Columbian Chemicals Co

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 592 (N.L.R.B. 1992)

592
307 NLRB No. 105
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Contrary to our dissenting colleague, we agree with the judge
that deferral to the arbitral award is unwarranted. In this regard, we
note particularly that the arbitrator did not rely on the management-
rights clause to find the Respondent’s conduct privileged. Instead,
quite apart from the contract, he found that there was a ‘‘basic man-
agement prerogative’’ to take the action. He then found nothing in
the contract to take away that prerogative. In these circumstances,
it is clear that the arbitrator did not rely on the management-rights
clause to find the managerial prerogative. We express no view con-
cerning the result we might have reached had he relied, either ex-
pressly or implicitly, on the clause.
In sec. I of his decision, the judge correctly noted that during a
fourth-step grievance meeting regarding the Respondent’s unilateral
implementation of its absence control program (ACP), the Union
proposed certain changes to the ACP which the Respondent accept-
ed. The union membership, however, refused to ratify the agreement.
In sec. III of his decision, the judge erroneously found that it was
the Respondent who proposed the modifications to the ACP at this
meeting, ‘‘possibly catching the Union by surprise.’’ On this basis,
as well as other factors, the judge concluded that a good-faith post-
implementation bargaining impasse was not achieved.
We agree with the judge that no valid good-faith impasse was
reached in this case but we do not rely on his erroneous finding that
the Union was caught by surprise by the bargaining that took place
at the November grievance meeting or that the bargaining that took
place at that meeting was casual in nature. Rather, we rely on the
fact that the ACP was not suspended prior to such bargaining and
indeed the ACP was enforced against employees Hamilton and Er-
nest prior to the bargaining. In our view, these facts precluded good-
faith impasse. In this regard, we note that the Board in Storer Com-
munications, 297 NLRB 296 fn. 9 (1989), specifically declined to
reach the question whether an employer’s application of a unilater-
ally implemented policy to employees would preclude a finding that
the employer bargained in good faith to impasse after implementing
that policy. We now answer that question in the affirmative.
Columbian Chemicals Company and International
Chemical Workers Union, Local 888, AFL–
CIO. Case 6–CA–21184
May 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 17, 1990, Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Columbian Chemicals
Company, Moundsville, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, I find that the arbitra-
tor’s award upholding the Respondent’s implementa-
tion of its absence control program is susceptible to an
interpretation consistent with the Act. Accordingly,
since I find that the other criteria of Olin Corp., 268
NLRB 573 (1984), have been met, I would defer to the
arbitrator’s award and dismiss the complaint.
It is well established that the Board will defer to an
arbitrator’s award when the proceedings appear to have
been fair and regular, all parties agreed to be bound,
the arbitrator considered the unfair labor practice issue
that is before the Board, and the arbitrator’s decision
is not clearly repugnant to the purposes and policies of
the Act. Motor Convoy, 303 NLRB 135 (1991). The
Board will find deferral inappropriate under the clearly
repugnant standard only when the arbitrator’s award is
not susceptible to an interpretation consistent with the
Act. Ibid. An arbitrator’s finding that an employer’s
unilateral change was privileged under a provision of
the parties’ contract will not be found clearly repug-
nant to the purposes and policies of the Act despite the
arbitrator’s use of a test other than the statutory stand-
ard of clear and unmistakable waiver in making that
finding. Dennison National Co., 296 NLRB 169
(1989).
The arbitrator here concluded that the Respondent’s
implementation of its absence control program was a
permissible exercise of its right to manage the plant.
The judge found that the arbitrator’s conclusion was
repugnant to the Act because it was based not on any
provision of the contract but, rather, on an ‘‘inherent
rights of management’’ theory. In agreeing with the
judge’s decision, my colleagues stress the arbitrator’s
failure to rely expressly on the contractual manage-
ment-rights clause.
Contrary to my colleagues, however, it is not at all
clear that the arbitrator did not rely on the manage-
ment-rights clause in reaching his decision. Indeed,
while the arbitrator did not cite to the management-
rights provision of the contract in reaching his conclu-
sion, he tracked its language in his analysis. Thus, the
arbitrator stated:
While it is true . . . that excessive absenteeism
was dealt with on a case-by-case basis in the past,
this does not mean that the Company lost its right
to develop reasonable plant rules as part of its un-
derlying right to manage the plant and direct the
working force. [Emphasis added.]
