F.M.C. Corp.

National Labor Relations Board - Board DecisionsMay 28, 1962

137 N.L.R.B. 376 (N.L.R.B. 1962)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress made no such specific provision here. Consequently the Trial Examiner would also have to hold , as did Trial Examiner Winkler in the Charlton case, that Section 8(b)(7)(C) does not apply to strikes, such as this one, in protest of employers ' unfair labor practices. Consequently the Trial Examiner . will recommend that the complaint in the instant matter be dismissed in its entirety. Upon the basis of the foregoing findings of fact , and upon the entire record in this case , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Typographical Union, AFL-CIO, and Dayton Typographical Union No. 57, International Typographical Union; AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. 2. The Greenfield Printing and Publishing Co. is engaged in commerce within the meaning of Section 2(7) of the Act. 3. Neither Respondent Unions nor their agents have engaged in unfair labor practices within the meaning of the Act. The Trial Examiner recommends that this complaint in the instant matter be dis- missed in its entirety. Niagara Chemical Division , F.M.C. Corporation and District 50, United Mine Workers of America . Case No. 15-CA-1976. May 28, 196 DECISION AND ORDER On February 5, 1962, Trial Examiner James T. Barker 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and -a supporting brief. The General Counsel also filed exceptions, together with a supporting brief, with respect to the Trial Examiner's failure to recommend that the back- pay award provide for the payment of interest at the rate of 6 percent per annum.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report and the entire record in this case, including the exceptions and briefs, and hereby ' Because the discharges here under consideration occurred toward the end of a seasonal operation , the amount of backpay involved Is small and the amount of Interest involved would be correspondingly minimal. Accordingly , we are of the view that it would not effectuate the purposes of the Act to delay final resolution of this case pending con- sideration of the merit of the General Counsel's request which he has also made in other cases pending before us. Accordingly , we adopt the Trial Examiner's backpay recom- mendation in that regard without modification. 137 NLRB No. 40. NIAGARA CHEMICAL DIVISION, F.M.C. CORPORATION 377 adopts the findings,2 conclusions,3 and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner. 2In its brief, the Respondent pointed out that the Ttial Examiner incorrectly referred to one Jimmie Smith at a point in the Intermediate Report when he clearly meant Jimmie Williams. We correct this error, which has no effect on the Trial Examiner's ultimate findings 2 Member Rodgers would not rely on the fact that Respondent's employee contingent was small and the working area relatively compact for finding that the Respondent had knowledge of Dallas Lazard's attendance at union meetings or engaging in other union activities. Moreover, he does not find any other evidence in the record showing that the Respondent otherwise had knowledge of Lazard's union sympathies Accordingly, he would not find that Respondent was motivated by a desire to rid itself of a union ad- herent or a desire to discourage union activities in the discharge of Lazard, and he would not find that the Respondent violated Section 8(a)(3) or (1) by Lazard's discharge. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on August 22, 1961, and an amended charge filed on Septem- ber 8, 1961, by District 50, United Mine Workers of America, herein referred to as the Union, the Regional Director of the National Labor Relations Board for the Fifteenth Region on October 13, 1961, issued a complaint against Niagara Chem- ical Division, F.M.C. Corporation, herein referred to as the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. In its duly filed answer Respondent, while admitting certain allega- tions of the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before James T. Barker, the duly designated Trial Examiner, at Opelousas, Louisiana, on November 20 and 21, 1961. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. The parties waived oral argument and in lieu thereof the Respondent filed a brief on December 18, 1961, and the General Counsel on December 19, 1961. Upon consideration of the entire record and the briefs in the case, and upon my observation of witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Niagara Chemical Division, F M.C. Corporation, is a Delaware corporation with its principal office and place of business at San Jose, California, and with plants in various States, including Arkansas, Mississippi, and Louisiana. At its Opelousas, Louisiana, plant it is engaged in the formulation, distribution, and sale of agricultural chemicals and pesticides. Respondent commenced operations at its Opelousas, Louisiana, plant in March 1961, and during the remainder of the year 1961 formu- lated, sold, and distributed from its Opelousas, Louisiana, plant finished products valued in excess of $50,000 to customers outside the State of Louisiana. Respond- ent, during the same period, purchased raw materials valued in excess of $50,000, which were shipped to its Opelousas, Louisiana, plant from points outside the State of Louisiana. Respondent concedes and I accordingly find upon these facts that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, is admitted by Respondent to be a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. Introduction