Union Carbide Chemicals Co.

National Labor Relations Board - Board Decisions

Aug 5, 1963

143 N.L.R.B. 1177 (N.L.R.B. 1963)

UNION CARBIDE CHEMICALS COMPANY, ETC. 1177
the Regional Director for the Fifteenth Region, shall , after being duly signed by
Respondent 's authorized representative , be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive days. Reasonable steps
shall be taken by Respondent to insure that such notice is not altered , defaced, or
covered by any other material.
(b) Furnish said Regional Director for the Fifteenth Region signed copies of the
aforesaid notice for posting by Pesson Plumbing and Heating Company , if willing,
at places where it customarily posts notices to its employees.
(c) Notify the Regional Director for the Fifteenth Region , in writing, within 20
days from the date of the receipt of this report, what steps Respondent has taken to
comply herewith.22
Examiner" In the notice . In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals , the words "A Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision
and Order."
22 In the event this Recommended Order be adopted by the Board , this provision shall
be modified to read: "Notify said Regional Director, in writing , within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT induce or encourage individuals employed by Pesson Plumb-
ing and Heating Company, or by any other persons engaged in commerce, or
in an industry affecting commerce , to engage in a strike or a refusal in the
course of their employment to use, manufacture , process, transport , or other-
wise handle or work on any goods , articles, materials , or commodities or to
perform services, or threaten, restrain , or coerce Melvin Bourgeois , Pesson Plumb-
ing and Heating Company or any other employer or person engaged in com-
merce or in an industry affecting commerce , where an object in either case is
to force or require any employer or person to cease doing business with Albert
K. Newlin, Inc.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 861, AFL-CIO,
Labor Organization.
Dated-- ----------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building , 701 Loyola Avenue, New Orleans, Louisiana , 70113, Telephone
No. 529-2411 , if they have any question concerning this notice or compliance with
its provisions.
Union Carbide Chemicals Company, Division of Union Carbide
Corporation and International Union of Operating Engineers,
AFL-CIO . Cases Nos. 23-OA-1518 and 23-CA-15444. August 5,
1963
DECISION AND ORDER
On May 3, 1963, Trial Examiner Phil W. Saunders issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
143 NLRB No. 108.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its entirety as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report,
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was heard before Trial Examiner Phil W. Saunders in Port Lavaca,
Texas, on February 13, 14, 15, and 16, 1963 , on complaint of the General Counsel,
and answer of Union Carbide Chemicals Company, herein called the Respondent
or the Company .' The issues litigated were whether or not the Respondent violated
Section 8 ( a) (1) and (3 ) of the Act. The parties were afforded full opportunity to
be heard , to examine and cross-examine witnesses , and to introduce evidence pertinent
to the issues. Both parties presented helpful briefs which have been duly con-
sidered herein . Reserved rulings are disposed of in accordance with the following
findings of fact and conclusions of law.
Upon the entire record and my observation of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation , maintaining a chemical plant near
Seadrift , Texas. The Company , during the past 12 months, which period is repre-
sentative of all times material herein , has engaged in the manufacture and sale of
chemicals at its Seadrift , Texas, plant , and during the same period has shipped in
excess of $500,000 worth of its products from its Seadrift plant to points outside
the State of Texas. I find that the Respondent is engaged in commerce within the
meaning of Section 2(6) and (7 ) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , AFL-CIO, herein called the Union
is conceded to be a labor organization within the meaning of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
The consolidated and amended complaint alleges that the Respondent threatened
its employees with discharge for their activities on behalf of or membership in the
Union . It is further alleged that the Company commenced a practice of keeping em-
ployees under close observation for noting possible infractions of company rules in
a discriminatory manner, and by assembling memoranda in their personnel files many
of which alleged infractions of plant rules were without a basis in fact . It is also
alleged that the Respondent assigned the three alleged discriminatees herein, Con-
away, Swope, and Green , more onerous and arduous tasks, and that Conaway and
1 Pursuant to an order consolidating cases, complaint , and notice of hearing issued on
January 22 , 1963, the original unfair labor practice case, 23-CA-1518, arising out of a
charge filed by the Charging Party October 30, 1962, and amended December 18, 1962,
and the unfair labor practice case, 23-CA-1544 , arising out of a charge filed by the Charg-
ing Party December 11, 1962, were consolidated.
UNION CARBIDE CHEMICALS COMPANY, ETC. 1179
Swope were refused their earned periodic merit increase in wages all because of their
union activities.
A. Background and contentions
This record shows that the first formal union activity at the company plant here
in question, was in 1959. At this time the Guadalupe-Nueces Building Trades
Council petitioned the Board for a representation election, but their efforts were
unsuccessful. On August 15 and 16, 1962,2 the Board conducted an election on a
petition filed by the Union, and a majority of the valid ballots cast were against
the Union.3 There were no objections filed to the conduct of this election.
This record further reveals that prior to the election on August 15 and 16, the
Union did file an unfair labor practice charge (Case 23-CA-1427) on behalf of an
individual, Joe Villareal. This charge was subsequently withdrawn and no further
action was taken on the matter .4
On April 30, a union circular signed by Conaway as temporary chairman of the
organization committee, appeared on the plant premises. This circular and its
letterhead contained the names of 21 employees of the Respondent's plant who pub-
licly labeled themselves as the "Carbide Employees Organizing Committee," and
Green, Swope, and Conaway were among the 21 names .5 The General Counsel
has not indicated in any way that the Company engaged in any violations in regard
to the remaining 17 publicly announced members of the Union' s organizing
committee.6
There is no contention by the Company that they did not have full and complete
knowledge of the union activities of Green, Conaway, and Swope. The circular
as mentioned above was well known by management, and each of the three alleged
discriminatees announced to their respective foremen that they were going to assist
the Union in its organizational efforts? The Respondent showed that its general
disciplinary policy has been in effect since 1954,8 and maintains that there were
no changes in these policies nor in their hourly rate progression policy during the
Union's campaign period. The Respondent further contends that each incident
involved herein was carried out under their normal disciplinary procedure in a non-
discriminatory manner, and that the practice in reducing to writing incidents in-
volving individual employee infractions of plant rules and poor work performance,
and then later considering them in denying wage increases, or issuing letters of
reprimand, was also in furtherance of the Respondent's usual practice.
B. The pertinent testimony
Conaway: This employee is a trainee pipefitter at the plant, and has worked in
this capacity without interruption for about 28 months. On direct examination
Conaway testified that Foreman Jordan, his immediate supervisor, never reprimanded
him personally nor had Jordan given him a verbal reprimand .9 Conaway also
stated that after he announced his union intentions he then noticed a change in
job assignments. That prior thereto he had normally worked with others, but
that during the union campaign he had to work alone, and stated that he was also
assigned to the air compressor building which was a cold, oily, and greasy job, and
that before his union announcement he had only worked in this building on a few
occasions.10
The General Counsel's Exhibits Nos. 2-A through 2-I show that Foreman Jordan
had written several memos on Conaway dating from June 6 to October 25. A de-
tailed discussion as to each of the above will folow.
