Union Carbide Films

National Labor Relations Board - Board Decisions

Mar 26, 1974

209 N.L.R.B. 860 (N.L.R.B. 1974)

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Films Packaging , Inc. and Union
Independiente de Produccion y Mantenimiento.
Case 24-CA-3306
March 26, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On October 11, 1973, Administrative Law Judge
Harry H. Kuskin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Administrative Law Judge: This case
was heard at Hato Rey, Puerto Rico, on July 16, 17, and
18, 1973. A complaint, as amended at the hearing, issued
herein on June 15, 1973, based on a charge, an amended
charge, a second amended charge, a third amended charge,
and a fourth amended charge filed on February 5, 14, 22,
and 23 and March 8, 1973, respectively, by Union
Independiente de Produccion y Mantenimiento, herein
called the Union. The complaint, as amended, alleges that
Respondent has violated Section 8(a)(1) of the Act by
suspending Gerardo Maysonet, its employee, on January
26, 1973, by discharging him on February 2, 1973, and by
thereafter failing and refusing to reinstate or offer to recall
or reinstate him, all because he attempted to cause, and
caused, a work stoppage or strike and engaged in other
protected concerted activity. In its answer, Respondent
denies that it has violated the Act as alleged herein.
Upon the entire record, including my observation of the
witnesses, including their demeanor while on the witness
I The General Counsel did not file a brief in this proceeding, although
he, like Respondent, was afforded an opportunity to do so
209 NLRB No. 139
stand, and after due consideration of the brief of
Respondent,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that it is a New York corporation with an office
and place of business at Barceloneta, Puerto Rico, where it
is engaged in the manufacture of packaging films and
related products; that, during the past year, which is a
representative period, it purchased and caused to be
transported and delivered to its Barceloneta plant directly
from outside Puerto Rico goods and materials valued at in
excess of $50,000; and that, during the same period, it
manufactured at its Barceloneta plant products valued at
in excess of $50,000, which products were shipped directly
to points outside Puerto Rico. I find upon the foregoing, as
Respondent also admits, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint, as amended , alleges, and Respondent
further admits, and I find, that Union Independiente de
Produccion y Mantenimiento is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Some Background Facts
Respondent 's manufacturing operations at this plant are
divided into a production area and a chemical area. The
production area consists of a dry-end section, a wet-end
section, and a fibrous bottom or extrusion section; the
chemical area consists of the solution house . All these
sections are located on the main floor of the plant on one
side of a center hallway, which hallway or passageway is
about 500 or 600 feet long. The relative positions of these
sections is as follows: The dry-end section is at one
extreme and the solution house is at the other extreme. In
between is the wet-end section, which adjoins the dry-end
section, and then follows the fibrous bottom or extrusion
section. The distance from the dry-end section to the wet-
end section is about 200 feet ; and there is a similar distance
from the wet-end section to the fibrous bottom or extrusion
section; and the distance from the latter to the solution
house is about 100 feet.
Respondent operates the plant on a three -shift basis.
Each shift is of 8 hours duration , the first shift beginning at
6 a.m., the second at 2 p.m., and the third at 10 p.m. As will
appear more in detail hereinafter, Maysonet worked on the
second shift in the dry-end section on Friday, January 26,
1973,2 the last day of his employment with Respondent.
This shift is referred to in the record as Shift "B ." On the
same shift and in immediate charge of this section as well
as the other two sections in the production area was Felix
Acosta, the production supervisor. Directly above him in
the supervisory hierarchy was Carmelo Rivera, a shift
2 All dates hereinafter are in 1973.
UNION CARBIDE FILMS
supervisor on Shift "°B." Rivera's jurisdiction extended over
the chemical area as well as the production area. Both
Acosta and Rivera are admitted supervisors within the
meaning of Section 2(11) of the Act. Both of them testified
herein as to some of the developments leading up to
Maysonet's suspension on January 26, and his discharge
thereafter on February 2. Also figuring in these develop-
ments and giving testimony herein were admitted supervi-
sors Frank Hornedo, the assistant production manager;
Felix W. Ortiz, the assistant to the chief of personnel; and
Ray J. Whittington, the plant manager.
The dry-end section, to which Maysonet was transferred
as of January 26, was equipped with two Nojax machines,
referred to in the record as machine 2 and 3, respectively,
and a third machine, referred to as a fiber machine. These
machines were attended on Shift "B" by five employees,
consisting of three machine operators and two helpers.
