Jefferson Chemical Co., Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1972

200 N.L.R.B. 996 (N.L.R.B. 1972)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jefferson Chemical Company, Inc and Oil, Chemical
and Atomic Workers International Union,
AFL-CIO Case 23-CA-4088
December 20, 1972
DECISION AND ORDER
On May 30, 1972, Administrative Law Judge'
Benjamin K Blackburn issued the attached Decision
in this proceeding Thereafter, Respondent filed
exceptions and a supporting brief, the General
Counsel filed limited exceptions and a supporting
brief, and Respondent filed an answering brief
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified below
1 The Administrative Law Judge found, and we
agree, that Respondent did not violate Section
8(a)(5) and (1) of the Act when it abolished its
Operations Improvement Committee following the
certification of the Union
2 The Administrative Law Judge did find,
however, that Respondent violated Section 8(a)(5)
and (1) by unilaterally suspending its step-progres-
sion plan, scrap materials policy, and its shop and
tools policy, and changing its policy with respect to
time off for personal business We disagree In our
opinion, the General Counsel has failed to meet his
burden of proving that Respondent took these
actions without consulting with the Union, and for
that reason we believe that the allegations should be
dismissed
The facts, more fully set forth in the Administrative
Law Judge's Decision, show that prior to the first
bargaining session with the Union, Respondent
discontinued its Operations Improvement Commit-
tee While Walter Blanchard, Respondent's supervi-
sor of administrative services, did testify to the effect
that this action was taken unilaterally, the record is
totally devoid of any evidence as to whether
Respondent's conduct vis-a-vis the other four poli-
cies, supra, took place without bargaining with the
Union Nevertheless, the Administrative Law Judge
concluded
Thereafter, counsel for Respondent made no
effort to elicit from Blanchard any testimony that
what happened with respect to the committee had
differed in any way from Respondent's imple-
menting its decisions on the other policies
involved in this case On the basis of the manner
in which this record was developed, I have no
doubt that Respondent acted on all its decisions,
unilaterally arrived at, without first notifying the
Charging Party Notwithstanding the fact that the events which followed it all occurred in 1972
only thing specifically referred to [in Blanchard's
testimony] is Respondent's abolishing the Opera-
tions Improvement Committee, I rely on Blanch-
ard's testimony to make that specific finding
with respect to each of the policies at issue
In our view, there is no foundation in the record for
his inference that since the committee was discontin-
ued unilaterally, all the changes occurred unilateral-
ly As noted, the record was silent as to whether the
suspension of these four policies occurred unilateral-
ly Furthermore, the record does not even hint at any
correlation between the manner in which the
committee was discontinued and Respondent's con-
duct regarding the other policies For these reasons,
we find that the General Counsel has failed to meet
his burden of proving that Respondent's actions
occurred unilaterally Accordingly, and in view of
our agreement with the Administrative Law Judge
that the discontinuance of the committee did not
violate the Act, we shall order that the complaint be
dismissed in its entirety
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K BLACKBURN, Trial Examiner The charge in
this case was filed on August 31, 1971 1 The complaint was
issued on December 3 The hearing was held in Conroe,
Texas, on February 15 and 16 (Name of Respondent was
amended at the hearing to the form set forth above) It was
recessed at the end of the General Counsel's case because a
witness whom counsel for Respondent desired to call was
ill On receipt of a telegram dated March 17 from counsel
for Respondent in which he stated that Respondent elected
to stand on the case presented by the General Counsel and,
therefore, rested, I closed the hearing on March 23 The
issue litigated at the hearing was whether Respondent
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by unilaterally changing five
specific conditions of employment (four set forth in the
complaint, one added by amendment during the hearing)
following certification of the Charging Party as representa-
tive of employees at Respondent's plant in Conroe During
the hearing on February 15, counsel for the General
Counsel, in the course of a colloquy about the admissibility
of certain documents offered by him, stated that the
General Counsel was not claiming Respondent had
1 Dates prior to the heanng are all 1971 The hearing and procedural
200 NLRB No 135
JEFFERSON CHEMICAL COMPANY, INC
engaged in general bad-faith bargaining during its negotia-
tions with the Charging Party
On April 3 I received from counsel for the General
Counsel a motion, dated March 31, to reopen the record
and consolidate this case for further hearing with Jefferson
Chemical Company, Inc, Case 23-CA-4248 The charge in
Case 23-CA-4248 had been filed by the Charging Party
herein on February 18, and complaint had issued on
March 31 It contains one allegation of an independent
