DuBois Chemicals, Inc.

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement, or (2) to require K. J. Swisher to cease doing business with Stockton Plumbing Co. Los ANGELES BUILDING & CONSTRUCTION TRADES COUNCIL, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) PLUMBERS & PIPEFITTERS LOCAL No. 398, 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, 849 South Broadway, Los Angeles, California, Telephone No. Richmond 9-4711, Extension 1031, if they have any question con- cerning this notice or compliance with its provisions. DuBois Chemicals, Inc. and United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398. Cases Nos. 16-CA-1637 and 16-CA-1665. August 20, 1963 DECISION AND ORDER On June 10, 1963, Trial Examiner Morton D. Friedman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Interme- diate Report. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended a dismissal of those allegations. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and the General Counsel filed exceptions 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, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed,. The rulings are hereby affirmed. The Board has considered the Interme- diate Report and the entire record in these cases, including the ex- 144 NLRB No. 13. DuBOIS CHEMICALS, INC. 57 ceptions and the General Counsel's brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 'As we have found that by discharging James Shans and Judge McGee the Respondent did not engage in discriminatory conduct within the meaning of Section 8(a)(1) and (3) of the Act, we find it unnecessary to pass upon the defense of the Respondent that such matters were res 9udicata because the United States District Court for the Northern Dis- trict of Texas, in a civil contempt proceeding instituted by the General Counsel, had found that Shans and McGee were discharged for cause. 2 The Appendix attached to the Intermediate Report is hereby amended in the following manner The second full paragraph shall read* WE WILL NOT In any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, to join, or assist any labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities. The following paragraph shall read: All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed March 29 and May 25, 1962, by United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398, herein called the Union, the General Counsel for the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region, issued his order consolidating cases and his com- plaint dated January 18, 1963, against DuBois Chemicals, Inc., herein called the Respondent or the Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called the Act. The Respondent's answer to the com- plaint denied the allegations of statutory violations therein. Copies of the complaint, the charges, the order consolidating cases, and notice of hearing were duly served upon all of the parties. Pursuant to notice, a hearing was held at Dallas, Texas, on March 19 and 20, 1963, before Trial Examiner Morton D. Friedman. All parties were represented by coun- sel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. The parties waived oral argument. After the close of the hearing the General Counsel and the Respondent filed briefs which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material herein, the Respondent, a Delaware corporation, maintained an office and plant in the city of Dallas, Texas, and various other plants, places of I Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his demeanor as I observed it at the time the testimony was given. Cf Retail Clerks International Association AFL-CIO, Local 219 (National Food Stores, Inc ), 134 NLRB 1680, foot- note 3; Bryan Brothers Packing Company, 129 NLRB 285 To the extent that I indicate that I do not rely upon or reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, footnote 1, enfd 283 F. 2d 569 (C.A. 2). 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business, warehouses, and other facilities in the States of Ohio and New Jersey, where it was engaged in and is engaged in the manufacture , sale, and distribution of cleaning compounds and related products. The Dallas plant is the only plant involved in this proceeding. During the year immediately preceding the issuance of the complaint herein, the Respondent purchased, transferred, and delivered to its Dallas, Texas, plant, cleaning compound components and other goods and materials valued in excess of $50,000, which goods and materials were transported to the said plant directly from States of the United States other than the State of Texas. It is admitted, and I find, that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert juris- diction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398, the Union herein, is conceded to be a labor organization within the meaning of the Act, and I so find. as. THE UNFAIR LABOR PRACTICES A. Background and issues The primary issues presented are (1) whether the Respondent discriminatorily discharged James Shans and Judge McGee or whether the discharges were for cause, (2) whether Plant Manager Ronnie Robbins interfered with, restrained, and coerced employees in the exercise of their Section 7 rights, and (3) whether a judgment of a United States district court dismissing a civil contempt proceeding brought against the Respondent by the General Counsel for alleged violation of a 10(j) injunction order is res judicata as to the alleged discriminatory discharge issues of the instant case. In an earlier case,2 the Board found that the Respondent in September 1961 had discriminatorily laid off 7 of its employees and discriminatorily discharged 10 of its employees who walked out in protest of the discriminatory layoffs After the complaint in that action was filed, the General Counsel sought and obtained an in- junction pursuant to Section 10(j) of the Act in the United States district court. The court ordered the Respondent to reinstate all of these employees and to cease discrim- inatorily terminating employees' employment pending the Board's decision in the main case which was then pending before the Board. While the injunction was still in effect and the earlier case was still before the Board, the Respondent again discharged Judge McGee and James Shans. As a result of this action, the General Counsel in- stituted a proceeding to have the Respondent adjudged in civil contempt for violat- ing the court's injunction order. The court refused to find Respondent in contempt. In its order dismissing the contempt proceeding the court recited a finding that McGee and Shans had been discharged