Great Lakes Chemical Corp. And Control Systems Engineering, Inc.

GREAT LAKES CHEMICAL CORP Great Lakes Chemical Corporation and Control Sys tems Engineering, Inc, a Joint Employer and Raymond G Christian Case 10-CA-21760 September 27 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 22 1987 Administrative Law Judge Hubert E Lott issued the attached decision The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings I findings 2 and conclusions 3 and to adopt his recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed i We affirm the judge s ruling requiring the General Counsel to rest her case on October 24 1986 Contrary to the General Counsel we find no prejudicial error in failing to permit her to call an additional witness for her case in chief in the absence of a record offer of proof indicating that substance of her witness testimony We also affirm the judge s ruling denying the General Counsels motion to consolidate this case with Great Lakes Chemical Corp Cases 10-CA-21446 and 10-CA-21640 as having reviewed his decision and the record in those proceedings we agree with the judge that the issues in those cases are unrelated to the issues in this proceeding 2 The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the ref want evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings 3 We agree with the judge that the Respondent has carried its burden under Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) approved in NLRB Y Transporta Lion Management Corp 462 U S 393 (1983) that Raymond Christian would have been discharged even in the absence of protected concerted activity We do not rely however on the judge s discussion of Chris tian s alleged concerted activity and find it unnecessary to pass on his conclusion that no prima facie showing of protected concerted activity has been established Ellen K Hampton Esq for the General Counsel Gary W Wright Esq (Wimberly Lawson & Cobb) Mor ristown Tennessee for the Respondent D Bruce Shine Esq Kingsport Tennessee appearing on behalf of C & N General Services Inc as there inter est might appear Helen DeHaven Esq and Paul Styles Jr Esq of Knox ville Tennessee and Atlanta Georgia for the Charg ing Parties DECISION STATEMENT OF THE CASE 33 HUBERT E LOTT Administrative Law Judge This case was heard in Newport Tennessee on 23 and 24 Oc tober 19861 and 17 February 1987 on an unfair labor practice charge filed on 19 May by Raymond Christian an individual against Great Lakes Chemical Corporation and Control Systems Engineering Inc joint employers (Great Lakes and Control Systems) and on a complaint issued by the General Counsel on 1 July The issue in this case is whether Respondents dis charged Raymond Christian for engaging in protected concerted activities in violation of Section 8(a)(1) of the Act The parties were afforded an opportunity to be heard to call to examine and cross examine witnesses and to introduce relevant evidence Since the close of hearing briefs have been received from the General Counsel and from counsel for Great Lakes 2 On the entire record 3 and based on my observation of the witnesses and consideration of the briefs submitted I make the following FINDINGS OF FACT I JURISDICTION Great Lakes is a Delaware corporation with manufac turing plants located in Eldorado Arkansas and New port Tennessee where it is engaged in production of chemicals During the past calendar year Respondent sold and shipped from its Newport Tennessee facilities goods valued in excess of $50 000 directly to customers located outside the State of Tennessee Control Systems is a Louisiana corporation with a place of business in Eldorado Arkansas During the past calendar year Control Systems performed contract labor services valued in excess $50 000 directly to Respondent Great Lakes in Newsport Tennessee Respondent Great Lakes admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act I further find that Control Systems is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II ALLEGED UNFAIR LABOR PRACTICES Raymond Christian was first employed by Brockwell Construction Company which was engaged in the ren ovation of building 9 and experimental polcrystalline sil icon plant located on the Great Lakes property but iso ' All dates refer to 1986 unless otherwise indicated z Control Systems filed an answer dated 9 October to the complaint but did not make an appearance although served with the formal papers and with many letters of notification concerning hearing dates 3 This case was heard in conjunction with another case Great Lakes Chemical Corporation and C & N General Services Inc a joint employ er Cases 10-CA-21446 and 10-CA-21640 The issues in those cases are unrelated to the issue in this case however I took judicial notice of cer tam background testimony given in the other cases by Special Project Director R G Boykin in order to avoid undue repetition 291 NLRB No 7 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lated from the other manufacturing facilities In February construction had sufficiently advanced to where Special Project Director R G Boykin began hiring operators Raymond Christian and five other men were hired by Boykin as operators for building 9 Although these six operators were on Control Systems payroll President Larry Fitts maintained no separate