Maysonet was one of those helpers. It is the function of the
employees in this section to place the casings, which are
received from the wet-end section, "on the wheel" and to
watch their machines, including the gauges thereon, to see
to it that the end product coming off their machines is in
good order. As prompt communication appears to be
essential in case of malfunction, such as when the
temperature readings or the casing measurements are
wrong, Respondent has provided a direct telephone line
between these two sections for ready contact between a
dry-end employee and a wet-end employee. In order to
communicate in this manner, the dry-end employee has to
walk from his machine to the telephone in his section. In
some instances, the dry-end employee will walk just to the
station located inside .the wet-end section and talk to the
wet-end employee at that point.
It is clear from the record, and I find, that employees are
permitted to talk to one another in their respective sections
while at work. They are also allowed to leave their work
stations during working hours in order to go for coffee or
for a smoke. The breaktimes for coffee or a smoke are not
routinized, employees being told that they can leave their
work area for these purposes so long as they have no
problems with their machines. Smoking is confined to
specific areas only, viz., the cafeteria (where they have their
coffee), the two men's rooms, the large lockerroom, the
large platform near the powerhouse, and the boiler room.
It is also apparmnt that employees may leave their work
during working hours in order to go to one of the
telephones, of which there are more than eight placed
throughout the plant, in order to call a mechanic or
communicate with a supervisor on a matter relating to their
work. This may be done either by telephoning directly to
the individual who is needed, or by dialing extension 58
and sending the message over the public-address or PA
system.
The testimony is, however, in some conflict as to whether
employees are free to go into other sections during their
working hours and as to whether they may use the
3 Respondent has posted on its bulletin boards throughout the plant a set
of rules and regulations for employees "to use as a guide to avoid conduct
which might seriously affect [their] status as an employee" In addition,
each newly hired employee is given two copies of these rules , one in Spanish
and one in English . These copies are in evidence as Resp Exh . 5A and 5B,
respectively.
861
telephones in the plant for other than work-related matters.
As to the former, there is testimony by Maysonet and by
Ramon Cortes, an employee on Shift "B" in the chemical
area, to the effect that the plant rules and regulations3 did
not, so far as they knew, forbid employees to go into other
sections to talk to the employees in such sections. While it
is true that the company rules do not specifically mention
the subject of leaving work areas during working hours,4 I
note that Cortes testified that, during his almost 3 years of
employment by Respondent, he has left his work area only
to have a smoke or drink coffee and that this has happened
many times. And I note further that Rivera testified, in
substance, that, in meetings which he held with employees,
he informed them of their smoking and coffee privileges
and told them at the same time that, during their breaks,
they are not to go to an area where an employee is
working, explaining to them that the reasons therefor were
possible interruption of work and the danger to both the
employee at work and the employee on break. As to the
extent to which employees may use the plant telephones,
Maysonet testified that he was told by Acosta that the
telephones could be used, in any type of emergency, to call
a mechanic or to communicate with supervisors, and that
he has heard employees, supervisors, and the secretary or
receptionist use the PA system on work-related matters.
However, he also testified that he had used the telephone,
including the PA system to which it is connected, for
reasons unrelated to his work, such as to say, at election
time, "Viva la Pava," referring to one of the political
parties; and, on the shift from 10 p.m. to 6 a.m. where "one
could get sleepy," he or a fellow-employee would say
something like "Happy Birthday" to a fellow-employee, or
would send "Christmas Greetings" to those in the plant.
