Amoco Chemicals Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1974

211 N.L.R.B. 618 (N.L.R.B. 1974)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amoco Chemicals Corporation and Oil, Chemical &
Atomic Workers International Union, Local 4-449.
Case 23-CA-4804
June 17, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 8, 1974, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision. The Respondent also filed a
Motion to Reopen the Record and a supporting
brief, and the General Counsel filed a brief in
opposition.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
herein modified.
We disagree with the Administrative Law Judge's
recommended Order that Respondent bargain with
the Union in the event the terminal reopens. There is
no competent evidence that the terminal was closed
for discriminatory reasons or that the closing is
temporary. In these circumstances, we do not believe
that the employees of a reopened terminal should be
saddled with a bargaining representative which they
may not want.
The Administrative Law Judge included in this
recommended notice to employees that Respondent
I Respondent's motion is hereby denied as it raises matters more
properly considered in the compliance stages of this proceeding
2 In adopting the Administrative Law Judge's conclusion that the
Respondent violated Sec 8(a)(5) and (1) of the Act by unilaterally
instituting a disciplinary warning system, we do not rely on his statement
that doing so was "a part of the Respondent's 'new set of rules' aimed at
retaliating against its employees for selecting the Union " Nhether
Respondent instituted the warning system because the Union won the
election was not litigated and is not necessary to finding the 8(a)(5) and
derivative 8(a)(1) violation We affirm, however, he Administrative Law
Judge's recommendation that Respondent make whole employees who lost
wages by reason of Respondent's "discrimination" against them, since a
violation of Sec 8(a)(5) discriminates against the employees' right to
bargain collectively through representatives of their own choosing
In his dissent, Member Kennedy states that the warning letters do not
constitute a structured disciplinary warning system over which the
Respondent must bargain. We do not agree. Changing from oral reprimand
to written warnings is, in our opinion, a change which significantly affects
the employees' working conditions Although Respondent initially operated
under a written warning letter system when the terminal first opened, it
seemingly abandoned this practice in favor of one of issuing oral
remove the written disciplinary warnings from the
-employees' personnel files. He inadvertantly failed to
include this requirement in his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as herein
modified, and hereby orders that the Respondent,
Amoco Chemicals Corporation, Texas City, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order as
modified below:
1. Substitute the following for paragraph 2(c) of
the recommended Order:
"(c) Remove from the personnel files of our unit
employees all disciplinary warning letters and memo-
randa which we caused to be issued since May 3,
1973."
2. Substitute the attached notice for that recom-
mended by the Administrative Law Judge.
MEMBER KENNEDY, dissenting:
The Administrative Law Judge found that Respon-
dent unilaterally promulgated and implemented a
new written disciplinary practice "aimed at retaliat-
ing against its employees for selecting the Union,"
thereby violating Section 8(a)(5) and (1) of the Act.
The majority decision in footnote 2 quite properly
disavows any reliance on the Administrative Law
Judge's finding of discriminatory motivation since
the complaint contains no such allegation; the
General Counsel disclaimed any theory of discrimi-
nation at the hearing; and the issue was not litigated.
We are left therefore -ith a bare finding that
Respondent violated Section 8(a)(5) by instituting a
new written disciplinary warning system without first
bargaining with the Union.
I have two objections to this finding: (1) As a
reprimands In any case, Respondent's practice for almost a year prior to
the most recent change had been to utilize oral rather than written
reprimands In our view, an established practice of such a longstanding
nature which affects the terms and conditions of employment in the unit is a
matter which can only be changed after bargaining with the employees' duly
designated representative Written warnings are more formal and tend to
become a permanent part of an employee's personnel file Indeed, the
evidence shows that the terminal manager prepared the initial written
warnings on form memoranda, and the central office in Chicago followed
up by sending typed warning letters which indicate that copies go into
employees' personnel files
Member Kennedy also states that a monetary remedy is unwarranted in
this case He states that it is difficult to perceive how bargaining over the
reduction in hours would have changed matters However, if the Union is
deprived of any opportunity to bargain and to militate against the
reductions, there is no way to tell what might have happened Here the
Union could have agreed to layoffs or transfers to other operations of the
parent corporation, or to implement some other proposal Neither the
Union nor the employees, who were not the wrongdoers in this case, should
suffer from speculation of what might have happened
211 NLRB No. 84
AMOCO CHEMICALS CORP. .619
factual matter the practice was not new since it
predated the Union's certification; and (2) even if it
were considered to be a new procedure of putting
warnings in writing instead of making them orally,
Respondent was not required to bargain with the
Union before putting it into effect.