Respondent's Opelousas plant, the only one directly involved in this proceeding, together with plants at Greenville, Mississippi, and Pine Bluff, Arkansas, are under 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the supervision of Dr . Curtis L. Mason who resides at Greenville , Mississippi. Operations at the Opelousas installation are under the immediate direction and supervision of John S . Camara, director of operations and administrative assistant to Dr . Mason , and Production Foreman Mark Smith who reports directly to Camara. H. J. Dossman is the supervisor of the day shift and Ivan Bellard is night-shift supervisor. The main physical plant in which Respondent 's operations are carried on in Opelousas is a modern , steel structural building 163' x 122' in dimension , wherein is housed the machinery, including the dust machine and granule machine, used in producing pesticides . The principal remaining area of the main plant building is used as a storage area, but there is also situated in the southeast portion thereof, the company offices, employee lockerrooms , and company bulletin board . The latter two are situated in close proximity to the employee entrance on the east side of the plant. Situated some 60 feet to the west of the main plant building is the liquid room-of subsequent importance-wherein were employed the two alleged dis- criminatees , Clement White and Dallas Lazard. The liquid room is approximately 35 by 27 feet in size, has a concrete floor , a steel corrugated roof , is enclosed by luvre-type walls on the north and west , but is otherwise open to allow for circulation of air . Housed therein are two stainless steel liquid kettles, approximately 8 feet apart , one of which has a capacity of 1,000 gallons and the other of 300 gallons. A platform 8 feet in length and 6 feet in width is constructed at the height of approxi- mately 7 feet abutting and running between the two kettles , whereon, during pro- duction, works an employee whose assignment it is to place in the kettles material secured in advance from the main plant storage area and lifted up to him from below, by hand , or on a forklift , operated by a companion employee stationed below. Employee Clement White was carrying out the floor assignment on the night shift at the time of his discharge on August 15, 1961 . Employee Dallas Lazard was performing the platform assignment on the day shift at the time of his discharge on August 16 , 1961 . Also situated in the liquid room on the floor level are two scales. and a filter; and on the platform , a meter. Located some distance from the plant building and to the north and east of the liquid room are two solvent tanks, each of which has a capacity of 10 ,500 gallons, wherein is stored the solvents, which, together with the chemicals and emulsifiers, constitute the three major components used in the formulation or production of Re- spondent 's agricultural pesticides . Several different nontoxic chemicals appear to be used in production . However, also extensively and frequently used are the chemicals methyl parathion, a liquid, and endrine, a granule. These chemicals are highly toxic and potentially harmful to the human body. The emulsifiers used are, in this sense , harmless. The mixing process essential to the production of Respondent's products is carried on in the liquid room. Each shift's production is planned in advance by Production Foreman Smith, and the schedule of ingredients needed is set forth on a mixing sheet prepared by Smith and handed to one of the two mixing room employees- usually the platform man-at the commencement of the shift. In the production process the proper amount of solvent is pumped directly from the solvent storage tanks to the liquid room kettle. Chemicals and emulsifiers are then physically poured into the kettle by the platform man who ascertains the requisite amount needed from the mixing sheet which he retains in his possession on the plat- form during the entire shift. All chemicals appear to be in standard packs. Methyl parathion is stocked in 550 -pound drums while endrine is in either 200-pound or 100- pound drums. All chemicals are stored in the plant on pallets. The total amount needed as determined at the commencement of each shift is picked up by use of a forklift and carried to the liquid room where the containers are placed near the plat- form so that as requested the floorman can readily lift them physically or by forklift to the platform man in such quantities as the latter directs. Because of the highly toxic nature of methyl parathion and endrine , it is essential to provide protection to certain of the employees engaged in the production of pesticides containing these chemicals . To this end , Respondent 's safety policy calls for employees performing designated production assignments-specifically including both liquid room assignments-to wear rubber or neoprene gloves and a respirator. It was allegedly for not wearing the respirator as required that White and Lazard were discharged. The respirator ,2 which is approved by Respondent 's insurance carrier for use, is of rubber construction , fits over the wearer 's upper nose indentation and over his chin, 1 The supervisory status of these Individuals was either directly admitted in the answer or stipulated at the hearing. 