for cause. It is this order which has been cited by the Respondent in its defense of res judicata. B. The defense of res judicata Because this defense, if meritorious, would obviate the necessity of making find- ings on the merits as to the unlawful discharge allegations, it is necessary that it be disposed of as a threshold matter before the merits can be considered. As heretofore noted, the Shans and McGee discharges, which are the prime sub- jects of this proceeding, were also part of the subject matter of the contempt proceed- ing brought by the General Counsel in support of the 10(j) injunction order which was ancillary to the earlier Board case. In the contempt proceeding, testimony was given as to the circumstances under which Shans and McGee were discharged .3 After the taking of the testimony, the court signed an order 4 in which it held in pertinent part, "the discharge of Shans . . . McGee, was for cause, and the evidence fails to show that such discharge was for the purpose of discouraging the Union." The order further reads in part: 2 DuBois Chemicals, Inc., 140 NLRB 103 3 The transcript of the record before the district court was not submitted in this case except with regard to two witnesses Accordingly, I cannot determine whether -the same witnesses testified before the district court as in the present proceeding and I cannot de- termine whether the matters to which each witness testified were the same in both proceedings 4 Edwin A. Elliott, Reg Dir. v. DuBois Chemicals, Inc, 201 F. Supp. 1 (D C N. Tex ). DuBOIS CHEMICALS, INC. 59 The evidence fails to show the Respondent is in contempt of the Order of this Court. IT IS THEREFORE, ORDERED that Respondent is not guilty of violating the Orders of this Court and the contempt proceedings are hereby dismissed and all relief sought by Petitioner is denied. The Respondent contends that this foregoing quoted matter demonstrates that the court had before it the same issues which are before the Board in the case at bar, and that the court's ruling that the discharges were for cause is diapositive of the present issues; that, therefore, the complaint insofar as it applies to McGee and Shans should be dismissed. I do not agree. The general rule with regard to the principle of res judicata has been held to be that: Any right, fact, or matter in issue and directly adjudicated, or necessarily in- volved in the determination of an action before a competent court in which a judgment or decree has been rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the same parties and their privies, whether the claim, demand, purpose, or subject matter of the two suits is the same or not.5 However, where the forums hearing the similar issues are charged by law with separate exclusive responsibilities, the judgment of one is not necessarily binding on the other. Thus it has been held that the decision of the Board that a union had not engaged in an unlawful secondary boycott did not preclude a United States district court from finding in a damage suit brought under Section 303 of the Act by the allegedly wronged employer, that an unlawful secondary boycott had been undertaken by the Union.6 The court of appeals in that case, in affirming the district court, alluded to its affirmance of the inconsistent Board decision and said, ". . . under our existing system of courts, juries, administrative agencies, and appellate review, such findings, even though inconsistent, are not invalid, and one does not destroy the other . 7 Moreover, it has long been recognized that district court proceedings under Sec- tion 10(1) and (j) of the Act, such as the injunction proceeding in the earlier case with which we are here concerned, have no binding effect whatever on the Board in a proceeding on a complaint filed by the General Counsel. The proceeding before the district court is merely ancillary and the decision in such proceeding is not res judicata upon the final hearing in a complaint case before the Board, because in an application for interlocutory and temporary relief under Section 10(j) or 10(1), the court does not undertake to pass upon the merits of the principal controversy 8 But, the Respondent maintains that the contempt proceeding in which the nature of Shans' and McGee's discharges were litigated was other than a mere ancillary proceeding and was, rather, a final adjudication. The answer to this is threefold First, the contempt proceeding was basically brought in aid of the injunction pro- ceeding. The inherent power of a court to enforce its orders by contempt is the very essence of the force of the order, otherwise the order would be an empty ukase. Therefore, the nature of the contempt proceeding, indeed, the issue before the court, was not a determination of whether Shans and McGee were unlawfully discharged, but, rather whether the court's injunction order was violated. Under these circum- stances, the contempt proceeding can have no more dispositive effect on the issues of the present complaint proceeding before the Board than the 10(j) proceeding from which the contempt proceeding derived its vitality. In a very real sense, therefore, the finding in the order of the court in the contempt proceeding that Shans and McGee were discharged for cause is dictum. Secondly, the quantum of proof necessary to establish civil contempt is "clear and convincing evidence." Necessarily, the court in the contempt proceeding found that 5 N L R.B. v. Brown and Root, Inc, et at., 203 F. 2d 139 (C A. 8), citing Henderson v United States Radiator Corporation, 78 F. 2d 674-675 (C.A. 10) ; Tait v. Western Maryland Railway Co., 289 U.S. 620, 624-626. 6 United Brick & Clay Workers of America v. Deena Artware, Inc., 198 F. 2d 637, 642- 643 (C.A 6). 7 Ibid. 9 Evans v. International Typographical Union (American Newspaper Publishers Assn ), 76 F Supp 881, 885 (D C. Ind) ; Denver Building and Construction Trades Council et at (The Grauman Company), 82 NLRB 93, 94, set aside 186 F. 2d 326 (C A D C ), reversed and case remanded 341 U.S 675; Alamo Express, Inc, and Alamo Cartage Company, 127 NLRB 1203; Local 50, Bakery and Confectionery Workers International Union, AFL-CIO (Arnold Bakers, Inc.), 115 NLRB 1333, 1334. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel had failed to meet this burden. However, in a complaint pro- ceeding before the Board, the quantum of proof necessary is only "a preponderance of the evidence"-not as heavy a burden. Therefore, it is entirely possible that although the General Counsel could not muster sufficient evidence to establish his burden before the district court, the evidence he may present before the Board might be sufficient to meet and satisfy the lesser burden. Lastly, to hold other than that the contempt proceeding was merely a part of the temporary injunctive relief provided in the Act by Section 10(j) would contravene the provisions of Section 10(a) of the Act which vests in the Board exclusive power to determine unfair labor practices under the Act. Otherwise, by seeking from the court enforcement of the court's own injunction order, the Board would necessarily divest itself of this exclusive statutory authority, or, in the alternative, be forced to permit defiance of the injunction order in order to retain its exclusive control over the prevention of unfair labor practices. Such a forced interpretation of the force and effect of a contempt proceeding would be contrary to the principles and purposes of the Act .9 Accordingly, I find no merit in the Respondent's res judicata contention. C. The interference, coercion, and restraint As stated above, in September 1961, the Union began to organize Respondent's employees. On September 22 of that year Respondent laid off 7 of its employees, which layoff the Board found to be discriminatory, and on September 25, 10 of its employees who walked out in protest of the discriminatory layoffs were discrimi- natorily discharged. While the men were out, Respondent's plant manager, Ronnie B. Robbins, in contemplating the return of the men by reason of the court injunction order, stated in the presence of employee Richard W. Keene that when the men came back to work he, Robbins, would make it as rough on them as he could.lo I find that this statement of Robbins', made as it was in presence of other em- ployees, constituted interference, restraint, and coercion in that Robbins threatened reprisal against employees for engaging in concerted union activity. D. The discharge of James Shans After his reinstatement pursuant to the court order, Shans was assigned various work in the plant and ultimately became a forklift operator. He operated the fork- lift up until the time of his termination on March 29, 1962. Some of Shans' time- cards were introduced into evidence. The timecard for the week ending March 25, 1962, the week before Shans was discharged, shows that Shans was late on Monday and Wednesday morning. It also shows that on Tuesday of that week Shans was absent. In addition to this, Shans' time record shows that he was absent Thursday of the week ending January 7, late on Tuesday of the week ending January 28, absent on Monday of the week ending February 4, late on Wednesday of the week ending February 11, absent on Wednesday of the week ending March 11, late on Thursday of the week ending February 25, and late on Wednesday of the week end- ing January 14. Late in the day on March 29 around the normal quitting time of 5 p.m, Shans was assigned to help load a boxcar on a railroad siding on the Respondent's premises. In charge of this loading operation was Thomas Wilson, an assistant foreman.11 0 See Denver Building and Construction Trades Council, et al . (The Grauman Company), 82 NLRB 93, 94. 10 From the credited testimony of Richard Wayne Keene Although Keene did not testify at the hearing before me, he did testify at the court proceeding in the 10(j) case The parties stipulated that his testimony, if he testified in the present proceeding, would be the same as that which he gave at the 10(j) proceeding. While it is true that I did not personally have the opportunity of observing Keene, I, nevertheless, find his testimony credible in view of the fact that he was not a union sympathizer, nor did he go out on strike with other employees or join the Union. On the contrary, he worked during the entire strike. On the other hand, I had a chance to personally observe Ronnie B Robbins who denied Keene's testimony. My observation of Robbins is that he was somewhat evasive and, although I do not find him a completely incredible witness, I do not credit his denial in this particular respect 11 On the admissions of Ronnie Robbins, the plant manager, Wilson was normally in charge of five and six men and could direct them and was authorized to direct them at their work Although he was not a senior supervisor with broad, general authority, it is clear that Wilson independently directed the men who worked under him Robbins also admitted that he could effectively recommend discharge, and could release men from their DuBOIS CHEMICALS, INC. 61 Also working at this loading task was Johnny McKenzie, who about 4:45 p.m. was asked by Plant Foreman Rocky White to stay to help load the car after the rest of the employees in the plant left. McKenzie and Wilson were working in the car taking boxes from flats 12 or pallets brought by Shans and placing them within the boxcar. Up to 5 o'clock other employees had been helping load but at 5 o'clock they all left with the exception of McKenzie, Shans, and Wilson. At approximately 5 o'clock, or shortly thereafter, all of the boxes required to complete filling the car were loaded with the exception of 150 which were on 3 flats. At approximately that time or shortly thereafter, Palmer, who was then the branch manager and head of the entire Dallas operation, came back and handed a letter to McKenzie and another to Shans. The letter, on the letterhead of the Respondent, given to Shans was dated March 21, 1962, and informed Shans that on March 20, 1962, Shans had absented himself from the plant and failed to call in. It stated that this was a violation of a long-standing rule that employees must call in if they are unable to report for work for any reason. The notice also informed Shans that a second offense of this sort would result in dismissal. In addition to the foregoing, the letter also stated that in the 2 weeks prior to the date of the letter, Shans had been late a total of four times and that it was his responsibility to be at work on time. The letter also warned Shans that starting time was 8:30 a.m. and that Shans had to be there on time. Upon receiving the letter, and reading it, Shans evidently became quite irritated. He immediately started to complain that it was not right and that it was unfair. Shans then said that he was, to quote McKenzie, "fixin' to go " This was about 5:13 or 5:15 p.m. according to McKenzie. However, the payroll records show that it was at 5:02. Wilson, who was standing nearby when this entire event occurred, did not reply to Shans' statement that he was going to leave and did nothing to stop Shans from leaving. In any event, Shans placed two of the last three flats inside the boxcar at the