Amoco Chemicals Corp.

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