2 Respondent 's Exhibit No. S. NIAGARA CHEMICAL DIVISION, F.M.C. CORPORATION 379 thus entirely covering his mouth and nose. It is held in place on the head by two straps. The function of the respirator is to protect the wearer from breathing harm- ful materials or dust, and, thus, it contains on either front side a removable filter which serves to strain the impurities from the air inhaled. Between the two filters there is an air escape valve which facilitates breathing. B. The advent of the Union Union organizational efforts commenced in March 1961 and intensified in early July 1961. Four to six organizational meetings were held at the Opelousas home of the mother of employee Joseph King, and were attended by many of Respondent's employees, including Dallas Lazard and Clement White. At an organizational meet- ing on July 9, it was determined that the Union represented a majority of the em- ployees and the following day, July 10, Union Representatives Reano and Patrick called at the plant to so inform Director of Operations John Camara. Camara was not at the plant and subsequently on July 12 Reano and Patrick again called at the plant and met with Camara. Thereafter on July 13 the Union filed a representation petition which was served on Respondent on July ;14. Subsequently, on August 14, 1961, between the hours of 5:45 and 6:15 p.m , a Board-conducted election was held in which eight employees voted in favor of the Union and six against. Two challenged ballots were cast. Employee Clement White served as union representa- tive at the election. C. Interference, restraint , and coercion of employees The complaint alleges and Respondent denies that Respondent in July and August 1961, through its agents , John Camara, Mark Smith, and Harold J. Dossman, orally interrogated employees with regard to their union membership, desires, and activities, and as to the identity, union membership, activity, and desires of other employees; and that Respondent by the same agents, during the same period, orally threatened employees with closer supervision, more difficult working conditions, and possible closing of the plant if the employees selected the Union as their bargaining representative. Despite testimony of Respondent' s witnesses constituting blanket denials of these averments, I am convinced that as the organizational campaign proceeded toward its culmination and the Board election approached the Respondent, through its super- visory personnel , endeavored to learn the identity of union adherents among its em- ployees and to dissuade its employees from voting in favor of the Union.3 Efforts to this end commenced in July when Foreman Dossman approached employee Joseph King in the main plant building and asked King if he knew about the Union. King denied having such knowledge and Dossman commented , "Some of these boys sign some papers." This incident is given added dimension by the subsequent conversation of Dossman and King in August before the election. Dossman at this time called King out of the liquid room where he was working and into the main plant Dossman asked King why he had lied to him, asserting that the union meetings had been at King's house. Intervening between these two incidents was a conversa- tion in July between King and Director of Operations Camara. Camara called King into his office and asked King if he had heard about the Union and inquired whether he was going to vote "yes" or "no." King answered he was going to vote "no" whereupon Camara wrote "something" which King was unable to distinguish on a piece of paper in front of him. Thereafter, shortly before the election, Production Foreman Smith asked King if he knew about the Union. King answered by stating that Dossman had told him about it, whereupon Smith said, "Now, we're going to have a boss in the back of you all. It won't be like it was before " Just before the election in August, King was called out of the liquid room by Director of Operations Camara. King related the event at the hearing as follows: Q. Would you tell us what he told you? A. He told me that the union was to my house and I told him no, so he said it was one of the King's house, so I told him no. So he told me that the union couldn't make them pay more than they were supposed to pay and then he could close the plant. 31 do not credit the testimony of Respondent witnesses Camara, Smith, and Dossman denying the conduct attributed to them, as hereinafter set forth. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Camara asked King not to tell anyone about the conversation "because they could make him pay a fine." 4 By the five separate incidents of supervisory interrogation of Joseph King, Respondent endeavored to ascertain King's union leaning; to convey to him Respond- ent's awareness of the situs of the union meeting; of King's apparent union allegiance and Respondent 's dissatisfaction therewith ; and to discourage his adherence to the Union by conveying to him the prospect of closer supervision and discontinued operations in the event the Union prevailed . In view of the context in which it occurred , the reference to the possible closing of the plant was not a mere economic prediction but constituted a threat intended to discourage adherence to the Union. On the basis of the foregoing , considered not in isolation , but together and in con- text with other unfair labor practices hereinafter found, I find Respondent inter- fered with Joseph King's Section 7 rights and violated Section 8(a) (1) of the Act 5 A few days before the election , Director of Operations Camara similarly engaged Dallas Lazard in a conversation about the Union , calling Lazard from the liquid room for the purpose. After asking Lazard if he had had previous experience at a chemical plant and complimenting him for "doing a very nice job," Camara asked Lazard what he "thought about the Union." Lazard answered that he was "not for it." Camara