According to Cortes, who also testified as to the use of the
telephones in the plant, he, too, was instructed by
supervision to use the PA system anytime he had to call an
employee or supervision on work-related matters. It is
noteworthy in this regard that, at first, he testified that he
did not know whether the telephones and PA system had
been used for reasons not directly related to work and that,
on further questioning by counsel for the General Counsel
on direct, he testified that he did hear "some things" and
that this occurred about four or five times. Of these, he
mentioned only two instances, namely, the "Merry
Christmas" greetings by an unidentified employee over the
PA system, and the slogan "Viva la Pava" over that system
by a voice which he identified as that of Maysonet. In
contrast to the foregoing testimony as to the use by
employees of the PA system for matters unrelated to their
work, Acosta testified that he and other 'supervision have
instructed their subordinates that the PA system is to be
used exclusively in emergencies on work-related matters in
order to call a mechanic or a supervisor, and that, except
for the time on January 26, when he saw Maysonet use the
PA system contrary to these instructions, he knew of no
instance where that had ever happened. Also of signifi-
4 Rule 6 is the only rule in any way related thereto . Thus, it prohibits
"unauthorized solicitation dunng working hours for funds , membership,
games of chance , bolita or any other forms of support for any group or
organizations ," thereby impliedly precluding going to another section to
solicit for those purposes.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cance here is Rule 10 of Respondent's rules, which sets
forth as an employee violation the following:
Stealing , misuse or destruction of property belonging to
other employees or the company. This includes use of
plant material or equipment for personal benefit. [Empha-
sis supplied.]
With regard to the use by employees of telephones in the
plant, including the PA system, I conclude, and find, on
the basis of all the foregoing, including the fact that Acosta
and Rivera impressed me as more reliable witnesses than
either Maysonet or Cortes, that employees were told by
Respondent to use the telephones alone, or in combination
with the PA system, on work-related matters only, and
that, even granting, without deciding, that there were
several instances in which employees disregarded these
instructions with impunity, these instances were not
numerous enough to warrant a conclusion that Respon-
dent condoned such use or that the prevailing practice was
to use this communication system for both work-related
matters and for personal benefit. And I conclude, and find
further, that all employees were allowed by Respondent to
leave their work during working hours for designated
nonwork areas in order to smoke or to have coffee, but that
they were told not to leave their work at anytime in order
to go into other sections where employees were working,
absent specific instructions to do so, with the sole
exception that employees in the dry-end section had
permission to go into the wet-end section while the
employees there were at work in order to discuss an
emergency that had arisen because the wet casings
originating in that section were not coming off the
machines in the dry-end section in good order, or there
were indications that such a situation was developing.
It is noteworthy also that the Union, which filed the
charge and the amended charges herein, did not appear on
the scene until after January 26, the day of Maysonet's
suspension. In fact, the parties stipulated that the employ-
ees at this facility were not represented by a union on
January 26 or at any time prior thereto.
B. The Alleged 8(a)(1) Conduct
Testifying for the General Counsel as to the events
leading up to the suspension of Maysonet and then his
discharge were Maysonet, Cortes, and employee Rafael
Gonzalez. The latter, like Maysonet, worked in the dry-end
section on Shift "B" on January 26. Testifying for
Respondent in this regard were Acosta, Rivera , Hornedo,
Ortiz, and Whittington. A composite of such testimony of
these witnesses as I find credible establishes the follow-
ing:5
1. The employment history of Maysonet
Maysonet began to work for Respondent on May 15,
5 As Maysonet did not impress me as a forthright witness, and as Cortes
and Gonzalez appeared , during their testimony , to be more eager to assist
Maysonet in sustaining his position than in giving an accurate account of
some of the developments herein , and as Acosta, Rivera, Ortiz, and
Whittington testified forthrightly and convincingly , I have credited the
testimony of Respondent 's witnesses in those instances where it is in conflict
1972. His last day of employment was January 26, 1973.
He was suspended on that day, and was then discharged
on February 7, 12 days later. On the day of his suspension
Maysonet was working in the dry-end section, having been
transferred to that section from the fibrous bottom or
extrusion section on January 24.
2. Maysonet's conduct on January 24, upon being
told of his transfer
On January 24, Maysonet was working on the 6 a.m. to 2
p.m. shift in the extrusion section. About 9 a.m. on that
day, Rivera informed Maysonet, in the presence of Acosta,
that he was needed in the dry-end section, and that he was
going to be transferred effective that day. Although
Maysonet accepted the transfer, after protesting concern-
ing the difficulty of the work in the dry-end section, he
asked for, and got permission to take, the rest of the day
off in order to attend to some personal problems. Rivera
thereupon told Maysonet to report to the dry-end section
on the 2 p.m. shifts on his next working day, which was
January 26. However, instead of punching his timecard
and leaving the plant, Maysonet repaired to the dry-end
section. Between 9 and 10 o'clock that day, Rivera, in the
course of making the rounds of the plant, saw Maysonet in
the dry-end section talking to the operators who were
working. At this, Rivera called Maysonet over and
commented that he thought that Maysonet had already left
the plant in order to attend to his personal problems.
