Wellman Industries, Inc.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wellman Industries, Inc. and Textile Workers Union of America, AFL-CIO, CLC. Cases 11-CA- 5827, 5885, 5938, 5947, 5962, 6009, 6011, 6075, 6092, and 6101 January 13, 1976 DECISION. AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO July 8 and 9, 1975. All parties appeared at the hearing and were afforded full opportunity to participate, to introduce and to meet material evidence, and to engage in oral argu- ment. Briefs were filed on August 26, 1975, by the General Counsel and the Respondent, and have been considered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION On October 8, 1975, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed- exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Wellman Industries Inc., Johnsonville, South Carolina, its officers, agents, suc- cessors, and assigns shall take the action set forth in the Administrative Law Judge's recommended Or- der. DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Administrative Law Judge: On various dates from August 5, 1974, to May 20, 1975, Textile Workers Union of America, AFL-CIO, CLC, the Union, filed unfair labor practice charges, and amended charges, against Wellman Industries, Inc., the Respondent, in the above-captioned cases. On various dates from October 10, 1974, to June 9, 1975, the Regional Director issued com- plaints against the Respondent, or the complaint was amended, alleging that the Respondent had engaged in various unfair labor practices, hereinafter described, in vio- lation of the National Labor Relations Act, 29 U.S.C., 152, 158. Respondent duly filed an answer and amended an- swers denying all the allegations of unfair labor practice. Pursuant to notice a hearing was held before me in Georgetown, South Carolina, on February 5, 1975, and on Respondent is now, and has been at all times material herein, a Delaware corporation engaged in the manufac- ture ' of wool and synthetic fiber products. Respondent owns and operates a plant at Johnsonville, South Carolina, which is the only plant involved in this proceeding. Respondent, during the past 12 months, which period is representative of all times material herein, manufactured, sold, and directly shipped from its Johnsonville, South Car- olina, plant, goods of a value in excess of $50,000 to points and places outside the State of South Carolina. During the same period of time, Respondent caused to be shipped di- rectly to its Johnsonville, South Carolina, plant, goods and raw materials of a value in excess of $50,000 from points and places outside the State of South Carolina. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Summary of Issues The General Counsel contends, and the Respondent de- nies, that the Respondent engaged in violations of Section 8(a)(5) and (1) of the Act by the following conduct: (1) Maintaining and enforcing absence and tardiness rules which the Board had previously found to have been unlaw- fully promulgated, and discharging employees in enforce- ment of the rules, (2) unilaterally changing existing terms and conditions of employment by (a) laying off employees (b) transferring employees (c) reducing employees' pay, and (d) changing the on-call and shift rotation systems in the maintenance department-all without notice to or con- sultation with the Union. There is no contention that the Respondent was motivat- ed by union animus. B. The Prior Case On June 14, 1972, the Board's Regional Director certi- fied the Union as the exclusive collective-bargaining res- presentative of the Respondent's employees in the follow- ing appropriate unit: 222 NLRB No. 44 WELLMAN INDUSTRIES, INC. 205 All production and maintenance employees including laboratory technicians, plant clerical employees, scheduler and following man, process control techni- cians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina plant, excluding office clerical em- ployees, professional employees, sales personnel, sea- sonal employees, messenger and mail clerk, fabric de- signer, watchmen, guards and supervisors as defined in the Act. By written request on June 24, 1972, and at various times thereafter, the Union requested the Respondent to bargain in the appropriate unit, and to consult with the Union con- cerning changes in policies, rules, or other action affecting terms and conditions of employment of employees in the appropriate unit. These requests the Respondent uniformly rejected, on the ;ground that the certification was invalid. On August 25, 1972, the Respondent changed its work schedules; on August 25 and 27, 1972, it laid off employ- ees; on October 2, 1972, it granted a wage increase to em- ployees; and on January 29, 1973, it promulgated new ab- sence and-tardiness rules governing employees. All these actions were taken unilaterally, and without notice