This wording mirrors the language of the contractual
management-rights clause, which provides:
593COLUMBIAN CHEMICALS CO.
1 This case is distinguishable from Ciba-Geigy Pharmaceuticals
Div., 264 NLRB 1013 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983),
relied on by the judge, where the arbitrator’s upholding of an em-
ployer’s authority to make a unilateral change was based solely on
a noncontractual theory. See Motor Convoy, above, fn. 6 and accom-
panying text; Hoover Co., 307 NLRB 524, issued today.
1 The charge and amended charge were filed on August 15, 1988,
and December 26, 1989. The complaint was issued on December 27,
1989.
2 Errors in the transcript have been noted and corrected.
[T]he Company reserves and retains, solely and
exclusively, all of its inherent rights to manage
the business . . . . These rights include but are
not limited to the right to . . . direct the working
forces by the right to hire, promote, demote, sus-
pend or discharge for proper cause . . . . [empha-
sis added].
As the arbitrator’s language mirrored the language
of the management-rights clause, the arbitrator argu-
ably relied on the management-rights clause in decid-
ing that the Respondent could properly unilaterally im-
plement its absence control program. Thus, I view his
award as susceptible to an interpretation consistent
with the Act.1 Accordingly, I dissent from my col-
leagues’ refusal to defer to the arbitrator’s award.
Stephanie E Brown, Esq., for the General Counsel.
Ronald B Johnson, Esq. (Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt), of Wheeling, West Virginia, for
the Respondent.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was heard in Wheeling, West Virginia, on March 29, 1990.1
The principal questions presented are whether deferral to an
arbitration decision is appropriate and, if not, whether Re-
spondent Columbian Chemicals Company violated Section
8(a)(5) of the Act by unilaterally adopting an ‘‘absence con-
trol program.’’
Both participating parties filed briefs on or about May 3,
1990. Based on the record and the briefs, I make the fol-
lowing2
FINDINGS OF FACT
I. THE FACTS
The Charging Party Union represents two bargaining units
of employees working at one of Respondent’s plants in West
Virginia. The parties met for 2 days in April 1988 to nego-
tiate new collective-bargaining agreements. Personnel Direc-
tor Broadwell mentioned that Respondent was preparing a
new absenteeism policy for future implementation. Union
Representative Hull replied that such a policy would be a ne-
gotiable item. Company representatives did not respond. As
signed effective April 1988, the only contractual provisions
relating to absentee control pertained to a loosely progressive
disciplinary system for employees who failed to report for
work without prior notification and without a satisfactory ex-
cuse. Both contracts, however, contained ‘‘Management
Rights’’ clauses which read, in part:
Except to the extent expressly abridged by a specific
provision of this Agreement, the Company reserves and
retains, solely and exclusively, all of its inherent rights
to manage the business in accordance with its best in-
terests as such rights existed prior to the execution of
this Agreement with the Union. These rights include
but are not limited to the right to . . . direct the work-
ing forces by the right to hire, promote, demote, sus-
pend or discharge for proper cause.
The record leaves no doubt that Respondent’s prior prac-
tice with respect to imposition of discipline for absenteeism
was unwritten and ad hoc. The nearest thing to a description
of that policy was given by Union President Stephen Seago,
an 18-year employee, as follows:
A. Basically the Company had an unwritten policy.
I mean there were—each case was handled separate,
you know, on absenteeism. The first, you know, if the
company felt that the person had an excess of absentee-
ism problem, you know, they would call them in and
go through a progressive type discipline. And, you
know, each case was, like I said, handled different.
There were some excusable absences prior to this pol-
icy that were—and if, for example, say if a person was
fifteen minutes late, as long as it wasn’t a repeated of-
fense, you know, if it was just something that hap-
pened, you know, it didn’t go against the person’s
record or they weren’t even actually docked. But, now
if it was a repeated offense, you know, they were
docked.
Q. Was there a set number of times before a person
was punished that you were aware of?
A. No. There, you know, it was, like I said, each
case was handled separately.
In July 1988, Respondent called in union representatives
to present and ‘‘explain,’’ but not ‘‘negotiate,’’ a document,
to take effect in August, entitled ‘‘Absence Control Pro-
gram’’ (ACP). When Union President Seago asked if the
subject was not negotiable, Respondent’s personnel director
Broadwell replied that management did not think so.
