Southwest Latex Corp.

National Labor Relations Board - Board Decisions

Apr 15, 1969

175 N.L.R.B. 358 (N.L.R.B. 1969)

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southwest Latex Corporation and John T . Seaton.
Case 23-CA-2971
April 15, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 2, 1968, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
case, finding that the Respondent had not engaged
in certain unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief. The
Respondent filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts
only those findings, conclusions, and
recommendations of the Trial Examiner which are
consistent with the following.
Respondent, a subsidiary of Southwest Chemical
and Plastic Company, is engaged in the manufacture
of specialty latex products. In October 1967, the
company began operations in its new plant at
Bayport, Texas. It is a small plant, with a work
force consisting of about 20 employees.
John T. Seaton was hired by the Respondent as
an operator on October 27, 1967, at the Bayport
plant, and was discharged on March 6, 1968. On
February 22, 1968, Seaton had met with, several
other employees for the purpose of organizing and
drafting a letter to the Respondent concerning
seniority, pay scale, and other working conditions.
A draft of this letter, prepared by Seaton, was
shown to the other employees, and a number of
additions and corrections were then made on the
draft. The letter was never finally signed by the
employees or presented to the Employer, although
Seaton had, on March 4 and 5, made and then
postponed appointments with Plant Manager N. O.
Swennes to discuss the matter.
The evidence nonetheless indicates that
Respondent's management was aware of the
preparation of the letter. According to the
uncontradicted testimony of employee Osborn, he
had a conversation with Foreman Herbeck on or
about March 1, in which Herbeck said that
employee Holder had told him about the letter and
that "Seaton was possibly going to be in trouble
because of the letter."' On March 2, Herbeck had a
talk with Seaton. According to Herbeck, the
discussion concerned Seaton's continual complaining
and certain alleged derelictions of duty by Seaton on
February 28 and 29. These latter failures, to be
discussed infra, were said by Respondent at the
hearing to be the final straws which caused Seaton's
termination. However, a written reprimand, dated
March 2, placed in Seaton's file by Herbeck, states
only, "Spoke to J. T. Seaton about chronic griping
and spending more time talking than working."
On the afternoon of March 6, Foreman Herbeck
told Seaton to report to Swennes. At the meeting,
Herbeck told Seaton that he was not working as
expected, took too many coffee breaks, had been
warned many times in the past, and that it was
therefore necessary to discharge him. As Seaton was
leaving the plant, he walked with Herbeck, who said
that he was sorry but "we were all trapped into it."
On March 7, the day after the discharge,
Respondent called a meeting of the plant employees.
The meeting began with an explanation by Swennes
that Seaton had been terminated "because of his
work he had done." Swennes then launched into a
discussion of the existing and anticipated benefits
available to the employees. Among other things, the
employees were shown their wage progression plan
for the first time, were told of their right to receive
lunches when working overtime, and were assured
that they would be receiving the new lockers
previously promised to them.
At the hearing, Respondent asserted several
reasons for discharging Seaton on March 6. One
alleged basis was Seaton's history of complaining
about pay and working conditions, as well as certain
past failures in work performance, which had
purportedly led Herbeck and Swennes to discuss the
firing of Seaton about a month before his actual
discharge. He had been reprieved, they testified,
because he showed some promise. Although Seaton
denied that he had complained to any extent, the
Trial Examiner found Herbeck and Swennes more
persuasive. However, he also found that complaining
was common in the plant and "standing alone .. .
may not have furnished a valid explanation for the
discharge of March 6." But there was more in the
case - a failure to properly perform a duty on
February 28, and a failure to make a log entry, as
required, on February 29 - which the Trial
Examiner found to be the effective basis for the
discharge.
The duty not performed on February 28 involved
the failure to empty a batch of latex from a reactor
'The Trial Examiner concluded that he was "inclined to credit Herbeck's
version of this conversation rather than Osborn's " In Herbeck's
testimony, however, while he denied having made certain other remarks
attributed to him by Osborn, he left undemed Osborn 's twice-repeated
testimony about Seaton being in trouble because of the letter
175 NLRB No. 58
SOUTHWEST LATEX CORPORATION
into a blowdown tank. When Seaton, working alone,
came on duty at 11 p.m. on February 28, the
reactor contained latex in which a reaction had been
initiated earlier in the day. According to the
admission of Respondent's witness Herbeck, the
reaction should have been fully completed prior to
Seaton's shift. It would, therefore, have been the
duty of the operator on the shift preceding Seaton's
to begin to empty the reactor into the blowdown, or,
at the very least, to have a laboratory technician
make a test to ascertain whether the reaction had
been completed. The operator on the earlier shift
did neither, however.' Accordingly, when Seaton
came on duty at 11 p.m., the latex was still in the
reactor, and there were no longer any lab
technicians on duty, the laboratory having closed at
11 P.M.
The crux of the question as to whether Seaton
was thereafter derelict depends upon what was
expected of him in the situation he then confronted.
