Jim
Ely in April 1999. As shown above, Glackin told Beevers that
Respondent suspended unpaid union leave because Daren Ap-
pleby was using that leave to prepare untrue union leaflets (GC
Exh. 23), and frivolous complaints with the NLRB and numer-
ous data demands. As shown above, I credit Beevers’ testi-
mony.
In view of that evidence, I find that Respondent was moti-
vated by its employees’ union activities to change its policy of

10 Find that the question of Respondent continuing to permit unpaid
leave to conduct union business did constitute a mandatory subject of
bargaining.
awarding unpaid leave for union business on October 30, 1998.
I shall now consider whether Respondent proved that it would
have changed its unpaid leave policy in the absence of its em-
ployees’ protected activity. Respondent raised a question as to
whether Appleby was honestly engaged in union business on
occasions where unpaid leave coincided with holidays of other
time off, but there was nothing in the record that proved that
Appleby was not using that time for union business.
Moreover, Respondent contended on numerous occasions
that Appleby was using “too much” unpaid leave. However,
there was nothing in the record that proved that Appleby’s un-
paid leave was not required to conduct union business. The
Union contended that unpaid leave was necessary due to in-
creased harassment by one of Respondent’s supervisors.
Therefore, as to the 8(a)(1) and (3) allegations, I find that
Respondent threatened to limit unpaid leave and imposed limi-
tations on unpaid leave, for union business because of its em-
ployees’ protected union activities and Respondent failed to
show that it would have taken that action in the absence of
protected union activities.
General Counsel also alleged that Respondent unilaterally
changed its unpaid union leave policy in violation of Section
8(a)(5). As shown above, Respondent first threatened to change
its policy and announced a change on October 30, 1998. Then,
on February 26, 1999, Human Resources Administrator Ely
wrote that Respondent would apply the union leave provision
of the contract (art. 22–24), as written and there was “no provi-
sion in 22–24 for excused time off for union–related matters off
company property” (GC Exh. 15). Complex Manager Turner
confirmed that Respondent would no longer approve time off
for offsite union matters by March 10, 1999 letter to Appleby
(GC Exh. 22).
Respondent had a duty to bargain with the Union as its em-
ployees’ bargaining representative and that duty continued
during the existence of its collective-bargaining agreement
concerning mandatory subjects of bargaining, which has not
been specifically covered in the contract and regarding which
the union has not clearly and unmistakably waived its right to
bargain. Rockwell International Corp., 260 NLRB 1346 (1982),
citing NL Industries, 220 NLRB 41 (1975); Southwestern Port-
land Cement Co., 303 NLRB 473, 477 (1991). “An employer
has a duty not to change past practices for employees who are
represented by a union until it has bargained to impasse on that
subject with the union.” NLRB v. Katz, 369 U.S. 736, 745–747
(1962); Rocky Mountain Hospital, 289 NLRB 1347 (1988). As
shown above, unpaid leave for union business offsite did con-
stitute a mandatory subject of bargaining.
Respondent claimed that it did not change its leave policy
(GC Exh. 22). Instead Complex Manager Turner contended that
it was simply applying article 22–24 of its collective-bargaining
agreement. That contention is spurious. Respondent’s own
documents including letters to the Union, show that it had
granted unpaid union leave and Respondent contended that
union President Appleby had abused its unpaid leave policy by
taking too much unpaid leave in 1997 and 1998. (See for ex-
ample GC Exh. 3 and 15).
Respondent argued that it offered to bargain but that the Un-
ion refused to bargain, over unpaid offsite union leave. How-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1280
ever, there was no evidence that Respondent offered to bargain
before Ely’s October 30 letter. Ely was responding to a request
for unpaid leave from Union President Appleby (GC Exh. 2 and
3). Contrary to Ely’s comments, article 22–24 of the collective-
bargaining agreement dealt only with paid leave onsite for un-
ion business and not with unpaid leave offsite. Nevertheless,
Ely pointed out that he had looked at Appleby’s 1997 and 1998
unpaid leave after Appleby asked about Respondent’s thoughts
on article 22–24 of the contract (GC Exh. 3).