to or consultation with the Union. Upon unfair labor practice charges filed by the Union, and following hearing in accordance with the Act, the Board issued a Decision and Order on June 17, 1974, in which it found that by refusing to bargain with the Union, and by the conduct described in the preceding paragraph the Respondent had violated Section 8(a)(1) and (5) of the Act. Wellman Industries, Inc., 211 NLRB 639 (1974). In its Order the Board ordered the Respondent to cease and de- sist from the proscribed actions, and to bargain with the Union. However the order did not affirmatively direct the Respondent to withdraw or abrogate the January 1973 ab- sence and tardiness rules. On April 1, 1975, the Court of Appeals for the Fourth Circuit granted enforcement of the Board's order in a per, curiam decision. 519 F.2d 1401 (C.A. 4, 1975). I am advised that the Respondent has since filed a petition for certiorari with the U.S. Supreme Court. C. The Present Charges, We turn now to the issues raised by the instant com- plaints. All the actions alleged, and hereinafter described, were taken by the Respondent unilaterally, that is, without notice to or consultation with the Union. 1. The discharges for absences and tardiness The absence and tardiness rules in effect prior to Janu- ary 29, 1973, are contained in Appendix A attached hereto. The rules adopted in January 1973, which were found by the Board to have been unlawfully promulgated, are con- tained in a copy of a memorandum issued to employees by the Respondent on January 29, 1973, and in the Respondent's Policy Manual, distributed to employees, and are reproduced in Appendix B attached hereto. The new rules established a numerical point system. Following the issuance of the Board's Decision and Or- der in the prior case on June 17, 1974, the Respondent continued to maintain and enforce the January 1973 rules without evident change. On various, dates between, June 2,. 1974, and April 2, 1975, the Respondent discharged a number of employees for accumulating excess of the 48 points allowed under the 1973 rules. The General Counsel alleges these discharges to be unlawful. The merits of that contention are discussed in the conclusions, infra.' 2. Unilateral layoffs During the period July 1974 through March 1975, the Respondent's employment vaned from a high of 1178 per- sons to a low of 762. From July 1, 1974, through March 1975, the Respondent laid off 366 employees. 3. Unilateral transfers During the period from July 26, 1974, to March 24, 1975, the Respondent unilaterally transferred a number of em- ployees to other jobs. Most of these, though not all, were caused by reductions in force due to a cutback in opera- tions? 4. Reductions in pay In the process of being unilaterally transferred, most of the employees identified in subsection 4, above, also had their pay unilaterally reduced-presumably because the new job carried a lower pay scale .3 5. Miscellaneous layoffs, transfers, and reductions in pay or classification A number of other employees were the recipients of a combination of unilateral action, such as a layoff followed by unilateral transfer and pay reduction, or recall from layoff to a lower classification and pay rate.4 6. "On-call system" In late June 1974, the Respondent unilaterally changed ' Those named in the complaint and concerning whom evidence was in- troduced are as follows - Willie T Wilson, Booker T. Jones, Willis Mitchell, Liston Johnson, Roy Gibson, James Dorsey, Joan Murphy, Wesley Wilson, John Gouse, and Oliver Dozier 2 The record identifies eight such employees . Lloyd Haselden, Ronald Anderson, Fred Ellison, Roger Hayward, Kelly Pressley, Adam McKnight, William Mitchell, and Dessie Pressley. Haselden's transfer was because of a reduction in force and also because he had asked to be taken off a cutter. McKnight was transferred on December 16, 1974, from B-line operator to bail press operator because of a reduction in force and was thereafter trans- ferred again to bobbin hauler because he "had serious problems" with the baler press job 3 These employees are identified in the record as Ronald Anderson, Fred Ellison, Roger Hayward, Kelly Pressley, Adam McKnight, William Mit- chell, and Dessie Pressley. Some of them were reduced more than once, due to successive transfers. These were Anderson , Ellison, McKnight, Mitchell, and Dessie Pressley. 4 Among those identified as being in this category were John Bishop, Robert Donnelly, Jr, Walter Garrett, Grant Nesmith, Kenneth Nesmith, Thelma R Rogers, Cubit Scott, and George Shefton. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its on-call requirements for maintenance employees. Prior to June 26, 1974, the Respondent relied on a volun- teer system for securing emergency help from off-duty em- ployees in the maintenance department. If emergency as- sistance was needed the supervisor would simply call off-duty employees until he found some willing to come in. However, by June 1974 the Respondent was having diffi- culty securing emergency help by that procedure. For that reason, and also in order to equalize overtime resulting from call-ins, the Respondent established a program in June 1974 by which employees were scheduled as on-call during definite periods of time. Compliance with this schedule was- mandatory. Failure to report when called would result 'in a "write-up" with termination resulting from the accumulation of three such write-ups. 7. Shift rotation In September 1973 the Respondent instituted a school or program to train its, maintenance personnel, using the serv- ices of Florence Darlington Technical- Institute. Concur- rently the Respondent encouraged its maintenance em- ployees to attend the school, with promises of wage increases and other benefits for attendance. However, at- tendance was not compulsory, and employees were advised that their jobs would not be jeopardized if they did not attend. Since the school was conducted at night, this conflicted with the schedules of maintenance employees who worked on the night shift. Initially night-shift employees who at- tended the school were required to clock-out during the period of their school attendance. However, beginning in December 1974 the Respondent, in order to avoid the con- flict, placed all maintenance personnel attending the school on the day shift. This required the transfer of suffi- cient day-shift personnel to the night shift as to accommo- date the students. D. Conclusions 1. As to the allegations other than the absence and tardiness rules In the prior Wellman case, among the Respondent's ac- tions which the Board found violative of Section 8(a)(1) and (5) of the Act was its unilateral laying off of employ- ees. It follows that the Respondent's similar action in the instant case is equally violative . The same must be found as to the unilateral transfers , reductions in pay or classifica- tion, and the changes in the on-call and the shift rotation systems. All involved terms and conditions of employment of employees in the bargaining unit, on which the Union was entitled to be consulted prior to their institution. N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products, Inc., 369 U.S. 736 (1962); Cloverleaf Cold Storage Co., 160 NLRB 1484 (1966); Chevron Oil Co., 168 NLRB 574 (1967); Legato Industries, Inc., 194 NLRB 999 (1972); Capital Electric Power Association, 171 NLRB 262 ( 1968); Southwestern Pipe, Inc. v. N. L.R.B., 444 F .2d 340 (C.A. 5, 1971). The basic defense interposed by the Respondent as to those actions is that they were economically or operation- ally motivated, and taken in good faith. Such a defense does not excuse unilateral action- on matters within the au- thority of the bargaining representative. Economic or oper- ative motivations do not excuse unfair-labor practices. The authority, duties, and prerogatives of a bargaining. repre- sentative are dictated by the statute, and they,are not sub- ject to diminution or modification because of an employer's good faith or economic necessity.' In any event, the economic or operational factors did not require the Respondent to ignore the Board's certification and make the changes unilaterally. That choice the Respondent made voluntarily on its own initiative. - - Nor is it controlling that in some instances the unilateral action may have been of benefit to employees. Clearly it was not so in all cases and situations. But even' if it' be thought that they were, that does not moot the action. For, in the first place, that is -a matter of:opinion on which reasonable minds may differ. In the second place, the eval- uation is a relative one, the answer to which may depend upon choice and weight as between alternatives. And final- ly-and of most importance-it involves a determination as to which elements in the employment equation are of primary interest to employees, and which secondary. That involves choices and balancing of interests committed to the bargaining representative. It is found that by the unilateral layoffs, transfers, reduc- tions in pay and classification, and changes in the on-call and shift rotation systems described above, the Respon- dent violated Section 8(a)(1) and {5) of the Act. 2. The discharges under the absence and tardiness rules The General Counsel contends that since the absence and tardiness rules enacted in January 1973 were found by the Board in the prior case to have been-enacted unlawful- ly, the 1974'and 1975 discharges-pursuant to those rules were equally unlawful. The Respondent's defense is that the Board did not find the rules to be per se unlawful, but only the manner of their enactment, and since- the Board did not order them to be abrogated, they constituted a