This record further reveals that on September 21 Conaway was given a letter
of reprimand by his foreman, Jordan, and also informed that his merit increase
All dates are 1962 unless specifically stated otherwise.
a Respondent 's Exhibits Nos. 4 and 5.
• Respondent's Exhibit No. S.
5 Respondent 's Exhibit No. 2.
0 Joe Villareal, the Individual Involved in Case No. 23-CA-1427, as aforestated, was also
one of those identifying himself in the organizing committee
4 Conaway informed his immediate foreman, Jordan , of his union activities on March 27,
Swope so informed his foreman , Neal, on April 27 or 28, and Green informed his foreman,
Bonar, on or about April 24.
8 Respondent 's Exhibit No. 1.
0 On April 4 Conaway received his profile report, and also got a wage increase at this
time.
10 Conaway testified that after the union election on August 15 and 16 he then an-
nounced that he would continue with his activities on behalf of the Union.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of wages had been denied." The letter of reprimand was based in part on the
various memos Jordan had written on Conaway following verbal reprimands. In
essence the letter stated that Conaway had left his work area without permission,
that he had left before quitting time, and that he had visited or talked with other
employees at numerous times. The letter also stated that Jordan considered Con-
away's work performance as unsatisfactory, and that if he did not show improve-
ment more severe disciplinary action would be taken, including the consideration of
discharge. At this time Foreman Jordan also mentioned to Conaway the grievance
procedure available to him.12
On cross-examination Conaway admitted that on " occasions" he had been spoken
to about the incidents in question here by his foreman, but stated that he did not
consider them to be a reprimand. Conaway then further admitted that on one
occasion he had left his job without permission to attend to personal business at
the Credit Union, and also stated that he and Green had gone to "stores" in order
to get some gauges that were needed on their job. Conaway admitted that he had
been told to use the plant "expediter" in getting needed materials while on a work-
ing assignment . Conaway further stated that on one occasion he started to clean
up at 4:16 p.m., and also admitted that he had made some original mistakes on a
sketch measurement for pipe that was to be installed.13
Foreman Jordan testified that the Company had a basic policy on what super-
visory people could and could not do during a union campaign. This is referred
to in the record as the "do's and don' ts." 14 Jordan stated that in the 1959 union
campaign, as aforestated, the Company relaxed its plant rules, and as a result the
employees at that time could do most anything, but within a few days after the
1959 campaign the Company went back to enforcing its rules and the employees
did not appreciate these sudden changes. Jordan testified that as a result of this
experience he suggested to his immediate supervisor, Williamson, that during the
1962 campaign the Company should definitely enforce its rules at all times. William-
son then agreed to this suggestion, and told the various foremen at their planning
meetings that the plant rules would be enforced during the campaign here in question
and that no one would get any special treatment including those employees on the
organizing committee, as aforestated.
The testimony by Jordan and other witnesses duly established that the Company
had definite and specific working rules. Employees were required to stay at their
job until 5 minutes before quitting and at which time the whistle blows 15 The
plant does not recognize coffee breaks as such, but employees are permitted to get
coffee in the central control rooms and then return immediately to their jobs. The
Company requires that all employees get permission from their respective foremen
before leaving their jobs during working hours, and if employees need additional
materials while on a job assignment they are to call transportation or the "expediter,"
and are not permitted themselves to leave their work and get the material from
the plant stock or supply area, herein called stores. There is also a requirement
that employees working on certain types of equipment sign cards or tags when
11 See General Counsel's Exhibit No 3
'2 Conaway admitted in his direct testimony that on a few occasions he had talked to
other employees, and also admitted that he had failed to sign a "master tag" after com-
pleting a particular job assignment. In direct examination he denied many of the other
incidents attributed to him.
13 The General Counsel produced testimony through Meeks Johnson to the effect that
while Conaway may have quit somewhat early on the afternoon of October 15-Johnson
had then observed Conaway cleaning oil from his boots and slicker suit Johnson stated
that if he had worked at this job under the same circumstances as Conaway he might have
done likewise Instrument Mechanic Pustejovsky, who works in the oxide control room
wherein Conaway was reported by Jordan to have talked to employees, denied that he
had talked with Conaway unless it was just on one job that the two of them did together.
On direct examination Tom Villareal could not recall that Conaway had "pestered" him
about the Union as Jordan had reported in one of his memos, but on cross-examination
Villareal admitted that he had informed his foreman that "a lot of guys" had talked to
him about the Union. Albert Pittman could not recall that Conaway talked to employees
in the oxide control room. Francis Marek stated that he was working with Conaway
when mistakes were made in the measuring of piping, and that while Foreman Jordan
informed Conaway that the Company was not too happy about it-he did not receive a
letter of reprimand on the incident.
14 See General Counsel's Exhibit No. 4.
15 For the purposes here quitting time was 4:30 In the afternoon
UNION CARBIDE CHEMICALS COMPANY, ETC. 1181
their job is completed, and without such signatures the equipment cannot be placed
back in operation.
General Counsel's Exhibit No. 2A is a memo from Jordan stating that Conaway was
talking in the oxide control room , and that this was the third time he was caught on
this date. This memo is dated June 6. Jordan credibly testified that Conaway was
assigned to do a job with Don New. Jordan stated that in the morning he checked
on the job and found New working and Conaway inside the control room talking.
This control room was a separate room from where Conaway was assigned to work.
Jordan asked Conaway what he was doing and received the reply that he was check-
ing with the operators on the job. Later on in the morning, Jordan checked on
the work again and again found Conaway in the control room talking . New was
still working on the system . Jordan again asked Conaway what he was doing. His
reply was he came to see the operators and was getting a drink of water. Later in
the afternoon , Jordan again visited the job , found New working on the system and
Conaway talking to other mechanics who had no connection with the job and could
not conceivably need to have any discussion with Conaway. At this time, Jordan
told Conaway that his talking was holding up the job and he was not carrying his
part of the work with the other mechanic, New. The nature of this work did not
need constant communication with the operators other than making sure the system
was tagged out at the beginning of the day and notifying the operators when the
system was tagged in after the work was completed . Jordan stated the system was
tagged out at 8 a.m., this time being readily fixed because the operators placed the
time on the tag when they tagged it out.