then stated that he did not think the Union would help the employees any; ,that the Union could not make the Company pay more than the Company could afford, and that when the Company was making a little more money they might give the employees "a raise or something ." He further told Lazard that "the plant might, would close down if the Union would take over." He asked Lazard not to relate the conversation to anyone because the Company might be taken into court and made to pay a fine.6 In context with other acts of interrogation , interference , and coercion herein, I find that by endeavoring to ascertain Lazard's union leanings and by linking a pros- pective discontinuance of plant operations with successful unionization ( which I find to be a threat calculated to discourage union adherence and not an economic prediction ), the Respondent interfered with Lazard 's Section 7 rights and violated Section 8(a)(1) of the Act. I do not consider Camara's other accompanying remarks to Lazard to be similarly violative. Sometime in August, Camara spoke to employee Jimmie Williams about the Union when he called Williams off his sweeping job on the outside of the plant and asked to speak to him in private . After asking Williams not to tell anyone about the conversation he told Williams that he wanted him to "vote no for the Union " Thereafter , on the day of the election Camara asked Williams if he was "still going to vote no." When Williams answered Camara in the affirmative , Camara said. "Okay." This latter conversation with Camara had been preceded by a conversation be- tween Williams and Production Foreman Smith approximately a week earlier. At the hearing Williams related the conversation as follows- Q. Where did he speak to you? A About the dust machine . I was cleaning up around , so he told me, said, "How do you feel about the Union7" I said, "Well , I don't know." He said, "What are you going to do ?" He said, "Are you going to vote yes or no?" I said , "I'll go along with the rest " He said, "I think all the other boys are for it." I said, "I dont know." So he said , "Well, you better think twice before they go into this union because ," he said, "you all won't like working for the union ." He said, "You won't like the way they operate." He said , "Instead of going to the rest room like you all take off and go now," he said , "you'll have special hours to go, a break in the morning and a break in the evening to go," and he said, "if the union does come in, you would have bosses standing on one end and the other 4 The credited testimony of King Based on my observation of his demeanor as he testified at the hearing, Joseph King impressed me as it singularly truthful and reliable witness 6In finding as I do that Respondent violated the Act by threatening the employees with closer supervision if the Union were voted in, it is significant that for 2 days after the election Production Foreman Smith maintained a substantially closer vigil over the work of the employees than lie did before the election, and thus Smith carried out the separate threat to this effect that lie and Foreman Dossman had made to employees a The credited testimony of Dallas Lazard Based on my observation of his demeanor as he testified, I credit his testimony NIAGARA CHEMICAL DIVISION, F.M.C. CORPORATION 381 end watching you, keep you working at all times ." And he said , "If the union would come in," he said , "you wouldn 't like it because they would, you know, work a man and do him so bad that you would want to quit." Q. Do you recall him saying anything else, Jimmie? A. That's all , I think. I find that by engaging in the foregoing conduct Respondent unlawfully interro- gated Jimmie Smith concerning his union sympathies and desires and how he was going to vote in the election ; and unlawfully threatened him with closer supervision and less desirable , more onerous working conditions . By so doing , Respondent interfered with his Section 7 rights and violated Section 8(a)(1) of the Act? D. The discriminatory discharges 1. Clement White Employee Clement White was hired by Respondent in mid -April 1961 and was dis- charged on August 15 , 1961. He had worked in several capacities in the plant but when terminated , and for a time prior thereto , he was working in the liquid room on the night shift. He was discharged on the evening of the day following the Board election at which he had served as observer for the Union. His discharge occurred in the second hour of the shift before the liquid room crew had mixed any formula , but after the ingredients to be used had been obtained and placed available for use. There was in the liquid room at the time of Clement White's discharge , a capped but empty drum of the chemical Sponta-217 ( not otherwise de- scribed in the record ), and there had been placed outside the liquid room a quantity of methyl parathion intended for use that evening. Having no tasks to perform at the moment , Clement White walked away from the drum of Sponta-217, and, while still in the liquid room and some distance from the methyl parathion , took off his mask, which he had been wearing for approximately 35 minutes , "for a breath of air." Production Foreman Smith , who White knew to be in the liquid room, walked toward White and asked him if he had read the notice (on the employee bulletin board ( see footnote 12, infra )) relating to the wearing of respirators and gloves. When White said he had , Smith discharged him .8 Subsequently , after his discharge , Clement White returned to the plant to con- test his discharge to Director of Operations Camara who remained adamant and who told White that he "was supposed to have a respirator on while working in the plant"; an explanation which White accepted. 