legitimate basis for the discharges. In this connection the Respondent argues that Section 10(b) of the Act forbids issuance of the complaint, for the reason that there is no timely charge. At the hearing I indicated doubt that Sec- tion 10(b) applied, and requested-discussion of the point in briefs. The Respondent has done so. In addition the Respondent asserts that most of the dis- charged employees would in any event have been dis- charged, or subject to discharge, under the old rules. This 5 As the court of appeals said in the case of N.L R B v. Star Publishing Co, 97 F 2d 465, 470 (C A. 8, 1938): The respondent further contends that it was necessary to make the transfer, and thus engage in the unfair labor practice, because its busi- ness would otherwise be disrupted, and therefore, under all the facts. the transfer was excusable. We think, however, the act is controlling The act prohibits unfair labor practices in all cases. It permits no im- munity because the employer may think that the exigencies of the mo- ment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by the employer WELLMAN INDUSTRIES, INC. 207 contention I fmd not sustained for the following reasons. Comparison of the old and the new rules discloses a number of significant differences: (1) The old rules operat- ed on a calendar year basis, whereas the new rules provide for- yearly periods based on the employee's hiring date. Thus (as in fact happened) employees might accumulate 48 points within the anniversary year and be discharged, whereas in the calendar year they would not have had 48 points. (2) The new rules provide automatic points for tar- diness. The old rules stated no specific penalty for tardi- ness, other than an allowance of "six excused tardinesses and/or excused absences in one calendar year." (3) Though the old rule stated that an employee would not be allowed more than six excused tardinesses and/or excused absences, in practice that provision was not-necessarily fol- lowed.6 As has been seen, the new rules are automatic as to any absence subject to point charges, and contain no pro- vision for excused absences or tardiness. (4),Under the old rules superiors had discretion as to whether to excuse an absence or failure to give timely notice. The new rules pro- vide no- such discretion. (5) Under the old rules an employ- ee denied prior permission to be absent could then elect to come to work, and thus avoid penalty. Under the new rules no such election is possible. In the case of all of the discharges on the basis of the point system named in the complaint, the change from the old rules to the new rules resulted in automatic discharges which either-would not, or may not, have occurred-under the old rules, because of the operation of one or more of the following factors: The imposition of points for tardi- ness, -imposition of points, for excused absences, substitu- tion of the anniversary year for the'calendar year; absences which may have been excused under the old rules, and, finally, nonenforcement of the old provision respecting six absences or tardinesses. We come then to the nub of the issue: Can the complaint be sustained as to the discharges under the January 1973 rules? I have concluded, for the following reasons, that it cannot.- -At the outset, it must be observed that the January 1973 rules are not intrinsically, or per se, unlawful? Nor has the Board found them to be. No provision in the Act forbids the legal enactment or maintenance of those rules. The Board is empowered by Section 10 of the Act to require a person found guilty of an unfair labor practice to cease and desist from such action and "to take such affir- mative action . . . as will effectuate the policies of this Act." It is not contested that this provision authorized the Board upon appropriate charge and complaint to order a 6 Thus Personnel Director Mathews testified: Q. It [the old rulel doesn't mean he will automatically be terminated after six lexcusedabsences] does it? A. That's correct. JUDGE SCHNEIDER- It does not mean that if he had six absences he would necessarily be terminated? THE WITNESS - That is correct. JUDGE ScHNEIDEic But if he had three unexcused absences he would necessarily be terminated, is that correct? THE WITNESS Yes 7 As is, for example, a rule requiring union membership as a condition of hiring. respondent to set aside and abrogate rules of such charac- ter. As examples of the exercise of such authority see Wil- kinson Manufacturing Co., 187 NLRB 791 (1971); Murphy Diesel Co., 184 NLRB 757 (1970). If the Board had done so here, and the Respondent had thereafter failed to comply, discharges attributable to those rules would thus have been unlawful, as the General Counsel contends. However, the Board did not use such language in its order, or find the new rules intrinsically unlawful. The question