General Counsel's Exhibit No. 2B is dated on June 22 and signed by Foreman
Bonar. It states that on June 21 Conaway was in building 1 at 3:30 p.m., and
that Foreman Jordan had informed Bonar that Conaway did not have permission to
leave his job. As previously noted in this report, Conaway admitted that on or
about the date in question here, he did go to the Credit Union on personal business,
and then so informed Jordan after he had returned, but stated that he did not have
Jordan 's prior permission . Jordan credibly testified that Bonar did speak to him
about this occasion as to whether or not Conaway had permission to be away from
his job. Jordan affirmed that Conaway did not have his permission to leave his
job to go to the Credit Union. Jordan had explained the rule to Conaway and all
of his crew concerning leaving the job during working hours for personal business
and that rule briefly is that an employee must get permission prior to leaving the
job. Jordan recalled speaking with Conaway personally and cautioned him that in
the future if he wanted to go to the Credit Union during working hours that he
was to get in touch with him and receive his permission . Employees Kramer,
Miller, and Kovar testified that they were well aware of the rule concerning per-
mission to leave work to conduct personal business during working hours.
The remaining portion of General Counsel's Exhibit No. 2B is dated July 10,
and states that Conaway was talking in the air compressor room twice on the morn-
ing in question , and was warned again that he was losing lots of time. The credited
testimony as to this incident shows that Foreman Jordan found Conaway talking to
one of the operators . Conaway, however, had his worksheet in his pocket, and
he was not reviewing it with the operator . 16 Later in the day Jordan returned to
this area and again found Conaway talking to the operator . Conaway's actual
work or job was approximately 75 feet away and in a different room of the building.
Conaway then told Jordan that he was asking for more information . Jordan was
acquainted with the job Conaway was supposed to be doing , and testified it was
merely minor maintenance of a nature that did not need constant or frequent check-
ing with the operator . Journeyman Pipefitter Miller testified that in work of this
type the mechanic need only exchange a few remarks with the operator in order to
do his job.
General Counsel 's Exhibit No. 2(c ) signed by Jordan and dated July 10 , states
in substance that Jordan was called in the evening by Foreman Hanna, and told that
they could not start # 3 compressor because it was not signed out by the fitters,
and that Conaway should have signed the card in before leaving. Jordan explained
the purposes of tagging equipment , and stated that this procedure is an old standard
practice . The following morning Jordan talked to Conaway about this incident,
and Conaway then told Jordan that he had forgotten to sign the card . Jordan also
offered credited testimony to the effect that such a mistake does not happen very
1B Worksheets given to employees detail what work is to be performed on each job
Occasionally there may be some question as to what the worksheet contains, and at such
times the mechanic might check with the operator.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
often .17 Conaway also admitted that he had failed to sign the tag in question here.
General Counsel's Exhibit No. 2(c)--dated July 12-also stated that a master tag
on a suction fitter was not signed in when the job was completed and that Conaway
had the card signed out. The credited testimony on this incident shows that
Conaway offered Jordan no excuse other than he had forgotten. Foreman Jordan
considered this mistake quite serious in light of its being the second one of the same
type within a period of 48 hours. Production Engineer Cockrell corroborated the
testimony of Jordan as to this particular incident, and Cockrell also testified that at
the time he discovered the mistake in not tagging in, he did not know which pipe-
fitter had worked on the equipment.
General Counsel's Exhibit No. 2(d) is another memo written by Jordan and dated
July 13. The memo states in substance that Conaway was to revise the dust collector
in a certain building, that he had "pestered" Tom Villareal and talked to other
employees, and that by 3 p.m. Conaway had no work done on his assignment and
was keeping other employees from their jobs. Conaway admitted in his testimony
that Jordan had informed him that there had been a call about the incident, but
Conaway then stated that Jordan had not questioned him to ascertain the details.
Conaway further testified that he arrived in the building where his work was assigned
and then waited for employee Sandford to check on the job, and that it was about
an hour and a half before Sandford finally returned. Conaway also stated that later
in the day Jordan spoke to him of Duggan Goodrich's complaint that Conaway had
been talking to employees and holding up their work. Conaway added that at this
time Jordan said to him "You want to be very careful about things like that. You
realize you are being watched." Conaway testified he made no reply to Jordan.
It is noted that at the time in question Conaway-by his own admission-did not
even attempt to tell Jordan that he was obliged to wait for Sandford, and, therefore,
at the time Jordan wrote the memo on this incident he had not heard the alleged
excuse, and certainly under these circumstances reasonably assumed that Conaway
had no mitigating circumstances in his favor. Jordan in his credited testimony
recalled that the work involved was a rush job, and that early in the afternoon on
the date in question he had observed Conaway talking with laborers. Jordan
then accepted the excuse that Conaway was waiting for materials. Later Jordan
received a call from Goodrich complaining that Conaway was pestering one of
the men on the job and had been talking to others and holding up their work.
Foreman Jordan then revisited the job around 3 p.m. and found that no work had
been done on this rush job although the material by this time was at the jobsite.is
General Counsel's Exhibit No. 2(e) signed by Jordan and dated July 27, stated
that Ira Alexander called and reported that Conaway was talking to control room
operators. Jordan then went to the area and found Conaway still talking to the
operators in that room. His jobsite on this particular day was in a different part
of the building and a completely different room. Jordan spoke to Conaway as to
why he was not working and Conaway replied that he was waiting for the operators
in another area to sign the tag out so he could go to work. Jordan then found that
the tag was already made out, signed, and the work was there ready to be performed.
The second notation on this exhibit states that Conaway was to replace steam valves
and that the unit was shut down and tagged and ready to be worked on by 9 a.m.,
but that Conaway talked to two of the operators for about 20 minutes. Jordan's
testimony as to this incident corroborated his memo on the same.19
General Counsel's Exhibit No. 2(f) is dated August 13 and signed by Jordan.
It states that Conaway left his job and walked to stores with Tom Green. Conaway
admitted, as aforestated, that this incident happened, but stated that they had
received word that the order could not be filled so decided to obtain the gauges
themselves. Conaway stated that as they left the job they noticed the expediter
driving by in his truck. While at stores, Foreman Bonar saw them, and Jordan
recalled that Bonar had then mentioned this incident to him. When Jordan arrived
at the stores building he observed Conaway and Green leaving. The next morning
Jordan spoke to Conaway about this incident, and Conaway replied that he did
not attempt to use the expediter because he was busy. Jordan then admonished
Conaway to follow the standard procedures in the future.
11 Employees Kramer and Kovar explained in their testimony for the Respondent the
tagging in and out procedure, and its purpose and importance.
is Jordan credibly denied that he had made any statement to Conaway to the effect that
he should be very careful , or that Conaway was being watched.
19 Jordan also stated that at the time he questioned Conaway as to this incident--
Conaway informed Jordan, "I am in the limelight out here in,this plant and people want
to talk to me."
UNION CARBIDE CHEMICALS COMPANY, ETC. 1183
General Counsel's Exhibit No. 2(g) is dated October 10, and also signed by
Jordan. In essence it states that Conaway had not worked on his job assignment,
and when questioned about it informed Jordan that he was waiting for the tools.