violation of Section 8(a)(1) of the Act by Respondent in
late October or early November, an allegation that
Respondent violated Section 8(a)(5) and (1) by eliminating
its policy of furnishing uniforms to employees on or about
November 1, poor to any impasse in negotiations with the
Charging Party, and an allegation that Respondent has
also violated Section 8(a)(5) and (1) by negotiating with the
Charging Party in bad faith, with no intention of entering
into a collective-bargaining agreement, at all times since
August 18 On April 4 I issued an order herein directing
counsel for Respondent and the Charging Party to show
cause why counsel for the General Counsel's motion
should not be granted On April 10 I received from counsel
for Respondent a letter dated April 6 opposing counsel for
the General Counsel's motion and including a brief in
support of his position In the letter, counsel for Respon-
dent informed me that he had filed with the Board a
Motion for Summary Judgment of Dismissal in Case
23-CA-4248 which was predicated on the same due
process argument contained in his brief to me
On April 19 the Board transferred counsel for Respon-
dent's Motion for Summary Judgment of Dismissal in Case
23-CA-4248 to me for ruling On April 20 I issued an
order in Case 23-CA-4248 directing counsel for the
General Counsel and the Charging Party to show cause
why counsel for Respondent's motion should not be
granted On May I I received counsel for the General
Counsel's response On May 5 I granted counsel for
Respondent's motion on the ground that, the General
Counsel not having demonstrated that the general bad-
faith bargaining allegation in the complaint in Case
23-CA-4248 was predicated on events which took place
after counsel for the General Counsel stated on February
15 that Respondent had not engaged in bad-faith bargain-
ing and thus could not have been known to the General
Counsel on that date, it would be a denial of due process to
Respondent to permit the General Counsel to raise and
litigate the issue of general bad-faith bargaining through
the medium of Case 23-CA-4248 Since my ruling in Case
23-CA-4248 has rendered moot counsel for the General
Counsel's motion to reopen the record in this case and
consolidate it with Case 23-CA-4248 for further hearing, I
hereby deny it For the reasons set forth below, I find that
Respondent violated Section 8(a)(5) and (1) of the Act by
suspending, for a time, its step-progression plan and its
scrap materials and shop and tools policies, and by
changing its time off for personal business policy, but not
by discontinuing its Operations Improvement Committee
without, in each instance, first bargaining with the
Charging Party
Upon the entire record and after due consideration of
briefs, I make the following
d
FINDINGS OF FACT
I JURISDICTION
997
Respondent, a Delaware corporation, manufactures
specialty chemicals During the year preceding issuance of
the complaint herein, it shipped products valued in excess
of $50,000 from its plant in Conroe directly to customers
outside the State of Texas Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
A Facts
The Charging Party was certified as collective-bargaining
representative for a unit of Respondent's operating and
maintenance employees on June 18 On June 23 Harry
Burk, an International representative, sent a letter to J J
Naugle, Respondent's plant manager, in which he suggest-
ed bargaining begin as soon as possible and requested
certain information in preparation therefor On July 12
Naugle sent Burk the requested information As arranged
in a telephone conversation on July 13 between Burk and
R J Heptig, Respondent's director of employee relations,
Respondent and the Charging Party met to begin their
negotiations July 26 (By the time of the hearing they had
met 17 times Because of the General Counsel's position
that Respondent had not engaged in bad-faith bargaining,
there is nothing in the record about what transpired at
these meetings other than counsel for Respondent's
statement, in response to a question by me, that the policies
involved in this case were discussed at length )
Prior to June 18, Respondent paid its employees under a
step-progression plan instituted in September 1969, grant-
ed them time off to attend to personal business, sometimes
with pay, permitted them to purchase or, in some cases,
gave them scrap materials such as barrels, and permitted
them to use its shop and tools on nonwork time for their
own projects, such as repairing their automobiles It also
utilized the services of six employees at any one time, on a
rotating basis, on its Operations Improvement Committee
along with its plant manager and its safety and training
supervisor The committee met monthly and concerned
itself with safety and other problems in the plant
Between June 18 and July 26, Respondent suspended the
step-progression plan and the scrap materials and shop and
tools policies for a time Its employees were so informed
With respect to the step-progression plan, it did so because
it felt it had to bargain with the Charging Party for rates
covering all employees rather than pick out individuals for
raises (Under the step-progression plan, employees are
granted raises at stated intervals, provided their perform-
ance, in the judgment of their supervisors, has been
