Farmland Soy Processing Company

National Labor Relations Board - Board Decisions

Aug 9, 1982

263 N.L.R.B. 237 (N.L.R.B. 1982)

FARMLAND SOY PROCESSING COMPANY
Farmland Soy Processing Company and Hector
Mendez. Case 26-CA-8112
August 9, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 30, 1980, Administrative Law Judge J.
Pargen Robertson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an "answer brief" in opposition to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The General Counsel takes the position that
Hector Mendez, the Charging Party herein, had
been discharged in violation of Section 8(a)(1) of
the Act for persistently complaining about condi-
tions, particularly safety conditions, in Respond-
ent's plant. The Administrative Law Judge recom-
mended that the complaint be dismissed, finding no
evidence that Respondent discharged Mendez for
engaging in protected concerted activity. We dis-
agree.
Respondent, as part of its business, operates a
soy processing plant in Van Buren, Arkansas, em-
ploying about 40 people. The operation is around-
the-clock, 7 days a week. The plant extracts oil
from soybeans, producing two end products- soy-
bean meal and soybean oil. One step of this proc-
ess, called preparation, produces a large amount of
dust, presenting a constant danger of explosion.
The next step, extraction, involves hexane, an ex-
plosive and flammable substance. '
Hector Mendez, the Charging Party, was hired
by Respondent on September 9, 1978,2 as a "dryer
operator," a position in the preparation process
which he held until his discharge on May 16, 1979.
As the Administrative Law Judge found, Mendez
made frequent complaints to management and su-
pervisory officials concerning conditions in Re-
spondent's plant, many of them regarding safety.
Some of these complaints were oral; others were
I Webster's Dictionary defines this as a "volatile liquid hydrocarbon
.. of the paraffin series."
a In effect at that time was a booklet on safety issued to all employees,
and a posted set of safety rules.
263 NLRB No. 18
entered on daily report forms, called preparation
logs, completed by Mendez as part of his duties.
Respondent's employees are represented for pur-
poses of collective bargaining by an employee
committee. At an employee meeting held in Janu-
ary 1979, to elect members to this committee,
Mendez raised a question as to whether Respond-
ent could lawfully require employees to work
overtime. Immediately following this meeting,
Mendez was summoned to Superintendent Young's
office, where he was told that if he refused to
work overtime he would be discharged.
On May 16, 1979, Respondent's safety director,
Fred Stephenson, began asking employees to sign
an "orientation" form that had been received from
company headquarters on March 30. The first sen-
tence of this form said that it should be discussed
with new employees before they begin work. The
form, as it appears in the Administrative Law
Judge's Decision, consisted of 13 questions, mostly
concerning safety conditions and procedures in Re-
spondent's plant. When shown the form, Mendez
asked for some time to consider the questions
before signing the form.3 Mendez testified, undis-
puted, that he wondered why he was being asked
to sign a form designated for "new employees,"
and that he was concerned about the implications
of several of the questions, including those about
the "tour," the "first aid station," and the "particu-
lar hazards connected with your duties."4 Accord-
ing to credited testimony, Stephenson offered to
explain each item on the form to Mendez, but
Mendez continued to ask for more time. Stephen-
son insisted that Mendez sign the form at that time
or be fired. With the concurrence of Young and
General Manager Heatherington, Mendez was dis-
charged.
Contrary to the Administrative Law Judge, we
find that Mendez was discharged in retaliation for
his history of protected concerted activity. We find
that the May 16 incident of the safety orientation
3 The Administrative Law Judge credited the testimony of Plant Su-
perintendent Young and Safety Director Stephenson "regarding the May
16, 1979, discharge of Mendez." Young testified that Mendez "flat re-
fused" to sign the form Stephenson, however, testified that Mendez
asked if he could read the form and return it in "two or three days" Ste-
phenson testified that Mendez raised substantial questions about the con-
tents of the "questionnaire." The discrepancy between Stephenson's and
Mendez' testimony is not critical to our conclusion on this point; Young
was not present during this eachange.
4 Stephenson corroborated this to an extent. The Arkansas Employ-
ment Security Board of Review found, after a hearing on the subject of
Mendez' discharge, that Mendez "testified, item by item, from the 13 sep-
arately numbered items contained in the Orientation Form . . . in a co-
herent, forthright statenment of his subjective doubts, lack of understand-
ing, and conscientious concern fir honest answers to certain items and
his then reason to believe that an inadvertent false statement in any hur-
riedly signed form might expose him to unknown but very serious conse-
quences" The Arkansas Board found that Mendez was "discharged for
reasons other than misconduct in connection with :he work."