then is: what is the -significance of those omis- - sions?, The theory of the complaint is that the rules are unlawful because the Board found them unlawfully enacted in the prior case, and that the unfair labor practice lies in the continued maintenance and enforcement of them thereaf- ter. Thus, the controlling issue is: what interpretation is to be given the Board's order? For the charge upon which the Board found the promulgation of the rules to be unlawful was timely filed. And if the Board has ordered the discon- tinuance of the rules; they could not presently be a defense to the present complaint. On the other hand, if the Board did not order the rules disestablished, there is no basis for declaring enforcement thereafter to be illegal. Thus, I find no 10(b) issue involved. _ The Board's usual policy is to require the discontinuance of conditions of employment found to have been unlawful- ly established, and where the Administrative Law Judge has not included such a provision in his recommended or- der, the Board may add one. Southland Paper Mills, Inc., 161 NLRB 1077 (1966); Wittork Supply Co., 171- NLRB 201 (1968); Allied Products Corporation, 218 NLRB No. 188 (1975). However, where the condition is not intrinsical- ly unlawful, the Board may sometimes permit it to stand (as, for example, a wage increase, or conditions established by contract with a minority union: American Beef Packers, 176 NLRB 338 (1969); or it may give the bargaining repre- sentative the option to so require. Herman Sausage Co., 122 NLRB 168(1958); Bastian-Blessing, 194 NLRB 609 (1971). In ascertaining what interpretation should be given the Board's order`in the prior case, the positions taken by the parties in that case are relevant. The General Counsel and the Charging Party there ad- vised the Administrative Law Judge that, they were "seek- ing no relief other than an order with regard to the unila- teral changes." In his Supplemental Decision on February 28, 1974-(the decision which was the basis for the Board's Decision and Order, of June 17, 1974), the Administrative Law Judge recommended a bargaining order, and an order requiring the Respondent to cease and desist from refusing to bargain, unilaterally changing conditions of employ- ment, and interfering with employee rights under Section 7 in any like or related manner. . The General Counsel does not appear to have filed any exceptions or brief to that decision of the Administrative Law Judge. However, the charging party filed an exception supported by a brief, and the Respondent filed a response thereto. The exception was to the Administrative Law Judge's failure to recommend a "make-whole order." It stated, in part: A cease and desist order is an insufficient remedy to 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cure both the willful refusal to bargain and the numer- ous unilateral changes made since the duty to bargain arose. Only a make-whole order can restore the status quo and deter the employer from further unfair labor practices. In support of its position the charging party cited a number of Board decisions, including Herman Sausage and Wittock Supply, supra. In the Respondent's brief to the exceptions of the charging party, the Respondent argued to the Board that a make-whole order was inappropriate in the circum- stances of the case. It is thus clear that the question of the scope of the remedial order, and the failure of the recommended Order to contain more affirmative recommendations, were specif- ically brought to the attention of the Board. It is true that the charging party did not in haec verba request an order to the Respondent to set aside the absence and tardiness rules. However, the exceptions and the argument clearly presented the issue for decision. In those circumstance, the Board's action in permitting the recommended Order to stand is to be interpreted as a refusal to order the rules to be set aside. In such a setting the Respondent's continued mainte- nance and enforcement of the rules enacted in January 1973 was not in violation of the Board's Order of June 17, 1974. No other basis for an unfair labor practice finding is suggested. There is, therefore, no support in the evidence for the allegation in the present complaint that by continu- ing to maintain and enforce the new rules after the is- suance of the Board's decision in the prior case, the Re- spondent acted in violation of the Act. It will therefore be recommended that that allegation of the complaint be dismissed. In the light of those findings it is unnecessary to further consider the applicability of Section 10(b) of the Act (Cf. Koppers Co., Inc., 163 NLRB 517 (1967) ), or whether prin- ciples of resjudicata bar the complaint with respect to the allegations. (Cf. Monroe Feed Store, 112 NLRB 1336 (1955); Peyton Packing Co., 129 NLRB 1358 (1961); For- rest