Whereupon, Maysonet inquired whether Rivera had stock
in the Company and if there was a dictatorship in the
plant . Rivera answered in the negative , and explained, in
substance , that the transfer was because he (Maysonet) was
needed in the dry-end section, that he could be working
there or he could be outside solving the personal problem
that he had, but he could not be standing in the dry-end
section watching or talking to the rest of the operators
while they were doing their work. Rivera followed this by
pointing out to Maysonet that, if he was going, he had not
punched out his timecard. Maysonet's answer was that, "if
[Rivera] wanted, [Rivera] should go and punch the card
[himself ], because he (Maysonet) was not disposed to do
anything, he was neither going nor staying." After about 30
seconds, Maysonet did leave the production area and enter
the plant cafeteria.
3. Maysonet's conduct on January 26 upon
learning of the discharge of Jaime Maldonado
At or about 2 p.m. on January 26, Maysonet was present
in the plant. He entered the plant with Maldonado and
noticed that, before Maldonado punched in, he was called
by Rivera. Thereafter, between 2 and 2:05 p.m., he called
Rivera on one of the plant telephones to inquire as to
where he was going to work. He was told that he was to
work on machine number 2, a Nojax machine, in the dry-
end section. The operator of that machine at the time was
with that of Maysonet or Cortes or Gonzalez . In those instances where only
Maysonet and Cortes testified to a development herein and their testimony
differed, I have accepted the version of Cortes as the version more likely to
be closer to the truth
6 The record shows that employees rotate from one shift to the next after
working for 5 days on a given shift and taking some time off
UNION CARBIDE FILMS
Ferdinand Narvaez. His answer to Rivera was, "i will see"
At or about 2:15 p.m., Acosta was in the dry-end section,7
but Maysonet was not at his work station. At or about 2:30
p.m., Acosta was in the extrusion section in answer to a call
from a machine operator there, and he noticed that
Maysonet was there using a plant telephone. This was the
first time that Acosta had seen Maysonet that afternoon.
Acosta thereupon told Maysonet to report to the dry-end
section as he was needed in that section. However,
Maysonet delayed going there until about 3 p.m.
Although Maysonet was not seen by Acosta at his work
station between 2 and 3 p.m. that day, he was there long
enough during the first half hour to learn from Narvaez,
whom he was to assist on machine 2, that Maldonado had
been discharged, and to communicate this to the other
employees in that section and to suggest doing something
for Maldonado because Maldonado "had spent all his time
resolving his fellow-employees' problems."8 More specifi-
cally, he suggested to them engaging in a work stoppage in
protest of Maldonado's discharge. In the course thereof,
Maysonet admittedly had to move about 25 or 30 feet
away from his assigned machine in order to speak to some
of the employees in the section; and, at one point, all the
employees in the section got together in a group about 12
feet from his assigned machine and discussed the matter.
During the interval between Acosta's conversation with
Maysonet in the extrusion section at or about 2:30 p.m.
and Maysonet's return to the dry-end section at or about 3
p.m., Maysonet moved about the plant from section to
section visiting with employees. While doing so, he also
made two telephone calls, one to Cortes in the chemical
area and another to one Girona in the wet-end section, in
that order.9 In his telephone call to Cortes, Maysonet told
Cortes about Maldonado's discharge and of his thoughts
about doing something for Maldonado because Maldona-
do had done many things for Respondent's employees. He
asked Cortes to communicate with him after he (Cortes)
I Acosta was in and out of that section dunng that afternoon as he was
trying to fix the trouble on machine 2, which he described as "humidity in
the casings."
" Maysonet did not tell these employees what those problems were
9 Maysonet admitted making these telephone calls. However , he denied
that he moved around the plant section by section either at this time or at a
later time (the second occasion will be discussed at another point ). As to this
time, it is noteworthy that he acknowledged that he swore in his February
22 affidavit to a Board agent that , "as soon as I learned about [Maldonado 's
discharge], I went section by section of the plant notifying my workers and
alerting them for the general stoppage." Noteworthy , too, is the fact that,
although Cortes, at first, also denied that Maysonet had moved around
section by section on this first occasion, he changed his testimony, upon
being shown his preheanng affidavit to a Board agent in which he swore
that "Maysonet , upon finding out about [Maldonado 's discharge] went
section by section of the factory informing my fellow workers and he
informed me ," and acknowledged that he included this statement in his
affidavit "because [Maysonet ] did it and later on [he I found out about it."