office in Newport and was seldom present at the plant Moreover there were no Control Systems supervisors present at this facility The only function performed by Control Systems was to issue paychecks to operators The operators were super vised by Boykin and two individuals hired by Great Lakes as consultants Sam Crawford and Pete Browning Boykin made the decision to terminate Christian on 25 April The employees in building 9 work with certain chemi call Nitrogen which all agreed is not hazardous Trich lorosilane (TCS) is a clear liquid which when vented forms a cloud having an extremely noxious odor All agreed that the human lungs will not except this gas and a person must move away from the vapor in order to breathe According to Christian skin contact causes a strong irritation very quickly According to Pete Brown ing a consultant working for Great Lakes TCS vapor on the skin will cause a mild irritation similar to a sun burn TCS liquid on the skin if washed off immediately has no effect Silica and silicon are materials that accord mg Christian create a greyish black dust when if in haled causes black mucous discharges and 'is dangerous because it may cause silicosis Browning contends that breathing silicon dust is similar to breathing household dust and with normal precautions is not dangerous Raymond Christian testified that when the employees first started working in building 9 Respondent provided face shields hardhats and goggles At their first safety meeting some 2 or 3 weeks after the employees were hired Boykin assured the employees that the silicon process was not dangerous and the necessary safety equipment would be provided Christian testified to several incidents that occurred while he was employed in building 9 One point in time date unknown he and another operator named Doyle McGaha were perging flexible lines in an area where tank 16 was venting fumes that made breathing difficult Christian and McGaha asked Pete Browning for respira tors Browning said they were not necessary however he went to the safety closet and returned with two respi rators One respirator had no cannister and when Chris tian mentioned this to Browning he became upset be cause nothing was going right for him The lines were not going right the values were backwards and the res pirators did not have cannisters Everything was messed up Christian went to the safety closet and brought back cannisters for the respirators On another occasion date unknown Christian and McGaha were draining tank 12 As they were draining the tank into other tanks some of the liquid overflowed causing vapors Christian asked Browning for respirators but Browning did not respond so Christian and McGaha went to the control room desk produced the respirators and finished the job Browning told them that respirators were not necessary because after a while a person be comes immune to the fumes However Browning was overcome with the fumes and admitted that he too needed a respirator On another occasion date unknown Christian men tioned to Pete Browning that they could use some rubber gloves when working with chemical waste mate pals The next day Christian went to the Great Lakes safety closet and obtained several pairs of gloves and put them on the control room desk On another occasion date unknown Christian and op erator Mike Click were to unload a Union Carbide truck full of TCS The flexline or hose used to unload the truck leaked causing a popping noise like a cap gun The truckdriver ran away Sam Crawford and Pete Browning changed the hose and the process of unloading contin ued A little later the truckdnver attached a ground cable to the truck Christian asked the driver why he was attaching the ground cable and was told that TCS is highly flammable and might explode with a buildup of static electricity When Sam Crawford returned to the truck Christian asked him why they were not instructed to ground the truck and why they were not told that TCS was highly flammable According to Christian Crawford said that the truckdriver did not know and he (Christian) should not listen to him About 1 or 2 weeks before his discharge Christian was working with silicon transferring it from 55 gallon drums to a reactor After working in the silicon Chris tian experienced coughing and a black discharge from his nose He asked Pete Browning why he was never told about the effects of silicon and why he was not given a dust respirator Browning said that he had been working around silicon for 40 years with no ill effects Christian went to the Great Lakes Chmeical safety closet at break time and procured four dust respirators that he took to the building 9 control room He met Mike Click there and told him the black discharges he (Click) was corn plaining about were caused from working around silicon because Christian was having the same problem He told Click to wear one of the respirators Christian saw Boykin some distance away looking at him but admitted that Boykin did not hear what was said He gave Hinkle a respirator and told him to wear it in the presence of Pete Browning Hinkle wore the respirator for a few hours and then removed it The next day Christian brought to work a photostatic page from a nurses train ing book explaining the hazards of breathing silicon dust All the employees were