Industries, Inc., 168 NLRB 732 (1967); International Union of Electrical, Radio, and Machine Workers, AFL- CIO [General Electric Co.] v. N.L.R.B., 367 F.2d 333 (C.A.D.C., 1966); Marland One-Way Clutch Co., Inc., 200 NLRB 316 (1972).) However, it is possible that the Board may disagree with my interpretation of its order. I therefore make an alterna- tive finding to the following effect: if the Board finds that the Respondent's maintenance and enforcement, since June 17, 1974, of the absence and tardiness rules enacted in January 1973 was in violation of the Board's Order of June 17, 1974, I find that the discharges of the employees named above for the accumulation of 48 or more points under that rule was an unfair labor practice violative of Section 8(a)(1) and (5) of the Act, and the employees so discharged should be reinstated and compensated for their loss of earnings or other benefits during the period of their dis- charge. While the Respondent contends that those employ- ees (or at least most of them) would have been discharged in any event under the terms of the pre-1973 absence and tardiness rules, I do not find that to be so. And- while there may have been some benefit to employees under the new rules, the overall effect, in my judgment, was to the detri- ment of the employees. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent cease and desist from laying off, transferring, or reducing the pay or classification of employees, or changing its on-call or shift rotation systems, or making any changes in terms or condi- tions of employment of employees in the bargaining unit, without bargaining with the Union about the matter. It will also be recommended that the Respondent bar- gain with the Union, upon request, and if an understanding is reached, embody such understanding in a signed agree- ment. In addition, it will be recommended that, if requested by the Union to do so, the Respondent rescind the unilateral layoffs, transfers, reductions in pay or classification, and changes in the on-call and shift rotation systems. Since it is possible that the Respondent's violations re- sulted in loss of employment or earnings to employees, they are entitled to compensation therefore, and effectua- tion of the policies of the Act requires it. It will therefore also be recommended that the Respondent make whole any employee who lost employment, was reduced in em- ployment, or lost wages or other benefits as a consequence of the Respondent's unilateral layoffs, transfers, reductions in pay or classification, or changes in the on-call and shift rotation systems. This is not to say that all the employees affected by the unilateral actions are consequently and ipso facto entitled to payments or reclassification of some kind. Whether any particular employee would have been laid off, transferred, reclassified, reduced in pay, etc., but for the unfair labor practices, and for what periods of, time, and entitled to reinstatement, or to reimbursement and if so in what amount, are questions to be resolved in a compliance proceeding, if the parties are unable to reach agreement on such issues. Suffice to say here that the Respondent's un- fair labor practices require an effective remedial order, and, in my judgment, nothing less will suffice to remedy the unfair labor practices. Cloverleaf Cold Storage Co., 160 NLRB 1484, 1493-95 (1966). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: WELLMAN INDUSTRIES, INC. ORDER' A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.9 B. Wellman Industries, Inc,, Johnsonville, South Caroli- na, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Textile Work- ers Union of America, AFL-CIO, CLC, as the exclusive representative of the Respondent's employees in the appro- priate unit described above, with respect to wages, hours, and other terms and conditions of employment. (b) Laying off or transferring employees, or reducing their pay or classification, or making changes in its on-call or shift rotation systems, without first bargaining with the Union about the matter. (c) Taking any action affecting conditions of employ- ment of employees- in an appropriate bargaining unit with- out first notifying and consulting the bargaining represen- tative: (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Bargain collectively with the Union as the exclusive representative of Respondent's employees in the appropri- ate unit with respect to wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agree- ment; (b) If requested by the Union to do so, rescind the unila- teral layoffs, transfers, reductions in pay, and changes in the on-call and shift rotation systems heretofore made; (c) Offer to any employee unilaterally reduced in classi- fication, reinstatement to his former classification; (d) In accordance with the Remedy section, above, make whole any employee for any loss of pay or other benefits he may have suffered by reason of any of the Respondent's unilateral changes referred to above. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel cards and reports, and all other records neces- sary for determination of the amount due employees. (f) Post at the Respondent's premises copies of the at- tached notice marked "Appendix C." 10 Copies of said no- tice, to be furnished by the Regional Director for Region 11, after being duly signed by a representative of the Re- spondent, shall be posted by it immediately upon receipt thereof,, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 11, in writ- 209 ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 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 deemed waived for all purposes. 9 The purpose of this provision, is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co., 136 NLRB 785 (1962); Commerce Co., d/b/a Lamar Hotel, 140 NLRB 226 (1962), 229, 328 F.2d 600 (C.A 5, 1964); cert. denied 379 U S 817, Burnett Construction Co, 149 NLRB 1419, 1421 ( 1964), 350 F.2d 57 (C A. 10, 1965). 10 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A ABSENCES AND TARDINESS Your attendance record with the Company will be an important factor in judging your work habits and dependability. Regular attendance and being on time for work-is necessary for efficient production. In order to maintain an efficient department, your supervisor depends on you to be at work every sched- uled work day unless you have been notified there is no work. Our work is planned in advance and you are counted on to do your job. Records of your absences will be kept by the Per- sonnel Department. ABSENCE & TARDINESS RULES AND REGULATIONS 1. If you have justifiable reason for being absent, you must notify the Company at least two hours in advance giving the reason for your absence and the length of time you expect to be absent. The reason for your absence must be acceptable by the Company. 2. In no event will an employee be allowed more than six excused tardinesses and/or excused absences in one calendar year (January 1 to December 31) by his shift overseer without his shift overseer having ob- tained approval from the General Overseer and the Personnel Director. Each Medical Leave shall be con- sidered as one excused absence, but each day an em- ployee is absent for personal reasons shall be consid- ered as one absence. 3. An employee who gives a false statement about his reason for being absent shall be discharged. 4. An employee absent because of sickness may be required to get a clearance from a physician before reporting back to work. 5. If an employee's reason for being absent is not acceptable by the Company, the absence will not be excused. An employee will be given a written warning for his first and second unexcused absences within a calendar year (January 1 through December 31), and he will be discharged for his third offense. - 6. If an employee is absent for three or more con- secutive working days without notification to the 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, he will be-discharged. 7. An, employee who returns from an unexcused ab- sence will not be eligible for reporting pay if there is not any work for him. APPENDIX B WELLMAN INDUSTRIES, INC. Johnsonville, S. C. MEMORANDUM - DATE: January 29, 1973 TO: All Employees FROM: Personnel Doug Matthews RE: ABSENCE AND TARDINESS RULES AND REGULATIONS In order to insure consistency in our absence and tardi- ness rules and regulations, effective February 1, 1973, the absences and tardinesses will be computed on a point sys- tem. By using the point system, you can better understand the relationships between absences with prior notification, without prior notification, leaves, tardinesses, etc. Also, you can better tell how you stand on,absences and tardi- nesses at all times by adding the total number of points charged to you. - - The following absence and tardiness rules and regula- tions supersedes the absence and tardiness rules and regu- lations in the Wellman Industries, Inc. policy manual (page 5 and 6;,paragraphs 1, 2, 3, 4, 5, 6, 7). Absence and tardiness rules and regulations. Each employee will begin the calendar year with- forty eight (48) points. Although the employee is allowed forty eight (48) points per year, using of points is to be discour- aged. Absences due to hospital confinement for illness or inju- ry, occupational injuries, jury duty, deaths in the immedi- ate family, military duty, maternity or personal leaves of absence are not subject to point charges. If an employee is absent for any reason other the excep- tions stated above, the employee will be charged four (4) points per absence provided notification is given supervi- sion of intent to be absent at least two hours prior to the employee's normal work starting time. When