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form was a pretext for the discharge, and that
Mendez had not, contrary to Respondent's asser-
tion, been insubordinate as an employee. Thus, we
conclude that Superintendent Young was referring
to Mendez' protected activity when he admittedly
told him in the discharge interview, "you've been a
poor employee and picking at us since you were
hired." Furthermore, Young told another employ-
ee, about a month after Mendez' discharge, that
Respondent had been looking for a way to dis-
charge Mendez. 5
In our view the record does not support a find-
ing that Respondent discharged Mendez because he
would not sign the orientation form on May 16.
We note that Respondent waited some 6 weeks
before asking any employee to sign the form, and
that some employees, already employed as of May
16, signed as late as May 29. Plant Superintendent
Young testified that, at the time of Mendez' dis-
charge interview, Mendez was the only employee
of 40 who had not yet signed, but Safety Director
Stephenson contradicted this, saying he had ap-
proached only 4 or 5 other employees at that time;
the Administrative Law Judge did not address this
conflict. It thus appears, as General Manager
Heatherington testified, that the signing of these
forms was not a "serious" matter for employees-
that is, Mendez' failure to sign immediately was in
no sense a dereliction of duty or insubordination. 6
We note also that the record contains little evi-
dence critical of Mendez' work.7 Respondent en-
forced its safety rules-presumably among its most
important rules-through a system of progressive
discipline. Employees violating any safety rule re-
ceived a written warning placed in their personnel
file; three warnings in 1 month would result in I
day's suspension. Respondent has never discharged
an employee for violating safety rules. Young testi-
fied before the Arkansas Employment Security
Board of Review that Mendez had no written rep-
rimands in his personnel file. We conclude that
Mendez had been "picking at" Respondent only by
raising questions concerning employee working
conditions, and that is why Respondent began
"looking for a way" to discharge him.
Respondent's January reaction to Mendez' ques-
tion about overtime, including its threat to dis-
s Our dissenting colleague views this latter statement as "insufficient to
prove" unlawful motivation, as did the Administrative Law Judge; nei-
ther suggests why, if Respondent had a legitimate reason to discharge
Mendez, its superintendent would have to "look for a way" to do so.
6 While Heatherington characterized this testimony differently on redi-
rect examination by Respondent's counsel, we think the meaning of the
General Counsel's question on cross-examination and Heatherington's
spontaneous response to it are clear.
On one occasion Mendez initially refused, then agreed, to clean hulls
from a "pit"; General Manager Heatherington characterized this incident
as a "misunderstanding" between Mendez and the leadman.
charge him, indicates that Respondent viewed any
employee questioning of its practices as insubordi-
nate. There is no indication that Mendez had re-
fused to work overtime or said that he would
refuse. While Respondent did not directly warn
Mendez not to question its practices, it reacted to
his questioning with an angry threat of discharge
contingent on actions which Mendez had not indi-
cated he would take. We find, not that Respond-
ent's statement violated the Act, but that it mani-
fested an attitude of intolerance and distaste for
employee activity that is highly relevant in deter-
mining the motivation for Mendez' subsequent dis-
charge, and especially in interpreting Young's
statement at the discharge interview-"you've been
. . picking at us ... ." We would also note that
Mendez did not direct his question concerning
overtime to management, but to his bargaining rep-
resentative, an employee committee, at a regular
meeting. Clearly, Mendez' asking a question about
working conditions, at an employee meeting, was
activity protected by Section 7 of the Act, even if
the question were asked in an impassioned or bel-
ligerent manner.
It also appears that Mendez was the most out-
spoken employee in raising safety issues; from Sep-
tember 1978 to May 16, 1979, company records
show that Mendez reported more safety hazards
than any other operator, and that in the last 16
days of that period his daily logs reported 68 dif-
ferent kinds of safety hazards to be corrected.
Safety was a matter of widespread concern among
Respondent's employees. Respondent solicited em-
ployee reports of unsafe conditions, and various
employees had complained to management, both
orally and in writing, about conditions in the plant.
We conclude that employees generally relied on
this system of reporting to ensure safe working
conditions. Most of Mendez' complaints concerned
conditions affecting employees besides himself; this
is especially true of conditions at the plant posing
the danger of fire and explosion. Thus Mendez' re-
ports were an expression of the common employee
concern over working conditions, even though it
does not appear that the employees ever com-
plained as a group. See Hugh H. Wilson Corpora-
tion, 171 NLRB 1040, 1046 (1968).