Respondent asserts that Seaton should have looked
at the daily log and calculated that the reactor was
probably ready to be emptied, that upon realizing
this likelihood, Seaton should then have called
Herbeck at home, pursuant to standing instructions
that operators should call Herbeck at any time if
they have "questions"; that Herbeck could then
have called a lab technician to go to the plant and
sample the latex; that the reactor could then have
been emptied during Seaton's shift instead of
sometime later in the day of February 29; and that
considerable processing time could have been saved.
Seaton, on the other hand, admits that he was
instructed to call Herbeck if "problems" ever arose
on his shift, but contends that the situation on the
evening of February 28 was no "problem." He
testified that he knows of other occasions on which
latex had been left in the reactor overnight, and
Respondent's witness, Herbeck, appeared to concede
this possibility. In his testimony, Herbeck said that
when Seaton encountered the February 28 situation,
it was up to him to call Herbeck and "let me decide
whether to call somebody, or wait until morning to
drop the batch, or whatever."
Respondent asserts that at least 8 hours of
processing time were lost as a result of Seaton's
error. The evidence establishes that the reactor
could not have been immediately discharged of the
batch of latex, since the blowdown tank, into which
the latex would have to be emptied, was itself filled
with another batch. It was therefore necessary to
empty the blowdown tank before the latex in the
reactor could be transferred to the blowdown.
According to Seaton, however, the screens through
which the latex in the blowdown had to filter were
covered with a substance which made the passage of
the latex unusually slow. He spent much of his time
on the shift removing this substance and then
359
emptying the blowdown. The screens on the
blowdown being in the described condition, and
considering the necessity for getting a technician to
the lab and having him test the latex in the reactor,
it appears to be unlikely that the reactor could have
been emptied with any dispatch. And it is worth
noting that even though Seaton took a sample of the
latex to the lab when it opened at 6:45 a.m. on
February 29, the evidence shows that the latex was
not discharged from the reactor until about noon of
that day. Since other evidence establishes that a
reactor may be quickly discharged once the reaction
is completed and the blowdown is empty, it would
appear that the Respondent felt no particular
urgency about the disposition of this batch.
Seaton's shortcoming of February 29 also seems
to be of relatively minor import. Starting at I1 p.m.
that evening, he worked half of the shift with
another operator and then the remainder of the shift
by himself. While the other operator made notes in
the daily log as to what was accomplished during
their common time on the shift, Seaton apparently
made no entry as to the work performed by him
during the remaining four hours. There was a
company requirement that operators describe in the
log the work done by them. However, a perusal of
sample log pages entered in evidence and testimony
by Herbeck indicates that it was not unusual for the
operators to fail to comply with the rule and to give
information so sketchy as to appear to be valueless.
Furthermore, the requirement was not integral to
the functioning of the plant, but simply served as a
source of information for Herbeck concerning the
work performed, or problems which may have
arisen, while he was away from the plant. There is
no evidence that Seaton's failure to report had any
eventual consequences.
Against these two specific complaints against
Seaton, which, Herbeck testified, "strongly"
influenced his decision to recommend Seaton's
discharge, we consider certain facts previously
mentioned. The decision to discharge came against a
background of the protected activity of Seaton's
preparation of a letter complaining about working
conditions, to be presented to management on
behalf of his fellow employees. Employee Osborn
gave uncontradicted testimony that Herbeck said
that he knew about the letter and that Seaton was
"possibly going to be in trouble" because of it. This
testimony is a significant indication of both
Respondent's knowledge of, and attitude toward,
Seaton's protected conduct. Although Respondent
now contends that Seaton's work performance on
February 28 and 29 was a significant factor in the
decision to release him, Herbeck's written
reprimand of March 2 fails to mention these
incidents, and thus belies the importance now
attributed to them by Respondent. The discharge
came after Seaton had made and then postponed
'There is no indication in the record that the operator on the preceding formal appointments with the plant superintendent.