In addition, Acosta testified credibly, as heretofore found, that he saw
Maysonet at about 2-30 p .m in the extrusion section making a telephone
call; and Rivera testified credibly that he saw Maysonet at about 2 45 p in
in the solution house, that he told Maysonet to report to the dry-end area
where he (Maysonet) had agreed to work, and that Maysonet then left the
solution house and started down the hallway . Accordingly, I find that the
record supports the findings in the text above.
io I find incredible Maysonet's testimony that this conversation took less
than a minute and that the elapsed time away from his machine was I
minute.
11 Although Maysonet testified that he said nothing about a work
863
had spoken to the men in his section about engaging in a
work stoppage in protest of the discharge. At the same
time, he told Cortes that he had already spoken to the
employees in the dry-end section about participating in
such a stoppage. Cortes agreed to speak to the men and
call Maysonet back on a plant telephone.10 In the
telephone call to Girona, according to Maysonet, he said to
Girona, "look, Girona, Jaime Maldonado has been
discharged from hisjob, tell the boys." ii
In response to Maysonet's telephone call, Cortes spoke
to the employees in his section. After telling them that
Maldonado had been discharged and that the employees in
the dry-end and wet-end sections were prepared to protest
the discharge, all the employees in his section agreed to
join the others in the protest. He, thereupon, communicat-
ed by plant telephone with Maysonet, who had returned to
the dry-end section by that time, and informed Maysonet
that the men in the chemical area "were in agreement .. .
and . . . would go out." During the same conversation, it
was agreed that the protest would take place upon getting
the word from Maysonet between 4 and 4:30 that
afternoon. There was no discussion as to what Maysonet
was going to say to trigger the stoppage.12
At or about 4:10 p.m. that afternoon, Maysonet left his
machine and went to the telephone in his work area. He
dialed extension 58, thereby connecting with the PA
system, and broadcast a message to all the employees
urging them to engage in a work stoppage at that time.i3
Upon hearing this message , Acosta, who had come into the
dry-end section at that time, walked over to Maysonet and
spoke to him.14 Acosta told Maysonet that the PA system
was used exclusively in emergencies relating to work, and
directed Maysonet to accompany him to the personnel
office. Instead of doing as directed, Maysonet proceeded to
move around the plant in search of support for a work
stoppage. He started with the employees in the dry-end
stoppage or a protest to Girona, and that this was the entire conversation, I
find this testimony to be contrary to the logic and the probabilities of the
situation. and 1 do not credit it.
12 Cortes so testified. Maysonet's testimony that they did have such a
discussion is not credited.
13 According to Maysonet , his message was, "Mr. Carmelo Rivera, Mr
Felix Acosta, we want a justifiable reason for the discharge of Mr
Maldonado , otherwise the machines will remain alone " According to
Cortes' testimony, he heard Maysonet call Acosta and Rivera and tell the
employees "to go out"; he did not hear Maysonet say why he was calling
Acosta and Rivera. In the latter connection , he acknowledged that, when he
referred to this message from Maysonet in his preheanng affidavit to a
Board agent, he made no mention of any reference by Maysonet to Acosta
or Rivera In light of the above, and as the versions of those of Respondent's
witnesses who testified as to what they heard over the PA system made no
mention of hearing these names, I conclude, and find , that neither
Maysonet nor Cortes testified credibly in this regard . I find further that,
although Respondent's witnesses gave slightly different versions of what
was said, the sense thereof was as found above in the text Thus, according
to Acosta, Maysonet said, "Fellow-workers, we are trying to organize a
work stoppage"; according to Rivera , the message was, "Fellows, we are
going to a stoppage so let us stop", according stop"; Hornedo, the message
was, "Let's organize a work stoppage"; and according to Ortiz, Maysonet
said, "Let's call a work stoppage , prepare yourselves."
14 Even granting , as Maysonet and Gonzalez testified , that Acosta
"grabbed" Maysonet by the arm, it is apparent from Maysonet 's testimony
that he got away from Acosta by making "a slight movement " that Acosta
applied a very limited amount of force to Maysonet. Accordingly, I draw no
inference adverse to Respondent therefrom
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section and then progressed to the wet-end section and,
from there, he went to the chemical area.15 His efforts in
the dry-end section produced only one supporter, Valdes.
