Beker Industries Corp.

National Labor Relations Board - Board Decisions

Feb 16, 1984

268 N.L.R.B. 975 (N.L.R.B. 1984)

BEKER INDUSTRIES CORP.
Beker Industries Corp. and Floyd A. Becnel, Jr.
Case 15-CA-8860
16 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 29 September 1983 Administrative Law
Judge Russell M. King Jr. issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed an an-
swering 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, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
In sec. II, A, of his decision, the judge correctly states that the Gen-
eral Counsel asserts only that Charging Party Becnel's individual refusal
to report for work was protected under Sec. 502 of the Act, and does not
advance any other theory. In this regard, we note that at the hearing
counsel for the General Counsel assured the Respondent that he was "not
attempting to expand the complaint theory into a protected concerted ac-
tivity theory."
We agree with the judge's conclusion that, the factual predicate of Sec.
502 not having been established, the issue whether Sec. 502 modifies Sec.
7 is moot, and we intimate here no prediction of our ultimate resolution
of the question when and if the issue is presented to us squarely.
DECISION
RUSSELL M. KING, JR., Administrative Law Judge:
This case was heard by me in New Orleans, Louisiana,
on July 6 and 7, 1983. The charge was filed by the indi-
vidual Floyd A. Becnel, Jr., on January 25, 1983, and the
complaint was issued on April 22, 1983, by the Regional
Director for Region 15 of the National Labor Relations
Board (the Board) on behalf of the Board's General
Counsel.' The complaint alleges that the Respondent
Employer (the Company) violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by discharging
employee Becnel on December 13, 1982, because he
failed to report for work as requested on December 11,
1982.2 The complaint further alleges that Becnel "with-
held his labor" because of abnormally dangerous condi-
tions at the Company's facility on December 11, and that
I The term "General Counsel," when used herein, will normally refer
to the attorney in the case acting on behalf of the General Counsel of the
Board through the Regional Director.
2 All dates hereafter are in 1982 unless otherwise stated.
Becnel was protected in this action by Section 502 of the
Act. 3
There is no union or union contract involved in this
case, and the Company defends on the grounds that Sec-
tion 502 of the Act does not apply where no union con-
tract is involved containing a "no-strike" clause, and fur-
ther that on December 11 no abnormally dangerous con-
ditions existed- at its facility involved herein.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed herein by the General Counsel
and counsel for the Company, I make the following
FINDINGS OF FACT
4
I. JURISDICTION
The Company is a corporation licensed to do business
in the State of Louisiana and maintains a place of busi-
ness or facility in Hahnville, Louisiana, where it is en-
gaged in the manufacture of fertilizer and fertilizer com-
ponents. During the 12 months preceding the issuance of
the complaint herein, a period which is representative of
all times material herein, the Company, in the course and
conduct of its operations at its Hahnville facility, pur-
chased and received goods and materials valued in excess
of $50,000 directly from points located outside the State
of Louisiana. During the same period, the Company at
the facility sold and shipped goods and materials valued
in excess of $50,000, directly to facilities located outside
the State of Louisiana. Thus I find, as admitted, that the
Company has been at all times material herein an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3 The pertinent parts of the Act (29 U.S.C. §151, et seq.) provide as
follows:
Sec. 8. (a) it shall be an unfair labor practice for an employer-
(I) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 ....
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection ....
Sec. 502. Nothing in this Act shall be construed to require an indi-
vidual employee to render labor or service without his consent, nor
shall anything in this Act be construed to make the quitting of his
labor by an individual employee an illegal act; nor shall any court
issue any process to compel the performance by an individual of
such labor or service, without his consent; nor shall the quitting of
labor by an employee or employees in good faith because of abnor-
mally dangerous conditions for work at the place of employment of
such employee or employees be deemed a strike under this Act.
4 The facts found herein are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with
due regard for the logic of probability, the demeanor of the witnesses,
and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
As to those testifying in contradiction of the findings herein, their testi-
mony has been discredited either as having been in conflict with the testi-
mony of credible witnesses or because it was in and of itself incredible
and unworthy of belief. All testimony and evidence, regardless of wheth-
er or not mentioned or alluded to herein, has been reviewed and weighed
in light of the entire record.