Respondent also pointed to a meeting around Christmas
1998, as showing that it offered and the Union refused, to bar-
gain over unpaid leave. As to the Christmas meeting, there is
testimony from Daren Appleby, Christopher Turner, Mike
Glackin, and Jim Ely. All were at the Christmas meeting. The
testimony shows that Complex Manager Christopher Turner
was the spokesman for Respondent during that meeting. Turner
testified that he told Appleby that the unpaid leave policy was
being abused and Appleby responded that Respondent did not
have the right to ask him about unpaid union leave.
Appleby recalled that unpaid leave came up in one meeting
but he did not recall whether it was the Christmas meeting.
Daren Appleby denied that he refused to bargain.
Mike Glackin testified that the Christmas meeting was held
to discuss upcoming arbitration and issues at the plant. He testi-
fied that Chris Turner raised the issue of excessive unpaid un-
ion leave. “Specifically Mr. Turner mentioned to (Appleby)
that we had a big issue with the reasonable amount of time
being used by the union.” “Daren Appleby basically said he
refused to discuss it, as I recall” (Tr. 131).
James Ely testified that Turner told Appleby that he was tak-
ing an unreasonable amount of unpaid union leave. Appleby
testified that Respondent “didn’t have a right to talk about that”
(Tr. 95).
In consideration of the above evidence, it is apparent that re-
gardless of Ely’s testimony about October, and regardless of
which version of the Christmas meeting I credit, there is no
showing that Respondent offered to bargain about its unpaid
leave policy. The testimony of Respondent’s witnesses shows
that first Ely and then Turner confronted Daren Appleby with
the issue of employees, especially Appleby, abusing the union
unpaid leave policy.
Its important to look closely at what was involved on those
occasions. Clearly, the general issue of unpaid union leave was
discussed. However, that issue was brought up in the nature of
an accusation of abuse. Appleby was asked to explain why he
had taken so much unpaid union leave. During each incident,
Respondent appeared to be pursuing a potential disciplinary
inquiry. Respondent addressed correction of an abuse rather
than a possible change in policy. Since the Christmas meeting
was a Union–Management meeting and not a disciplinary ac-
tion meeting between an employer and an employee, Appleby
was correct when he refused to discuss the matter. He was re-
fusing to discuss a personnel action, (i.e., the question of
whether he abused the leave policy).
In view of the above evidence, I find that the record failed to
prove that Respondent offered to bargain over its unpaid union
leave policy. Moreover, I find that the Union did not refuse to
bargain over that question.
Respondent also argued in its brief, that even though its prac-
tice was to allow unpaid union leave before October 1998, that
policy was never an unlimited or unrestricted one. Unpaid un-
ion leave was sometimes denied for business reasons. Respon-
dent cited transcript page 100, lines 2–9, in support of its argu-
ment. That citation referenced testimony by Jim Ely and Ely
admitted on cross–examination, that his knowledge as to that
issue was based on what he heard from other supervisors. Ely’s
testimony does not constitute competent evidence. Therefore,
there was no competent evidence supporting Respondent’s
argument. The record failed to establish that unpaid union leave
was sometimes denied for business reasons. Moreover, even if
unpaid leave had been occasionally denied for business reasons,
the record shows that was not the case in October, February, or
March. Instead, on those occasions, Respondent raised only the
issue of abuse in consideration of its unpaid offsite leave pol-
icy. The question of denying unpaid leave for business reasons
never surfaced during the incidents material to this proceeding.
Respondent argued that the record showed that union offi-
cials had abused the unpaid leave policy. If I assume for the
sake of discussion that Respondent was confronted with abuse
of its policy when it reviewed Appleby’s record in October, it is
apparent that Respondent had several options that it could have
legally pursued regarding possible abuse of leave. One option
may have involved negotiations with the Union. I am con-
vinced on the basis of the full record, that Respondent did not
elect to pursue a legal option. Instead Respondent elected to
change its policy without negotiations.