satisfactory Once they reach senior classification status,
they receive ment raises, based once again on judgments as
to their individual worth, until they reach the maximum of
the range of wages provided for senior classification) With
respect to scrap materials and use of shop and tools, it did
so because it feared charges of discrimination within the
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of the Act if it continued to grant the privileges on
some occasions and deny them on others as it had in the
past With respect to the Operations Improvement Com-
mittee, it did so because it felt that it was required by law
to deal only with the Charging Party as the representative
of its employees following certification
Only with respect to the Operations Improvement
Committee does the record reveal precisely when the
suspension took place A regular monthly meeting of the
committee was held June 24 The next regular monthly
meeting was scheduled for July 29 It was canceled on July
26 The committee has not met since
Only with respect to the Operations Improvement
Committee has the suspension been permanent Prior to
the wage freeze which began in August, five employees
failed to receive raises they would have received if the step-
progression plan had continued in effect During the wage
freeze, approximately 15 more employees were affected
Following the end of the freeze on November 11,
Respondent reinstituted its step-progression plan retroac-
tively Those employees who would have received raises
before the freeze received retroactive pay from the date on
which they would have gotten the raise but for the
suspension of the plan Those employees who would have
received raises under the plan during the freeze received
retroactive pay to November 11
Prior to suspension of the scrap materials and shop and
tools policies, Plant Manager Naugle had delegated
authority to grant employees' verbal requests to the
members of his staff, i e , the production superintendent,
the plant engineer, the superintendent of process engineer-
ing and quality control, and the supervisor of administra-
tive services When he reinstituted the policies, Naugle
changed them somewhat by requiring that all requests be
made in writing and by retaining the right of final approval
himself The record does not reveal precisely when Naugle
reinstituted these policies The scrap materials policy had
been reinstituted by September 13 The shop and tools
policy had been reinstituted by September 24
Around July 15 Naugle changed Respondent's policy
with respect to time off for personal business His reason
was, once again, that he feared charges of discrimination if
he paid some employees and not others Here, too, he
rescinded the authority he had previously delegated to his
staff and required that requests be submitted in writing
(Since the date on the earliest written request in the record
is September 13, the requirement that requests be made in
writing may not have been imposed until a similar
requirement was made part of the reinstituted scrap
materials and shop and tools policies, apparently in
September The record is not clear) In addition, he ceased
granting pay for the time employees were off on some
occasions (I do not credit the testimony of Walter
Blanchard, Respondent's supervisor of administrative
services, that some employees received pay while off on
personal business after the change in the policy but before
certain records which are in evidence began to be kept,
apparently in September A compilation of other records
shows that the last employee to receive pay while off on
personal business was one R L Dodson, who was off for 3
hours on July 13 On July 16 one C E Powell was off for
3-1/2 hours with no pay From that date on, all of the
records in evidence indicate that time off granted to permit
the employee to attend to personal business was without
pay )
Employees who were on the Operations Improvement
Committee were paid for the time they spent at committee
meetings regardless of whether they were otherwise
scheduled to be at work at that time After June 18, all
requests for time off to attend to union business, including
requests for time off to participate in the negotiations
between Respondent and the Charging Party, were granted
under Respondent's time off to attend to personal business
policy All were without pay
B Analysis and Conclusions
During the hearing counsel for Respondent advanced
two arguments (1) Respondent acted in a good-faith effort
to further the process of collective bargaining, the purpose
for which the Act exists, and (2) while the step-progression
plan admittedly falls within the statutory area of wages, the
other four policies are not conditions of employment In
his brief he adds a third The General Counsel has failed to
prove an essential fact alleged in the complaint, namely,
that Respondent failed to notify, bargain with, or consult
the Charging Party before making the changes The third
argument makes necessary a fairly detailed explanation of
how the record evolved
I Nature of the General Counsel's proof
Counsel for the General Counsel called only two
witnesses The first was Walter Blanchard, Respondent's
supervisor of administrative services The second was
Harry Chance, a shift foreman Counsel for the General
Counsel proved that Respondent had made the various