The memo stated that Conaway had been further assigned to repair steam leaks and
that he could have worked at this job while waiting. On cross-examination Conaway
stated he did not use the expediter because it was only a short distance to the tool-
room. Conaway admitted that he had been instructed to stay on the job and
utilize the expediters During the time in question Jordan visited the job and
inquired of Conaway as to what was holding up the work. Conaway replied that
he was waiting on tools. He then explained to Jordan that he had gone over to the
shop to look for a wrench there and could not find one and then called up the main
tool shop for the proper tool. Jordan again criticized Conaway's failure to use the
expediters. Jordan then asked Conaway why he was not performing other work
in connection with this job while he was waiting for the tools. Conaway then
proceeded to work on the steam leaks while awaiting the tools.
General Counsel's Exhibit No. 2(h) dated October 16, states that at 4:15 p.m.
Conaway was talking to Roy Davenport a mechanic , and was not working on his
assigned job. Conaway admitted that he started to clean the oil off his slicker suit
at about 4:15. Jordan remembered speaking to Conaway on this date and warn-
ing him about quitting early. Jordan also reiterated the rule that it is plant practice
that employees may stop work at 4:25, 5 minutes before quitting time to put up
their tools and clean up, but remain in their work area until the 4:30 whistle blows.
General Counsel's Exhibit No. 2(i) is dated October 25. Jordan' s memo on this
incident states as follows:
Mr. Conaway was assigned the job of measuring & sketching temporary
piping for #3 system blower-Shop order #98560, with Mr. Francis Marek
helping him. The sketch was turned in to the welding shop & 4 welders were
scheduled overtime work to complete welding, for at the time this job was
holding up operations for moving the resin . The next day Ken & Francis were
scheduled to install the piping & found there were three mistakes made in
measuring the pipe. These mistakes held up the job by at least 16 hrs. plus
the extra welding & cutting the shop had to do. Ken & Francis were both told
that these kind of mistakes cost the company lots of money for both down
time on equipment plus the cost of doing the welding & cutting power.
As aforestated, Conaway admitted making at least one mistake, but he alibied by
claiming that these mistakes were common, and stated there were very few pipe
jobs where there was not at least one mistake . Jordan explained the actual work
involved, and further testified that this work was not of unusual difficulty and was
of the type that he would expect trainees to be able to accomplish. Jordan also
emphatically denied Conaway's statement that there is an error on every pipefitting
job done throughout the plant.
Swope. This employee is a rigger trainee at the plant, and has been employed
since August 1961.20 The record reveals on or about May 3 Swope sustained an
industrial injury to his knee, and as a result underwent an operation on August 10,
and because of the accident was also at times on light duty at the plant?' Swope
stated that during the times he was on light duty-May until October -he was
not expected to nor did he perform the regular work of his classification. Swope
was denied his merit increase and received his letter of reprimand on October 26 22
The letter of reprimand to Swope was signed by Foreman Neal and covered seven
specific items. It also stated that if certain improvements were not forthcoming
the Company would consider more severe disciplinary measures including the con-
sideration of discharge 23 The General Counsel also introduced exhibits which
were memos from Foreman Neal and Martin and in part constituted the grounds
for Swope's subsequent letter of reprimand.
General Counsel's Exhibit No. 5(a) is dated July 17, and states that Swope was
reprimanded for going to building 322 without permission. Swope admitted that
he had been in building 322 on various occasions without having permission from
his foreman. This excluded times when he was scheduled to be in that building
20 Ralph D Neal Is Swope' s immediate supervisor.
General Counsel's Exhibits Nos 12 and 13, and Respondent's Exhibit No 3 (light
duty slips)
2e The profile period covered was based on a 3-month work period after Swope's prior
review covering a longer calendar period due to his extended absence, but it generally en-
compassed 3 months of actual working time.
23 General Counsel's Exhibit No. 8.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for training sessions. On some such occasions Swope admitted he had gone over
to get coffee while he was working in the furnace area. Swope stated that he did
not feel there was any need to get permission from Neal on every occasion when
he wanted to go to building 322. In essence, Swope did admit there was factual
background behind Neal's statement contained in General Counsel's Exhibit No.
5(a). Foreman Neal testified that Swope had received no permission from him
to go to building 322 except on occasions when he was attending class there. Neal
stated that the plant rule, and the rule that he enforced, was that all employees must
receive permission before they left their job to go any place on personal business,
other than emergency treatment at the dispensary. Neal also mentioned that it
was unnecessary for Swope to go to building 322 to get coffee while he was working
in the furnace area because there was coffee available in the area in which he was
working. It was duly established by Neal and several other witnesses, as afore-
stated, that the plant had a rule which was consistently enforced, and required em-
ployees to contact their immediate foreman and get permission before leaving
their jobs.
General Counsel's Exhibit No. 5(b) is dated July 19, and states that on July 6
Swope was reprimanded for leaving his area before 4:30. Neal in his testimony
stated that on July 6 while going through the gas separation area he saw two of
his men leaving the area early and it was prior to 4:30. The two men involved
were Swope and Jarish. The next morning Neal mentioned to his entire crew
that the previous day he had seen two men leaving the area early and that the
rules and regulations of leaving the area early had not been changed, and further,
he recalls making the statement that "If the shoe fits, wear it." Meeks testified
as to what the plant rule was on quitting time and that Neal had mentioned this
rule frequently and he himself had violated the rule and Neal called the infraction to
his attention. Casbeer testified to the same effect.
General Counsel's Exhibit No. 5(c) is dated August 1, and states that Foreman
Neal talked to Swope and Jarish about why they did not make a second lift for
Kovac at the furnace area. Bernard Martin, who is Neal's supervisor, directed
Neal to make an investigation on this incident. After talking to Swope and Jarish-
Neal concluded that they had done nothing improper, and the record shows that
Neal did not use this memo as any basis for Swope's letter of reprimand or the
denial of his merit increase.
General Counsel's Exhibit No. 5(d) is dated August 8 and was written by Su-
pervisor Martin. It states in essence that employee Meeks complained that the
crew did not like to "carry" Swope since Swope appeared to think that the crew
was too stupid to realize that they were doing so. Meeks testified that Swope did
a lot of talking and stated, "I think that did stir up the men." Meeks then spoke
to Martin and wanted to know if Swope was on light duty, and if so the crew
should know about it. Meeks admitted that the crew had knowledge of the injury
to Swope's knee, and that he was on limited duty, but they did not know for how
long a period. Martin stated that he did nothing to notify employees that Swope
was on limited duty, but he himself had noticed that Swope had been standing around
and talking with operators 24
Green: This employee is a first-class maintenance mechanic assigned to instru-
ments, and has been with the Company for 9 years.