shift was disciplined for his failure to do so The evidence indicates that Swennes must have been
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware of the purpose of the meeting After Seaton
was discharged on March 6, Herbeck,
accompanying Seaton as he was leaving, said to him
that "we were all trapped into it." This seems to be
a meaningless remark if addressed to an employee
being discharged for incompetence and inefficiency;
more sensibly, it implies that Seaton had done the
one thing - organizing his fellow employees -
which made his discharge inescapable. And, finally,
we note the remarkable conjunction of Seaton's
discharge with the employee meeting called the
following day. At this meeting, the Respondent
referred to Seaton's discharge and then discussed the
array of benefits accruing to, or soon to be made
available to, the employees. It seems apparent that
something more than pure coincidence was
responsible for the discharge on one day of an
employee who had been attempting to organize his
fellow employees and the convocation, on the very
next day, of an employee meeting at which both the
references to benefits and the reference to Seaton's
discharge were prominently employed.
In the circumstances described, we have no doubt
that the General Counsel has established, by a
preponderance of the evidence, that Seaton was
discharged for engaging in activity protected by
Section 7 of the Act, in violation of Section 8(a)(1).
We further find that Herbeck's statement to
Osborn, about the "trouble" faced by Seaton
because of his responsibility for the preparation of
the letter, must be considered to have coercive
implications tending to dissuade Osborn from
engaging in collective activity, thus violating Section
8(a)(1) of the Act. We find, however, that other
complaint allegations of Section 8(a)(1) are not
substantiated, and we shall order them dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act, and it will effectuate the purposes of
the Act to exercise jurisdiction herein.
2. By unlawfully discharging John T. Seaton on
March 6, 1968, the Respondent engaged in an unfair
labor practice within the meaning of Section 8(a)(1)
of the Act.
3. By unlawfully threatening an employee,
Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order
Respondent to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It having been found that the Respondent
unlawfully discharged John T. Seaton on March 6,
1968, and thereby violated Section 8(a)(1) of the
Act, we shall order that Respondent remedy such
unlawful conduct by offering John T. Seaton
immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may
have suffered as a result of the discrimination
against him, by payment to him of a sum of money
equal to the amount he would have earned from the
date of his discriminatory discharge to the date of
an offer of reinstatement, less net earnings during
said periods, to be computed on a quarterly basis in
the manner established by the Board in F. W
Woolworth Company, 90 NLRB 289, including
interest at the rate of 6 percent per annum, to be
computed in the manner set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent,
Southwest Latex Corporation, Houston, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any of its employees or
discriminating in any other manner in respect to
their hire or tenure of employment, or any term or
condition of employment, for the purpose of
interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
(b) Unlawfully threatening employees for the
purpose of interfering with protected, concerted
activities.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer John T. Seaton immediate and full
reinstatement to his former substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any
loss of pay, together with interest thereon at 6
percent per annum, in accordance with F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716; and
notify him, if he is presently serving in the Armed
Forces of the United States, of his right to full
reinstatement, upon application, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
(b) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security records,
SOUTHWEST LATEX CORPORATION
timecards, personnel records and reports, and all
other records relevant and necessary to
determination of backpay due and the reinstatement
and related rights provided under the terms of this
Order.
(c) Post at its Bayport, Texas, establishment,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 23, shall, after being
duly signed by Respondent's representative, be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply
herewith.
3. All allegations in the complaint not specifically
found herein are hereby dismissed.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that.
WE WILL NOT discharge or discriminate against our
employees for the purpose of interfering with their right
to organize as a group to bargain with us
WE WILL NOT threaten our employees for the
purpose of preventing them from engaging in concerted
activities.
WE WILL offer John T Seaton reinstatement to his
former position with all the rights and any backpay due
him.
WE WILL notify John T Seaton if he is presently
serving in the Armed Forces of his right to such
reinstatement under Federal law after discharge from
the Armed Forces.
SOUTHWEST LATEX
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-228-4296.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
361
HARRY R HINKES, Trial Examiner The complaint
herein was issued on April 24, 1968, pursuant to a charge
filed on March 7, 1968, by John T. Seaton and served on
Southwest Latex Corporation, herein called the
Respondent or Company, on March 11, 1968. Respondent
is alleged to have engaged in unfair labor practices
affecting commerce by the discharge of John T Seaton
and the commission of other acts interfering with,
restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act in violation
of Section 8(a)(1) of the Act By answer duly filed
Respondent denied the commission of any unfair labor
practices.