changes, set forth in the section above entitled "Facts,"
through Blanchard He proved that the suspension of the
scrap materials and shop and tools policies had been
relayed to employees through Chance (When Chance was
asked a similar question about the change in the time off
for personal business policy, his reply was, "I don't recall
that I did [tell the employees] at this tune You see,
this change in personal business had come earlier, you
know," an allusion to the fact that Respondent had
tightened up its policy somewhat in January, presumably
before the advent of the Charging Party) When Blanchard
left the stand, I initiated an extended colloquy with counsel
for Respondent about his defense Again, when the
General Counsel rested and counsel for Respondent made
the usual motion to dismiss, there was a similar discussion
At neither time did counsel for Respondent advance the
argument that the General Counsel had failed to prove
Respondent had not notified the Charging Party Conse-
quently, in denying his motion with the statement "I think
there is a strong prima facie case here," I was under the
impression that he was not contesting the fact
Counsel for Respondent's March 17 telegram announc-
ing a decision not to present any evidence to counter the
General Counsel's case reads, in pertinent part
DURING THE RECESS OF THIS HEARING, RESPONDENT HAD
AN OPPORTUNITY TO CONSIDER IN DETAIL THE EVIDENCE
JEFFERSON CHEMICAL COMPANY, INC 999
PRESENTED BY THE GENERAL COUNSEL IN SUPPORT OF HIS
ALLEGATIONS WHILE THE TRIAL EXAMINER HAS UPON
SUMMARY REVIEW OF THE GOVERNMENT'S CASE DENIED
RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO STATE
A PRIMA FACIE CASE, WE HAVE CONCLUDED THAT
DETAILED ANALYSIS OF THE RECORD WILL COMPEL THE
CONCLUSION THAT NO PRIMA FACIE SHOWING OF
VIOLATION HAS BEEN MADE
I assume that the flaw in the General Counsel's case
claimed in the telegram is the one relied on in this
argument
The complaint, as originally issued, alleged only that the
step-progression plan, time off for personal business, scrap
materials , and shop and tools policies had been "discontin-
ued without notice to, nor bargaining with the
Union " I assume counsel for the General Counsel shared
my misapprehension, at the hearing, about counsel for
Respondent's position as to notice, for he never asked
Blanchard the direct question nor did he call as a witness a
representative of the Charging Party to establish the point
In any event, Blanchard testified that the policies listed in
the complaint had been suspended or changed but was
unable to say precisely when Counsel stipulated that
suspensions or changes occurred between June 18 and July
26 Counsel for Respondent stipulated only as to date and
not that suspensions or changes had, in fact, taken place
The Operations Improvement Committee issue was added
to the complaint by amendment after this stipulation had
been entered into The subject arose when counsel for
Respondent asked Blanchard if he remembered any areas
other than those in the complaint in which unionization of
the plant caused concern on management's part about
existing practices I permitted counsel for Respondent to
go into the subject over counsel for General Counsel's
objection after the latter warned that an affirmative answer
might cause him to move to amend the complaint With a
little prodding, Blanchard remembered that the committee
had been discontinued Once again, Blanchard was
uncertain as to dates Counsel for General Counsel
inquired whether counsel for Respondent wished to
expand their earlier stipulation to include abolishment of
the committee Counsel for Respondent so wished, and I
received the stipulation (My findings as to the precise
dates when the committee last met and when its meeting
scheduled for July 29 was cancelled are based on
documents subsequently introduced into evidence) There
then followed this colloquy between Blanchard and me
TRIAL EXAMINER I also understood your testimony
to be, Mr Blanchard, that the decision to abolish the
operations improvement committee was announced to
the Union at the first, second or third negotiating
session Do I understand from that that the decision
was reached before that time9
THE WITNESS Yes, Sir
TRIAL EXAMINER And I would assume from that
that the proper inference for me to draw is that the
decision was made without first consulting or discuss-
ing it with the Union9
THE WITNESS I can't recall, your Honor, exactly
which one of these meetings It may have been
mentioned in a couple of meetings I am not-
TRIAL EXAMINER Before the decision was made
THE WITNESS Well, you kind of put me on the spot
there
TRIAL EXAMINER I am trying to because this is the
$64 00 question
THE WITNESS We were discussing these things
before these meetings, but to say the decision was
made-it had to be made before we went into the
hearing or the negotiation session , so I would have to
answer you yes, prior to whichever session this was
mentioned in, we did make a decision to stop the
improvement committee
I hope that answers, explains my position
I don't know for sure exactly when the decision was
ultimately made I know it was made and told to the
Union in one of the bargaining sessions
Thereafter, counsel for Respondent made no effort to elicit
from Blanchard any testimony that what happened with