In sum, Mendez had persistently engaged in con-
certed activity protected by Section 7 of the Act.
Given his generally satisfactory work record, and
the circumstances of the May 16 incident of the
safety orientation form, we conclude that it was
this record of protected activity that Respondent
regarded as "picking at" it, and that motivated Re-
spondent to discharge Mendez. Therefore, in dis-
238
FARMLAND SOY PROCESSING COMPANY
charging Mendez, Respondent has violated Section
8(a)(l) of the Act.
CONCLUSIONS OF LAW
1. Farmland Soy Processing Company is an em-
ployer engaged in commerce and activities affect-
ing commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act by discharging Hector Mendez for engaging in
protected concerted activities for mutual aid or
protection.
3. The aforesaid unfair labor practice affects
commerce within the meaning of Section 8(a)(l) of
the Act.
THE REMEDY
Having found that Hector Mendez was dis-
charged in violation of Section 8(a)(1) of the Act,
we shall order Respondent to cease and desist from
engaging in the unfair labor practice found above
and from engaging in like or related conduct. Re-
spondent will also be ordered to reinstate Hector
Mendez to his former position or one substantially
equivalent to it, without prejudice to his seniority
or other rights or privileges previously enjoyed,
and to make him whole for any loss of earnings he
may have suffered by reason of his discharge in
violation of the Act. Backpay and interest thereon
shall be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).
See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
The General Counsel's motion to award interest
at 9 percent per annum is hereby denied. See Olym-
pic Medical Corp., 250 NLRB 146 (1980). 8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Farmland Soy Processing Company, Van Buren,
Arkansas, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employee Hector Mendez for
engaging in concerted activity for the mutual aid
or protection of employees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
^ In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action to effec-
tuate the policies of the Act:
(a) Offer Hector Mendez immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges previously enjoyed.
(b) Make Hector Mendez whole for any loss of
earnings he may have suffered due to the discrimi-
nation practiced against him by paying him a sum
equal to what he would have earned, less any net
interim earnings, plus interest.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at the Van Buren plant copies of the at-
tached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 26, after being duly signed by an au-
thorized representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
MEMBER ZIMMERMAN, dissenting:
I fully subscribe to our established principle that
an employee who voices concerns over the safety
of the workplace may be presumed to be engaged
in concerted activity. See Allelulia Cushion Co.
Inc., 221 NLRB 999 (1975). However, in reversing
the Administrative Law Judge, my colleagues
carry that simple proposition well beyond its logi-
cal extreme. I cannot join in that exercise.
Respondent's stated reason for discharging
Hector Mendez was that he refused to sign a safety
orientation form circulated to all of Respondent's
employees. As the Administrative Law Judge
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated, the General Counsel bears the burden of
demonstrating either that Mendez' refusal to sign
the form constituted protected concerted activity
or that this stated reason for the discharge masked
another, unlawful motivation. The Administrative
Law Judge found that the General Counsel had
not carried its burden of proof as to either of these
propositions. The majority appears to reverse both
of those findings.
As to the question of whether the refusal to sign
the form constituted protected activity, the major-
ity notes that the form dealt with safety issues, and
that, upon reading it, Mendez found that it re-
quired "a little study." Mendez totally failed to ar-
ticulate what aspects of the form required pro-
longed consideration, and the Administrative Law
Judge credited the testimony of Safety Director
Stephenson that he offered to explain any portion
of the form that troubled Mendez. The only reason
that Mendez could advance at the hearing for
needing time to review the form was that certain
aspects of it did not apply to him in that they re-
ferred to "new employees." The Administrative
Law Judge properly found that this "asserted
reason, although it may appear reasonable, does not
qualify as justifying Section 7 protection."
The more serious question is whether Respond-
ent used Mendez' refusal to sign the form as a pre-
text to discharge him because he had been vocifer-
ous in complaining about safety hazards. The mere
fact that Mendez had engaged in protected activity
by filing a number of safety complaints does not,
without more, permit an inference that his dis-
charge was for that activity. If it did, an employee
could immunize himself against discharge for cause
simply by actively engaging in protected activity.