Green testified that prior to his union activities he had the assignment of setting
up the preventive maintenance program for instrumentation, and had also been
given the job of making instrument flow drawings. Green stated that after start-
ing his union activities he was no longer assigned to these tasks. On Septem-
ber 27 Green received a letter of reprimand signed by Lloyd Bonar his immediate
foreman. The letter set forth several specific incidents wherein Bonar was not satis-
fied with Green's work habits or work performance 25 The General Counsel also
introduced exhibits which were memos by Foreman Bonar and which constituted
in part the grounds for Green's letter of reprimand.
General Counsel's Exhibit No. 9(a) is dated June 20, and states that at 4:27
-employees King and Green were leaving their work area before the whistle blew
and that both were verbally reprimanded, and King was warned that this was his
second such infraction. Green testified that he was familiar with this incident al-
though he thought it occurred at lunch time rather than at the afternoon quitting
;time. However, Green admitted he violated the rule and King was with him.
24 Several other witnesses for the Respondent also gave credible testimony relative to
,other aspects pertaining to Swope, and I will later discuss the pertinent portions of their
statements.
25 General Counsel's Exhibit No. 11. More detailed aspects and discussions of this
latter will follow.
UNION CARBIDE CHEMICALS COMPANY, ETC. 1185
Bonar 's credited testimony was in agreement and corroborated his memo on the
same.
General Counsel's Exhibit No. 9(b) and (c) dated June 26, stated as follows:
Tom Green could have used better judgment today on tagging a valve to
be repaired at the shop. Although transportation is not supposed to take
untagged valves and did take the #3 H.C. Heat Exch. Valve without a tag,
Tom should have called the shop so they could have identified the valve.
Less than a week ago I informed all of my men that valves had to be iden-
tified before the shop would work on them.
Green testified that the valve in question was gone when he returned to the job,
and that he then called the shop about it but had to wait 15 minutes because the
line was busy. The record as to this incident reveals that when Bonar mentioned,
the following day, that another valve had gone to the shop untagged, Green then
volunteered the information to Bonar that he was the employee who let it slip by.
Green admitted it was a common practice to tag all valves. The record also shows
that when Foreman Bonar specifically asked Green if he had called the shop about
the untagged valve-Green replied that he had not. It appears that this incident
was not specifically used in the letter of reprimand, and certainly the memo by
Bonar does not show language indicating a reprimand.
General Counsel's Exhibit No. 9(d) is dated June 29, and states as follows:
At 11:00 A.M. today I advised Tom Green & Norman King who were
sitting in the steam plant control room drinking coffee that we don't recognize
a coffee break, as such. I told them they could take coffee back to the job,
but sitting down coffee breaks were not allowed.
Green recalled that Foreman Bonar did talk to him on the occasion in question,
and that he had stopped for coffee and then started a conversation with King con-
cerning the job he was on. Green admitted that he considered himself reprimanded
by Bonar at this time . Bonar's credited testimony substantiated his memorandum
as to this incident.
General Counsel 's Exhibit No. 9(e ) ( top of page ) dated August 11, states:
I talked to Tom Green this morning about leaving his area, going to stores
to pick up material . Tom has been told on numerous occasions prior to this
to use transportation or the expediter to get material from stores. Ken
Conaway was with him at the time and certainly it didn 't take both men to
get pressure gauges.
The substance of Green 's testimony was that he and Conaway were having trouble
in obtaining the right equipment and they eventually went to stores themselves to
select it. Green admitted that Bonar did reprimand him on this occasion and that
he was well aware of the fact that he had often been instructed to utilize the expedi-
ters or the stores' delivery service in such a situation. Green was aware that the
use of the expediter was designed to increase the efficiency of the maintenance crew
by minimizing the time that they would otherwise have to spend away from their
job obtaining tools and materials . Green 's excuse for not calling the expediter was
similar to Conaway's that they had seen the expediter driving past their building and
therefore knew he was not available. It is significant to note on cross-examination
that Green did not offer any explanation to Bonar at the time of the verbal reprimand
as to why the expediter was not utilized. Bonar stated that Green had available at
his jobsite an IBM book that listed all equivalent materials Green needed , and that
they are listed by stock numbers and Green could have used this procedure to call
stores or used the expediter and received the material . In Bonar's opinion it was
absolutely unnecessary to leave the job under these circumstances . Exhibit No.
9(e) (bottom of the page ) states that at 3:20 Bonar observed Green in the plant
control room talking to an operator , and that Bonar then talked to Green about the
wasting of an hour 's time when he had preventive maintenance work he could have
been doing. Green stated he had finished his maintenance for the week, and that
the evening shift was just coming on so that it was not feasible for him to start on
the next week's work, and that he had already worked on three jobs that were not
on his list. Green admitted that Bonar reprimanded him on this occasion The
credited testimony by Bonar shows that he called Green's attention to other cobs he
could be working on , and recalled that the time of this incident was 3:20 p m. and
that he wrote his memo containing the time on the same day it occurred.26
'' Sonar further stated that this incident reflected on Green's initiative , one of the
points on which Green had been downgraded in his previous profile, and Green had grieved
about it
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's Exhibit No. 9(f) dated September 17, states:
At 9:00 A.M. I talked to Tom Green again about drinking coffee and talking
to the operators in the steam plant cont. room.
Green's version of this incident was that he was drinking coffee in the control
room but that he was checking with the operator concerning the work he was going
to perform. Bonar came in and again reminded Green about the rule on coffee
breaks, and Bonar stated that Green offered no excuses to him and did not mention
that he was consulting with the operator concerning his work. Thus, Bonar wrote
his memo on this incident without any knowledge of any mitigating circumstances
as Green claimed at the hearing but did not offer to his foreman at the time in
question.
General Counsel's Exhibit No. 9(g) is dated October 4, and states that Green
was to assist on a certain job, but the work was left without being completed. Green
also stated that he was under nervous tension and nothing he did pleased Bonar, but
that this was no excuse.27
General Counsel's Exhibit No. 9(h) dated November 6, states:
Today at 12:20 I spoke to T. Green who was outside the gate smoking at
that time. I told him that the lunch hour ended at 12:15 and that he should be
back on the job before that time.
Green admitted that this incident happened, but that Bonar was then informed that
he was talking company business with another employee 28
The letter of reprimand issued to Green recites as item 4 an incident which was
viewed by Bonar as the most serious problem. Item 4 of the letter states:
4. Finally, and most serious, you were given an assignment on September
13 to repair the instruments in the training lab and to get them into first class
shape for a training session the following Tuesday, September 18, 1962. On
Monday, September 17. 1962, I checked with you to be sure that this job had
been completed and you said it had. When the instruments were put into use
it was found that several were not properly adjusted. I discussed this with you
on September 24, 1962, in an effort to discover what the problem had been.
Your replies were far from satisfactory and your use of profanity bordered on
insubordination.
Green testified that Bonar had given him four specific jobs to do in the lab, which
he did, and had he been told to put all the instruments in first class shape he would
have been happy to do so. Green also stated that the next knowledge he had of
this incident was on September 24 when Bonar showed him a list of malfunctions
that had occurred during the operation of the instruments on Tuesday, September 18.
These malfunctions are listed in General Counsel's Exhibit No. 10. Green admitted
that his instruments did include one of the four malfunctions listed. The other three
items Green claims were not work assigned to him, although he concedes that they
were part of the pneumatic instruments in the training lab. Bonar and Green went
over to the training lab and inspected the pneumatic instruments and found their
condition to be as stated in General Counsel's Exhibit No. 10. Green admitted that
he did not operate the entire system during the time he reported certain of the in-
struments.29 On cross-examination Green admitted that there would be no useful
purpose of fixing only four items assigned if there were other malfunctions in the
system. Green also admitted that one of the specific jobs given him that sub-
sequently malperformed, was the model 58 control. Green testified that there was
not doubt in his mind that it was aligned, but then admitted that he did not check it.
This record reveals that Bonar instructed Green that he wanted the pneumatic
instruments in the lab put in first class shape-but not the electronic instruments.
Following the training session on September 18, Instrument Engineer Liford in-
formed Bonar that the instruments he had asked Bonar to fix were in terrible shape.
Bonar then discussed this situation with Supervisor Williamson and Williamson was
disturbed about Green's work performance, and suggested that perhaps Bonar should
give Green a letter of reprimand. Bonar testified that he declined to take this
action at this time , at least until after he had talked to Green . Bonar then talked to
2' This incident occurred on October 4, 1962, and followed in time the letter of reprimand
issued to Green on September 27 and thus did not play any part in that letter of reprimand.
28 This incident also occurred following in time the letter of reprimand of September 27,
and was not involved as such is the issuance of the letter.
29 It appears that such an activation of the system would have disclosed the other
malfunctions.
UNION CARBIDE CHEMICALS COMPANY, ETC. 1187
Green and asked him to repeat what instructions he had been given concerning the
training lab instruments. Green's reply indicated that he knew the pneumatic in-
struments were to be in first-class shape. Bonar and Green then proceeded to the
training lab to inspect the instruments. Bonar activated the system and both he
and Green observed some malfunctions in it. Green then admitted to Bonar that he
had not started up the systems to check them out. The Respondent's Training
Director Sherman and Instrument Engineer Liford substantiated Bonar's credited
testimony as to this incident.
The complaint in this proceeding also alleges that Foreman Alton Hand threatened
Green with discharge because of his union activities.
Green testified that on October 6 he sought out Foreman Hand and talked to him
about his letter of reprimand. Green wanted Hand's advice as to whether or not he
should enter a grievance concerning his letter of reprimand. Green stated that
Hand told him that it would do no good to file any grievance. During this con-
versation Green did admit that he was guilty as to the first three items in his letter of
reprimand but he did not feel in any way at fault as to the fourth item concerning
the training lab instruments. Green further alleged that Hand told him that Green
and the other members of the union organizing committee had "a little red light
over our heads," that Green had stepped on "toes" in the front office, and the fact
that Green was a good instrument man was immaterial when he was advocating a
10- to 15-percent increase in costs of operations. Green further testified that at this
time Foreman Hand also told him that if he should decide the Union was not so
good Green should tell this to his foreman and others. Foreman Hand testified that
on this occasion he told Green that it looked like the Company had a good case
against him, and that he had no knowledge of any move on the part of the Re-
spondent to "get" Green. Hand also told Green that other employees had received
letters of reprimand, but that the letter had later been removed from their files by
"straightening out and flying right." Hand further mentioned to Green the case of
Ira Smith-who was one of the organizers in the 1959 union compaign, and he later
became a foreman.30 Hand testified that foremen had received instructions at every
turn that there would be no persecutions of the employees engaged in union activi-
ties-and that he so informed Green. Hand in no way discouraged Green from
filing a grievance, and also credibly stated that he reminded Green that he had used
this procedure earlier and had received consideration all the way up the line. Hand
further specifically denied telling Green that organizers had a "red light" over their
heads, and denied telling Green that he had stepped on "toes," as aforestated.
C. Final conclusions
In my analysis here I think it should first be pointed out that in this case there is
no discharge of any employee nor even a disciplinary layoff involved Secondly,
it should be noted that the Respondent has a grievance procedure well known and
available to all employees, and the denial of a merit wage increase or a letter of
reprimand can be the subject of such a procedure. Not one of the three employees
involved in this particular case filed any grievance as to their letters of reprimand,
nor did Conaway and Swope exercise this procedure relative to the denial of their
merit increases specifically in question here.31
In addition to the evidence already set forth, the General Counsel and the Com-
pany also produced considerable testimony bearing on the industrial relations.
department of the plant, and its connections with this case. In this respect it was
duly established by the manager of the industrial relations department, Franklin,
that he and his department had no part whatsoever in the day-to-day operation of
discipline by individual foremen in the plant. Franklin further credibly testified
that he did not in any way single out any employee for special observation as to
possible infraction of company rules, that he did not ask or tell any supervisor to
go out and observe any employees to find fault with their initiative, find fault with
their complying with company rules or find fault with their job performance, and
that there was no company policy to effectuate such a program.
It was further established by Franklin and others, that the various memoranda
on Conaway, Swope, and Green were kept by the individual foremen, and were not
forwarded to the industrial relations department, nor were they kept in the individ-
ual's personnel file. This record further reveals that formal letters of reprimand
20 Hand further told Green that Howard Hensley had also received a letter of repri-
mand-and later he became a foreman.
31 Swope had an earlier merit increase denied , but the increase was given to him after
his grievance was processed.
717-672-64-val . 143-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are initiated and signed by the individual foreman concerned , and this procedure
was followed in the cases of the three employees involved herein.32 The Company
has also used letters of reprimand consistently in its disciplinary procedures. In
the last 24 months the plant has issued 31 such letters. Letters of reprimand are
placed in the employee's personnel file at the end of 1 year the letter is then removed
if there are no additional violations.
The hourly wage progression or merit system is a uniform policy in the plant.