respect to the committee had differed in any way from
Respondent's implementing its decisions on the other
policies involved in this case On the basis of the manner in
which this record was developed, I have no doubt that
Respondent acted on all its decisions, unilaterally arrived
at, without first notifying the Charging Party Notwith-
standing the fact that the only thing specifically referred to
therein is Respondent 's abolishing the Operations Im-
provement Committee, I rely on Blanchard's testimony set
forth just above to make that specific finding with respect
to each of the policies at issue
2 Respondent's good faith
Respondent's primary argument is that a finding of bad
faith on its part is a prerequisite to a finding of a violation
of the Act and that the General Counsel has precluded
such a finding by the theory on which he has tried this
case The only evidence of Respondent's motive is found in
the testimony of Walter Blanchard which I have credited
As already indicated, I find that Respondent's motive for
each of the changes it unilaterally made was a good-faith
desire to comply with what it conceived to be the
requirements of the law
Any discussion of this issue must begin with N L R B v
Katz, 369 US 736 There, the Supreme Court said
The duty "to bargain collectively" enjoined by §
8(a)(5) is defined by § 8(d) as the duty to "meet and
confer in good faith with respect to wages, hours, and
other terms and conditions of employment " Clearly,
the duty thus defined may be violated without a general
failure of subjective good faith, for there is no occasion
to consider the issue of good faith if a party has refused
even to negotiate in fact- "to meet and confer-
'-about any of the mandatory subjects A refusal to
negotiate in fact as to any subject which is within §
8(d), and about which the union seeks to negotiate,
violates § 8(a)(5) though the employer has every desire
to reach agreement with the union upon an over-all
collective agreement and earnestly and in all good faith
bargains to that end We hold that an employer's
unilateral change in conditions of employment under
negotiation is similarly a violation of § 8(a)(5), for it is
a circumvention of the duty to negotiate which
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frustrates the objectives of § 8(a)(5) much as does a flat
refusal
Unilateral action by an employer without
prior discussion with the union does amount to a
refusal to negotiate about the affected conditions of
employment under negotiation, and must of necessity
obstruct bargaining, contrary to the congressional
policy It will often disclose an unwillingness to agree
with the union It will rarely be justified by any reason
of substance It follows that the Board may hold such
unilateral action to be an unfair labor practice in
violation of § 8(a)(5), without also finding the employer
guilty of over-all subjective bad faith While we do not
foreclose the possibility that there might be circum-
stances which the Board could or should accept as
excusing or justifying unilateral action, no such case is
presented here
In his brief, counsel for Respondent cites N L R B v
Cone Mills Corporation, 373 F 2d 595 (C A 4, 1967),
NLRB v Dothan Eagle, Inc, 434 F 2d 93 (C A 5, 1970),
J J Newberry Co, Inc v N L R B, 442 F 2d 897 (C A 2,
1971), and International Union, United Automobile, Aeros-
pace and Agricultural Implement Workers of America, UAW
[The Udylite Corporation] v NLRB, 455 F 2d
1357 (C A D C , 1971), as support for the proposition that
"since 1967, no fewer than four Circuit Courts of Appeal
have placed primary reliance upon employer motivation to
support their findings in this area And even where they
employ rubrics such as per se in their writing, their primary
reliance remains upon motivation" None of these four
cases is on all fours with this one However, they do, as
counsel for Respondent points out, turn on the issue of bad
faith In Newberry the Second Circuit found no violation in
unilaterally suspending a wage review system during a
union organizing campaign because there was no substan-
tial evidence that the employer was illegally motivated It
distinguished the Fifth Circuit's decision in Dothan Eagle,
where a unilateral change in a wage-progression plan prior
to an election was held to be an 8(a)(5) violation after
certification, on the ground that Dothan Eagle was
predicated on a finding of bad faith Similarly, in Udylite
the District of Columbia Circuit, in finding the employer's
unilateral suspension of a merit review plan following
certification violative of Section 8(a)(5), relied on its bad
faith in distinguishing Newberry In Cone Mills, the Fourth
Circuit found no violation in the layoff of a steward during
the hiatus between contracts where employer and union
were engaged in good-faith bargaining and the expired
contract had contained a superseniority provision, on the
ground that the record as a whole rebutted the presump-
tion, inherent in a unilateral change, that there was no
opportunity for bargaining before the change was made
On the element of bad faith, the court said, specifically
With the additional background of intensive good
faith bargaining on both sides in other plants of the
same company resulting in collective bargaining
agreements, at least one of which contains a supersen-