268 NLRB No. 147
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Employer Floyd Becnel was hired by the Company on
March 7, 1979, as a material handling technician. Becnel
worked the "D" or night shift at the plant from 7 p.m. to
7 a.m. He reported for work as usual on Friday, Decem-
ber 10, at 7 p.m. At approximately 12:30 a.m. (December
11) an "acrolein" storage tank at a Union Carbide Cor-
poration plant approximately one-half mile southeast of
the Company's facility ruptured, resulting in an explo-
sion, fire, and the release of fumes at the Union Carbide
facility. Both facilities were located in St. Charles Parish,
Louisiana. At approximately 3:30 a.m., Union Carbide of-
ficials, together with parish and other public officials, de-
termined that all residents within a 5-mile radius of the
Union Carbide facility should be evacuated. The evacua-
tion order was given by the parish president at approxi-
mately 4:30 a.m. The evacuation was voluntary. Becnel
worked to the end of his shift at 7 a.m. on December I 1
when he left the plant and returned home. Becnel was
scheduled to come to work at the normal time (7 p.m.)
on Saturday, December 11, and about 4:30 that afternoon
he had been called and requested to do so. The state
police had closed all of the roads leading to the area.
However, personnel from the various plants in the area
were permitted access to their plants through a proce-
dure whereby the names of the employees were given to
a central control center and as they came to a roadblock,
the police would radio the control center to check
whether or not that particular name was on one of the
lists submitted by the various plants in the area. Al-
though other employees reported to work at the Compa-
ny for the 7 p.m. shift on December 11, after having
been called by phone, Becnel failed to do so. For this
reason, Becnel was discharged on December 13. In this
case, the General Counsel asserts only Becnel's individ-
ual refusal to report for work was protected under Sec-
tion 502 of the Act, and does not advance any other
theory such as "concerted" activity.
B. The "Abnormally Dangerous Condition" Issue
The explosion at approximately 12:30 a.m. on Decem-
ber 11 was an event of some moment at the time. The
Union Carbide plant was approximately one-half mile
from the Company's facility. The explosion was loud
and, as indicated by Shift Supervisor Lester Haber, it
scared everybody. The plant immediately lost power
and, according to Haber, he had some burning sensation,
together with a distinct smell with some irritation. Haber
added that this all stopped about 3 a.m. He learned of
the evacuation order at approximately 5 or 5:30 a.m.
whereupon he notified his superior and told the employ-
ees. Becnel testified that after the explosion one of his
ears went deaf for 2 hours, and that he also smelled a
strong odor of vinegar which burned his eyes, nose, and
throat, and caused a pain in his chest. Becnel related that
he was told to go inside at approximately 1:30 a.m.
where he remained until approximately 3:15 a.m. when
he was told to go back to work. Becnel indicated that
when he went back outside he still smelled the odor and
still had a burning sensation, but that he worked until 6
a.m. when he went back inside and heard that they were
shutting down the plant. Becnel remained at the plant
until the end of his shift at 7 a.m. and testified that on
the way home he heard the evacuation order on the car
radio. Becnel's home was some 20 miles away from the
plant and upon his arrival he went to bed.
Jay Lee Goodson, Jr., testified as the assistant plant
manager for Union Carbide, where the explosion oc-
curred. Goodson is a chemical engineer and related that
after the tank eruption there was an explosion and fire,
adding that the substance in the tank was "acrolien,"
which was a toxic substance. Goodson indicated that
there were six adjacent tanks, within 100 feet of the ex-
ploding tank, and that his primary worry was concern
about the adjacent tanks. Goodson testified that he de-
cided on the evacuation between 3 and 4 a.m. because of
the potential posed by the adjacent tanks, but that be-
tween 7 or 8 a.m. he recommended a partial lifting of the
evacuation. According to Goodson, none of Union Car-
bide employees refused to work. Parish President Kevin
Frilous verified that the evacuation order was issued at
4:30 a.m. on Saturday, December II11, and was ended at
12 noon on Sunday, December 12. One Henry Fried tes-
tified as a news director for a local FM station. During
the critical time, Fried indicated that the station put out
several news reports about the evacuation and the rea-
sons therefor. Several of these reports were admitted
into evidence. It was this station that Becnel listened to
when he left the plant at 7 a.m. on December II. Benja-
min H. Farrow testified as the Company's plant manager.