2. Dallas Lazard Employee Dallas Lazard was hired in early June 1961 and was discharged on August 16, 1961, 2 days after the Board -conducted election. He was employed on the day shift and, at first , performed general plant duties, but soon was assigned to the liquid room where he was employed at the time of his discharge. He was trained in his liquid room duties by employees Albert Hilts and Goldman White. At first. Lazard performed the liquid room floor assignment and Hilts had the platform task. After Hilts left Respondent 's employ, Lazard assumed the platform assignment which, as outlined above, consisted of placing in the mixing kettles chemicals-toxic and nontoxic-and emulsifiers in amounts specified on the mixing sheet prepared in advance by Production Foreman Smith. Lazard's discharge occurred on August 16 while he was in the process of mixing the toxic chemical endrine in the "small " kettle. The "large" kettle at the time was empty In carrying out his task Lazard had need for an additional amount of the 7 While Jimmie Williams had difficulty recalling the dates of the incidents about which he testified , I am convinced upon my observation of his demeanor as he testified that he truthfully and accurately related conversation and events that occurred at times preced- ing the Board election , and I credit him 8 The credited testimony of Clement White I credit White based on my observation of his demeanor as he testified at the hearing . I do not credit Production Foreman Smith's version of this incident In observing his demeanor as he testified he impressed me as evasive or equivocal in matters of crucial importance , illustrative of which are the follow- ing: (1 ) In relating the discharge incident lie shifted from an initial, tentative belief that methyl parathion was being mixed on the evening of Clement White ' s discharge, to a positive statement that White had handled or poured it immediately prior to removing his respirator; and (2 ) further, by the shifting nature of his testimony concerning initial awareness of union activity at the plant which he placed on or near election day, he cast doubt upon the reliability of his entire testimony 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toxic chemical endrine, and walked to a point near the "large" kettle and some 8 feet from the "small " kettle, pulled off his glove, removed his respirator , and called down to employees Gabriel King nand Joe King who were at the foot of the platform for additional endrine. At this point, Production Foreman Smith , who was in the liquid room some 18 to 20 feet away ( and of whose presence Lazard was aware ), called to Lazard and asked him if he had "read that notice up front." Lazard said that he had not, and Smith informed him that he was discharged and "to come up front," as he was going to show Lazard the notice ( see footnote 12, infra). Whereupon, Lazard's employment was terminated.9 E. Respondent 's defense to the discharge It is the Respondent 's position that Clement White and Dallas Lazard were dis- charged for violating established safety rules in failing to wear their respirators while engaged in production or formulation of finished products. To this effect , Respond- ent points to the availability at the plant at all times pertinent of a sufficient supply of respirators , filters, filter cartridges , and replacement valves to meet the needs of those employees required to wear respirators and to facilitate the proper maintenance and functioning thereof. Respondent contends that as employees were issued respirators they were told, and later reminded, of the importance of wearing the equipment while handling endrine and methyl parathion . In addition , Respondent asserts that its employees were properly and sufficiently instructed in its safety rules prior to the discharge of White and Lazard at meetings held at the plant on or about July 10 and August 3 or 4. At these meetings , employees were assertedly warned of the hazard- ous nature of the chemicals endrine and methyl parathion , and the need for using the protective equipment issued to them. Moreover, the importance of wearing the respirators and gloves , as well as taking other precautionary action, was stressed to employees , Respondent contends , by the presence in the working area in the plant near the dusting machine of a multicolored metal sign , 1° approximately 3 by 3 feet in dimension , bearing on the right one-half portion the illustration of a man wearing a respirator and gloves , as well as other protective equipment , and on the balance of the sign, under the prominent caption "Parathion and Methyl Parathion Handle Them Safely! Protect Yourself!", certain precautionary "Do's" and "Don'ts" to be followed in the handling of the materials 11 Finally, and importantly , Respondent alleges that through a typewritten notice posted on the employee bulletin board on July 10 , 1961 , clear warning was given to the employees of the consequences accom- panying failure to abide by the established safety rules 12 It was to this notice Pro- duction Foreman Smith directed the attention of White and Lazard when he discharged them. F. Conclusions There was among the employees no recognized union "ringleader ." However, Clement White attended union meetings and signed a union authorization card Beyond this , he was selected and served as the Union 's observer at the Board- conducted election on August 14, a selection inferentially denoting his adherence