door and left the forklift with the third flat on it along side the car. He then checked out and left for the day. According to Wilson, what Shans said when he read the letter was, "This ain't right and I am going." This testimony is corroborated by the testimony of McKenzie to the same effect. On the other hand, Shans testified that close to 5:10 p.m. he told Wilson that he was going to get three more pallets and place them at the door of the boxcar and then leave because he had to go downtown. Wilson, according to Shans, did not say anything but Johnnie McKenzie who rode to and from work with Shans said, "Don't go off and leave me. I don't want to miss my ride." McKenzie did not testify to any such conversation, and, in fact, it would seem that his testimony was directly contrary to that of Shans. On my observation of both Wilson and McKenzie, and because of this discrepancy in the testimony of Shans, I find that McKenzie and Wilson were the more reliable of the two witnesses and I credit the Wilson version of the incident. Therefore, I find that Shans did walk off the job without the permission of Wilson, his immediate supervisor, and did not complete his assigned work: The following morning, Shans, in the presence of Wilson, was brought to Palmer's office on Palmer's orders. According to Wilson, whom I credit, Palmer asked Shans why the latter left the night before. Wilson could not remember what Shans had answered. Shans testified that Palmer wanted to know what had happened at the car the evening before and that Shans had answered that he did not know anything had happened. Palmer then said that he referred to the loading. Shans answered that it was all finished and that he had put the pallets where McKenzie and Wilson could reach them. Palmer then told Shans that he could not use the latter anymore because he needed somebody who was going to get the work done. Harvey A. White, Jr., also known as Rocky White, plant foreman, testified credibly that on the particular evening in question he told Tom Wilson to hold Shans until the boxcar was finished, but that Shans walked off despite the fact that he was told to stay. He saw the letter that was given to Shans on the day of Shans' discharge when it was being typed in the office. He saw the letter once again after it was de- livered to Shans The next time he saw the letter, it was torn up and thrown outside the door in the back of the plant between the plant and the railroad track. Ronnie Robbins, Palmer, and White pieced the letter together. The Respondent maintains that Shans was discharged for cause. I agree. As the Board found in the earlier case, Shans had originally been laid off and discharged day's work. Additionally, Wilson is salaried whereas the employees who worked under him were hourly paid. Accordingly, I find that Wilson was a supervisor within the mean- ing of the Act. 12 A flat is a platform which is picked up by the forklift truck and upon which is piled the material to be loaded. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminatorily. Upon his reinstatement to full employment status he was ulti- mately assigned to a fairly responsible job, the operation of the forklift. On the other hand, Shans did not make a good record. The timecards which were intro- duced into evidence showed that Shans had a bad absentee and late record. Ap- parently this did not phase him. When he was finally warned about his failure to notify his employer when he absented himself and further warned about his repeated late reporting, he lost his temper and walked off the job before completing the work to which he was assigned. This conclusion that he walked off the job without per- mission is supported by the torn letter of warning and the precipitate manner in which he left his work without explanation. As noted above, I do not credit Shans' denial that he did not walk off the job. It is true that he brought the flats to the door of the car but the job of loading the car was not finished. This is demonstrated by the fact that Wilson and McKenzie worked for almost a half hour after Shans left to finish loading the car. McKenzie knew that he could not leave. It cannot be concluded that Shans had less knowledge. Counsel for the General Counsel attempts to make a point of the fact that after Shans announced he was leaving Wilson said nothing to him. However, it was apparent from the circumstances surrounding Shans' leaving that nothing that Wilson could have said would have stopped the angry Shans from leaving the job after receipt of the letter. The General Counsel also seeks to make additional argument over the possibility that Shans and McKenzie were being worked to make up for being late without being paid overtime. There is no proof either were docked for being late. Accordingly, they could have been worked overtime. Furthermore , there is no testimony that McKenzie was not paid for working almost a full half hour overtime. In any event, McKenzie worked without protest after being told to do so. I conclude therefore that Shans refused to work not because of lack of pay or for any excusable reason but only because he took offense at a warning which came only after repeated viola- tions on his part. While the Respondent may have committed other unfair labor practices with re- gard to Shans and others in the past, Shans was thereby not excused from performing properly after his reinstatement nor was the Respondent estopped from exercising its rights as an employer merely because it committed unfair labor practices in the past. While the Respondent's record with regard to past unfair labor practices may not have been good and did indeed give rise to suspicion when Shans was discharged, and although I do not overlook this record or Ronnie Robbins' earlier threat to make it rough on the reinstated employees, I cannot conclude on the record before me that a preponderance of the credible evidence supports a finding of discriminatory motivation. Accordingly, I find that Shans was discharged for cause and not for reasons which are violative of the Act. E. The discharge of Judge McGee Like Shans, Judge McGee was one of the employees reinstated by the court order. However, McGee was a long-time employee of the Respondent having been em- ployed since 1956. He was discharged on May 25, 1962. McGee, like Shans, testi- fied in the injunction proceeding and he also testified in the earlier case against Respondent and in the contempt proceeding. Additionally, McGee was union steward of the shop at the time of his discharge. In February 1961, a new crane was installed in the Respondent's