The majority also relies on Superintendent Young's
statement 1-1/2 months after Mendez' discharge
that Respondent had been "looking for a way" to
discharge Mendez. As the Administrative Law
Judge properly noted, that statement standing
alone is insufficient to prove that Respondent dis-
charged Mendez for making too many safety com-
plaints. 0
Since I find, in agreement with the Administra-
tive Law Judge, that the General Counsel has
failed to produce sufficient evidence to prove that
'o The majority also refers to an incident 5 months before Mendez'
firing in which he questioned Respondent's authority to impose manda-
tory overtime, and was subsequently warned that refusal to work over-
time constituted an offense warranting discharge. From that single inci-
dent, the majority infers that Respondent "viewed any employee ques-
tioning of its practices as insubordinate." I fail to see how the incident
supports the inference. Superintendent Young simply warlied Mendez
that if he acted on his belief that mandatory overtime was unlawful he
would be discharged. It was the prospective failure to follow Respond-
ent's rules, not the questioning of its practices, that Young warned
Mendez about. The majority makes no suggestion that Young's actions or
Respondent's policy in any way violate the Act.
Respondent discharged Mendez for an improper
reason, the amount of evidence the record contains
to bolster Respondent's claimed dissatisfaction with
Mendez' performance is irrelevant. The General
Counsel bears the burden of demonstrating that the
discharge of an alleged discriminatee occurred for
an improper reason. Unless and until he satisfies
that burden, Respondent need not come forward
with any evidence at all. Here, the General Coun-
sel failed to carry that burden.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WIL. NOT discharge our employees for
engaging in protected concerted activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Hector Mendez immediate
and full reinstatement to his former position
or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights or privileges previous-
ly enjoyed.
WE WllL make Hector Mendez whole for
any loss of earnings he may have suffered as a
result of the discrimination against him, with
interest.
FARMLAND SOY PROCESSING
COMPANY
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard before me on February 14, 1980, in
Van Buren, Arkansas. The complaint, which issued on
December 6, 1979, and was amended on December 28,
1979, alleges that Respondent violated Section 8(a)(1) of
the Act by threatening to get rid of an employee and by
discharging employee Hector Mendez.
Upon the entire record' and from my observation of
the witnesses, and after due consideration of the briefs
On February 26, 1980, counsel for the General Counsel filed a
motion to introduce the General Counsel's exhibits. On February 28,
Continued
240
FARMLAND SOY PROCESSING COMPANY
filed by the General Counsel and Respondent, I hereby
make the following:
FINDINGS
The Evidence
Respondent, Farmland Soy Processing Company, is
engaged in soybean processing with a facility located in
Van Buren, Arkansas. 2
The alleged discriminatee, Hector Mendez, was em-
ployed by Respondent from September 9, 1978, until his
discharge on May 16, 1979. At the time of his discharge,
Mendez was employed as a "prep room operator."
During the course of his employment, Mendez made fre-
quent complaints about conditions in Respondent's facili-
ty. Those complaints included numerous complaints
about safety conditions. The evidence indicates that
Mendez complained through daily reports which he pre-
pared called "preparation logs," and through oral com-
plaints to various supervisors and management personnel.
Mendez' numerous complaints included complaints
which he made on February 10 and 23, 1979, and on
other occasions. According to Mendez' testimony, he
made comments on his preparation logs regarding safety
hazards at the rate of two to three times a week.
At the time of Mendez' termination, Respondent em-
ployed Freddie Stephenson as safety director. Stephen-
son testified that his duties included instructing employ-
ees regarding safety and insuring that employees fol-
lowed safety rules. In that regard, Stephenson had au-
thority to discipline employees by issuing a "card" for
infractions of the safety rules. Also included within Ste-
phenson's duty was the obligation to see that all employ-
ees were familiar with the safety rules.
During the spring of 1979, Stephenson received a new
"orientation form" from Lyle Evans who is in charge of
safety and security for Respondent. The "orientation
form" which Stephenson received from Evans read as
follows:3
ORIENTATION SHEET
The following items should be discussed with the
new employee, using this sheet as a checklist, prior
to being placed on the job:
1. Has physical examination been approved? D
1980, counsel for Respondent filed a "Response and Opposition to Gener-
al Counsel's Motion to Introduce Exhibits." In its response, Respondent
objects to the receipt into evidence of G.C. Exhs. 25(a)-(j), but does not
object to the receipt of G.C. Exhs.
24
(a)-(p). I hereby grant the General
Counsel's motion as to Exhs. 24(a)-(p), but deny the motion as to Exhs.