Broadwell discussed the new program with the union agents
and answered their questions Before the meeting ended,
Union Representative Hull volunteered that this matter
should be subject to negotiation Seago spoke of filing a
grievance; Broadwell replied that such efforts had turned out
to be futile gestures at other plants at which the program had
been implemented.
The document presented to the Union in July is not easy
to summarize. It speaks of the need for a systematized pro-
gram to control excessive absenteeism, with the purpose of
identifying ‘‘actual and potential problem employees at the
earliest possible time’’ in order to ‘‘counsel’’ with them.
Thus, ‘‘the basic purpose of this Absence Control Program
is to provide a consistent set of guidelines, the identification,
control and prevention of unsatisfactory attendance records
and habits [sic].’’ The stated underlying mechanism of the
ACP is to document every absence, without regard to wheth-
er it is ‘‘justified, reasonable, excused, etc.’’ Each absence,
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
regardless of the number of hours or days involved, is to be
considered an ‘‘occurrence,’’ with, however, quite a number
of specified exceptions, such as excused absences without
pay, death in family, ‘‘medical, industrial injury,’’ and mili-
tary leave. These exceptions seem to contradict the preceding
claim that the ACP ‘‘does not judge whether an absence is
justified, reasonable, excused, etc.’’ Also expressly listed as
absences which will be considered to be ‘‘occurrences’’ are
five types, such as ‘‘absent with permission without pay to
tend to personal business,’’ ‘‘tardy,’’ and ‘‘sickness’’ (as op-
posed, it appears, to ‘‘medical, industrial injury’’).
The final section of the ACP lists the ‘‘steps’’ to be taken
if an employee had 4, 6, 8, 10, or 12 ‘‘absence’’ (as opposed
to ‘‘tardy’’?) occurrences in the prior 12-month calendar pe-
riod. At the first step, the supervisor ‘‘will review’’ the
record with the employee. At the second, the employee ‘‘is
to be given a counseling letter.’’ After eight occurrences, the
employee ‘‘will receive a letter of reprimand’’ and a warning
of potential further disciplinary action. At the fourth step, the
supervisor ‘‘may take one of the following courses of action:
(1) suspension or (2) another letter of reprimand.’’ Finally at
step five, if the supervisor ‘‘feel[s] that further attempts to
rehabilitate the employee will be futile, the employee will be
terminated.’’
While the ACP makes several references to the ‘‘consist-
ency’’ it seeks to achieve, it can be seen from the above that,
in the imposition of the more severe kinds of discipline,
flexibility is permitted. This flexibility is made more explicit
by other references in the program: ‘‘Rules and regulations
can and should be established and penalties assessed as war-
ranted by individual case circumstances, but these actions
alone probably will not adequately control absenteeism un-
less used as a part of a sound program designed to correct
the overall problem’’; ‘‘[S]ome absence is to be expected
and the program takes that into account. In fact, even when
an absence record is deemed excessive, it may be necessary
to alter the action normally taken depending on the cir-
cumstances peculiar to that particular case’’; ‘‘[the five types
of absence specified as constituting ‘occurrences’] do not
preclude disciplinary action from being taken on the first or
any subsequent absence occurrence should circumstances
warrant.’’
Subsequent to the July meeting, the Union filed a griev-
ance protesting that the Respondent’s failure to negotiate
about the ACP was a violation of the contractual recognition
clause. At a fourth-step grievance meeting in November
1988, an attempt was made by Respondent to resolve the
grievance. The Union suggested certain changes in the ACP
and the Respondent agreed to them. However, the union
membership voted down the proposed resolution. The Union
filed a charge with Region 6 and also continued to prosecute
the grievance. A year later, the dispute was heard by an arbi-
trator, who issued a decision on October 3, 1989, denying
the grievance. The complaint, as noted, issued on December
27, 1989.
II. DEFERRAL TO THE ARBITRATION AWARD
The Respondent contends that the Board should withhold
its processes and let the arbitrator’s decision stand. A brief
description of that decision follows.