to ,and support of the Union . Dallas Lazard was neither a more nor a less active union adherent than were his fellow compatriots . He attended union meetings but there was no direct evidence that Respondent had knowledge of this. However, a reason- able inference to be drawn from the record as a whole is that this knowledge came to Respondent 's supervisory hierarchy through the same channels of communication that informed it of the situs of the union meetings . The employee contingent was a small one; the working area relatively compact; the Union was discussed by the em- ployees, including White and Lazard, in groups at the plant ; the Respondent became aware of "unusual gatherings" of the employees in the plant lockerroom as the elec- tion approached ; and a coordinated campaign was conducted by Respondent to learn the identity of the union adherents among its employees. For these reasons, I conclude and find that Respondent had knowledge of the union activities of Lazard 0 The credited testimony of Dallas Lazard 10Respondent 'a Exhibits Nos 1 and 2 11 No similar sign was present in the plant relating to endrine 12 The notice reads as follows: ALL RESPIRATORS AND WORKING GLOVES MUST BE WORN WIIILE IN PRODUCTION, CLEANING, ETC. IF YOU ARE FOUND IN THE PLANT AND ARE NOT WEARING THIS EQUIPMENT IMMEDIATE DISMISSAL WILL BE MADE. Dictated 7/10/61 J S CAMARA NIAGARA CHEMICAL DIVISION, F.M.C. CORPORATION 383 and White. Moreover , and without regard to the foregoing , as the result of his serv- ice as observer for the Union at the Board election , I am convinced that White 's union adherence and union activities came clearly to the attention of both Dr. Mason, Respondent 's regional manager, and Director of Operations Camara, who were pres- ent at the plant just prior to the election , and participated in the preelection arrange- ments and formalities. Armed with this knowledge and in an atmosphere of manifest opposition to the Union , the Respondent , within 2 days of an election, adverse to its stated interest, abruptly discharged two employees who had participated in union activity , invoking for the first time its safety rules. Respondent 's explanation for this action would be more persuasive but for credited testimony of General Counsel witnesses demonstrating a remarkable laxity on Re- spondent 's part in failing to enforce before the election the very rules whose breach triggered the termination of Clement White and Dallas Lazard. From the time it commenced operations until after the discharge of Clement White and Dallas Lazard , Respondent had placed no great stress upon employee compliance with promulgated safety rules , but, rather, had, so far as the wearing of the respira- tors and gloves is concerned , left employees largely umnstructed and to their own devices; and , moreover , had followed a course of passive acquiescence in established employee routines and procedures for utilizing their equipment . Despite Respond- ent's assertion to the contrary , there was lacking an adequately controlled system of equipment issuance and maintenance . Although toxic chemicals endrine and methyl parathion were used in production commencing in June, it was necessary thereafter, because a sufficient number of respirators were not issued them, for liquid room employees as they handled toxic materials to exchange equipment , the single avail- able respirator being worn by the crew member most exposed to the chemical at a given time , 13 a situation which, in the nature of things , must have come to the atten- tion of Respondent 's supervision . While the wearing of gloves in handling toxic materials was a safety rule given equal status to that relating to the respirator, Respondent 's supervisory force appeared to be unattentive to the needs of the liquid room employees and allowed employees to work for considerable periods without issuing them gloves or, likewise , permitted days to elapse before complying with employee requests for replacements for wornout gloves. Such glaring passivity in enforcing its safety policy is hardly consistent with the severe action taken against Clement White and Dallas Lazard 14 Nor am I convinced that the alleged employee safety meetings of July 10 and August 3 or 4 marked a point of departure from a practice of acquiescence to a policy of enforcement . Substantial credited testimony negatives Respondent 's assertion concerning the occurrence of these instructional meetings . Credited employee wit- nesses did not recall attending either meeting. Great doubt is cast upon the accuracy and reliability of Director of Operations Camara's testimony that a meeting was held at 3 p in . on July 10, by evidence indicating he was out of the city on that day. I do not credit the testimony of Camara and other Respondent witnesses in respect to the July 10 meeting . I conclude and find that it was not held. I find, however, on the strength of Dr. Mason 's testimony , that a meeting was held on August 3 or 4 devoted in part to the matter of safety . In so concluding I do not disbelieve the General Counsel witnesses who testified that they did not recall the meeting . Rather, I am convinced that the safety aspects of the meeting were secondary to other matters of importance covered at the meeting ; that at the meeting no great emphasis of the safety rules was undertaken beyond a general summary or reminder of the need for care; and that the employees present-accustomed to past safety laxness on the part 1U The credited testimony of Albert Hilts , Joseph King , Joseph White , and Dallas Lazard In crediting -lilts and Joseph White , I am guided