iority clause, we are unable to conclude on any theory
that the layoff of Estelle Dunn in disregard of her prior
supersemority status violated the 8(a)(5) duty to
bargain [Footnote omitted ]
More importantly, Cone Mills is the only one of these four
cases which throws any light on the question of whether a
finding of bad faith is a sine qua non of a finding of an
8(a)(5) violation under the guidelines laid down by the
Supreme Court in Katz (Since it involved precertification
activity only, Newberry presented no 8(a)(5) issue) The
Fourth Circuit said
It is urged by the employer that whether a contract
right "survives" depends upon whether it was under
negotiation at the time of unilateral action On January
3, 1964, when the Company laid off Estelle Dunn,
superseniority was not under negotiation with the
Union
It was said by the Supreme Court in Katz "that an
employer's unilateral change in conditions of employ-
ment under negotiation is a violation of § 8(a)(5) "
NLRB v Katz, 369 U S 736, 743, 82 S Ct 1107,
1111, 8 L Ed 2d 230 (1962) (Emphasis added) We do
not think the Court meant to imply that an employer is
always free to make unilateral changes with respect to
conditions of employment that are not "under negotia-
tion" without affording the union opportunity to
bargain with respect to such changes See Fibreboard
Paper Products Corp v NLRB, 379 U S 203, 85 S Ct
398, 13 L Ed 2d 233 (1964) It seems to us that the
predominant factor is not whether the subject was
"under negotiation ," nor even whether general negotia-
tions are then being conducted , but whether in the light
of all of the circumstances there existed reasonable
opportunity for the Union to have bargained on the
question before unilateral action was taken by the
employer Notice is important only as it bears upon
whether there actually was such opportunity Common
law conceptions of notice, including formality and
specificity, are no more helpful in this area than are
traditional contract notions
Section 8(a)(5) of the National Labor Relations Act
provides that it shall be an unfair labor practice for an
employer "to refuse to bargain collectively with the
representatives of his employees " 29 U S C A §
158(A)(5) The statute itself imposes a duty to bargain
"in good faith " 29 U S C A § 158(d) Recently "the
story is one of decisions transforming the simple
requirements of union recognition and bona fide
negotiation into doctrines through which the NLRB
[has] come to condemn conduct which
sharply departs from good bargaining practice " Cox,
The Duty to Bargain in Good Faith, 71 Harv L Rev
1401, 1403 (1958)
In this case, the Labor Board has condemned
unilateral action by the Company as a per se violation
of the Act It is well to remember that the per se
doctrine originated as simply a rule of evidence, arising
out of a felt necessity to relieve the Board of the
sometimes heavy burden of proving want of good faith
Such a prima facie rule of evidence has unquestionably
been approved by the Supreme Court in Katz, N L R B
v Katz, 369 U S 736, 82 S Ct 1107, 8 L Ed 2d 230
(1962) But we do not read that decision as an adoption
JEFFERSON CHEMICAL COMPANY, INC 1001
t
of the per se doctrine The Court held that the Board
"may" hold such unilateral action to be an unfair labor
practice in violation of Section 8(a)(5), but it did not
hold that the Board must in every instance do so, and it
recognized that such unilateral action may, although
rarely, be justified by reasons of substance We do not
think Katz leaves us free to disregard the "record as a
whole" in reviewing the question of whether or not
unilateral action amounts to a refusal to bargain See
Universal Camera Corp v N L R B, 340 U S 474, 71
S Ct 456, 95 L Ed 456 (1951) The Court specifically
did not "foreclose the possibility that there might be
circumstances which the Board could or should accept
as excusing or justifying unilateral action "
NLRB v Katz, supra, 369 U S at 748, 82 S Ct at
1114, 8 L Ed 2d at 238, 239
Thus, we think it is incorrect to say that unilateral
action is an unfair labor practice per se See Cox, The
Duty to Bargain in Good Faith, 71 Harv L Rev 1401,
1423 (1958) We think it more accurate to say that
unilateral action may be sufficient, standing alone, to
support a finding of refusal to bargain, but that it does
not compel such a finding in disregard of the record as
a whole Usually unilateral action is an unfair labor
practice-but not always [Footnotes omitted ]
Viewed in this light, the record in this case does not
preclude a finding that Respondent has refused to bargain
in violation of the Act simply because there is no evidence
it acted in bad faith when it made the unilateral changes at
issue The mere fact, as already found, that the changes
were made without any opportunity for bargaining "may
be sufficient, standing alone, to support a finding of refusal
to bargain " "May be" becomes "is" if the changes cannot
"be justified by any reason of substance " In my opinion,
Respondent has advanced a reason of substance only as to
its abolition of the Operations Improvement Committee If
it had continued to deal with the employee members of
that committee as the representatives of all the employees
in the unit for which the Charging Party had been certified,
it would, in fact, have violated the duty imposed on it by