Farrow indicated that he alone made the decision to dis-
charge Becnel because he refused to report to work.
Farrow described the situation at the plant as an emer-
gency situation which necessitated the service of all
available employees. Contributing to this situation were
several of the Company's barges which got loose from
their dockage because of the explosion and the high level
of the river and wind conditions. According to Farrow,
when he arrived at the plant at approximately 6:30 or 7
a.m. on December 11, all effects of the explosion had dis-
appeared and the plant was then up wind from the
Union Carbide plant. The Company's wind direction
chart was admitted into evidence and it indicates that at
approximately 3 a.m. on December 11 the wind had
changed some 75 degrees and that trend continued, and
by 7 p.m. on December 11, when Becnel was due to
report for work, the degree of change was 285. Farrow
testified that by 11 a.m. on December 11 all of the day-
shift employees had reported. Farrow related that he
himself talked to Becnel by phone at approximately 6
p.m. on December 11 and requested Becnel to report to
work at the regular time because he was needed due to
the unusual conditions at the plant, including the barges
which were loose on the river. Becnel questioned
Farrow as to the conditions at the plant and Farrow as-
sured him that it was safe for him to report to work.
Becnel apparently did not commit himself at that time
one way or the other, but ultimately failed to report for
his shift at 7 p.m. Jules Hymel testified as the assistant
Civil Defense director for the Parish, and testified that
976
BEKER INDUSTRIES CORP.
employees of the plants in the area were allowed into
work. Hymel further testified that Becker Industries was
not directly notified of the evacuation order, although
the local FM radio station was notified at approximately
4:29 a.m. The evidence reflects that during the entire day
on December 11 (midnight to midnight) some 28 em-
ployees were scheduled to work at the Company's plant.
Out of those 28 employees, 2 did not work because of
illness, 2 were on vacation, 2 could not be reached by
phone and were excused without pay, I could not be
reached and was excused with pay, and I employee,
Becnel himself, refused to report to work. There were a
number of employees who did not report to work for the
shift beginning 7 a.m. on December 11. All of these em-
ployees that were not excused for various reasons had
reported by 11 a.m. and during the 4-hour period be-
tween 7 and 11 a.m. they were excused with pay. The
plant was virtually closed down between 7 and 11 a.m.
on December 11. Becnel testified that, prior to talking to
Farrow by phone about 6 p.m. on December 11, he had
received a telephone call from employee James Wipple
about 4:30 p.m. from the plant. Wipple told him they
wanted him to come out to work. According to Becnel,
he then asked Wipple about the conditions at the Union
Carbide plant, to which Wipple replied that the condi-
tions had not changed, adding that Becnel should tell the
police officers at the road block that he was part of the
Company's emergency squad in order to get past the
road block. Becnel related that he also listened to the
FM station's 5 p.m. news report which indicated that be-
tween 13,000 and 25,000 people were evacuated from the
area earlier in the day because officials were concerned
about the potential of further explosions. Becnel also tes-
tified that based on this and other information he decided
that it was an extremely dangerous situation at the plant
and thus during his telephone conversation with Farrow
he related his conclusion that he thought it was unsafe.
The Supreme Court has defined the test as to when
the existence of "abnormally dangerous conditions for
work" invokes the protection of Section 502 of the Act.
Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1974).