A hearing was held before me at Houston, Texas, on
May 6 and 7, 1968, at which all parties were represented
and were afforded full opportunity to participate, examine
witnesses and adduce relevant evidence. During the
hearing, upon motion of counsel for the General Counsel,
an amendment to the complaint was allowed modifying
the date stated therein for an alleged unfair labor practice.
At the conclusion of the hearing counsel for the parties
waived oral argument. Briefs have been received from the
General Counsel and from the Respondent and have been
given careful consideration
Upon the entire record in this proceeding I make the
following:
FINDINGS OF FACT
I JURISDICTION
The Respondent is and has been at all times material
herein a subsidiary of Southwest Chemical & Plastics
Company of Seabrook, Texas and a corporation duly
organized under the laws of the State of Texas with its
principal office and place of business in the city of
Houston, State of Texas, where it is engaged in the
manufacture of specialty latex products. By agreement
between counsel it has been stipulated that during the
12-month period preceding the issuance of the complaint
in this matter Respondent, in the course and conduct of
its business operations, manufactured and sold products
valued in excess of $50,000 which products were sold and
delivered to customers in states of the United States other
than the State of Texas I find that the Respondent is now
and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11 THE UNFAIR LABOR PRACTICES
A. Seaton
Southwest Latex Corporation was formed around the
beginning of 1967. Plans were drawn up for the
construction of the plant at Bayport, Texas on January 3,
1967, and the plans were approved for construction on
April 13, 1967 The Company started moving the
operators down to Bayport from its pilot plant operation
in October. Seaton began working for the Respondent on
October 27, 1967. About 4 1/2 months later, on March 6,
1968, he was discharged
Several of the employees including Seaton met on
February 22, 1968, and discussed presenting a complaint
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the management of the Company regarding their
working conditions. It was decided to draft a letter to
present to the Company and Seaton prepared a draft of
such a letter. As employee Brown put it "I guess [Seaton]
sort of appointed himself as the letter writer." He showed
his draft to the other employees on and after February 28,
and by March 4, received everyone's approval to that
letter. He then turned the letter over to another employee
to be typed up, following which it was the plan of the
employees that each of the employees would sign the letter
and then, as a group meet with management to discuss it
in the meantime, on March 4, Seaton requested a meeting
with N O. Swennes, plant manager, for March 5. On
March 5, however, he requested a postponement of that
meeting to March 6 On March 6, Seaton asked another
employee, Brown, to get a further postponement of that
meeting to March 8, which Brown did. It does not appear
that anyone informed management of the purpose for this
requested meeting. Nor does it appear that Seaton's draft
of the letter was every typed up in final form or signed by
the employees.
In the afternoon of March 6, Herbeck, Respondent's
foreman, told Seaton to report to Swennes. Seaton
requested permission to have employee Brown as a witness
and was granted that request. At this meeting, attended by
employees Seaton and Brown as well as Plant Manager
Swennes and Foreman Herbeck, Herbeck told Seaton he
had not been doing his job as expected, had been taking
too many coffee breaks and that for the best concern of
the Company Seaton be dismissed at that time, referring
to a number of occasions on which Seaton had received
reprimands As Seaton left the plant, Herbeck told him
that he was sorry but "we were all trapped into it."
Counsel for the General Counsel argues that Seaton
was discharged for engaging in the alleged concerted
protected activity of the letter writing referred to earlier.
He cites the testimony of employee Osborn who told of a
conversation he had with Foreman Herbeck on or about
March 1, in which Herbeck allegedly told him that Seaton
"was possibly going to be in trouble because of the letter .
.. and if we try to go to the Labor Board or to bring in a
union and everything that the Company would probably
run the plant." Osborn further testified, however, that
several days after this conversation with Herbeck he once
again spoke to him and received an explanation that
"satisfied" him Among other things Herbeck told him
that he did not mean Osborn would be fired if he joined
the Union but, if there was a strike, Herbeck and Swennes
would try to run the plant. Finally, Osborn was asked.