The granting or withholding of merit increases is determined by the respective fore-
man, and increases are withheld for poor work performance, violations of plant
rules, and a variety of other reasons 33 It has been the normal plant practice that
each foreman review individual employee's progress at the conclusion of each merit
increase period. This interview encompasses the entire period of time covered by
each merit increase. It is not the policy that a foreman must review with an in-
dividual his shortcomings on every occasion that a supervisor may observe poor
work performance. Under the merit increase program, a supervisor discusses with
each individual employee his performance in the total period covered by the profile
for the merit increase. In this discussion, whether the increase is being held up or
granted, the foreman will often discuss areas for improvement as needed. This
can include violations of company rules, poor work performance, or both. Some
incidents of poor work performance may have been discussed with the individual
at the time of the individual incidents, others may not, but at the time the review
period ends the foreman discusses the employee's total performance during that
period.34
Conaway by his own testimony admitted that he received a periodic wage increase
in April, and this increase was given after he announced his intentions of helping
in the union campaign. On direct examination Conaway testified that his foreman
never reprimanded him personally. However, the credited testimony and Conaway's
own admissions on cross-examination show that on occasions he had talked to other
employees, that he had failed to sign a master tag, that he had left his jobs without
permission , that he and Green had walked to Stores, as aforestated, and also by
Conaway's own admission, at least one mistake was made by him on a sketch
measurement for piping. Conaway then further admitted that as to several of
these incidents, Jordan had spoken to him about them It appears to me that while
there might be some questions of semantics here-Conaway was definitely repri-
manded by his foreman on these occasions. It is clear to me from this record that
Foreman Jordan then noted these incidents on the various memos and letter of rep-
rimand, as previously pointed out, and that they contain the deviations by Conaway,
from the normal and well recognized practices and rules of the plant which had
been in effect and enforced for several years.35 Since I find that the verbal and
written reprimands, the letter of reprimand, and the denial of a merit increase to
3' On letters of reprimand the primary reason for consultation with the industrial rela-
tions department is that discipline as enforced through letters of reprimand shall be ad-
ministered uniformly throughout the plant . The industrial relations department serves
as a clearing house to counsel and provide information that enables foremen to weigh
their particular action against what other foremen have done in various other circum-
stances In the past The actual decision to write the letter of reprimand remains with
the supervisor . The industrial relations department further, does help with the letters
themselves as to language and typing , but the exercise of the reprimand and the decision
to Issue it emanates from the foreman . The department does not instigate the factual
background of the reasons for the letters.
33Blank profile sheets are provided by the Respondent to assist the foreman In their
evaluations . These profiles cover many categories , such as work output , skill, attitude
toward his job, ability to get along with his crew , interest in acquiring knowledge, etc.
iS During the past 24 months , 12 merit increases have been withheld , and letters of
reprimand are sometimes issued in conjunction with the withholding of a merit increase.
35 The General Counsel at the hearing stressed attachment 2 of General Counsel's Exhibit
No. 4. This attachment contains certain background information about Conaway, and
was issued during the time of the Union's campaign at the plant. Franklin stated that
this Information was sent to all supervisors as he had received some inquiries as to who
this employee was. Conaway was an employee of relatively short service and as such
was not well known throughout the plant . It appears to me this was a natural answer to
a number of queries from Respondent 's supervisors . General Counsel attempted to estab-
lish that this attachment concerning Conaway singled him out and called attention to
him. It seems obvious that Conaway had singled himself out and called attention to him-
self without any help from the Company when he issued and signed Respondent 's Exhibit
No. 2 dated April 30, 1962.
UNION CARBIDE CHEMICALS COMPANY, ETC. 1189
Conaway were the normal and usual step in the Respondent's disciplinary procedure,
there is no adequate basis for holding that the Company acted in a discriminatory
manner with respect to Conaway as alleged in the complaint 36 Likewise, there is
lacking sufficient evidence that foremen commenced a practice of keeping employees
under close observation, as also alleged. Actually there is no testimony that Jordan
was keeping Conaway under other than normal supervision. It was well established
that Jordan tries to visit each job his men are working on two or three times a day-
that this is his usual procedure, and that it was in no way different as to Conaway.
The allegation that Conaway was assigned more onerous and arduous tasks becuse
of his union activities, also fails when viewed in relation to this record. General
Counsel's only testimony on this was given by Conaway, where he stated that after
his union activity began he noticed a change in job assignments and began working
more by himself. Even this testimony does not claim that any of the work was
more onerous or more arduous than he might normally perform. Conaway then
testified that he worked in the air compressor building and he did not think that
was right because of seasonal heat and cold. On cross-examination Conaway agreed
that he was doing minor and preventive maintenance in the air compressor building,
that this was a normal assignment for a trainee, and that other pipefitters also
worked in this building and at times had to work alone. Pipefitter Kramer then
gave credited testimony that all employees in this classification have to take their
turns at dirty and hard jobs. Pipefitter Kovar stated that he was assigned more
dirty jobs than anyone, and Miller testified that all pipefitters get their share of
the hard jobs and that Conaway had not been assigned any more of them than
other employees.
Swope stated that in May, following his union announcement, his merit increase
was withheld. However, he grieved on this and his grievance was eventually sus-
tained and he was awarded his merit increase. The record shows that in October
he received his letter of reprimand, and at the same time his next merit increase
was denied. Swope this time did not invoke the plant grievance procedure. In
the period following October Swope received his next normal increase in Janu-
ary 1963. The denial of Swope's merit increase and the letter of reprimand issued
in conjunction with it in October, was based primarily on poor work performance,
his attitude, and several rule mfractions as well as his physical limitations caused
by his injury37 Swope's basic excuse to all the factors against him was his indus-
trial injury and its incapacitating results to him. General Counsel's Exhibit No.
12 was the initial work restriction on Swope following his injury. For 2 weeks
following the date of this work restriction, May 7, 1962, Swope was on crutches.
On June 1, Swope received a change in his work restriction (General Counsel's Ex-
hibit No. 13). This restriction was set to last for 1 month until July 1, 1962.
Under these restrictions Swope was to do "no prolonged bending, stooping or squat-
ting, no ladder or scaffold work, no frequent stair climbing, and no prolonged heavy
manual labor." On July 5, and for the period thereafter, Swope's restriction was
merely limited to "no frequent stair climbing." Other than this he was capable of
performing his normal work. Foreman Neal's evaluations of Swope's poor work
performance did not hinge in any way on the fact that Swope was expected to be
climbing or doing any stair climbing.
In support of the Swope's letter of reprimand, Foreman Neal stated that it was
issued because of his work performance, and that his initiative was not up to stand-
ard. Neal then testified as to specific instances wherein he related incidents as to
Swope in corroboration of his letter of reprimand, and I have also credited Neal's
testimony in these respects 38
'a In substantiation of Conaway 's letter of reprimand and dental of his merit increase-
three employees on the same crew with Conaway-Journeyman Pipefitters Kramer, Kovar,
and Miller, all testified that during the period of the union campaign Conaway's work
performance was not satisfactory.
'T Swope's letter of reprimand stated that he had avoided assignments which came
within his physical restrictions, that Swope had caused dissension in the work crew, that
he had been observed standing around and leaving work before quitting time, that be had
shown poor planning by failure to have the required materials and tools, that he had
visited with other employees, and that Swope had also shown a continual reluctance to
perform work which he considered to be outside of his classification.
