DuBois Chemicals, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1963

144 N.L.R.B. 56 (N.L.R.B. 1963)

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.