Q Now, [h]as Mr. Swennes, or any other company
official told you if you joined the Union, you would be
fired9
A. No, sir
To this testimony of Osborn, counsel for the General
Counsel adds the testimony of Seaton about a
conversation that Seaton had with Herbeck on March 2,
wherein:
[Herbeck] told me that Mr Swennes, N. O.
Swennes, plant manager, had called him into his office
that week and asked him if there was something going
wrong in the plant He said there was something in the
air, he didn't know what it was. He thought that I -
he thought that John Seaton was behind it. And Bill
Herbeck said he had the same feeling and he said he
would try to find out what the condition was and Mr.
Swennes said that if Seaton keeps this up, this griping
and complaining, that we are just going to have to let
him go.
Counsel for the Respondent, on the other hand,
contends that the activity in which Seaton engaged was
not protected concerted activity within the meaning of the
Act and that in any event Respondent was not aware of it
Walls Manufacturing Company, Inc, 128 NLRB 487,
modified in 137 NLRB 1317, 1318. See also Ryder Tank
Lines, Inc , 135 NLRB 936, 938 1 find it unnecessary,
however, to consider this aspect of Respondent's
argument, as the Board, in Norge Division, Borg -
Warner Corporation, 155 NLRB 1087, 1089, held
The crucial question, as we see it, is not whether the
employees engaged in what we might assess as `plain
and flagrant misconduct' but what in truth impelled the
discharges Were the employees terminated because they
engaged in concerted activity? Or were they terminated
for some other and legitimate reason that would have
impelled the Respondent to take such action even
independently of their concerted activity? [Emphasis
supplied.]
We turn, therefore, to a consideration of the reasons
advanced by the Respondent for its discharge of Seaton.
According to Plant Manager Swennes, Seaton was told
about the Company benefits and the working conditions
before starting work at the plant but he made no
complaint about either the benefits or the working
conditions at the time. Nevertheless, Seaton thereafter
began complaining until, according to Swennes, "it
became a problem not only in terms of job but also in
terms of the other employees, the effect he was having on
- we will call it the morale of the people of the plant."
Foreman Herbeck also testified that Seaton's "griping all
the time was just making me so nervous I couldn't hardly
get anything done." Among Seaton's complaints were the
Company's failure to pay for his trips to the doctor when
he was injured on the job, the Company's failure to
provide rubber boots for him to wear, and his inability to
locate tools to do the job Swennes spoke to him about his
complaints as well as his quantity of work and Seaton
told him he would try to correct the complaining and
failure to work. Herbeck identified three documents which
were received in evidence specifying three different
occasions on which Herbeck had spoken to Seaton about
his griping, being lax on shift duties, spending too much
time on coffee breaks, and his inefficiency in work.
Herbeck further testified that only Seaton had as many as
three reprimands in his file. Seaton, however, denied
having ever been reprimanded for his inefficiency in work
or for being lax on shift duties or spending too much time
on coffee breaks. I found Herbeck's and Swennes'
testimony much more persuasive considering the
demeanor of all of the men as they testified as well as the
inconsistencies in some of Seaton's testimony which will
be discussed later Seaton's fellow workers who testified in
this proceeding also noticed that Seaton griped and
complained but, according to them, everybody did a lot of
griping and complaining and the criticism by management
on this score was not directed specifically to Seaton but to
all employees Standing alone, therefore, Seaton's gasping
and complaining may not have furnished a valid
explanation for the discharge of March 6. It does not,
however, stand alone.
Herbeck testified that Seaton's discharge was based on
his derelictions in job duties, citing, in particular, Seaton's
activities of February 28 and 29 Employees were required
to maintain a log of their activities on each shift. Log
entries made by Seaton and received in evidence show a
number of instances between November 10 and December
29 where explanation for work done during his shift was
SOUTHWEST LATEX CORPORATION 363
either completely missing or inadequately covered.
Herbeck spoke to Seaton about this failure and discussed
the advisability of discharging Seaton with Swennes about
a month before the actual discharge. At the time,
however, they felt that Seaton would straighten out
because he had the ability to do the work.
Seaton reported to work for the third shift of February
28, which began at I1 p.m. of that date and ended 7 a.m.