's Neal stated that Swope had not shown the progress in his work as compared to other
trainees of similar experience, and that he had been reluctant to work on such as drilling
bundles or cleaning a tube out and other works not considered by Swope as straight
rigging
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Casbeer, who frequently works with Swope as part of the rigging crew, testified
that although Swope's work has improved of late, Swope was not, in his opinion, a
competent rigger during the union campaign. One specific point mentioned by
Casbeer was that Swope had been uncooperative and showed a generally poor at-
titude toward his job and the men he worked with. This attitude caused hard feel-
ings within the crew, Casbeer was aware that Swope was on light duty and was not
expected to perform all the work, and he had no complaint along this line. Casbeer
also remembered that during the past summer Swope frequently expressed a reluc-
tance to do certain types of work that he did not feel was strictly a rigging job,
such as changing spuds and burners in the furnace and cleaning heat exchanges.
Casbeer stated that all the other riggers frequently do this same type of work. The
testimony given by employee Meeks in these general respects substantiated that of
Casbeer. Meeks further stated that he did not think Swope had been unjustly
denied in the withholding of his October merit increases as he had not shown proper
initiative, and that during the period in question Swope had admitted that he knew
his attitude was not good. General Counsel's witness Kovac, stated on cross-
examination that he would not pick Swope to work with all the time, as Swope told
Kovac that a certain job not involving rigging was too dangerous.39 Kovac fur-
ther evaluated Swope by stating that while he is a good rigger, Swope does not
have initiative. In accordance with the above, I find that the memos, the letter
of reprimand, and the denial of Swope's merit increase, all had a justifiable basis
and that there is insufficient evidence by the General Counsel to show any dis-
crimination . The statements contained in the letter of reprimand to Swope were
factual as demonstrated by the credited testimony of Foreman Neal, Martin, and
other employees who worked with Swope. The allegation that Neal has assigned
Swope more onerous and arduous duties because of his membership or activities on
behalf of the Union likewise fails. General Counsel through its witnesses, and
particularly Swope, did not adduce any evidence to support this change. In fact
what testimony does appear shows that to the contrary, Swope during the period
in question , was on limited duty and definitely not performing any heavy, onerous,
or arduous work. Swope admitted that during this time he accompanied regular
members of his crew on their normal assignments and hence was not treated abnor-
mally.40 I also find that there is insufficient evidence to support the contention that
Swope was kept under close observation as alleged. Foreman Neal stated that he
only visits his crew three or four times a day, and there is no evidence whatsoever
that Swope was in any way treated differently than other employees or kept under
abnormally close observation because of his union activities.
As to Green the complaint alleges the same type of illegal conduct by the Com-
pany as set forth in respect to Conaway and Swope. The only distinction in the
Green case is that there are no allegations that Respondent withheld any merit
increases.
Insofar as the memos on Green are concerned and the part they played in his
letter of reprimand, it appears to me that Bonar was exercising proper supervision
in all the circumstances and incidents heretofore mentioned, and in accordance there-
with I so find. Insofar as the letter of reprimand is concerned, the Nos. 1, 2, and
3 items contained therein are admitted by Green as being correct 41 The only
basis of dispute is on item 4 in relationship to the repairing of the laboratory in-
struments, and in this respect I have credited the Respondent's testimony to the
effect that Green had not properly carried out his assignment. Therefore, I further
find that the letter of reprimand on Green had an adequate factual basis, and that
there is insufficient evidence that Foreman Bonar acted discriminatorily. Since
Green's letter of reprimand did not suggest discharge if his work performance did
not improve-the General Counsel, therefore, hinges this allegation on Green's
sB It was well established by this record that riggers frequently must do other types of
work other than straight craft rigging.
40 Casbeer stated that Swope never complained to him of being assigned onerous or
arduous work and that Swope did not receive any assignments that any other rigger is
not often called upon to do. Casbeer, himself, believes that he has done as many of the
hard and dirty jobs as Swope . Rigger Meeks agreed with Casbeer's evaluation
41 These items stated that Green was drinking coffee, talking to operators, leaving his
work early , and that he failed to show initiative It is noted that these items are set
forth in the memos on Green, as aforestated
UNION CARBIDE CHEMICALS COMPANY, ETC. 1191
conversation with Foreman Hand. For the reasons previously set forth I have
rejected Green's testimony as attributed to Hand. As to the contention that Green
was assigned more onerous and arduous tasks because of union activity-I find
that there is also insufficient evidence to support this allegation. On cross-
examination Green's testimony completely rebutted the idea that his change in as-
signment was in any way a reprisal for his union activities or membership. Green
admitted that at all times he has been classified as an instrument mechanic and he
was subject to daily assignment to work wherever he was needed. Green in no
way had any permanent job rights to setting up preventive maintenance programs.
In actuality, his change in assignment did not come for several weeks after the
union election and it involved only such work as all instrument mechanics are re-
quired to perform. Green readily admitted that it was not uncommon for instru-
ment mechanics to be changed from one location or area to another. Green was
aware that the reason for these periodic shifts of personnel was to provide more
training for the individual instrument mechanics and also to insure the Respondent
of a number of qualified employees to work on instrument problems anywhere in
the plant. All instrument men are required to know more than one phase of the
plant operation and are periodically rotated to different assignments. There is
no credited testimony whatsoever that Green was in any way kept under abnormally
close observations. It is noted here also that in making my finding and conclusions
as to Green, I have been fully aware of, and duly considered the three letters
of, commendation Green received from the Company in 1961, regarding certain
suggestions he made in respect to plant operations 42
In the concluding and final analysis here, it is readily apparent to me that
Conaway, Green, and Swope had a few prior difficulties at the plant even before the
Union attempted to organize in 1962, but these background incidents were few and
relatively minor in nature. However, when they became actively engaged in at-
tempting to assist in the 1962 organizational campaign, there specific attention to work
assignments was somewhat secondary, and it appears clear to me that as a result
their actual performances then fell off.43 Furthermore, these circumstances are an
adequate explanation and a reasonable deduction in meeting the General Counsel's
argument that the Respondent had not previously issued letters of reprimand on
the three employees involved herein. The Respondent had every right to insist
on the enforcement of its plant rules during the organizing campaign so long as
there was no discrimination involved.
On the basis of the entire record and my observation of the witnesses, I there-
fore find and conclude, that the General Counsel has failed to prove by the re-
quired preponderance of the evidence that the Company interfered with, restrained,
or coerced its employees as alleged in this complaint. I shall therefore recom-
mend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint, within the meaning of Section 8(a)(3) and (1) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law , I recom-
mend that the complaint be dismissed in its entirety.
12 General Counsel's Exhibits Nos. 14, 15, and 16.
"When the union drive was under way Conaway Informed his foreman that he was
now in the "limelight" and employees wanted to talk to him. This is understandable.
However, at the same time it is also recognized that with this sudden change of interests
and routine, most any employee would tend to lose some of his old work habits, and con-
centrate instead on the new and different matters at hand. Viewed as a whole this
record supports-doing what comes naturally.