He gained no supporters in the wet-end section, although
he also spoke to the employees there individually, as he
had done to the employees in the dry-end section. So far as
appears, the employees in each section were at work at the
time . When he reached the chemical area,16 he found that
Cortes had already gone out into the hallway or passage-
way, along with about five employees from that section, in
accordance with their understanding that everyone sup-
porting the stoppage was to do this upon hearing his
message over the PA system. He approached Cortes and
told Cortes that "the boys did not want to come out, that
all was lost." After this, he left Cortes and the assembled
employees and moved along the hallway in the direction of
the wet-end section.
According to Cortes, during the approximately 15
minutes that he and his group were in the hallway, the only
employee to come into the hallway, other than Maysonet,
was Valdes, and, while he saw a few employees from the
extrusion section look out into the hallway, they did not
actually come out into that area . It is further apparent
from his testimony that thereupon Valdes, he, and his
group returned to their work areas.
Hornedo, accompanied by Rivera, intercepted Maysonet
after Maysonet had left Cortes in the hallway. Prior
thereto, Acosta had reported to Hornedo the developments
involving Maysonet, including the fact that Maysonet had
used the PA system for reasons unrelated to his work.
Upon seeing Maysonet, Hornedo ordered Maysonet to
accompany him to the personnel office, and Maysonet did
so. There, Hornedo turned Maysonet over to Ortiz, the
assistant personnel manager, at Ortiz' request. Ortiz had,
by this time , been called by Larry Flack, the production
manager, and told that Maysonet had disobeyed orders,
had made improper use of the PA system, and "was
interrupting the work area." In the conversation that
ensued between Ortiz and Maysonet, Ortiz questioned
Maysonet about his conduct that afternoon. According to
Ortiz, Maysonet was "very excited" and said at one point,
"Look Felix William [Ortiz], what happened is that these
Puerto Ricans do not want to back me up. They're a bunch
of spineless people, they have no backbone." Since Ortiz
was not about to act on his own in this matter, he asked
Maysonet to remain there while he went upstairs to talk
with Bob Wagner, the assistant plant manager.17 After
discussing with Wagner how to handle the disciplining of
Maysonet, Ortiz returned to his office, but Maysonet was
not there. Ortiz learned later, through a telephone call from
is Maysonet testified , on cross, at first , that "at the end when the call was
made [on the PA system 1, that's when I moved from section to section
looking for backing", and later he changed his testimony to say that he
moved only into the wet-end section for that purpose, and then , upon being
pressed further , he admitted going from the wet -end section to the chemical
area where Curies and he "had agreed to meet with the boys" It is
noteworthy in regard to the foregoing ( 1) that, in his prehearing affidavit,
dated February 23, to a Board agent, Maysonet swore that , " I made a
sudden movement and broke loose from Mr. Acosta and went section by
section telling the employees, 'We are going to give Jimmy (Maldonado) our
support as agreed ' "; (2) that, upon being shown that statement in his
affidavit by counsel for Respondent, Maysonet acknowledged that he had
made it and that it was true, and (3) that he again changed his testimony
Acosta, that Maysonet was in the dry-end section
"bothering the boys and would not let them do their
work." Whereupon, Ortiz went into the plant. Upon
finding Maysonet in the dry-end section , Ortiz told
Maysonet to punch out and return to the office the
following Monday at 9 a.m., "so that [Respondent] could
continue the investigation of [his] case." As Maysonet was
scheduled to work on the intervening Saturday and
Sunday, Ortiz was thereby telling Maysonet that he was
being suspended. Ortiz thereupon called Acosta and had
him escort Maysonet to the plant gate . Maysonet left the
plant at or about 5:15 p.m.
4. Subsequent developments
a. The strike
The employees on Shift "B" did not report to work at 2
p.m. on Saturday, January 27. Instead, they gathered
outside the plant and struck in protest of Maldonado's
discharge. Maysonet was there at the time and joined
them. This strike activity, which spread thereafter to the
other two shifts, lasted for less than a week; i.e., some of
the employees returned to work on Thursday, February 1,
and the others returned on Friday, February 2.18
b. Maysonet's discharge
Maysonet did not report to Ortiz' office on Monday
morning, January 29, as directed. His explanation for not
doing so was that "the strike was on." Thereafter, on
Wednesday, February 7, he appeared at Ortiz' office in
response to a notification from Ortiz. At that time, he met
with Ortiz and Flack. According to Maysonet, who was the
8nly one to testify about this session, the following then
occurred: Flack, speaking through Ortiz as his interpret-
er,19 asked him to resign. He asked why he should do so.