February 29. Earlier that day, at around 1 p.m., a
reaction had been initiated in a batch of latex in reactor
number 2 and the major portion of the reaction had been
completed several hours before Seaton came to work. At
5 p.m. a sample had been taken of the batch which
showed a total solids content of 46 3 percent and an
unreacted styrene count of 1.810. According to credited
testimony, Seaton would know that the batch was near
completion when he came on duty at II p m. and that it
was his responsibility to take a sample each hour, it being
the practice of the plant to empty the reactor when the
total solids content reached 46 percent and the styrene
count fell below .6. Although the operators such as Seaton
could make the test for the total solids content, it was the
lab technician's responsibility to make the styrene test and
it was the operator's responsibility to request lab
assistance if needed. He had also been instructed to call
his supervisor if any problem arose on his shift and
pursuant to such instructions supervisors were called many
times during the night. On the batch in question, however,
Seaton apparently never attempted to get the styrene
tested, the lab having closed at 11 p.m., nor did he
attempt to call his supervisor for instructions in the
circumstances. Instead, he permitted the batch to remain
in the reactor all night long As a result, the Company
lost several hours of processing time
As noted earlier, Seaton's shift ended on February 29
at 7 a m. Herbeck got to work at 8 a.m. that morning,
reviewed Seaton's log entries and found insufficient data
therein to account for all 8 hours of Seaton's shift. That
night Seaton reported for work at the usual time of 11
p m., and worked until 7 a.m. the following morning,
March 1. For that shift Seaton made no entry in the log
book whatever Seaton had gone by the time Herbeck
came to work at 8 a.m. Friday, March 1, but Herbeck
noted Seaton's failure to record any activity for the
preceding shift. Knowing that he would be gone when
Seaton reported for work that night, Herbeck left word
for Seaton to stay over Saturday morning after 7 a m. so
that Herbeck could talk to him. Accordingly, on
Saturday, March 2, Herbeck spoke to Seaton about his
derelictions on the night of February 28, as well as his
failure to write anything in the log book for his shift on
February 29 The following day, Sunday, the plant was
closed. On Monday, March 4, the plant was busy with
resumption of operations after the one day shutdown.
Moreover, Herbeck left work a little earlier to attend
school. Consequently, Herbeck did not speak to Swennes
about this matter until Tuesday, March 5. As a result of
this discussion, Herbeck then decided to discharge Seaton.
Seaton, however, testified that in his conversation with
Herbeck on March 2, they merely discussed the letter that
Seaton had drafted, Herbeck telling him that he "wished
that more people . . would speak out instead of going in
little groups behind backs, and tell the Company what
they thought was wrong out there like I was doing."
According to Seaton, Herbeck also told him at this time
that Swennes had asked him if there was something going
wrong in the plant and thought that Seaton was behind it.
At first Seaton testified that Herbeck told him Swennes
had said that "if Seaton keeps this up, this griping and
complaining, we are just going to have to let him go." In
rebuttal, however, he denied Herbeck speaking to him
about chronic griping on that day
This, however, was not the only inconsistency in
Seaton's testimony Thus, Seaton first testified that he
was "elected" by the other employees to be their
spokesman Then he said "There was no formal election.
It was just everyone meeting on different shifts would -
agreed that myself and Cecil Brown would be the
spokesmen for the hourly paid employees to the
employer." Also Seaton denied ever telling a
governmental agent that he had been elected A claim for
unemployment compensation signed by Seaton and read
by him before signing, which claim was received in
evidence, recites, however, "I and another employees were
elected to represent the employees in negotiating a
bargaining unit among these workers." Seaton insisted
that the employees told him he was authorized to
negotiate the bargaining unit on their behalf. But
employees Brown and Osborn, who were called on behalf
of the General Counsel, testified that they had never
appointed Seaton to represent either of them nor had
Seaton been elected. Seaton also, denied telling any
Southwest Latex employee that his unlawful discharge
claim had already been decided and that he was going to
be reinstated and get backpay. His first answer was
vacillating:
A. I think I told - yes, I told one employee. I
didn't say that this had already been decided. No, I
didn't. I told - no, I didn't say that.
Q What did you say?
A. I told them that it looked like it was in my favor.
Q. Did you ever tell anybody at Southwest Latex
that you had been told that you were going to be
reinstated9
A. I told several different people that I would be
reinstated if this thing - this hearing was final.
Q. But did you tell them that you had been told you
would be reinstated?
A. No, Sir.
His own witness employee Brown, contradicted him:
Q. Did Seaton tell you at any time that it had
already been voted that he was going to be reinstated
and get his backpay?