The Court indicated that there must be some identifiable,
presently existing threat to the employees' safety rather
than a generalized doubt. The Court further stated that
to enable one to invoke the protections of Section 502
there must be present before him "ascertainable, objec-
tive evidence supporting [the] conclusion that an abnor-
mally dangerous condition for work exists." The Board
had earlier addressed the question in the case of Redwing
Carriers, 130 NLRB (1961), supplemental decision and
order 137 NLRB 1545 (1962), enfd. sub nom. Teamsters
Local 79 v. NLRB, 325 F.2d 1011 (1963), cert. denied 377
U.S. 905 (1964). Here the Board also applied an "objec-
tive" test stating that what controls "is not the state of
mind of the employee or employees concerned, but
whether the actual working conditions shown to exist by
competent evidence might in the circumstances reason-
ably be considered abnormally dangerous." In evaluating
the evidence in this case, I cannot find or conclude that
an abnormally dangerous condition for work existed at
the Company's plant either at 6 p.m. or 7 p.m. on De-
cember 11 or at any time thereafter. Plant Manager
Farrow so concluded when he requested that Becnel
report for work at his regular time (7 p.m.). By that time
the wind had significantly changed hours ago and had
remained stable. The movement of employees into vari-
ous plants in the area was in full swing at least by 11
a.m. and most of the Company's employees had reported
to work as requested. At the time, the Company needed
its employees at work and Becnel was the only one who
actually refused to report. I do not rule here on Becnel's
good-faith belief or doubt as to the safety of the condi-
tions at the plant. The law simply requires more in the
form of actual objective and competent evidence as to
the actual conditions that existed at the very time that
Becnel was to report to work. Having found that the
General Counsel has not established in this case by a pre-
ponderance of the evidence that abnormally dangerous
conditions existed, I find and conclude that Becnel's re-
fusal to report for work was not protected by Section
502 of the Act, and that his discharge therefore did not
violate Section 8(a)(l) of the Act.
C. The Applicability of Section 502 of the Act
My finding that no "abnormally dangerous conditions"
existed when Becnel was to report to work in effect dis-
poses the entire case. The issue as to whether Section
502 of the Act applies in this case is moot. The issue was
raised in Redwing Carriers, supra, but the Board did not
meet the issue, simply stating as follows:
We need not decide whether, had there existed "ab-
normally dangerous conditions," Section 502 would
afford affirmative protection to these complainants,
for upon careful consideration of all the pertinent
evidence, we cannot conclude that the General
Counsel has established the existence of such condi-
tions.
As the Board did, I also choose not to decide the issue
herein. The issue is somewhat novel and the legislative
history of Section 502 affords no clarification. As initial
reading of the Supreme Court's decision in Gateway Coal
Co., supra, would lead one to the conclusion that Section
502 only applies where there is a union contract with a
no-strike obligation. The Court stated that Section 502
"provides a limited exception to an express or implied
no-strike obligation." The Supreme Court later con-
firmed this interpretation when it stated in Whirlpool
Corp. v. Marshall, 445 U.S. I fn. 29 (1980), "The effect of
[Section 502] is to create an exception to a no strike obli-
gation in a collective-bargaining agreement," citing Gate-
way Coal Co., supra. Section 502 of the Act reads in part
as follows:
Nor shall the quitting of labor by an employee or
employees in good faith because of abnormally dan-
gerous conditions for work at the place of employ-
ment of such employee or employees be deemed a
strike under this Act. [Emphasis added.]
However, Section 501(2) of the Act defines the term
"strike" as follows:
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The term "strike" includes any strike or other con-
certed stoppage of work by employees ... and any
concerted slow-down or other concerted interrup-
tion of operations by employees. [Emphasis added.]
The General Counsel argues in this case that Section 502
of the Act applies to an individual employee and also
where no union contract is involved. The General Coun-
sel would also extend Section 502 to modify Section
8(a)(1) and Section 7 of the Act, thus eliminating the re-
quirement that employees must engage in "concerted ac-
tivity" before they are afforded protection from discrimi-
nation in their employment under Section 8(a)(1) of the
Act. What Section 502 unquestionably does do is to pre-
vent the successful defense of unprotected activity in a
case where it is shown, by the applicable standards of
evidence, that employees withheld their labor because of
abnormally dangerous working conditions. To extend
Section 502 to not only include one individual employee
where no union contract exists and further to serve as a
congressional modification of Section 7 of the Act are
rather large and significant steps. I judge that the Board
will tackle the issue head-on in the future in an appropri-
ate factual case.
Upon the foregoing findings of fact and initial conclu-
sions, and upon the entire record, I make the following
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The discharge of employee Floyd A. Becnel, Jr., by
the Respondent Employer on December 13, 1982, did
not violate Section 8(a)(1) of the Act.
3. The Respondent Employer in this case has not oth-
erwise violated the Act.
On these findings of facts and conclusions of law and
on the entire record, I issue the following recommended
ORDER5
It is ordered that the complaint herein be, and the
same is hereby dismissed.
I 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.
978