As indicated, the grievance asserted that the unilateral
adoption of the ACP was violative of the recognition clause
of the contract. The arbitrator’s decision states that the issue
before him, ‘‘as stipulated by the parties,’’ was ‘‘Did the
Company violate the Labor Agreement by implementing the
Absence Control Program August 1, 1988?’’ In a section of
the decision entitled ‘‘Cited Portions Of The Agreement,’’
neither party is shown to have relied on the ‘‘Management
Rights’’ provision of the bargaining agreement. In summa-
rizing the ‘‘Contentions Of The Parties,’’ the arbitrator states
that the basic claim of the Company is founded on ‘‘what
it considered to be its fundamental right to establish reason-
able plant rules, especially in an area as critical as attend-
ance’’ and its assertion that ‘‘there is nothing which would
prohibit it from implementing a program which deals with
the critical issue of attendance in a reasonable, fair and non-
discriminatory fashion.’’ Again, the arbitrator gives no indi-
cation that the Company relied on the ‘‘Management
Rights’’ clause.
In his analysis of the ‘‘precise and narrow issue’’ before
him, the arbitrator begins by accepting the doctrine that ‘‘a
Company has the right to establish reasonable plant rules not
inconsistent with the Agreement,’’ and he poses the question
presented as ‘‘[w]hether or not there is anything in the
Agreement, or in the form of a long-standing practice, which
would impinge on the Company’s right to exercise a basic
management prerogative.’’ He rejects the Union’s claim that
the ‘‘long standing policy’’ of dealing with absenteeism on
a case-by-case basis precluded the Company from adopting
another approach, absent a specific restriction in the contract.
The arbitrator next considers an argument advanced by the
Union—that ‘‘nothing in the Management Rights provision
gives the Company the right to make or change rules.’’ By
implication, I think, the arbitrator agrees with (or abstains
from disagreeing with) the literal contention by responding,
‘‘Given the basic, deep-seated right of the Company to man-
age the plant, it does not need a specific grant of authority
to put rules in effect’’ provided that they are ‘‘reasonable.’’
Accordingly, the arbitrator concluded that the implementation
of the ACP was not improper.
The most recent comprehensive explication of the Board’s
principles respecting deferral to an arbitral decision is found
in Olin Corp., 268 NLRB 573 (1983). The Board there stated
that the appropriate analysis regarding deferral to arbitration
awards required some liberalization favoring deferral, in view
both of recent restrictive Board precedents and the strong na-
tional policy preferring private dispute resolutions. The
Board therefore adopted the following standard for deferral:
‘‘[A]n arbitrator has adequately considered the unfair labor
practice if (1) the contractual issue is factually parallel to the
unfair labor practice issue, and (2) the arbitrator was pre-
sented generally with the facts relevant to resolving the un-
fair labor practice.’’ Furthermore, the Board would not ‘‘re-
quire an arbitrator’s award to be totally consistent with
Board precedent. Unless the award is ‘palpably wrong,’ i.e.,
unless the arbitrator’s decision is not susceptible to an inter-
pretation consistent with the Act, we will defer’’ 268 NLRB
at 574.
I see no need to discuss the initial criteria set out by the
Board, because I agree with counsel for General Counsel that
‘‘the arbitrator’s decision is not susceptible to an interpreta-
tion consistent with the Act.’’ Ibid. As shown above, the ar-
bitrator adopted an approach to resolution of this case which
depended on what both parties refer to on brief as a ‘‘resid-
595COLUMBIAN CHEMICALS CO.
3 The Board held, in Arrow Automotive Industries, 284 NLRB 487,
489 (1987), that, in all contexts, an employer must bargain ‘‘to im-
passe’’ prior to implementing a unilateral change in mandatory sub-
jects of bargaining.
ual rights of management’’ theory, finding the power to uni-
laterally establish the ACP in Respondent’s inherent ‘‘right
to exercise a basic management prerogative’’ (in the absence
of any express contractual restraint upon that right).
This approach is wholly at odds, however, with the Na-
tional Labor Relations Act, which prohibits unilateral em-
ployer action regarding wages, hours, and terms and condi-
tions of employment unless the employer has secured from
the union a waiver of its right to bargain about such matters.
Prior to Olin, the Board held that arbitral reliance on a resid-
ual rights theory is repugnant to the Act, with the concur-
rence of a divided panel of the Court of Appeals for the
Third Circuit. Ciba-Geigy Pharmaceuticals Div., 264 NLRB
1013, enfd. 722 F.2d 1120, 1126 (1983) (‘‘The arbitrator’s
conclusion that an extracontractual residual rights theory au-
thorizes management to make unilateral decisions on manda-
tory subjects of collective bargaining not specifically covered
in a collective bargaining agreement disregards clear Board
precedent.’’).