the absences occur on the employee's last scheduled work day before, during, or on the employee's first scheduled work day after a paid holiday or recognized holidayfor premium pay, the employee will be charged eight (8) points per absence pro- vided notification is given supervision of intent to be ab- sent at least two hours prior, to the employee's normal work starting time. - All-consecutive days absent due to illness or non-occu- pational injury will count as one excused absence provided the employee submits a doctor's statement about his rea- son for being absent. Employees will be charged four (4) points for each one of these excused absences. When an employee is absent and does not notify super- vision at least two hours prior to his normal work starting time, the employee will be charged sixteen (16) points for each absence. The employee will be charged- two (2) points for each tardiness. When an employee has been charged twenty four (24) points, he will be counseled by his department supervisor and advised that he has twenty four (24) points remaining. When an employee has been charged thirty two (32) points, he will be counseled by-the department supervisor and advised that he has only sixteen (16) points remaining. This will be a written warning and will be placed in the employee's folder. When an employee has consumed forty eight (48) points, he will be counseled by the department manager and the Employee Relations Supervisor and reminded that he has no points remaining and can have no more absences other than the exceptions without termination. At this time, the second notice of warning will be placed in the employee's folder. Absence and tardiness prompting charging of over forty eight (48) points will result in termination. - - An employee who gives a false statement about his rea- son for being absent shall be discharged. An employee who is absent without notifying supervi- sion will not be eligible for reporting pay on the first sched- uled work day after his absence if he returns to work and there is not any work available for him. If an employee is absent three or more consecutive work- ing days without notification to the Company, the employ- ee will be regarded as having quit and he will be terminat- ed. Since we are beginning the point system on February 1, 1973, all absences and tardinesses for the month of Janu- ary 1973, will not be charged for the calendar year, of 1973. If you have any questions concerning the rules and regu- lations, notify your supervisor. DM:ia APPENDIX C NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, the Board has found that we refused to bargain collectively with Textile Workers Union of Ameri- ca, AFL-CIO, CLC,. as the exclusive collective-bargaining representative of all our employees in the following appro- priate unit: All production and maintenance employees including laboratory technicians, plant- clerical employees, scheduler and following man, process control-techni- cians, maintenance technician and quality control technicians employed at our Johnsonville, South Car- - olina plant, excluding office clerical employees, pro- fessional employees, sales personnel, seasonal employ- ees, -messenger and mail clerk, fabric designer, watchmen, -guards and supervisors as defined in the National Labor Relations Act. The Board also found that we violated the National La- bor Relations Act by unilaterally laying off employees, transferring them, reducing their pay and classifications, and by making changes in the on-call and shift rotation WELLMAN INDUSTRIES, INC. systems, without first bargaining with the Union about those matters. We now notify our employees that WE WILL NOT re- fuse to bargain collectively with the Union as the rep- resentative of employees in the appropriate unit. In addition, WE WILL NOT lay off, transfer,, or reduce employees' pay or classifications, or make changes in the on-call or shift systems, or in any other conditions of employment, without first bargaining with the Union about it. If -the Union requests that we do so, WE WILL set aside the layoffs, transfers, reductions in pay and clas- sifications, and changes in the on-call and shift rota- tion systems we, previously made unilaterally. WE,WILL also offer any employee previously unilat- 211 erally reduced in classification, reinstatement to his former classification, if he wants it. WE WILL reimburse employees for any pay or other benefits they lost because of our unilateral actions stated above. WE WILL bargain with the Union upon request, and if an agreement is reached we will put it in writing and sign it. WE WILL NOT in any manner interfere with, restrain or coerce employees in the rights guaranteed them by Section 7 of the Act. Employees are free to join, assist or support the Union without fear of reprisals for so doing. WELLMAN INDUSTRIES, INC.