At this, he was told that he was being "discharged due to
what had happened inside the plant." When he asked for
specifics, he was told again that he was being discharged
because of what had occurred inside the plant. He left the
plant at this juncture. The record shows that Maysonet has
not worked for Respondent since his suspension on
January 26.
According to Whittington, the decision to discharge
Maysonet was made by him on the basis of reports to him
from his subordinates concerning Maysonet's conduct on
both January 24 and 26. In regard to January 24, he
testified, in substance, that his concern was that Maysonet
had engaged in "borderline insubordination" by his
impertinence in saying to Rivera, "do you own stock in the
and insisted that he was referring thereby to his going to the wet-end
section Accordingly, I find that Maysonet's first -mentioned testimony more
accurately reflects the truth
16 Cones fixed the time as about 7 or 8 minutes after Maysonet had used
the PA system.
17 Whittington , the plant manager, was not in the plant that day.
i8 As the thrust of the General Counsel 's case is that Maysonet was
suspended and then discharged because of his conduct on January 26 and
not because of any part played by him in the above stoke, I need not, and
do not, make any further reference to this stoke in passing upon the merits
of the General Counsel's case herein.
19 Flack spoke in English and Ortiz interpreted his remarks into Spanish.
UNION CARBIDE FILMS 865
Company?" and in telling Rivera that, if Rivera wished,
Rivera could punch out his card, on the occasion when
Rivera confronted him in the plant about his delayed
departure from the plant and his failure to punch out as
yet. And in regard to January 26, it was his testimony, in
substance, that his concerns were that Maysonet (1) had
been insubordinate in refusing to return to his work station
or to go to the office when ordered to do so by supervision,
(2) had committed infractions of company rules, and (3)
had tried to disrupt the operations of the plant by getting
on the PA system and inciting employees to leave their
work.
5. Analysis and conclusion
Section 8(a)(1) of the Act makes it an unfair labor
practice for an employer to interfere with, restrain, or
coerce employees in the exercise of their rights guaranteed
in Section 7 of the Act. Included among these rights is the
right to engage in concerted activities for mutual aid and
protection. The issue here is whether Respondent suspend-
ed and thereafter discharged Maysonet for engaging in the
protected activity of trying to promote a work stoppage in
the plant in protest of the discharge of a fellow employee,
or whether Respondent did so for legitimate business
reasons stemming from conduct engaged in by Maysonet
in the course thereof. In this connection, it cannot be
gainsaid that the fact that a worker takes part in protected
activity does not insulate him from suspension or discharge
or other adverse personnel action for legitimate business
reasons, except that the business reasons may not be used
as a pretext for suspending, discharging or otherwise
disciplining him because of such protected activity 20
As is apparent from the testimony of Whittington
mentioned above in regard to developments involving
Maysonet on January 26, Respondent is here contending,
in effect, that it disciplined Maysonet because of his
conduct, while he was moving through the plant in order to
promote a work stoppage, of violating company rules and
of engaging in insubordinate behavior in resisting its
efforts to get him to desist from these violations. I am
satisfied, and conclude, and find, on the basis of the
credited testimony set forth herein that Maysonet violated
a published company rule as well as company instructions
in using the company telephones, including the PA system,
for reasons unrelated to his work, and that he violated
company instructions in going from section to section in
the plant talking to employees while they were at work,
doing so both before he used the PA system, and
thereafter. And I conclude, and find, further that Mayso-
net was plainly insubordinate in refusing to return to his
work station when asked to do so on separate occasions by
Acosta and Rivera, respectively; in refusing to go to the
office when asked to do so by Acosta; 21 and, once he did
agree to go to the office at the instance of Hornedo, in
leaving the office of Assistant Personnel Manager Ortiz,
although he was asked by Ortiz to remain there until he
(Ortiz) returned.
It is further apparent from Whittington's testimony that
Maysonet's conduct on January 24, which he characterized
as "borderline insubordination," is also being urged as an
operative factor in Maysonet' s suspension and discharge.