(1) The Texas City terminal began operations in
January 1972. In that very month, Terminal Manag-
er Estes and his superior, Manager of Proprietary
Trucking Williams, began writing letters to individu-
al drivers criticizing them for various derelictions.
Some of the letters threatened dismissal. On August
22, 1972, Williams spoke to the drivers introducing
Puckett as the successor to Estes and reviewing with
them the rules and regulations to which they were
expected to adhere. He stated, inter alia:
We will continue to insist that all DOT, ICC and
company safety rules and regulations be followed
at all times . We will make frequent checks on our
drivers to make certain they are in compliance
with our instructions. Anyone found in violation
will receive a written reprimand stating time,
place and type of violation. Continued violation
of these safety rules and regulations will be cause
for suspension and/or termination.
Harlow became terminal manager on February 1,
1973. From February until early May 1973, he issued
no written warning letters. He explained that when
he first became manager he was so mired in paper
work that he could not spare the time to issue the
customary written notices of work dereliction.
However, during this period he did orally warn
drivers who he discovered were not properly per-
forming their duties. On May 8, 1973, after catching
9 Some typical letters issued before the certification of the Union are:
On February 29, 1972 , Estes wrote driver Marshall a letter concerning the
latter's parking his truck in an unpaved area while he ate lunch . The letter
noted that it had cost the Company $8.35 to get the truck moving again and
concluded : "This type of carelessness will no longer be tolerated."
On March 9 , 1972, Williams wrote Marshall concerning the foregoing
letter and added : "I agree with Mr. Estes in that there is no room for
carelessness in our operation or in our industry. I hope you will make every
effort in the future to eliminate the careless handling of our equipment."
On June 23 , 1972, Estes wrote driver John Harlow concerning his failure
to drop and block a trailer properly. The letter concluded: " I am giving you
notice that any more such acts of careless or failure to follow instructions
will mean an automatic termination."
On June 26, 1972, Williams wrote a followup letter to Harlow concerning
the June 23 letter. Williams' letter concluded : "I sincerely hope you take
steps to correct your work habits and if you see fit not to do so, we will have
no choice but to terminate you."
The Union was certified on May 7, 1973. Typical letters thereafter are:
On May 9, 1973, Harlow wrote a letter to driver Marshall concerning his
failure to inspect a truck properly. The letter concluded : "This cannot
continue to happen."
On May 8, 1973 , Justiss, who was Williams' assistant , wrote to Montayne,
the terminal mechanic , concerning the poor quality of his work . The letter
concluded : " I expect to see an immediate improvement in the condition of
our equipment and the quality of your work. If you need assistance , please
contact me."
On May 11, 1973, Harlow wrote to driver Litchfield concerning the
up with his other paper work, Harlow resumed the
practice of issuing written reprimands to drivers who
committed rule infractions. His superiors also issued
followup letters to delinquent drivers, as they had in
the past.3 It is thus clear to me that Respondent was
not innovating after the certification in resuming the
practice of issuing written reprimands for infractions
of company rules and regulations.
(2) Moreover, even if the written reprimands were
considered innovative, I do not believe that they
constituted terms and conditions of employment
concerning which Respondent was required to
bargain before issuing them. The letters, in my
opinion, do not constitute a structured disciplinary
system. They contain work criticisms and exhorta-
tions to do better, with an occasional reminder of the
consequences. There is no contention that the
criticisms were unjustified or that disciplinary action
was taken against any employee based thereon
without bargaining with the Union.
What the majority decision comes down to is the
proposition that if an employer undertakes to
criticize employees in writing, rather than orally, for
poor performance on the job, he violates Section
8(a)(5) unless he first negotiates the practice with the
employees' bargaining representative. I do not
believe that there is any such obligation on the part
of an employer.
It is immaterial in my view whether the criticism is
oral or in writing, or whether the employer changes
from an oral to a written method of criticism. There
is an area of employer prerogative concerning which
an employer may lawfully take unilateral action even
though there may be some impact upon employees.4
Work criticism falls within this area, in my opinion.
latter's failure to check his truck properly before leaving the terminal, and
his returning to the terminal with a damaged trailer and flat tire . The letter
concluded : "Part of this is carelessness and/or recklessness . David, don't
continue this way. We can't have it."
On May 14, 1973, Williams wrote driver Litchfield concerning Harlow's
letter of May 11. He said that such conduct would not be tolerated and
added : "I suggest you make every effort to comply and, if you feel you need
help or guidance on this matter you should discuss with your supervisor
immediately."
On May 12, 1973, Harlow again wrote driver Litchfield criticizing him for
not properly checking his truck when leaving the terminal and his truck tires
when entering the Amoco Oil plant and for failing to stop or slow down at
two railroad crossings . The letter concluded : "David, we will not tolerate
this for one more time . Best you get straight."
On May 18, 1973, Williams wrote driver Litchfield concerning the May
12 Harlow letter . The letter concluded : "This is the second reprimand you
have received in the past week regarding gross negligence on your part in
following safety instructions . Amoco Chemicals Corporation will not
tolerate careless handling of their equipment and/or violation of safety rules
and regulations . Please be advised any further evidence of your carelessness
and/or violation of the above mentioned rules and regulations will be cause
for your immediate dismissal . Your employment with our company depends
entirely on you and , your cooperation in this matter . If you feel you need
help please contact your supervisor , Jack Harlow."
4 See, e.g., Engineered Building Products, Inc., 162 NLRB 649; National
Biscuit Company, 159 NLRB 1567; 1572; Irvington Motors, Inc., 147 NLRB
565; Texaco, Inc., Houston Producing Division v. N.LR.B., 408 F.2d 142
(Continued)
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge also found that by dismiss this allegation of Section 8(a)(1) as isolated
unilaterally reducing the hours of work of its and not requiring a remedial order.
employees following the Union's certification on For the foregoing reasons, I would dismiss the
April 27, 1973, Respondent violated Section 8(a)(5) complaint in its entirety.
and (1) of the Act. As a remedy for this violation, the
Administrative Law Judge recommended that Res-
pondent make whole the employees for loss of wages
resulting from the reduction in work hours and that
in the event Respondent reopens the Texas City
terminal, Respondent be required to bargain upon
request with the Union.
I would note that the Administrative Law Judge
accepted Respondent's explanation that the reason
for the reduction in work hours was a decline in
business, "the terminal fell apart." As a result, the
terminal was closed permanently in August. There is
no allegation of overall bad-faith bargaining, or
failure to bargain about the termination or the effects
of such termination. Neither is there any allegation
that the closing was discriminatorily motivated or
that the reduction in hours was effected in a
discriminatory manner. Under these circumstances,
there was at most a technical violation of Section
8(a)(5) in Respondent's failure to discuss the reduc-
tion of hours with the Union.5 Inasmuch as the
terminal has ceased operations for nondiscriminatory
reasons, the issue is now moot, and an order
requiring Respondent to bargain with the Union
concerning the reduction in hours would be a useless
act.6
Finally, I do not believe that a monetary remedy is
warranted in this case. There is no evidential basis
for inferring that the employees suffered monetary
losses as a result of Respondent's failure to consult
with the Union about the reduction in work hours. In
the absence of such a finding, no make whole remedy
is justified. The Administrative Law Judge found
that work hours were reduced because of a decline in
business which ended in complete termination of
operations. The failure to bargain with the Union
had nothing to do with this decline and it is difficult
to perceive how bargaining with the Union would
have changed matters.7 There also is no allegation
that the reduction in work hours was carried out in a
discriminatory manner. Under these circumstances, a
make whole remedy is not justified.
There remains the single finding of independent
8(a)(1) violation based on Justiss' statement to
Montayne after the election that "it looks like you
have voted yourself a cut in pay." The Administra-
tive Law Judge considered that the statement itself
was isolated and would not justify a finding of
violation of Section 8(a)(1) except for the serious
conduct constituting an unlawful refusal to bargain.
As I do not agree with the Administrative Law
Judge's finding of an 8(a)(5) violation, I would
565; Texaco, Inc, Houston Producing Division v N.L R B, 408 F 2d 142
(C A. 5, 1969)
5 Cf. N L R.B v Generac Corporation, 354 F.2d 625 (C A 7, 1965), L J
Dreiling Motors Co, Inc, 168 NLRB 535; Taylor Foundry Company, 141
NLRB 765, 777.