A. Yes, Sir.
Seaton's testimony also refers to a pay increase that he
received after he had worked 3 months. This, according to
Seaton, was a merit increase, suggesting that the
Respondent was quite satisfied with his work Again, his
own witnesses testified in contradiction, stating that the
3-month pay increase was automatic for all employees on
the payroll that long.
In short, I cannot credit Seaton's testimony, finding it
too often contradicted by himself or by his own witnesses.
Instead, I find Herbeck's and Swennes' testimony more
persuasive
Counsel for the General Counsel argues that Seaton
was not derelict in his duties on the night of February 28
when he failed to unload the reactor, pointing to the fact
that the reactor had to be unloaded to a blowdown tank
which was already full. This, however, does not explain
why Seaton failed to call his supervisors for instructions
on handling the reactor that night With the batch finished
in the reactor and the blowdown tank full, it presented a
problem which Seaton did not undertake to solve. It was,
however the type of problem for which supervisors could
be and had been called in the past for solution. In failing
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to call the supervisors Seaton was derelict in his duties
and caused a waste of reactor time as a result.
In sum, I find that the General Counsel has not met his
burden of establishing that Seaton's discharge was
motivated by any protected concerted activity on his part
but was instead motivated, as claimed by the Respondent,
by his failure to carry out his required duties and only
incidentally by the Respondent's displeasure at the
disruption and loss of morale caused by Seaton's
continual griping and complaining.
B. The Other 8(a)(I) Incidents
Counsel for the General Counsel argues "two distinct"
violations of Section 8(a)(1) of the Act by the Respondent.
First, he argues that Respondent violated Section
8(a)(1) by threats to the employees He cites the testimony
of Seaton, mentioned earlier, to the effect that Foreman
Herbeck told him on March 2 that Swennes had asked
him if there was something going wrong at the plant, that
he did not know what it was but that he thought Seaton
was behind it. According to Seaton, Herbeck added that
he [Herbeck] had the same feeling Seaton further claimed
that Herbeck told him Swennes had said that "if Seaton
keeps this up, this griping and complaining, we are just
going to have to let him go." Herbeck's testimony,
however, which I credit, was that on March 2 he discussed
Seaton's work of February 28, as well as his failure to
enter his activity for the following day, February 29, and
mentioned Seaton's griping and complaining as well. At
this time, according to Herbeck, Seaton told him that his
gripes were his own, nothing being said suggesting that
Seaton was speaking for the other employees. Even
accepting Seaton's version of that conversation there is
nothing to suggest that Swennes was contemplating firing
Seaton for any protected concerted activity but only for
Seaton's personal complaints. Invalex Sales Co , Inc , 152
NLRB 773, 778. Counsel for the General Counsel also
cites the testimony of employee Osborn concerning his
conversation with Foreman Herbeck on March 1, in which
Herbeck allegedly told Osborn that Seaton "was possibly
going to be in trouble because of the letter . . . and if we
try to go to the Labor Board to bring the Union in and
everything that the Company would probably let us all go
and him and Mr. Swennes would probably run the plant "
Herbeck, however, denied telling any employee that he
would be discharged if the Union came into the plant or if
any employee took complaints to the Board but admitted
that he told Osborn that in the event of a strike the
management people could run the plant if they had to. I
am inclined to credit Herbeck's version of this
conversation rather than Osborn's. Osborn himself
apparently was not quite sure of what Herbeck told him
at first, since he went back to ask him again what he
meant and this time, admittedly, was "satisfied" by
Herbeck's alleged explanation that Herbeck did not mean
Osborn would be fired if he joined the Union. Indeed,
Osborn concluded his testimony on this score, denying
that Swennes or any other company official ever told him
if he joined the Union he would be fired I find
insufficient evidence of threats by the Respondent for an
employee's union or concerted activity.
Counsel also argues that Respondent violated Section
8(a)(1) of the Act by promises of benefits. As the brief of
counsel for the General Counsel puts it:
On March 7, 1968, Respondent called a meeting of its
employees during which the Company promised wage
increases , free lunches for overtime work, locker room
lockers, and better and safer working equipment.
The record, however, does not support this sweeping
characterization. Employee Osborn testified that at this
meeting, Swennes:
.. told us that John had been released because of his
work he had done, and showed us - told us that the
Company benefits we was going to be getting and a new
pay rate wage scale had been worked up. And also that
we would be drawing lunch, overtime for lunches. We
would be getting new lockers and be a new deal for us
to work on around the strainers out there.