Nevertheless, I shall consider Respondent’s contention that
its policy was abused in determining whether there is an excep-
tion to its duty to bargain before making a unilateral change. In
cases involving contract negotiations, the Board has found ex-
ceptions to an employer’s duty to refrain from unilateral
changes in mandatory subjects, until an impasse is reached, to
include (1) when a union engages in bargaining delay tactics
and (2) when economic exigencies compel prompt action. Vin-
cent Industrial Plastics, Inc., 328 NLRB 300 (1999); Bottom
Line Enterprises, 302 NLRB 373 (1991); see also International
Paper Co., 319 NLRB 1253, 1273, 1274 (1995). Here, of
course, the parties were not engaged in contract negotiations.
Additionally, as shown herein I find that the Union did not
refuse to bargain over the unpaid leave question and there was
no evidence showing that the Union engaged in delay tactics.
As to economic exigencies issue, Respondent contended that it
first learned of Daren Appleby’s abuse of unpaid union leave
after Appleby grieved that he had not received sufficient train-
ing (Tr. 120–123), but there was no evidence showing that
unpaid leave placed Respondent in a position where unilateral
action was necessary because of economic exigencies. There-
fore, I find that Respondent was not justified in changing its
unpaid leave policy as an exception to its duty to bargain.
In February 1999, Respondent Supervisors Jim Lewing and
Mike Thomas met with Appleby and asked him to specify
places or events for taking union leave (Tr. 35). On February 26
Jim Ely wrote a “follow–up” to his October 30, 1998 letter, and
announced that Respondent’s new policy on unpaid union leave
would be effective March 15, 1999 (GC Exh. 15).
CONDEA VISTA CO. 1281
Subsequently, according to Human Resources director
Glackin, the Union consistently took the position that it would
agree to only unlimited unpaid union leave (Tr. 135). Perhaps
Glackin is correct in that testimony. However, the Board has
refused to find a violation on a party taking an adamant position
on an issue International Paper Co. supra. Moreover, Respon-
dent did not put the Union to the test in that regard. It did not
offer to negotiate about its change in policy and the Union’s
resistance to that change even to the point of insisting on return
to the status quo before October 1998, does not constitute a
refusal to bargain.
I find that Respondent unlawfully changed its pre–October
1998 policy of granting unpaid offsite union leave before giv-
ing the Union an opportunity to bargain in violation of section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Condea Vista Company, Lake Charles Chemical Com-
plex, is an employer engaged in commerce within the meaning
of section 2(6) and (7) of the Act.
2. Paper, Allied Industrial, Chemical & Energy Workers In-
ternational Union, Local Union No. 4–555, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has engaged in conduct in violation of Section
8(a)(1) and (3) of the Act by threatening to change and chang-
ing, its policy of granting unlimited unpaid leave to conduct
union business outside the plant because of its employees’ pro-
tected activities. Employees in the following appropriate bar-
gaining unit are exclusively represented by Paper, Allied Indus-
trial, Chemical & Energy Workers International Union, Local
Union No. 4–555:

All employees of CONDEA Vista Company’s, Lake Charles
East Plant, except and excluding all executives, division
heads, office clerical employees, warehouse issuemen, chem-
ists, engineers working in their professional capacity, safety
supervisors, technicians, inspectors, fire marshals, salaried
warehousemen, guards and watchmen, professional employ-
ees, foreman, [sic] and all other supervisor [sic] employees as
defined in the Act.

4. Respondent has engaged in conduct in violation of Section
8(a)(1) and (5) of the Act by changing its policy of granting
unlimited unpaid leave to conduct union business outside the
plant without first bargaining with the Union during the term of
its collective-bargaining agreement.
5. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
THE REMEDY
Having found that Respondent employers have engaged in
unfair labor practices, I shall recommend that each be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that Respondent has illegally changed its
policy of granting unlimited unpaid leave to conduct union
business outside the plant, I shall order Respondent to restore
that policy to the status quo ante.
[Recommended Order omitted from publication]