by my observation of their demeanor as they testified . Hilts impressed me as a particularly truthful and reliable witness 14 Witnesses for the General Counsel testified to occasions when supervisors had ob- served employees in the work area of the plant not wearing their respirators Except in a specific context hereinafter discussed , there is nothing beyond a bare inference to in- dicate that production was in progress at the time such observation occurred Accord- ingly , no weight is given this testimony On the other hand, as indicative of Respondent ' s motive, while the very notice invoked in support of the discharges herein requires the wearing of gloves and respirators when engaging in plant cleaning activities , the credited testimony of Dallas Lazard shows that after 'his discharge he returned to the plant and saw Foreman Dossman assisting plant employees in sweeping the liquid room and none of the participants were wearing the required equipment 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of supervision-were not moved to a new appreciation of the need for greater care either by a renewed stress of the dangerous propensities of toxic chemicals or by warnings as to the consequences of future breaches of the safety rules. I am convinced that until it discharged White and Lazard, Respondent remained acquiescent and gave no warning of an intention to strictly enforce its posted rules so flagrantly ignored. In view of the laxity that had prevailed, the pretextual nature of Clement White's discharge becomes apparent. Although production had not begun and methyl parathion had not as yet been mixed, and was, in reality, situated unopened and some distance from Clement White, Production Foreman Smith within seconds of observing him with respirator removed and without investigating the circumstances summarily discharged Clement White. This harsh, precipitate action appears grounded more in retribution than in even-handed enforcement of rules designed for employee safety. When there is added the factor of Respondent's union animus, the element of timing in relation to Clement White's activity as observer for the Union, and his union adher- ence generally, the motivation for Respondent's action is clear. I conclude and find on the preponderance of the evidence that Respondent discharged Clement White because of his membership in and activities on behalf of the Union and to discourage the union activities of its remaining employees. The summary discharge of Dallas Lazard was equally pretextual. Lazard who performed the platform assignment in the liquid room and who was discharged for removing his respirator while mixing chemicals in order to give the instructions to his fellow workers was engaging in the very act which he and predecessors in his assignment had, out of actual necessity or apparent facilitation of their task, estab- lished as a routine and invariable practice.15 Moreover the credited testimony of Albert Hilts establishes that supervisors had observed and condoned this practice. In removing his respirator in the known presence of Production Foreman Smith, Lazard revealed he had no reason to expect or fear reprisal. Production Foreman Smith chose suddenly within 24 hours of the Board election to condemn what had previously been condoned. No convincing reason for so swift a transformation is apparent. Absent the desire to rid Respondent of an undesired employee, some warning or instruction to alter established routine would have been normal super- visory practice. Lazard appears to have been a satisfactory employee for he had been complimented for his work by Director of Operations Camara. I conclude and find on the preponderance of the evidence that Respondent was motivated by a desire to rid itself of a union adherent and to discourage the union activities of its remaining employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases as provided in the Recom- mended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons set forth in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. It has been found that Respondent discriminated in regard to the hire and tenure of employment of Clement White and Dallas Lazard by discharging them because of their union activities. Inasmuch as the evidence establishes Respondent's operations are seasonal and it appears that the production season at Respondent's Opelousas plant has come to an end, I shall not order immediate reinstatement of the employees herein concerned. It may be expected from the evidence in this case, however, that production will resume as early as February, but, in any event, by April 1962. Accordingly, I shall recommend that Respondent be ordered to place the names of Clement White and Dallas Lazard on a preferential hiring list to be considered for reemployment when production operations for which the employees are qualified are resumed at the Opelousas plant, and that they be offered employment prior to any other person. On the other hand, if the 1962 season has begun at the time this 15 The credited testimony of Albert Hilts, Dallas Lazard, Joseph White, and Joseph King. NIAGARA CHEMICAL DIVISION, F.M.C. CORPORATION 385, Intermediate Report and Recommended Order becomes effective, I recommend that the Respondent offer full and immediate reinstatement of the two discriminatees to their former or substantially equivalent positions, without prejudice to any seniority or any other rights and privileges. I shall also recommend that Clement White and Dallas Lazard be made whole for any loss of pay they may have suffered by reason of such discrimination, by payment to them