While, as Respondent emphasizes, the instant contracts
each contained a general reservation of ‘‘inherent rights’’
clause (set out earlier), it plainly appears that the arbitrator
finessed the need to interpret this provision. (‘‘Given the
basic, deep-seated right of the Company to manage the plant,
it does not need a specific grant of authority to put rules in
effect.’’) Thus, it cannot be said that the arbitrator has con-
strued the contract so as to resolve the issue by holding that
the ‘‘inherent rights’’ clause authorized the Respondent to
modify terms and conditions of employment not already me-
morialized in the agreement. This is the crucial distinction
between the present case and a recent decision on which Re-
spondent relies. In Dennison National Co., 296 NLRB 169
(1989), the arbitrator expressly found that ‘‘under the man-
agement rights clause of the contract the Respondent had the
right to act unilaterally.’’ In the present case, the arbitrator
made no such finding, but relied instead on a ‘‘basic man-
agement prerogative’’ to make rules.
Consequently, I conclude that the theory on which the ar-
bitration award is based is in fundamental conflict with
Board law, and, being thus repugnant to the Act, the award
cannot be given primacy.
III. THE ‘‘MEANINGFUL BARGAINING’’ DEFENSE
Respondent argues, in the alternative, that it engaged in
post hoc meaningful bargaining with the Union. As noted,
around November 17, 1988, at a fourth-step grievance meet-
ing relating to the ACP, the parties discussed the possibility
of settlement of the grievance, and the Respondent made cer-
tain proposed modifications to the policy which the union
representatives agreed to recommend to the membership. The
employees, however, voted down the proposal. By this time,
according to the uncontradicted testimony of Union President
Seago, employee Hamilton had received a verbal reprimand,
and employee Ernest either a counseling or a verbal rep-
rimand, pursuant to the new policy.
In support of its contention that this postunilateral action
bargaining satisfied its statutory obligation, Respondent cites
only a 1979 General Counsel Advice Memorandum, which
on its facts is arguably distinguishable. In any event, as
counsel for General Counsel points out, the Board’s view on
this issue is well settled: unconditional announcement of, re-
fusal to bargain about, and implementation of a modification
of a term of employment constitutes a fait accompli and a
violation of Section 8(a)(5). Central Soya Co., 281 NLRB
1308, 1310 (1986); Storer Communications, 297 NLRB 296
(1989).
In the latter case, a panel of the Board found a violation
under the foregoing principle, but went on to hold (Member
Cracraft dissenting, id. at fn 6) that because the employer
had bargained ‘‘in good faith’’ after instituting its new
drug/alcohol policy, the Board would not require the em-
ployer to rescind the policy. The panel majority stated that
although the Board ‘‘usually requires such rescission,’’ there
is no ‘‘absolute rule precluding a finding that the parties
have subsequently bargained in good faith over the change.’’
Id. at 297.
The test applied by the Storer majority examined all the
circumstances, but seemed to focus on whether the employer
had bargained in good faith to impasse and whether the uni-
lateral change, unless rescinded, would have undermined the
union’s strength in the postimplementation bargaining.
While the result the Board might reach on this issue in the
present case is not easily determinable, I am of the view that
the bargaining which occurred here probably did not qualify
the remedy for nontraditional treatment. The ‘‘bargaining’’
occurred in the context of a fourth-step grievance meeting
after Personnel Director Broadwell had instructed Sutton, his
representative, to ‘‘try to find a middle ground that we could
agree on.’’ The Respondent did not offer to rescind the pol-
icy, but it did propose several ‘‘clarifications’’ (R. Exh. 1)
presumably favorable to the Union. The membership, how-
ever, found the proposal unacceptable and chose to proceed
to arbitration with the grievance. There is no evidence that
any efforts were made by either party to engage in subse-
quent negotiations.
Given these facts, I find it somewhat difficult to judge that
good-faith bargaining, resulting in impasse,3 occurred here.