However, I attach no weight thereto because I infer, and
find, from Whittington's above characterization and the
entire record herein, that Respondent was injecting these
developments on January 24 into the case as an after-
thought in seeking to bolster its defense herein.
Accordingly, in view of Maysonet' s aforesaid miscon-
duct on January 26, in the course of seeking to promote a
work stoppage to protest Maldonado's discharge, which
misconduct consisted of violations of a company rule and
company instructions and of insubordinate behavior, and
in the absence of any affirmative evidence which warrants
an inference that Respondent's desire to stifle protected
activity was a factor in Respondent's decision to suspend
and then discharge him,22 I find that the record fails to
preponderate in favor of a finding that Respondent
contravened the Act in suspending Maysonet on January
26, 1973, and in thereafter discharging him on February 7,
1973. Indeed, I am satisfied, and find, that Respondent had
reasonable grounds for taking disciplinary action against
him. This is so notwithstanding the fact that Hanes Hosiery
Division, Hanes Corp., supra one of the cases relied upon
by the General Counsel, found the discharge therein to be
vulnerable. In that case, there was absent any finding that
the employee, who moved through one section of the plant
drumming up support among the employees for a work
stoppage, either (1) violated, as here, any company rules or
instructions and resisted management 's efforts to get him
to cease doing so, or (2) engaged, as here, in insubordinate
behavior. And the cases of Kennamental, Inc., 80 NLRB
1481, enfd. in 182 F.2d 817 (C.A. 3); Pepsi-Cola Bottling
Company of Miami, Inc., 186 NLRB 477, enfd. in 449 F.2d
824 (C.A. 5, 1971); and Indianapolis Glove Company, 5
NLRB 231, also relied upon by the General Counsel, are
clearly distinguishable as they involved spontaneous work
20 See Hanes Hosiery Division, Hanes Corporation, 413 F 2d 457, 458
(C A. 4, 1969), enfg 168 NLRB 856, in which the court said.
Undoubtedly, the fact that a worker takes part in protected activity
does not insulate him from discharge for legitimate business reasons
And "[p]revention of interference with the work of others while they
are busy is a common requirement in industrial plants" N.LR B v.
Wax Corp, 309 F.2d 826.832 (4th Cir. 1962) But business reasons may
not be used as a pretext for a discriminatory firing N L R. B. v. Overnice
Transp Co, 308 F 2d 284, 288 (4th Cir 1962) And if a desire to stifle
protected activity is a factor in the employer' s decision, the discharge is
discriminatory Winchester Spinning Corp v. N LR B., 402 F.2d 299,
304 (4th Cir 1968), N LR B v. Dove Coal Co., 369 F.2d 849.852 (4th
Cir. 1966)
See also Mushroom Transportation Company v. N L R. B., 330 F 2d 683, 685
(C A 3, 1964), in which the court said:
Thus an employer who resents any activity of an employee has the right
to discharge him unless it is found that the employer is trying "to
interfere with , restrain or coerce employees" with respect to their rights
under the Act.
21 Maysonet admitted that he "disobeyed" Acosta on this occasion.
22 In this connection, I am cognizant of Whittington's testimony that one
of his concerns at the time he decided to discharge Maysonet was that
Maysonet was trying to disrupt operations by getting on the PA system and
inciting others to leave work . However , this statement of concern, when
viewed in the total context, falls far short of an admission by Whittington
that he would not have had this concern but for the fact that Maysonet had
sought to promote a protest by the employees against Maldonado's
discharge by Respondent.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stoppages during working hours by a group of employees
in order to present a grievance to management. It follows
therefrom, and I find further, that the record fails to
sustain the 8(a)(l) allegations of the complaint, as
amended.
Upon the entire record, I make the following:
CONCLUSIONS OF LAW
(1) Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
(2) The Union is a labor organization within the meaning
of Section 2(5) of the Act.
(3) Contrary to the allegations of the complaint, as
amended , Respondent has not violated the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER 23
The complaint, as amended , is dismissed in its entirety.
23 In the event no exceptions are filed as provided by Sec. 102 46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the N ational Labor Relations Board , the findings , its findings , conclusions , and order, and all objections thereto shall be
conclusions, and recommended Order herein shall, as provided in Sec. deemed waned for all purposes