plant and at that time McGee was made crane operator. This was before the union activity which culminated in the strike. For most of the time from then on McGee operated the crane in addition to other assignments in the plant. The crane was the single most expensive piece of equipment in the plant and McGee, having been placed in charge of the same, must have been considered a very competent and trustworthy employee at the time. The crane operator has, as part of his job, the duty of lifting hoppers of materials, which are used in making powdered soaps, from the floor of the plant to a position above a machine called a mixer. The hopper is filled at the floor of the plant and the crane then lifts the hopper from the floor of the plant to a point up above the mixer where it is lowered over a grate which covers the top of the mixer. This grate has a trip, which is a piece of metal, which opens the bottom of the hopper and permits the powdered material to fall from the hopper through the grate into the mixer. The mixer, in turn, has a door at the bottom which, when open, permits the mixed material to fall into a hopper located below the mixer which is known as a "holding hopper." The funnel-shaped holding hopper, in turn, has a door or gate or valve in the bottom which, when open, permits powdered material to be loaded into shipping containers. This gate is made of sheet metal and is oper- DuBOIS CHEMICALS, INC. 63 ated by a handle bolted to it. When the handle is pulled away from the bottom of the hopper, the material falls out. This sheet metal gate is homemade and was fashioned by hand by Ronnie Robbins and McGee. The handle which opens and closes this gate is fastened onto it by a bolt which goes up through the gate and through the handle and then is fastened with two nuts on top. The valve is not completely tight fitting and the handle tends to become loose. Light powders or certain mixtures tend to sift through and some of the mixture, no matter how carefully the gate is closed, falls to the floor and is lost . However, if the gate is properly tightened and carefully closed in place the loss is minimal. On the day on which he was discharged, McGee was at his usual work operating the crane. Early that day, McGee assisted one of the other employees in filling the hopper which is used to bring the material to the top of the mixer. When this was filled down on the floor of the plant McGee walked past the bottom of the holding hopper, and continued on upstairs. McGee admitted that he did not stop to examine the holding hopper gate but rather looked at it in passing . Then he went upstairs, entered the crane and commenced lifting the hopper from the floor to the top of the mixer. After he had dumped the powder into the mixer and had turned on the mixer, he waited until the mixer had completed its work. He then opened the door of the mixer and let the mixed material fall into the holding hopper. He was returning the empty upper hopper down to the floor when he heard another employee, Granville , calling to the effect that Ronnie Robbins wanted McGee to go to the bottom of the holding hopper and finish letting out the mixture. McGee went down to the holding hopper and he saw that some of the powdered mixture had sifted out onto the floor. According to McGee, approximately 180 pounds fell on the floor out of which approximately 160 were recovered so that there was a total loss of not more than 20 pounds. McGee testified that he, himself, filled up the drums of material recovered from the floor and these were not specially marked as having been contaminated. Also, according to McGee, this sort of thing happened all the time and, as a matter of fact, when the handle on the gate at the bottom of the hopper loosens up there are frequent losses. Sometimes, by reason of this, according to McGee, the hopper load may run 100 pounds short. McGee further testified that both he and other em- ployees had from time to time let some of the powdered material fall on the floor and none of them were ever warned about it nor where they threatened with dis- charge. McGee stated, as an example, that some time before his discharge he ran a batch of other type of material and it had packed so tight in the mixer that when he opened the gate at the bottom of the holding hopper, all the material came out at once and flowed over the drum into which it was being loaded, and before he could cut it off about 20 or 30 pounds of material was spoiled and contaminated. Yet, according to McGee, he was neither warned nor reprimanded for that spillage. Also according to McGee there were losses in other parts of the plant. For in- stance, McGee testified that in one instance an employee named George Johnson, a striker who had abandoned the strike almost immediately after it had started, was working in the liquid section mixing material in a container called a kettle when much of the material spilled over onto the floor resulting in a big loss. Another time some liquid soap frames were put together and filled on a Friday night and on the following Monday morning when the men returned to work all of the soap had run out of the frames. Another time employee Johnson put the wrong ingredients into a batch of mixture and about twelve 55-pound drums of mixture had to be dis- carded. When Johnson had messed up that batch , Ronnie Robbins , the plant manager, found out about it. But he patted Johnson on the shoulder and told John- son that he "would learn one day." To McGee's knowledge Johnson was never disciplined or criticized for his actions in mixing the wrong materials or for any spillage. Neither was McGee ever criticized for spilling the powder on the floor before the accident for which the Respondent claimed he was discharged. However, McGee did admit that one time after he had returned from the strike and was up- stairs (the floor where the top of the mixers were located ) weighing up wetting agent, a material that was put into the powdered soaps, the man who operated the crane put up a wrong batch of material and told McGee that it was one thing when it was really another. As a result, McGee weighed some wetting agent and put it into the batch and put it in the wrong hopper due entirely to the other individual's improper instructions . McGee, in spite of his denials that it was his fault, was criticized at that time and was told by Ronnie Robbins that if it happened again he would be discharged. As related above, the incident in which the material was spilled on the particular morning in question occurred about 8:45 . Ronnie Robbins was in the area when it