of a sum of money equal to that which they would have earned as wages from the date of their discriminatory discharge to the date of the offer of reinstatement, or placement on a preferential list, as the case may be, less their net earnings during such period,16 in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and approved in N.L.R.B. v Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. No backpay shall be computed for White and Lazard for any periods in which they normally would not have worked for the Respondent, nor shall any sums they respectively earned elsewhere during such period be deducted from any backpay which may be due them, re- spectively.17 Earnings in one particular quarter shall have no effect upon the backpay liability for any other such period. I shall further recommend that the Board order Respondent to preserve and make available to the Board, upon request, payroll and other records to facilitate the check- ing of the amounts of backpay due. 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. Niagara Chemical Division, F.M.C. Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Clement White and Dallas Lazard, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, and by interrogating coercively its employees with respect to their union affiliation, activities, and desires, and by threatening its em- ployees with closer supervision; less desirable, more onerous working conditions, and possible closing of the plant to discourage their interest and membership in the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Niagara Chemical Division, F.M C. Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of District 50, United Mine Workers of America, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condi- tion of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act. (b) Interrogating employees concerning union affiliation, activties, or desires, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (c) Threatening employees with closer supervision; less desirable, more onerous working conditions; or possible closing of the plant, or any other form of discrimina- tion, if they engage in union or concerted activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist District 50, United Mine Workers of America, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to 10 Crossett Lumber Corn pony, 8 NLRB 440 17 The General Counsel urges that the backpay award provide for the payment of interest at the rate of 6 percent per annum. I am making no recommendation to this effect as this is a policy consideration for the Board alone to determine 049856-63-vol 137-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such sight may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Place on a preferential hiring list the names of Clement White and Dallas Lazard or offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they have have suffered as a result of the discrimination against them, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records, as set for in the section of the Intermediate Report entitled "The Remedy." (c) Post at its plant at Opelousas, Louisiana, copies of the notice attached hereto marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, while Respondent's business is in full operation, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.19 38 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 18 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of District 50, United Mine Workers of America, or any other labor organization, by discharg- ing or refusing to reinstate any of our employees, or in any other manner discriminating against our employees in regard to their hire or tenure of em- ployment, or any term or condition of employment, except to the extent per- mitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT coercively or unlawfully interrogate our employees regarding their union membership, activities, or desires. WE WILL NOT threaten our employees with closer supervision; less desirable, more onerous working conditions; possible closing of the plant; or other eco- nomic reprisal, for the purpose of discouraging union membership or adherence. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from SATILLA RURAL ELECTRIC MEMBERSHIP CORPORATION 387 any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8(a)(3) of the Act. WE WILL offer to Clement White and Dallas Lazard immediate and full reinstatement to their former or a substantially equivalent position , without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain or to refrain from becoming or remaining members of District 50, United Mine Workers of America, or any other labor organization. NIAGARA CHEMICAL DIVISION, F.M.C. CORPORATION, Employer. Dated------------------- By-------------------------------------------(Representative ) ( Title) This notice must remain posted for 60 days during the height of the season, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, T6024 Federal Building , 701 Loyola Avenue, New Orleans , Louisiana , Telephone Number, 529-2411, if they have any question concerning this notice or compliance with its provisions. Satilla Rural Electric Membership Corporation and Interna- tional Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-CA-4854. May 28, 1962 DECISION AND ORDER On March 2, 1962, Trial Examiner Lee J. Best issued his Inter- mediate 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case 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 Inter- mediate Report, the exceptions, and the entire record in this proceed- ing, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 137 NLRB No. 45.