25(a)-(j). The record indicates that I offered to receive documents in ad-
dition to the matter represented by Exhs. 24(a)-(p) only on condition of
disagreement between the parties regarding their post-hearing stipulation.
There has been no showing that that condition arose.
· The commerce facts and conclusions are not at issue. The complaint
alleges, the answer admits, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act.
I Testimony indicated that there were actually two different "orienta-
tion forms" an II -question form and the 13-question form herein. Mendez
testified that he was shown the 13-question form on May 16.
2. Has the employee been shown where he can
get the necessary safety equipment such as goggles,
mask, hard hats, etc.? 0
3. Does he know where the firefighting equip-
ment is located? 0
4. Does he know how to use it? U
5. Is he familiar with the particular hazards con-
nected with his duties? n
6. Is he familiar with the routine of reporting all
injuries promptly to the first aid section? G
7. Does he know how to call the fire department,
ambulance, doctor or police in case of an emergen-
cy? 0
8. Has he been told about the organization's inter-
est in promoting safety? n
9. Has he been thoroughly instructed in his
duties? 0
10. Has he been instructed to report all unsafe
conditions to his supervisor immediately? 0
11. Has he been advised that working safely will
benefit both himself and the company in various
says? 0
12. Has new employee received a tour of entire
facility prior to starting his normal job? U
13. Has new employee received a copy of com-
pany safety rules and read them? 0
Employee's Signature Date
Supervisor's Signature
File employee's personnel file folder.
On May 16, 1979, Stephenson began circulating the
"orientation forms" among the employees. Stephenson
asked each employee to read and sign the form.
Stephenson testified that he approached employee
Hector Mendez on May 16 and asked Mendez to read
the orientation form and sign it. According to Stephen-
son's testimony, "I told him I'd be willing to go over the
entire form with him, answer any questions, go over it
with him in any way whatsoever."
Mendez testified that when Stephenson approached
him on May 16, 1979, and asked him to read and sign the
orientation form, he asked Stephenson if there was any
hurry. According to Mendez, he asked Stephenson if he
could bring the form back the next day after he had an
opportunity to study it. Mendez stated that he felt it was
necessary to study the form because, when he glanced at
it, he saw that there were things on the form that needed
a "little study." According to Mendez, Stephenson told
him that it was possible for him to keep the form and
study it for a day or two.
However, Mendez testified that some 15 or 20 minutes
later Stephenson came back and asked Mendez to ac-
company him to the maintenance office. Mendez testified
that on the way to the maintenance office, Stephenson
told him that if he did not sign the form he would be
fired. Mendez testified that he was then taken in to see
Sam Young, the plant superintendent. Mendez testified
that Young told him that he had been too "picky" ever
since he had been there and that, if he did not sign the
orientation form, "that Freddie [Stephenson] was acting
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under his direction and I would be fired." Mendez testi-
fied that he was then discharged.
Mendez then asked to see Larry Heatherington, gener-
al manager of the Van Buren facility. Mendez testified
that he told Heatherington that, "I had just been fired
because I had refused to sign a safety form." Heathering-
ton asked Mendez to go into the breakroom while he
checked into the matter. A few minutes later, Heather-
ington called Mendez in and informed him that he was
sorry but he had to agree with Sam Young.
Mendez admitted that he told Stephenson and Young
that he was not going to sign the form. Mendez testified
that he told Young, "I told him I need some time-I told
Mr. Young I needed some time to look it over."
Employee George Miller testified that when Mendez
was discharged he (Miller) was a member of the "em-
ployee committee" that had a contract with Respondent.
Miller testified that approximately I to 1-1/2 months
after Mendez' discharge, Plant Superintendent Young
told Miller that "they was [sic] looking for a while to get
rid of [Mendez]."
CONCLUSIONS
Mendez' Discharge
Although there is no dispute that on May 16, 1979,
Mendez refused to sign Respondent's "orientation form,"
after being directed to do so by first the safety director
then the plant superintendent, the General Counsel
argues that Respondent's asserted reasons for discharging
Mendez were pretextual. The General Counsel argues
that "Mendez was a very conscious [sic] regarding
safety, he had reasons to believe that an inadvertent false
statement on any hurriedly signed form might expose
him to unknown or very serious consequences, particu-
larly in light of the fact that the employer gave written
warnings for violations for any of its safety rules." Coun-
sel for the General Counsel argues that "the reason for
Mendez' discharge was pretextual, and his questioning
the orientation form was really the straw that broke the
camel's back and that the company used this as a way of
getting rid of Mendez, clear and simple." According to
the General Counsel, the real reason for Mendez' dis-
charge was the fact that Mendez protested safety hazards
more frequently than any of Respondent's other employ-
ees.