6 Cf. N L R.B v Colonial Knitting Corp, 464 F.2d 949 (C.A 3, 1972)
4 New Orleans Board of Trade, Ltd, 152 NLRB 1258; Wonder State
Manufacturing Company, 147 NLRB 179
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
reprisal for having voted for the Union.
WE WILL NOT in any like manner interfere with,
restrain, or coerce our employees in the exercise
of their Section 7 rights.
WE WILL NOT refuse to bargain collectively
with Oil, Chemical and Atomic Workers Interna-
tional Union, Local 4449, as the exclusive
bargaining representative of our employees by
unilaterally reducing the work hours of our
employees and instituting a disciplinary warning
system for our employees.
WE WILL make whole all employees in the
appropriate unit who suffered a loss in wages as a
result of our unilateral reduction in employee
work hours.
WE WILL remove from the personnel files of
our unit employees all aisciplinary warning letters
and memoranda which we caused to be issued
since May 3, 1973.
The appropriate unit consists of:
All truckdrivers and mechanical employees
of Amoco Chemicals Corporation, at its
Texas City, Texas plant, excluding supervi-
sors, office clerical employees, plant guards
and technical and professional employees.
All our employees are free to become or remain or
refrain from becoming or remaining members of Oil,
Chemical and Atomic Workers International Union,
Local 4 449, or any other labor organization.
Amoco CHEMICALS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
AMOCO CHEMICALS CORP.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone 713-
226-4296.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on September 18 and 19, 1973, at
Galveston, Texas, and is based upon a charge filed on June
4, 1973, and amended on July 9 and 27, 1973, by the Oil,
Chemical & Atomic Workers International Union, Local
4-449, hereinafter referred to as the Union, upon a
complaint issued on August 2, 1973, by the General
Counsel for the National Labor Relations Board, herein-
after referred to as the Board, against Amoco Chemicals
Corporation, hereinafter referred to as the Respondent or
the Company, alleging violations of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), and upon an answer timely
filed by the Respondent denying the commission of any
unfair labor practices.
All parties were represented by counsel, and were
afforded full opportunity to examine and cross-examine
witnesses , to introduce evidence pertinent to the issues, and
to engage in oral argument. Subsequent to the close of the
hearing, within the extension of time authorized for filing,
timely briefs were submitted by counsel for the General
Counsel and for the Respondent.
Upon the entire record in this case, and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Amoco Chemicals Corporation, a subsidiary of Standard
Oil Company of Indiana, is Delaware corporation engaged
in the manufacture and sale of chemicals and plastics, with
an office and place of business located at Texas City,
Texas, the only operation directly involved in this
proceeding. During the 12-month period immediately
preceding the issuance of complaint, the Respondent
received in excess of $50,000 from the sale of its goods,
which were shipped directly from its Texas City plant, to
locations outside the State of Texas. The parties admit, and
I This includes, in addition to the Texas City facility, truck terminals at
Leominster, Massachusetts, New Castle, Delaware, Medina, Ohio, and
Joliet, Illinois.
2 The unit, which 1 hereby find to be appropriate for the purpose of
621
I find, that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that Oil, Chemical &
Atomic Workers International Union, Local #449, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether, in telling its employees shortly after the
April 27, 1973, election, that they had voted themselves a
cut in pay, the Respondent violated Section 8(a)(1) of the
Act.
2. Whether, in unilaterally instituting and implement-
ing a written disciplinary warning system, the Respondent
violated Section 8(a)(5) of the Act.
3. Whether, in unilaterally reducing the hours of its
employees, the Respondent violated Section 8(a)(5) of the
Act.
B. The Facts
Not to be confused with Amoco Oil Company, also a
subsidiary of Standard Oil Company which operates a
refinery at Texas City, the Respondent Amoco Chemicals
Corporation maintains a manufacturing plant in Texas
City, Texas. In August 1971, Charles Estes was sent by the
Respondent to Texas City to establish a truck transport
terminal which, in December 1971, became part of the
Respondent's Texas City operations, but was located at a
site physically separated from the manufacturing plant.
Estes, as truck terminal supervisor, managed the terminal
facility until August 1972, when he was replaced by
Kenneth Puckett, who, in turn, had charge of the terminal
until Jake Harlow took over on February 1, 1973. Harlow
continued to manage the truck terminal until August 1973,
when, for economic reasons, it was closed down.
During this period, the record reflects that while the
truck terminal supervisor managed the terminal on a day-
to-day basis, being held accountable for such operations,
company policy was formulated and controlled by man-
agement out of its Chicago, Illinois, office, specifically, by
Russell Williams, manager of proprietory trucking for
Respondent's entire operation,' and, directly under him,
Willard Justiss, truck transport supervisor. During this
period, the trucking personnel consisted of as many as I 1
drivers and I truck mechanic.
Pursuant to a representation petition filed by the Union,
an election was held on April 27, 1973, among the
Respondent's truckdrivers, resulting in the certification of
the Union on May 7, 1973, as the employees' bargaining
representative? Although Williams was apprised by David
Nible, International Representative of the Union on the
day of the election of the Union's desire for early contract
collective bargaining within the meaning of Section 9(a) of the Act, consists
of all truckdrivers and mechanical employees at the Respondent 's Texas
City, Texas plant, excluding supervisors, office clerical employees, plant
guards, and technical and professional employees.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations, it was not until June 21 that the parties met in
a bargaining session, the first and only such meeting
between the May 7 certification of the Union and the
August closing of the terminal.
Alleged Section 8(a)(1) Conduct
On the first working day after the election, Monday,
April 30, around mid-morning, Justiss approached me-
chanic, Richard Montayne, while the latter was working
and said to him that "it looks like you fellows have voted
yourself a cut in pay." Montayne replied, "maybe so."
That noon, while walking with Justiss between the shop
and the office, Justiss asked driver, David Litchfield, what
he thought about the election. After receiving Litchfield's
noncommittal answer, Justiss stated to him, "It might not
be too bad on drivers, but poor old Dick [Montayne] voted
himself a cut in pay."
On the Thursday following, while in the shop, Justiss, in
discussing Montayne's pay, showed Montayne a piece of
paper containing a list of job classifications, calling his
attention to the fact that the Union's pay for mechanics
was $2.85 per hour. Montayne's response was that if they
had mechanics in that plant who worked for $2.85 per
hour, they were not qualified mechanics, that no qualified
mechanic would work for that kind of money.
The next day, Friday, May 4, Montayne was called to
Harlow's office, where, in the latter's presence, Justiss told
Montayne that he did not want him putting in any more
overtime. When Montayne questioned Justiss as to how he
was going to keep the terminal operating, Justiss told him
that they were allocated to haul only Styrene and Brine,
and that "we had a whole new set of rules now and
everybody was going to live by them, and nobody would
be working over 40 hours a week," including Montayne.
Montayne replied that he hated to see hauling, like Sealand
and dry freight, such as they used to haul, go to hell. Justiss
agreed with Montayne, indicating that he and Puckett had
worked hard to get this kind of hauling, but adding that
this is the way it was going to be.3
As to the above, only Justiss' statement to Montayne on
April 30 that "it looks like you have voted yourself a cut in
pay" is alleged as a violation of Section 8(a)(1) of the Act.
While this statement, by itself, might appear to be isolated,
and perhaps but a technical violation, the fact that it is
accompanied, I find, by other serious conduct constituting
an unlawful refusal to bargain, compels a finding, which I
make, that such constitutes an implied threat of reprisal
against its employees for their having selected the Union as
their bargaining representative.4 Thus, I find that by such
conduct the Respondent interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
3 The above findings are based on the credited testimony of Litchfield
and Montayne. I do not credit Justiss' denial that the Litchfield
conversation took place . Justiss admitted making the "cut in pay" statement
to Montayne on Thursday, testifying that it was in reference to the
provisions contained in one of the Union's contracts Concerning the Friday
"overtime" conversation Justiss denied discussing the matter of overtime for
drivers, admitting, however, that, as of that time he was putting Montayne
on a 40-hour-per-week work schedule.
4 Under these circumstances , Justiss' statement to Montayne on May 4,
Alleged Section 8(a)(5) Conduct
Written Disciplinary Warnings
Commencing on May 3, 1973, 6 days after the election,
the Respondent started issuing written reprimands to its
driver employees for many and varied infractions of
company rules and regulations. During the month of May
and June prior to the terminal closing, some 24 such
written memoranda and letters from Harlow, initially, and
Williams, subsequently, were forthcoming, all of which
were disciplinary in nature and many of which contained
threats of immediate termination. Prior to the election,
during the period since Harlow became terminal supervi-
sor, no written disciplinary letters of any kind had been
sent to employees, with only an occasional oral warning,
which did not include a threat to discharge being made.5
Union International Representative Nible, having received
many employees' complaints concerning these letters,
raised with the Company, at least on one occasion, the
writing of these letters, with no response. This matter was
again raised by Nible at the bargaining session on June 21,
along with other local problems. Nible was told that, as
such was then the subject of pending unfair labor practice
charges, the Company did not want to jeopardize its
position with respect to the investigation of the charges.