the Act to deal exclusively with the Charging Party If it
had continued the other four policies in effect during
negotiations, it would not have violated any obligation
imposed on it by the Act The fact that it felt, with respect
to its step-progression plan, that the Charging Party would
seek wage rates applicable to all employees and, with
respect to the other policies, that it might lay itself open to
charges of discrimination is irrelevant, for certification of
the Charging Party had caused no fundamental change in
the situation which made those policies no longer legal so
long as they were implemented in a nondiscriminatory
manner I find, therefore, that Respondent did not violate
Section 8(a)(5) and (1) when it unilaterally abolished its
Operations Improvement Committee following certifica-
tion of the Charging Party The other four issues turn, in
the final analysis, on whether the policies involved
conditions of employment
3 Conditions of employment
Respondent concedes that its step-progression plan,
being wages, falls within its statutory obligation to "confer
in good faith with respect to wages, hours, and other terms
and conditions of employment " With respect to time off
for personal business, scrap materials, and use of shop and
tools, its argument that they are not statutory "conditions
of employment" breaks down into two parts
In his brief, counsel for Respondent argues first that the
General Counsel has failed to prove the details of each
policy with sufficient particularity to permit findings to be
made about them My findings as to each are based
primarily on the testimony of Walter Blanchard plus
certain documents which are in evidence The fact that
scrap materials and shop and tools were suspended for a
time, apparently from July to September, is corroborated
by the testimony of Harry Chance The only uncertainty in
the record is whether the requirement that requests for time
off must be made in writing was imposed at the same time
Plant Manager Naugle stopped granting time off with pay,
around July 15, or only later, apparently in September,
when a similar requirement was made part of reinstituted
scrap materials and shop and tools policies In summary,
there is, in my opinion, plenty of substantial evidence in
the record to sustain findings that Respondent, in the
person of Naugle, unilaterally rescinded the authority
previously granted to his staff members in all three areas
after certification and before bargaining, took the authori-
ty back into his own hands, stopped giving time off with
pay, and suspended the other two policies for a couple of
months At least since he reinstituted the latter, requests in
all three areas have had to be submitted by employees in
writing Pay while on time off for personal business has
never been restored Therefore, there is no merit in counsel
for Respondent's first argument
His second point is, however, better taken He argues
that details of the policies as they are presently adminis-
tered, such as retention of final approval in the plant
manager's hands and the requirement that employees'
requests must be in writing, are management prerogatives
I agree It is important from the employees' point of view
only that they continue to be given time off for personal
business, sometimes with pay, that they continue to be
given or allowed to purchase scrap materials, and that they
continue to be allowed to work in Respondent's shop using
Respondent's tools on their own projects under conditions
no less onerous than prevailed before the Charging Party
was certified Only if a greater burden has been placed
upon the employees can their conditions of employment be
said to have been changed Requiring them to direct a
simple note which is eventually passed on by Naugle where
they used to address a verbal request to one of Naugle's
underlings is not a more onerous burden when weighed
against Respondent's legitimate business goal of keeping
track of policies which had previously been administered in
a diffuse manner Therefore, I find that Respondent did
not change its employees' conditions of employment when
it changed its time off for personal business, scrap
materials, and shop and tools policies to require employees
to request permission in writing and to restrict the right of
final approval to the plant manager
I find that Respondent violated Section 8(a)(5) and (1) of
the Act when, between June 18 and July 26, it unilaterally
suspended its step-progression plan, its scrap materials
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy, and its shop and tools policy, for a time, and
changed its policy with respect to time off for personal
business by ceasing to pay employees on some occasions
while they were off
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1 Jefferson Chemical Company, Inc, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act
3 All operating and maintenance employees, including
laboratory technicians employed at Respondent's plant in
Conroe, Texas, excluding all office clerical employees,
guards, technical employees, professional employees, and
supervisors as defined in the Act constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act
4 At all times since June 18, 1971, the Charging Party
has been and is now the representative for the purpose of
collective bargaining of the employees in the unit described