happened, or shortly after it happened. Robbins said nothing to McGee at that 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, according to McGee. That same day, a little before noon , McGee was in- jured when a drum of material slipped off a platform. As a result of this accident, McGee was placed in an ambulance and taken to a hospital . He was examined at the hospital but was soon released and returned to the plant about 3 p.m.. About 5 o'clock on that day Rocky White, the plant foreman, told McGee that he had some bad news for him; that after he punched out for the day he was to be let go. McGee asked the reason and White answered that McGee had spilled 800 pounds of powder in the morning. McGee denied that he had spilled any such amount, to which White replied that he did not know how much McGee had spilled because White had not seen it and had gotten the information from Ronnie Robbins. McGee then asked to see Koontz, the branch manager. White told him that Koontz was gone. McGee then sought out Ronnie Robbins and confronted the latter with what White had said. According to McGee he told Robbins that the latter well knew that the spillage did not total 800 pounds. Then Robbins told McGee that he did not know how much it was, but that he received an order to the effect that when a man messes up, they let him go. McGee reminded Robbins that when Johnson mixed an improper batch Robbins did not discharge him. In answer Robbins merely told McGee to return the following Tuesday for his final check. This ended the conversation and McGee 's employment. In connection with the spilling of the powder, McGee further testified that a batch of release, which was the material he was mixing on the date in question, weighed approximately 5,000 pounds. He further testified that although there was a sump or drain underneath the area in which the material was spilled, very little of it got into the drain so that very little of it was ruined by falling into the drain which was wet normally. McGee further testified that ordinarily when he was operating the crane and ready to dump the mixture in the mixer into the holding hopper he would call down and ask whoever was down below at the bottom of the holding hopper to look at the hopper and make sure that the gate was closed. But on the occasion in question they were shorthanded and Robert Granville, who would ordinarily have been down near the bottom of the hopper, was called to another part of the plant to assist Ronnie Robbins in repairing a broken steam hose. Thus, at the time that the release fell through the hopper door there was no one down there with whom to check. William Chatman, a fellow employee, who had also gone on strike, testified that he had worked for the Respondent from January 4, 1959, and was still working for the Respondent at the time that he testified. He worked for about a year 2n the liquid soap department preparing soaps and operating the soap kettles. He further testified that when he came back from the strike he helped George Johnson, who had only been out on strike a week. The witness remembers the instance when Johnson made an improper batch of liquid. That was in the spring of 1962. Johnson had put an improper ingredient into the batch of liquid and when Ronnie Robbins and Rocky White learned of this, Ronnie put his arms around Johnson and said laugh- ingly, "You will learn." This testimony would seem to support the testimony of McGee to the effect that Johnson, who lost a great deal of material, was not punished and was offered favored treatment. According to Chatman, about 2,200 gallons of material were ruined by Johnson's mistake on that day. Some of it was reworked and some it had to be thrown away, but according to Chatman there were 7 to 12 drums each holding some 55 gallons which had to be destroyed. Johnson, according to Chatman, is still working for the Respondent. Chatman also testified, as did McGee, that he had seen a lot of liquid soap made and spilled on the floor and that it was not necessary to spill soap on the floor during the procedure of soap manufacture. Chatman testified that he himself had spilled soap on the floor, yet he did not receive any punishment. With regard to the spilling of powder out of the holding hopper, he, Chatman, had seen powder spilled on the floor and at one time someone had left the door open and the whole batch was on the floor. This occurred before the strike. It still occurs to a limited extent at the present time and was occurring at the time that McGee was discharged. However, Chatman agreed that the spillages of powder were not large recently and there was not spillage every time the bottom hopper was used. Chatman also admitted that when he was operating the crane he never spilled anything from the hopper because he always called down and made sure someone had closed the door on the holding hopper. In contrast to the testimony of Chatman and McGee, Russell Koontz, Jr., the former branch manager of the Respondent's Dallas branch, and the person in overall charge of the entire operation at Dallas at the time of the incident here in question, testified that, although he was not present when the actual incident occurred, he saw immediately afterward the mess and the results of the spillage. The material was poured onto the floor around a scale which was immediately under the opening at DuBOIS CHEMICALS, INC. 65 the bottom of the holding hopper. Also in the immediate area was a sump or drain covered by a grate. By volume, the material that was on the floor at that time was some 200 to 400 pounds and the rest of the spilled material was poured down the drain or sump which was 8 to 12 inches deep. Accordingly there would be some 200 to 400 pounds of material in the drain. Koontz, a trained chemical engineer and experienced manager, estimated that there were about 800 pounds spilled. Koontz further testified that it was impossible to recover any of the material which was within 2 or 3 inches of the floor or in the drain inasmuch as this material would have been contaminated by either dampness on the floor or by water or other ma- terials which were already spilled on the floor from other operations in the plant. According to Koontz the amount which McGee said was recoverable was certainly not recoverable and he would estimate that between 400 and 500 pounds out of the 800 pounds which was spilled had to be destroyed as unreclaimable. Koontz further testified with regard to McGee's statement that there was always some spillage of powder, that there might have been a pound or two of powder dust scattered around