The General Counsel asserts that the Respondent's
conduct in issuing written disciplinary letters to its
employees immediately following the election, constitutes a
written warning system, and that the implementation of
such a system, where none existed before, without
bargaining with the Union with respect thereto, constitutes
a refusal to bargain in violation of Section 8(a)(5) of the
Act. The Respondent admits that the written disciplinary
letters commenced shortly after the election but contends,
in effect, that they were long overdue and that only the
pressure of paper work on the part of Harlow prevented
him from getting to them sooner.
I cannot under the circumstances accept in good faith
the Respondent's explanation for the sudden change in
practice, particularly in view of the additional and
simultaneous unlawful conduct on the part of the Respon-
dent. Apart from my reluctance in this regard, however,
the relevant fact is that during this period the Respondent
was under an obligation to recognize and to bargain with
the Union concerning terms and conditions of employment
of its employees. The extensive practice of issuing
disciplinary letters, I find, constitutes a disciplinary
warning system, and, as such, a condition of employment.
Thus, the Respondent's unilateral implementation and
promulgation in May 1973, of such a written disciplinary
practice, without prior consultation and bargaining with
the Union, became, I find, a part of the Respondent's "new
set of rules" aimed at retaliating against its employees for
to the effect that the Company had a whole new set of rules now and that
everybody was going to live by them and that nobody would be working
over 40 hours a week is also indicative of the Respondent's intention to take
reprisals against its employees for their having chosen the Union. However,
as it is not alleged in the complaint as a violation , I do not make a finding
thereon
5 In fact, there had been no written disciplinary letters sent to employees
in almost a year poor to this time.
AMOCO CHEMICALS CORP.
selecting the Union. Accordingly, I find that, by such
conduct, the Respondent refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
Reduction of Employee Hours
A substantial portion of the transcript and exhibits in
this matter is devoted to the issue concerning the
Respondent 's reduction of hours of its unit employees.
From it all , several relevant factors emerge . First, it is clear,
and the Respondent admits, that immediately following
the election, the Respondent unilaterally and without
informing the Union caused a reduction in the number of
hours worked by its employees, this, pursuant to Williams'
instructions that all drivers and the mechanic be placed on
a 40-hour week.6 Secondly, for whatever reasons, company
curtailment of hours, change of operations, or customer
actions , the amount of hauling business declined drastical-
ly, so much so in fact that in August the truck terminal was
closed down permanently. As counsel for the Respondent
put it, the reason for the reduction in hours was that the
terminal fell apart . And thirdly, it is apparent that,
notwithstanding the Union's oral and written attempts to
raise the matter with the Respondent and to obtain work
schedules for the drivers, the Company at no time,
including the June 21 bargaimng session, agreed to discuss
the reduction in hours.?
In view of the above, and for the following reasons, I
deem it unnecessary to cite the details surrounding the
Respondent's determination that employees' hours be
reduced or other Respondent action contributing to it.
Under the Act, an employer is required to bargain with the
majority representative of its employees on all bargainable
matters, and unilateral action by such an employer which
affects wages, hours, and working conditions is violative of
Section 8(a)(5) of the Act,8 regardless of whether the
employer acts in good faith and because of economical
necessity. It has been held that good faith in this area is no
defense.9 In fact, to argue, as does the Respondent, that it
had no obligation to discuss the reduction in hours, when
such reduction admittedly was caused by the terminal
falling apart, just does not carry weight.