The casual nature of the bargaining at the fourth step of the
grievance procedure, possibly even catching the Union by
surprise in view of the Respondent’s previous clearcut posi-
tion that it did not believe the matter to be negotiable; the
absence of any acknowledgement by the Respondent that it
deemed the ACP to be, in fact, negotiable in its entirety; and
the failure of either party to pursue the issue further, all sug-
gest that there was neither bargaining nor impasse, in the
common acceptation of those words.
IV. THE EFFECT OF THE MANAGEMENT-RIGHTS CLAUSE
Respondent would have the Board hold that the preserva-
tion-of-‘‘inherent-rights’’ clause, which expressly included
the authority to suspend and discharge for ‘‘proper cause,’’
empowered the Respondent to promulgate the ACP unilater-
ally. The clause does not, however, invest Respondent with
the specific ‘‘right to adopt reasonable rules and regula-
tions,’’ which is the Respondent’s first contention.
The Respondent’s second argument is that it is authorized
by the management-rights clause merely to define ‘‘what it
considers to be ‘proper cause’ subject to the union’s right to
grieve management’s determination,’’ and that it has done no
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Board has ‘‘repeatedly held that generally worded manage-
ment-rights clauses or ‘zipper clauses’ will not be construed as waiv-
ers of statutory bargaining rights’’ Johnson-Bateman Co., 295 NLRB
180 (1989).
more than this. In fact, Respondent has done more, since the
‘‘inherent-rights’’ clause refers only to the rights to ‘‘sus-
pend’’ and ‘‘discharge’’ for ‘‘proper cause,’’ and thus does
not include the other disciplinary measures addressed by the
ACP. Moreover, Respondent’s position here—that the ACP
simply defines ‘‘what the employer would consider to be
‘proper cause,’’’ subject to the ultimate judgment of an arbi-
trator, contradicts its claim before the arbitrator that its adop-
tion of the ACP is substantively binding in effect, an exer-
cise of Respondent’s ‘‘fundamental right to establish reason-
able plant rules,’’ with which claim the arbitrator agreed
Rules are rules, and not simply guidelines for arbitrators; if
the new standards are applied so as to discharge an em-
ployee, and the Union, for any reason (including lack of
funds), chooses not to process the discharge to arbitration,
the rule becomes very effective indeed.
For the foregoing reason, I reject this argument based on
the management-rights clause.4
V. DID THE ACP CONSTITUTE A MATERIAL CHANGE?
Finally, Respondent asserts that the effect of the adoption
of the ACP was negligible, and urges application of the
Board rule that unilateral changes are violative only if they
are ‘‘material, substantial, and significant.’’ Rust Craft
Broadcasting of New York, 225 NLRB 327 (1976); Peerless
Food Products, 236 NLRB 161 (1978); La Mousse, Inc., 259
NLRB 37, 48–50 (1981).
Distinctions in this line of cases are not simple to draw
Respondent argues that the ACP is, at bottom, simply a more
formal and specific adoption of the existing ‘‘case-by-case’’
practice. This argument is founded on those provisions of the
ACP which, contrary to the seemingly unqualified character
of most of the rules, allow for the exercise of discretion de-
pending on the circumstances.
However, while room for discretion is permitted, that mar-
gin is characterized by the ACP as the exception rather than
the norm (‘‘In fact, even when an absence record is deemed
excessive, it may be necessary to alter the action normally
taken depending on the circumstances peculiar to that par-
ticular case.’’). The formalization of absences into those
‘‘occurrences’’ which must be ‘‘counted’’ against the em-
ployees and those which will not be recorded leaves no room
for discretion or a case-by-case evaluation, and forces super-
visors to regard the particular type of absence in a certain
way. Thus, as the program reads, while some discretion at-
taches in the case of an overall absence record deemed ‘‘ex-
cessive,’’ an ‘‘AWOL’’ or ‘‘sickness’’ will be counted as an
‘‘occurrence’’ regardless of the cause of the absence.
Finally, there is little or no option in applying the first
four disciplinary steps. At each step, respectively, an em-
ployee ‘‘will’’ receive a review of his record from a super-
visor; ‘‘is to be given a counseling letter’’; ‘‘will receive a
letter of reprimand’’; and, as I read the fourth step, will be
given either suspension or another letter of reprimand (the
supervisor ‘‘may take one of the following courses of action:
(1) suspension or (2) another letter of reprimand’’; it is quite
unlikely that ‘‘may’’ signifies that the employee need receive
no discipline).