above within the meaning of Section 9(a) of the Act
5 By unilaterally suspending its step-progression plan,
scrap materials policy, and shop and tools policy for
varying lengths of time in 1971 and by unilaterally
changing its time off for personal business policy around
July 15, 1971, by ceasing to pay employees on some
occasions while they were off, Respondent has violated
Section 8(a)(5) and (1) of the Act
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
7 The allegation of the complaint that Respondent
violated Section 8(a)(5) and (1) of the Act by unilaterally
discontinuing and disestablishing its Operations Improve-
ment Committee on or about June 18, 1971, has not been
sustained
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from refusing to bargain collectively with the representa-
tive of its employees and required to post the customary
notice In view of the fact that Respondent reinstituted its
scrap materials and shop and tools policies soon after the
charge was filed in this case, and its step-progression plan
when Phase 1 pay controls were lifted in November, it is
not necessary that it be ordered to do so now I will not
include such a provision in my recommended Order Two
other areas relating to the remedy appropriate to this case
require further consideration
Respondent's violation of the Act with respect to its time
off for personal business policy lies in its failure to pay
employees on some occasions since the Charging Party was
certified Since this situation still exists, I will include a
provision that it resume such payments There is insuffi-
cient evidence in the record to determine with particularity
all the circumstances under which Respondent has paid
employees in the past while they were absent from work It
does show that three men were paid in June while off for a
day or less due to illness in their families Another was off
for a day with pay when his sister was in an automobile
accident A fifth man was paid for an hour and a quarter in
early July when he himself was ill and was ineligible for
insurance benefits under Respondent's accident and sick
benefit plan (Pay while off to attend funerals, appearing
on a document which I have used for these findings of fact,
is in a different category Respondent also has an explicit
funeral leave policy which was not at issue in this case)
However, the document in which they appear was intended
only to show incidents of time off with and without pay
during a limited time period and not all the various
circumstances under which Respondent was generous
Thus they are examples only Therefore, I will not attempt
to state explicitly the circumstances under which Respon-
dent shall pay its employees while they are off to attend to
personal business but will leave for the compliance stage
the question of whether Respondent is following the same
criteria as before However, both the General Counsel and
the Charging Party urge that Respondent should be
required to pay employees granted time off to attend to
union business because it paid employees while they were
engaged in the business of the Operations Improvement
Committee I will not include such a provision in my
recommended Order When serving on the Operations
Improvement Committee, employees were engaged in
Respondent's business Therefore, they were not being
compensated while off on their own affairs Their union
business is not Respondent's business To require Respon-
dent to pay them under these circumstances under the
guise of remedying Respondent's violation with respect to
the time off for personal business policy would result in
Respondent's subsidizing the Charging Party Such a
remedy would be a travesty of the purposes of the Act
All employees affected by Respondent's suspension of its
step-progression plan have already received the retroactive
pay they are entitled to within the limitations of applicable
pay control regulations Counsel for the General Counsel
recognizes this fact when he urges, in his brief, only that
Respondent be required to pay them interest on their
retroactive pay He also urges that Respondent be required
to make whole those employees who have taken time off
for personal business without pay I will not include any
make-whole provision in my recommended Order Since
the employees affected by the suspension of the step-
progression plan have had the use of their retroactive pay
since Phase I controls ended, the only employees for whom
interest would be appropriate are the five who failed to
receive raises in July and early August, and the period
would be less than two calendar quarters Such sums are de
minimis at best and, in view of Respondent's voluntary
reinstitution of the plan, not necessary to effectuate the
policies of the Act Similarly, any sums due employees
under a make-whole order because they were granted time
off but without pay would be de minimis Moreover, since it
is impossible to particularize on the basis of this record all
the circumstances under which pay would have been
granted, potential compliance problems outweigh any
JEFFERSON CHEMICAL COMPANY, INC 1003
benefit of a make-whole order In my opinion, the purposes [Recommended Order omitted from publication ]
of the Act will be sufficiently effectuated if Respondent
simply goes back to its old policy