Under these circumstances, I find that by unilaterally
reducing the hours of work of its employees following the
April 27, 1973, election, and thus substantially affecting
their wages without affording the Union an opportunity to
bargain with respect thereto, the Respondent refused to
bargain with the statutory representative of its employees
in the unit heretofore found appropriate, and thereby
engaged in conduct violative of Section 8(a)(5) and (1) of
the Act.i°
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
6 As a result of this action employee wages were substantially reduced
Thus, company records reflect that during May, June, and July 1973,
immediately following the election , average employee earnings were
considerably below the average earnings for the first 4 months of the year
' As in the case of the disciplinary letters, when the matter was raised by
Nible during this bargaining meeting, the Respondent 's spokesman
indicated that, in view of the pending unfair labor practice charges, he
CONCLUSIONS OF LAW
623
1. Amoco Chemicals Corporation is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Oil, Chemical & Atomic Workers International
Union, Local 4-449, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with reprisal for having
voted for the Union, the Respondent interfered with,
restrained , and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
4. All truckdrivers and mechanical employees at the
Respondent's Texas City, Texas, plant, excluding supervi-
sors, office clerical employees , plant guards , and technical
and professional employees constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
5. By unilaterally reducing the work hours of its
employees and instituting a disciplinary warning system
for its employees , the Respondent has refused to bargain
collectively within the meaning of Section 8(a)(5) and (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices , it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
It having been found that the Respondent, by unilateral-
ly reducing the work hours for its employees and
instituting a disciplinary warning system, has refused to
bargain collectively with the Union, it is recommended
that , in the event that the Respondent should reopen its
truck terminal at Texas City, Texas, it will meet and
bargain with the Union upon request concerning these
matters. It is further recommended that the Respondent
remove from the personnel files of its unit employees all
preferred to let the Board make a determination
8 NLR.B v. Benne Katz, d/b/a Williamsburg Steel Products, Co, 369
U.S 736, 743 ( 1962), Homer Gregory Co, Inc, 123 NLRB 1842, The Weston
and Brooker Company, 154 NLRB 747
9 See Weston and Brooker Company, supra
io Pubhx Warehouse , 167 NLRB 684 at 686
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary warning letters and memoranda which it
caused to be issued since May 3, 1973.
It is further recommended that the Respondent make
whole those unit employees who suffered a loss in wages as
a result of the Respondent 's unilateral reduction in their
hours , by making payment to them of a sum of money
equal to that which they would have earned as wages from
the date of discrimination against them to August 10, 1973,
when the terminal closed, less their net earnings during the
period, in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and with interest on
the amounts due in accordance with the Board policy as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716. In
this regard , it is further recommended that the Respondent
preserve and , upon request, make available to the Board or
its agents for examination and copying, all payroll records
and reports , timecards and all other records necessary or
appropriate to permit an analysis of the amounts due the
employees involved.1'
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 12
The Respondent, Amoco Chemicals Corporation, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening its employees with reprisal for having
voted for the Union or in any like or related manner,
interfering with , restraining, or coercing its employees in
the exercise of their right to self-organization , to form, join,
or assist any labor organization , and to bargain collectively
through representatives of their own choosing and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
(b) Unilaterally reducing the work hours of its employees
and instituting a disciplinary warning system for its
employees , thereby refusing to bargain collectively with
Oil, Chemical & Atomic Workers International Union,
Continental Bus System, Inc., 138 NLRB 894 at 895.
is In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
Local 4-449, as the exclusive bargaining representative of
all its employees in the appropriate unit described above in
violation of Section 8(aX5) and (1) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole all employees in the unit who suffered a
loss in wages as a result of the Respondent's unilateral
reduction in work hours in the manner set forth in the
section entitled the Remedy.
(b) Preserve and, upon request , make available to the
Board or its agents all payroll and other records necessary
or appropriate to permit an analysis of the amounts due
the employees involved.
(c) Upon request, in the event that the Respondent
should reopen its Texas City, Texas, truck terminal,
bargain collectively with the Oil, Chemical & Atomic
Workers International Union, Local 4-449 , as the exclu-
sive representative of the employees in the appropriate
unit, and embody in a signed agreement any understanding
reached.
(d) Post, in conspicuous places at its Texas City, Texas,
plant, including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix." 13 Copies of said notice , on forms provided by
the Regional Director for Region 23, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by it, as aforesaid, immediately upon receipt
thereof and maintained for at least 60 consecutive days
thereafter . Reasonable steps shall be taken by the Respon-
dent to ensure that said notices are not altered , defaced, or
covered by any other material. In addition to the
customary posting, because the truck terminal is no longer
in business, mail to each employee employed by the
Respondent at its truck terminal on and after April 27,
1973, a copy of said notice.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of receipt of this
Order, what steps the Respondent has taken to comply
herewith.
deemed waived for all purposes.
33 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.