Osborn added, however, that they had had discussions
previously about new lockers. As he put it "they was
working on it, trying to get them in." Osborn further
admitted that Swennes made no mention about the Union
that day.
Employee Brown testified.
The meeting was called for the purpose to explain why
John Seaton was terminated They told us that John
hadn't been doing his work satisfactory and, in other
words, they had to let him go because his work wasn't
satisfactory up to that day . They would get us
lockers and try to improve the working conditions.
Brown further testified that at this March 7 meeting a
wage classification schedule was passed out showing the
wage rates that employees would be entitled to at various
periods of seniority. Brown, however, admitted that his
wages were not changed by that instrument but that the
instrument only "follows the pattern that my wage was set
on at the time" Brown, too, denied that any mention
was made of the Union at this meeting.
Thomas Hudson, president of the Respondent, testified
credibly that he established the wage progression plan
shown to the employees on March 7, as far back as
mid-1967, and that the wage rates shown to the employees
on March 7, were the same as those he had devised, with
the exception of the starting pay for helpers, not involved
in this proceeding. He further testified that the plans
pursuant to which the Bayport plant was built provided a
space for lockers but that the lockers were not installed
any earlier because management was "busy with trying to
start up the plant and we were looking for the best buy we
could get on lockers." As respects the overtime lunches,
Hudson testified that in the early part of March 1968,
when employee Osborn was asked to work overtime, he
[Hudson] learned that the Company was not giving
overtime lunches although it was a policy of the parent
plant, Southwest Chemical, to provide overtime lunches.
Consequently, Hudson ordered overtime lunches to be
given to the employees
The most that'can be said about the March 7 meeting
is that the employees learned for the first time that they
would be getting wage increases if they stayed with the
Company for certain extended periods in the future, that
they would be getting overtime lunches and that they
would be getting lockers. None of this was conditioned
upon any union or concerted activity among the
employees or abstention therefrom The wage progression
schedule represented no change in the wage being paid
and was in conformity with the wage increases previously
granted. The locker installation had been previously
discussed and was not unexpected by the employees. The
provision for overtime lunches was merely a reflection of
company policy which had inadvertently been overlooked
in the past. Counsel for the General Counsel would
connect management ' s mention of Seaton's discharge at
this meeting with the promise of benefits arguing that
SOUTHWEST LATEX CORPORATION
such connection demonstrates the Respondent's
discouragement of the employees' protected activities but
such connection was never made expressly or impliedly
Indeed, witnesses called on behalf of the General Counsel
testified that they were told Seaton had been discharged
for his poor work, and nothing was said of anyone's
protected activities
Counsel for the General Counsel also makes reference
to another meeting which took place on March 14, at
which time a set of "Employee Rules and Regulations"
was given to the employees. Among other things, these
rules provided for a 6-month period of probation for new
employees during which time such employees could be
terminated at the Company's discretion. President Hudson
testified credibly that this probationary period was
instituted in place of a 3-month probationary period
because it was found that, unlike the parent company,
Southwest Chemical, Southwest Latex operations required
a higher degree of skill necessitating a longer period to
check out an operator Counsel for the General Counsel
argues, however, that the purpose of the rule was to
restrain and coerce the employees from engaging in the
activities for which Seaton was discharged. The same
argument could be made of any probationary penod but
in this instance there is no evidence that the rule was
intended for that purpose or was used for that purpose,
"An unlawful purpose is not lightly to be inferred."
N L.R.B v Columbus Marble Works, 233 F.2d 406, 413
365
(C. A. 5) Nor are nondiscriminatory and business
motivated changes in working conditions violations of the
Act J S Dillon & Sons v. N L R B , 338 F.2d 395 (C.A.
10), Southeastern Motor Truck Lines 113 NLRB 1122
Counsel for the General Counsel has the burden to prove
unlawful motivation and effect. Quality Castings Co. v.
N L.R.B 325 F 2d 36 (C.A. 6), which he has failed to do
I conclude that there is insufficient evidence to sustain the
complaint's allegation of unlawful promises of benefits in
order to induce employees from becoming members of a
union or engaging in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
CONCLUSIONS OF LAW
General Counsel has failed to establish by a
preponderance of substantial credible evidence of
probative value that the Respondent discharged employee
John T Seaton, or interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act
RECOMMENDED ORDER
It is ordered that the complaint in Case 23-CA-2971 be,
and the same hereby is, dismissed