I have concluded on the basis of the entire record that
the General Counsel's case must fail. In reaching my de-
cision, I have credited the testimony of Safety Director
Stephenson and Plant Superintendent Young regarding
the May 16, 1979, discharge of Mendez. I was impressed
with both Stephenson's and Young's demeanor and I find
their versions of the conversation with Mendez on that
date more logical than Mendez' version.
The facts are not in dispute that Mendez was directed
to sign the orientation form on May 16 and that he re-
peatedly refuised.
In order for the General Counsel to prevail, it would
be necessary to show either that Mendez, by refusing to
sign the orientation form, was engaged in protected con-
certed activity or that other matters which were protect-
ed and concerted form a basis for his discharge.
As the first alternative available to the General Coun-
sel, i.e., that Mendez, by refusing to sign the orientation
form was engaged in protected concerted activities, I
find no support whatsoever in the evidence. It appears
that Respondent's orientation form is a legitimate device
for improving safety. The General Counsel does not
argue, and I do not find, that there is anything within the
document itself which would render Mendez' resistance
to signing the document protected concerted activity. As
indicated above, I credit the testimony demonstrating
that Safety Director Stephenson offered to explain the
orientation form to Mendez prior to Mendez signing the
document. Nevertheless, Mendez insisted on not signing
the document at that time. I find nothing improper under
the Act, in Respondent's insistance that Mendez sign the
orientation form on April 16. Moreover, there is no evi-
dence to indicate that Mendez, by refusing to sign the
document, was protesting safety conditions or otherwise
engaging in concerted activities. In that regard I note
that Mendez testified that he refused to sign because he
noticed that there were some provisions that did not
apply to him, such as the provision at the top of the
form indicating that it pertained to new people. Mendez'
asserted reason, although it may appear reasonable, does
not qualify as justifying Section 7 protection. Therefore,
the record indicates, and I find, that Mendez was not en-
gaged in protected concerted activities when he refused
to sign the orientation form.
In consideration of the second alternative, the General
Counsel argues that Mendez was actually discharged be-
cause he filed a great number of safety complaints. In
this regard the General Counsel points to evidence con-
tained in records demonstrating that Mendez, more than
any other employee, complained about conditions in the
plant. However, I am unable to find anything in the
record demonstrating that Respondent considered
Mendez' complaints as a basis for his discharge. The
record lacks any showing that Respondent was alarmed
by what the General Counsel contends was protected
concerted activity; i.e., Mendez' complaints about safety.
There was a comment by Plant Superintendent Young
approximately I to 1-1/2 months after Mendez' discharge
to the effect that Respondent had been looking for a way
to discharge Mendez. However, that statement standing
alone does not demonstrate that Respondent was un-
happy over Mendez' protected activity or that other rea-
sons were considered in deciding to discharge him.
I find that the evidence does not show that Mendez
was discharged for reasons protected under the Act.
Therefore, I find that the evidence does not support a
violation in Mendez' discharge.
The Alleged 8(a)(1) Statement
I credit the undenied testimony of employee George
Miller that approximately I to 1-1/2 months after
Mendez' discharge, Plant Superintendent Young told
Miller that "they was [sic] looking for a while to get rid
of [Mendez]." However, as I indicated in my findings
above, there is nothing to connect Superintendent
Young's statement with the General Counsel's claim that
Mendez was discharged because of his protected con-
242
FARMLAND SOY PROCESSING COMPANY
certed activities. The mere fact that an employer is look-
ing for a way to get rid of an employee does not consti-
tute a basis for a violation, nor does the threat that the
employer is engaged in such activity constitute a viola-
tion, absence some showing of illegal motivation for the
employer's action. In the instant case there was no such
showing nor was there any evidence indicating that em-
ployee Miller had a basis to reasonably believe that Re-
spondent was looking for a way to get rid of Mendez be-
cause of Mendez' protected concerted activity.
I shall therefore recommend that the complaint be dis-
missed in its entirety.
CONCLUSIONS OF LAW
1. Farmland Soy Processing Company is an employer
engaged in commerce and activities affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent has not engaged in any unfair labor
practices as alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]
243