The foregoing leads me to conclude that the changes
wrought by the ACP constitute material, substantial, and sig-
nificant alterations of the preexisting, totally unstructured,
case-by-case system for disciplining employees with attend-
ance problems. Murphy Diesel Co., 184 NLRB 757 (1970),
enfd. 454 F.2d 303 (7th Cir. 1971).
In the final analysis, then, I conclude that the Respondent
violated Section 8(a)(5) and (1), as alleged, by adopting, in
August 1988, the ACP.
CONCLUSIONS OF LAW
1. Respondent Columbian Chemicals Company is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Chemical Workers Union, Local 888,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The production unit and the laboratory unit, as de-
scribed in paragraph 7 of the complaint, constitute units ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act, and at all times material
the Union has been the exclusive bargaining representative of
the employees in the aforesaid appropriate units.
4. By adopting, in August 1988, an absence control pro-
gram applicable to both units without bargaining with the
Union as requested, Respondent violated Section 8(a)(5) and
(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action to effectuate the
policies of the Act.
I recommend that Respondent be ordered to cease and de-
sist from unilaterally instituting any absence control program
and to cease disciplining union-represented employees pursu-
ant to such procedure adopted in August 1988. I recommend
that Respondent rescind the aforesaid program as it applies
to represented employees and, upon request, bargain with the
Union about the implementation of any absence control pro-
gram governing employees represented by the Union.
I shall also recommend that Respondent fully restore the
status quo ante which existed at the time of its unlawful ac-
tions by (1) rescinding all disciplinary actions against union-
represented employees resulting from the unlawfully insti-
tuted program, (2) offering all such employees discharged or
suspended or otherwise denied work opportunities as a result
of the program, immediate and full reinstatement to their
former positions, or if they no longer exist, to substantially
equivalent ones, without prejudice to their seniority or other
rights and privileges, and (3) making whole those employees
who were either discharged, suspended, or otherwise denied
work opportunities as a result of the program. In all cases
of lost pay and/or benefits, the amounts shall be computed
in the manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
597COLUMBIAN CHEMICALS CO.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Columbian Chemicals Company,
Moundsville, West Virginia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Instituting unilaterally and thereafter enforcing an ab-
sence control program applicable to employees represented
hy International Chemical Workers Union, Local 888, AFL–
CIO.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain collectively, on request, with the above-named
Union as the exclusive representative of the employees of the
appropriate units described above, concerning any material
change in absence control procedures.
(b) Rescind the August 1988 absence control program in
effect as to employees represented by the Union
(c) Remove from the files of employees who are rep-
resented by the Union, all disciplinary warnings, notices, or
memoranda issued since August 1988 resulting from the ap-
plication of the absence control program.
(d) Offer all such employees discharged, suspended, or
otherwise disciplined or denied work opportunities as a result
of the institution of the absence control program immediate
and full reinstatement to their former positions or, if they no
longer exist, to substantially equivalent ones, without preju-
dice to their seniority or other rights and privileges.
(e) Make whole all such employees who were discharged,
suspended, or otherwise denied work opportunities as the re-
sult of institution of the absence control program in the man-
ner set forth in the remedy section of this decision.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Post at its Moundsville, West Virginia facility, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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.
WE WILL NOT unilaterally and without consultation with
International Chemical Workers Union, Local 888, AFL–CIO
institute or implement any material changes with respect to
absence control.
WE WILL NOT discipline our union-represented employees
by applying to them the absence control program adopted in
August 1988.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you in Section 7 of the Act.
WE WILL bargain collectively on request with International
Chemical Workers Union, Local 888, AFL–CIO as required
by law.
WE WILL rescind the August 1988 absence control pro-
gram in effect as to employees represented by the Union.
WE WILL remove from the files of employees who are rep-
resented by the Union all disciplinary warnings, notices, or
memoranda resulting from the application of the absence
control program.
WE WILL offer all employees discharged, suspended, or
otherwise disciplined or denied work opportunities as a result
of the unilateral implementation of the absence control pro-
gram immediate and full reinstatement to their former posi-
tions or, if they no longer exist, to substantially equivalent
ones without prejudice to their seniority or other rights and
privileges.
WE WILL make whole all union-represented employees
who were discharged, suspended, or otherwise denied work
opportunities as a result of the absence control program, by
payment of backpay and interest.
COLUMBIAN CHEMICALS COMPANY