gathered at the break table before work Christian read them the one paragraph re lating to silicon dust and then asked them to read it which they did Mike Click responded by saying that the Company did not give a damn and that he would quit as soon as he lined up another job A Brockwell employ ee Hoyle Crum said Man this is some bad stuff I have never known anything like this According to Christian the employees went to work with respirators that day On the day of his discharge Christian was instructed by Sam Crawford to put a blind flange on the post reac tor because they were starting up the pump outside and needed to shut the reactor down Pete Browning in GREAT LAKES CHEMICAL CORP structed him to put the blind flange on the flexline so the fumes would not get into the reactor He installed the blind flange without a gasket because he could not find one After completing the job fumes leaked from the blind flange Sam Crawford confronted Christian and asked why the blind flange had not been put on the post reactor Christian went back upstairs procured a gasket from another employee and was in the process of install ing it when he experienced trouble tighting the bolts be cause of lack of room Fumes rushed out and went un derneath his respirator which caused him to move away Sam Crawford was standing behind him Christian said This is bs Sam Crawford said Well Ray maybe you ought to think about leaving Christian said Maybe Sam Christian was called half an hour later to the trailer where Larry Fitts and Sam Crawford were wait ing Crawford told him he was fired because when the men see Christian run because of the chemicals they get scared Crawford said this was causing unrest among the men Christian accused Crawford and Browning of caus ing the unrest Crawford asked Christian to see Boykin and explain some of the problems they were having and maybe Boykin would reinstate him Christian refused Christian stated that he raised safety questions but the other employees would not raise any questions with management because they were afraid of jeopardizing their jobs Christian admits that Boykin told the employ ees to come to him with their safety problems if the su pervisors could not solve them but he never went to Boykin Christian admitted that he had not talked to any fellow employees with the thought of causing and disruption or disharmony at the plant R G Boykin testified as a 611(C) witness that he made the decision to discharge Christian because he re fused to carry out an instruction given by a supervisor and he was insubordinate According to Boykin on the day of Christians discharge he received a report from Pete Browning that Browning had instructed Christian to blind the outlet of the reactor Christian had chosen the wrong set of flanges to close and closed the reactor without a gasket Browning told Christian that he was not going to argue with him about putting the gasket on Sam Crawford then told Christian that he would have to install the gasket Christian then replied that if he [Browning] wants the damn gasket in he s crazy He would not do it Crawford told Christian that with his attitude he might be better off finding another job Christian said he was probably right that he had been thinking about it Boykin further testified that he checked with Crawford who verified the above incident He further stated that Christian had been trained to do this job and his failure could have caused a disaster be cause if the material in the reactor was exposed to air it could have caused an explosion and melt down After getting Crawford and Browning s recommendations Boykin made the decision to discharge Christian Al though the above incident caused Boykin to discharge Christian Boykin also noted that from his personal ob servation certain harmless occurrences-relief valve venting relay resetting and nitrogen line venting- caused Christian to panic He believed that Christian was 35 afraid of working on their process Boykin finally stated that had Christian not refused to close off the reactor he would not have been discharged Sam Crawford a consultant working for Great Lakes testified as a 611(C) witness that he reported the flange incident of 25 April to Boykin in the presence of Pete Browning After hearing Crawford s report Boykin or dered him to discharge Christian Crawford stated that he did not mention the flange incident to Christian when he discharged him but did tell him he was causing unrest among the men He also testified that none of the em ployees complained to him about health or safety prob lems related to working with silicon Pete Browning a consultant working for Great Lakes testified as a 611(C) witness tht he had difficulty getting Christian to wear safety equipment at first He also told Christian that if silicon dust becomes excessive he should wear a mask Browning stated that he instructed Christian to break the flange and blind it off When he noticed the flange was broken in the wrong place and no gasket was used he indicated his dissatisfaction to Chris tian because this was an operation that was done repeat edly by operators Browning did not make an issue of it with Christian because he was merely a consultant not Great Lakes management however he did report the in cident to Boykin Browning also stated that