the area on any individual working day, but the amount of spillage that he observed after McGee made his error was very much greater than the amount that was usually spilled on the floor in the ordinary course of work. He did not remember exactly how many drums were not recoverable, but he did know that when they made the recovery after the spillage they were some drums short of the material. He further testified that he remembered that they had dis- charged two or three people prior to McGee for the same type of thing. However, upon cross-examination, Koontz could not remember with any definitiveness any other occasion when McGee had spilled chemicals prior to May 21. He stated however that he had seen him spill some of the materials and it was just with regard to the details and the dates that he was vague. In fact, his recollection was that one of these incidents was about a week or two before the incident of May 25. He further testified that McGee was continuously spilling wetting agent and that the man was just generally sloppy in his work. Since the wetting agent cost 30 to 40 cents a pound, if a small amount was spilled it was rather a good-sized loss to the Respondent. Rocky White, the plant foreman, testified that he observed that the powder that was spilled on the floor the day McGee was discharged was spread out all over the floor and his estimate as an experienced hand and foreman was that somewhere between 800 and 1,000 pounds was spilled. White further testified that he came back to where McGee was working and asked him what happened and McGee said that the gate was open. According to White, he asked McGee why the latter did not see that the gate was shut and McGee answered that he thought it was shut. White admitted that he did not know how much of the material was reclaimed. White further testified that he had warned McGee before this occurrence at a meeting held perhaps 3 or 4 days to a week before McGee was discharged on the 25th. He had called all the men together and told them that they were all working too sloppily. He specifically singled out McGee and warned him about dumping matter on the floor. He told McGee that he would hold him entirely responsible for it because he was the one who was doing the dumping. When White warned McGee, McGee said that White was not holding him responsible for anything at which point Ronnie Robbins said, according to White, "We are not here to argue, Judge McGee, you are here to do as you are told." White also testified as to a Henry Walker who worked for the Respondent from January 17 to July 22, 1962. Walker operated the same crane that Judge McGee had operated and was discharged on July 22 because he had "messed up" approxi- mately 5,000 pounds of powder. Another employee, Theophilis Wesley, was also discharged for like reason. And another employee, Dess Ateway, was discharged for the same reason. He also discharged an employee named Walter Brown for putting too much wetting agent into a product. White was quite emphatic in stating that there was a sufficient crew on the date of McGee's discharge, and that the established rule was that the man who, was operating the crane and dumped the hoppers and the mixing machine was responsible for seeing that the bottom gate of the holding hopper was closed. The reason for this is that there is no one man assigned to check the gate of the holding hopper. Therefore, since the crane operator is the one who does all the dumping and the mixing, it is he who is necessarily responsible for seeing to it that the gate is closed. Of course, if someone is around at the bottom, the crane operator may call to that individual, but basically and primarily the responsibility is the crane operator's. White also testified as to the case of George Johnson. He stated that there was only one time when Johnson made an improper mixture and at that time there was no loss of materials. The mixture which Johnson was working with was 66 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD recoverable and they did not in fact throw any of it away. However, on cross- examination he did admit that he did not really remember whether or not any of the material that Johnson mixed was thrown away. Koontz and White were supported in their testimony by Ronnie Robbins. He also testified that the powder was piled up around the scale in the morning of McGee's discharge and he stated that the trough or sump in that area was full and was backed up underneath the scale. After he had observed the powder and the condition of the material on the floor he told Rocky White to get it cleaned up and from there he went to the office of Koontz, the branch manager. They dis- cussed the situation and came to the conclusion that it was time to lay McGee off because this was not the first instance where he had messed up and his attitude toward the job was not right. They knew that McGee could do the job and that he knew the job and that he had been at it a long time and they felt that his attitude was an "I don't care" one. Later on in the day when McGee came to discuss the discharge with him he told McGee that it had been fully discussed and that McGee was to be laid off. Robbins also testified as to the prior warning to McGee. When Koontz be- came branch manager in April 1962 he warned all of the employees by calling the whole plant together and told them he was displeased with the manner in which the men were doing the work. He said they were messy. He told everyone to buckle down and do a better job. Robbins testified further that he was present when within a week or so before McGee's discharge, Rocky White had personally warned McGee about the sloppy way in which he was performing. The witness with whom I was most impressed was Koontz. At the time he testified, Koontz was no longer connected with the Respondent and was in a manu- facturing business of his own. He voluntarily terminated his employment and although his relations with the Respondent appeared to be good, he was, at least, a free agent with no pressure on him by either the Union or the Respondent. Accordingly, and from my observation of him on the witness stand, I credit his testimony to the effect that he had instructed both Rocky White and Ronnie Robbins to give oral warnings to McGee for sloppy work and lackadaisical attitude. I also credit his testimony to the effect that about 800 pounds of mixture was on the floor after the spilling occurrence and that this was an unusual amount. Although he was hard pressed to remember details of prior incidents involving McGee, I credit generally his testimony that McGee had been involved in such earlier incidents. Finally, I credit his testimony that McGee had frequently spilled wetting agent, an expensive component of many of the Respondent's products, and that after the in- cident here in question, he talked McGee's general performance over with Robbins and they had together concluded that this was but the culmination of a series of incidents and required McGee's discharge. Because I credit Koontz, I also credit those portions of Robbins' testimony which are corroborated by Koontz, namely, that about 800 pounds of powder spilled on the floor and much of that was unreclaimable; that McGee had been warned before and had been specifically warned that he was responsible for making certain that the gate at the bottom of the holding hopper was closed when the mixer was dumped. In this respect, I also credit the testimony of White to the same effect and to the effect that when warned McGee told White that the latter was not going to hold him responsible for anything. I credit, additionally, the testimony of White that John- son had been involved in only one incident and that in that instance there had been little actual loss Thus I find that McGee was warned. I also credit White, as corroborated by Koontz, that other employees had been discharged for similar incidents. I also find, because of the mutual corroboration, that the spillage on the morning of McGee's discharge was far in excess of that which normally could be expected to sift through the somewhat defective holding hopper valve or gate. In this respect I do not credit McGee to the effect that only 20 pounds had been unreclaimable. McGee, the person responsible for seeing that the gate was shut, admitted that he took only a glance, in passing, at the holding hopper and the gate seemed to be closed. He admitted he did not stop to make a close inspection before he went upstairs to start the dumping and mixing procedures. While it is true that nor- mally someone is in the immediate vicinity of the holding hopper gate and while it may be that on the day in question the Respondent's plant was understaffed, this did not relieve the responsible individual, McGee, from acting with due diligence in accordance with instructions specifically given him. I therefore find that McGee, after receiving warning for sloppy work, and being told that he was responsible, disregarded the specific instructions despite the warning. The issue that remains is whether the fact that this incident was the culmination of a series of incidents and that McGee did, in fact, disobey specific orders, was DuBOIS CHEMICALS, INC. 67 used as a pretext or whether McGee was actually discharged for cause. As stated above, the Respondent had engaged in other, serious unfair labor practices and McGee was not only a witness against the Respondent in all the other cases but was also a shop steward and leading union adherent. Thus his discharge coming as it did and at the time that it did was most suspect. Also, I credit Chatman and McGee to the effect that there was spillage and waste in other earlier instances in the plant which went unpunished. But, as I have already found Koontz to be a credible witness, I find very persuasive his testimony that he warned the men about sloppy work and that he caused to have McGee specifically warned. Moreover, Koontz was, at the time, a new branch manager trying to make the plant more efficient. Additionally, he had not engaged in other unlawful discharges, nor had he countenanced the former management laxness that had left unpunished the waste and poor work. Therefore, Koontz' testimony to the effect that McGee was discharged as a culmination of a series of incidents of carelessness is believable under all of the other circumstances, and on the record as a whole I find that McGee was not singled out for special treatment and was discharged for cause and not for antiumon reasons. Accordingly I find that in the discharges of McGee and Shans by the Respondent did not violate Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act, it is recommended that Respondent cease and desist therefrom and that it take certain affirmative action in order to effectuate the purposes of the Act. It having been found that the Respondent has engaged in certain acts of inter- ference, restraint, and coercion, it will be recommended that Respondent cease and desist therefrom. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 The Respondent, DuBois Chemicals, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Packinghouse, Food & Allied Workers, AFL-CIO, Local 398, is a labor organization as defined in Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discharging employees James Shans and Judge McGee, the Respondent did not engage in discriminatory conduct within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, it is ordered that the Respondent, DuBois Chemicals, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with reprisals for having engaged in strikes or other concerted protected activity. (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 727-083-64-vol 144-6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant in Dallas, Texas, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.14 It is further ordered that unless on or before 20 days from the date of receipt of this Intermediate Report and Recommended Order the Respondent notify said Regional Director in writing that it will comply with the above order that the Na- tional Labor Relations Board issue an order requiring that it take such action. It is further ordered that paragraphs 6, 7, 8, and 11 of the complaint herein be dismissed. "In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial 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." 14 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 TO ALL EMPLOYEES 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 our employees that: WE WILL NOT threaten our employees with reprisals for engaging in union activity or other protected concerted activities. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be effected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. All our employees are free to become or remain , or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be effected by an agreement conforming to the provisions of Section &(a) (3) of the National Labor Relations Act, as amended. DuBoIs CHEMICALS, INC., Employer. 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 with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131, if they have any question concerning this notice or compliance with its provisions.