he thought Christian was excessively concerned over working around chemicals and told him that he was overly cau tious Douglas Hinkle an operator in building 9 testified that the employee discussion over the effects of silicon took place about 3 or 4 weeks before Christians dis charge Anaylsis and Conclusions I find that Great Lakes management controlled work activities of the operators in building 9 Great Lakes also controlled the hiring and firing of these employees I fur ther find that these operators were on the payroll of Control Systems Engineering and were paid by that company although the Control Systems president took his orders form R G Boykin before any personnel action was taken regarding these operators Under these circumstances I find that Great Lakes and Control Systems are joint employers of the employ ees in question or that Control Systems is an agent of Great Lakes In either case both are jointly or severally liable for any unfair labor practices committed Syufy En terprises 220 NLRB 738 (1975) Mason City Dressed Beef 231 NLRB 735 (1977) The evidence in this case does not support a finding that Raymond Christian engaged in concerted activity The General Counsel offered evidence of several mci dents that occurred throughout Christians 2 month em ployment for which I am to assume concerted action Applying the Board s interpretation of concerted activi ty set forth in Meyers Industries 268 NLRB 493 (1984) (Meyers 1) Mushroom Transportation Co v NLRB 330 F 2d 683 (3d Cir 1964) which was embraced by the Board in Meyers Industries 281 NLRB 118 (1986) (Meyers II) I conclude that the operators in this case 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD never authorized Christian to speak on their behalf I fur ther conclude that no evidence was offered that any con versation took place where the object was the initiation of group action With the exception of the group conver cation over the effects of silicon dust I can find no other evidence that any group conversations took place When I use the word group I mean two or more people What I find however is that Christian advised certain employees Christian also requested safety equipment from supervision and in some instances procured the equipment himself He also complained to Sam Crawford about not being informed about grounding the Union Carbide truck and the flammable nature of TCS I cannot conclude that these activities are concerted even though some of them occurred in the presence of another employee because there simply is insufficient evi dence that any of the employees joined forces to protest these conditions Meyers I supra Concerted action cannot be established merely by the presence of another employee while Christian is complaining or questioning management Analyzing the group conversation over the effects of silicon dust after Christian had read the paragraph con cerning the harmful effects of the material not one em ployee including Christian suggested or even alluded to group action To the contrary one employee said he would probably quit and another employee said it was bad stuff However this group conversation is rendered academic because no evidence was offered that Respond ent ever had knowledge of it Christian testified generally that employees came to him with their problems and he in turn took these prob lems to management I discredited this testimony because it is not supported by specific testimony nor was it cor roborated In my opinion it was self serving testimony offered to give the impression of concerted action Respondent presented evidence through R. G Boykin which was corroborated by Crawford and Browning that on 25 April they reported to Boykin that Christian mishandled an assignment which he was trained to do and then refused to correct the errors he had made After receiving these reports Boykin decided to dis charge Christian within hours of the incident because in his view Christian s action created a potentially danger ous situation Boykin was also concerned about Chris tian s fear of working around chemicals which was sup ported by credible evidence Christian presented a some what different version of how he mishandled the assign ment I discredited his uncorroborated version not only because of his demeanor but also because throughout he attempted to justify his actions in such a way as to make himself completely blameless This does not comport with the facts Based on the credited evidence I conclude that Re spondent has satisfied its Wright Line burden by showing that Raymond Christian would have been discharged de spite his protected concerted activity Therefore because the General Counsel did not prove by a preponderance of evidence that Christian engaged in protected concerted activity and because Respondent carried its Wright Line burden I will dismiss all allega tions in the complaint CONCLUSIONS OF LAW 1 Respondent Great Lakes Chemical Corporation and Control Systems Engineering Inc are jointly and sever ally employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Respondents have not engaged in any violations of Section 8(a)(1) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed4 ORDER It is ordered that the complaint be dismissed in its en tirety 4 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses