Kansas Refined Helium Co.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1037 (N.L.R.B. 1969)

KANSAS REFINED HELIUM CO. 1037
George A . Angle , d/b/a Kansas Refined Helium
Company and Oil , Chemical and Atomic Workers
International Union, AFL-CIO. Case 17-CA-3378
June 25, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 2, 1968, Trial Examiner George L.
Powell issued his Decision in the above-entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter , the Respondent , the Charging Party,
and the General Counsel filed exceptions to the
Trial Examiner ' s Decision and supporting briefs,
and the General Counsel filed an answering 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
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 the
findings , conclusions , and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , George A.
Angle, d/b/a Kansas Refined Helium Company,
Otis , Kansas , its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner' s Recommended Order.
'Cf. George A. Angle, d/b/a Kansas Refined Helium Company, 176
NLRB No. 115, concurrently issued herewith , wherein senior operators
were found not to be supervisors within the meaning of the Act.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner : This case was
tried before me at Great Bend , Kansas on January 23 and
24, 1968 . The complaint issued December 4, 1967, based
upon a charge and an amended charge filed on October
18, 1967 , and October 30, 1967 respectively. Briefs of the
parties were filed on February 21, 1968 . Presented is the
question of whether Respondent suspended employee Arel
Rodgers for cause or because of his membership and
activity on behalf of the Union , and whether he was
subsequently discharged because he acted as a witness and
gave testimony under the Act. Sections of the National
Labor Relations Act (29 U.S.C. Sec. 151, et seq . ), herein
called the Act, alleged to have been violated are 8(a)(3),
(4) and (1).
On the entire record of evidence , my observation of the
witnesses as they testified , and on due consideration of
briefs filed by Respondent and General Counsel, I find
that the General Counsel has established by a
preponderance of the evidence that Respondent violated
Sections 8(aX3), (4 ), and (1) of the Act by suspending
Arel Rodgers on September 19, 1967 and discharging him
on October 2, 1967.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Employer and the Labor Organization
I find that the allegations of paragraph 2 of the
complaint respecting the nature and volume of business
carried on by Respondent , a sole proprietor in the
business of refining and selling helium gas at a plant
located outside the corporate limits of Otis , Kansas, is
true and conclude therefrom that Respondent at all times
material herein was an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
There is no dispute as to this aspect of the case.
I also find and conclude that the Union , Oil Chemical
and Atomic Workers International Union , AFL-CIO,
herein called Union or Charging Party , at all times
material herein has been a labor organization within the
meaning of Section 2(5) of the Act, another aspect of the
case not controverted.
B. Background
It is essential to know the background of this case in
order to understand the happenings in September and
October 1967.
Arel Rodgers had been an employee of Respondent
since approximately July 1965. At that time the plant was
in the final stages of construction and Rodgers was
involved in the initial start of production . He was a senior
operator whose duty, according to him , was to run a
control panel and to direct the other two junior operators
and "keep them on a string ." A little over a year later, on
September 20, 1966, he, with five others , was discharged.
This followed the advent of the Union and led to the
issuance of an unfair labor practice complaint . However,
before the complaint proceeding came to trial , the Board
instituted Section 10 (j) injunction proceedings under the
Act, in an effort to get the dischargees reinstated, in the
District Court for the District of Kansas which
proceedings took place in January 1967 . Then the
complaint proceedings came to trial before Trial
Examiner Sidney Goldberg . Some 4 months after the
injunction proceedings were heard in January, the District
Court, on April 5, 1967, issued a temporary injunction
and ordered the reinstatement of the six employees should
they desire to go back to work prior to any Board
decision . Only two of the six elected to return to work,
one was Junior Operator Thomas Garrett , and the other
was Senior Operator Rodgers. Rodgers returned to work
on July 19 , 1967. Robert Martin , attorney for
Respondent, admitted that when Rodgers returned to
work "he was being trained in a supervisory capacity,
176 NLRB No. 1 16
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actually he was in training . . . and not fully performing
the duties [of a senior operator]."
On July 20, 1967, the day following Rodgers ' returning
to work , the Board filed a petition for civil and criminal
contempt.
On August 9, 1967, Trial Examiner Sidney Goldberg
reopened his hearing to include in the complaint an
allegation of violation of Section 8(aX5) of the Act.
On August 28, 1967, the United States Court of
Appeals for the Tenth Circuit modified the District
Court's injunction of April 5, 1967, by reversing as to
Rodgers , on the ground that the question of whether he
was a supervisor should be decided by the Board.
On September 12, 1967, Trial Examiner Goldberg
issued his decision finding : 1) that senior operators were
not supervisors within the meaning of the Act (in a
previous representation case the Regional Director had
found senior operators to be supervisors ); and 2 ) that the
discharge of the six employees violated Section 8 (axl) and
(3) of the Act requiring their reinstatement.
On September 13, 14, and 15, 1967, the civil and
criminal contempt proceedings (which had been filed on
July 20, 1967) was heard in the Federal District Court
following which the Judge in a bench decision , denied the
Board ' s petition.
On September 20, 1967, Rodgers was suspended for
various reasons outlined in a letter dated September 19,
1967, of which more will follow , and, on October 2, 1967,
Rodgers was discharged by letter bearing the same date,
of which more will be said later.
This matter relates only to the question of whether
Rodgers' suspension of September 20, and his discharge of
October 2, 1967, were in violation of the Act. On August
9, 1967, Rodgers had appeared under subpena at the
reopened hearing , above, although the General Counsel
presented no witnesses at the August 9 proceeding.
Rodgers did appear and did testify on September 13, 14,
and 15, 1967, as a witness under subpena for the Board in
the above civil and criminal contempt proceedings.
C. Rodgers' Reinstatement
According to Plant Manager Henry Tyler, when
Rodgers returned to work on July 19, 1967, under the
injunction order , Rodgers was to be treated as " . . . an
older , valued employee that had been ill and away and
[Tyler was] to do everything he could to get him
re-oriented as soon as possible ." Tyler also received
specific instructions from Angle and his lawyer, Marvin
Martin , over the telephone and then received a written
summary of some 18 or 20 specifics having to do with the
treatment of Rodgers . Tyler testified there was to be "no
harassment , not to reprimand him or if he did so to go
through counsel ...."
Upon returning to work on Wednesday July 19th,
Rodgers was given some training manuals and flow charts
and was told to study, as a refresher , the manuals and
color the flow charts in the office of Harry Harms, plant
engineer who was on vacation . Tyler also had questions he
would ask Rodgers to answer . After receiving these
instructions , Rodgers asked permission, to get a cup of
coffee. Tyler replied, "No, I want you to stay here. I want
to post a notice on the bulletin board because the men
don't know you are back to work and I want to save any
embarrassment so I will post a notice on the board first."
Tyler returned to where Rodgers was working in Harms'
office about an hour and a half later and gave permission
to get the coffee. Also on the first day back to work
Rodgers said "hello, George" (previously he customarily
called Angle by his first name ) as he saw Angle standing
at the bulletin board cleaning his finger nails with a
pocket knife . Angle looked at Rodgers but did not speak
to him . Later in the day Rodgers passed Tyler's office on
his way to get a cup of coffee and heard Angle tell Tyler,
"I would like to get that sonofabitch [sic] outside ," and as
Rodgers passed the room , Tyler and Angle saw him and
they "just kind of ducked a little bit."
No notice was posted on the bulletin board informing
the employees of Rodgers' returning to work. Except for
getting coffee , Rodgers never left Harms' office from the
day he returned to work on Wednesday, July 19, through
the end of the workday, Friday, July 21. After work that
day, according to Rodgers , " I asked Mr . Tyler if it would
be all right if I went to the maintenance building or any
place I wanted to go in the plant." "He [Tyler] said it
would be fine ." Thereafter, from time to time Rodgers
would leave Harms ' office, go into the plant , and examine
a piece of equipment and then return to his office in order
to write out an answer to various questions submitted by
Tyler. This activity continued for a period of "2 or 3
weeks."
From time to time Tyler would ask Rodgers questions
regarding the retraining program . At one of these
instances , Rodgers suggested that if he were retraining a
man, he would put him right where he was going to work
"and get him to do the job himself." Thus, Rodgers was
suggesting that he be put back on the Board where he had
been before his discharge . Tyler did not do this. At
another time Tyler told Rodger that he thought he might
put Rodgers out with a junior operator to help speed up
the retraining program . Tyler never did this, however.
Although Tyler testified regarding Rodgers' reorientation
that Rodgers was "noncommittal" when asked questions
and that sometimes he "didn't respond " or "he got no
reaction from him" he had earlier testified in a deposition
that he had no complaints about Rodgers ' conduct on the
job as to the way he conducted himself and that he did
not argue with anybody.
For his retraining , Tyler wanted Rodgers to watch the
senior operators and ask questions when necessary. When
this began is not clear but it did not begin during the first
3 days of Rodgers ' reemployment . Tyler told the senior
operators, in Rodgers ' presence , to train him "in the
normal manner and to make their move to explain why
they made it ." But they did not at all times explain their
moves and tell him why they made them . Whether this
failure was because Rodgers already knew the moves and
why they were made (because he was a former senior
operator and indeed had trained Merle Smith who had
taken his place as senior operator in September 1966 and
who testified to some embarrassment in "training"
Rodgers) or whatever the reason , the record does not
show it and the burden to explain the failure was on
Respondent.
Rodgers performed duties in addition to those which
were told him to do, above . For example he rearranged
some operational manuals, made new cards for the
conversions for the control panel , familiarized himself
with the three new instruments which had been installed
on the panel and started taking readings on them every 2
hours . Prior to his September 1966 first discharge he had
run the control panel alone , without any higher authority.
He asked questions during his retraining but only when he
felt a need to do so to understand why the senior
operators were doing a particular thing.
KANSAS REFINED HELIUM CO. 1039
Analysis of the Retraining Program
Tyler's point about Rodgers being noncommittal has
little weight with respect to any question of whether
Rodgers was cooperative in his retraining. Apparently
Tyler wanted Rodgers to comment when he asked him if
it would do him any good to be sent out with a junior
operator. Consider this in the light of knowledge that
Rodgers had previously been a senior operator over two
junior operators. Only Tyler knew of the new changes in
the plant since Rodgers had been a senior operator and
only Tyler would know the answer to his question. If
Rodgers answered in the affirmative, it would be evidence
that Rodgers himself felt the need of retraining even as a
junior operator. If his answer was in the negative, it would
be evidence of lack of cooperation with Respondent in its
new expanded plant operation. Being noncommittal,
Respondent maintains that Rodgers' conduct falls within
the area of being noncooperative. This position is not
sustainable.
An abundance of time was taken at the trial by
Respondent in an effort to establish the point that
Rodgers, after being reinstated on July 19, had lied to the
Board in order to get the Board to prosecute Respondent
for civil and criminal contempt. At the instant trial,
Rodgers testified that he was not allowed the run of the
plant until he asked Tyler for permission to do so at the
close of the day on Friday, July 21, his third day back at
the plant. For the first 3 days of his reinstatement he was
confined to the office of Harms except for coffee. Tyler
told him he was going to post a notice on the bulletin
board that Rodgers was back to work before Rodgers
could go into the plant, but such notice was not posted.
Rodgers could reasonably conclude he was not permitted
into the plant.
There would be a variance with the record in this case
if Rodgers had testified in the contempt proceedings that
he was kept in a cubicle (Harms' office) more than the
first 3 days following his reinstatement under the
injunction. As Respondent has alleged that Rodgers lied
in the contempt proceedings it has the burden to prove the
lie. Testimony from the contempt case , read into the
record by Respondent, is to the effect that after Friday,
July 21 Rodgers was not restricted to Harms' office. This
is consistent with the testimony in the instant case, and
Respondent has not proven Rodgers lied. Counsel for
Respondent attempted to make more of the word cubicle
then is possible and, indeed, the Trial Examiner himself in
the heat of the trial called the attention of the General
Counsel to the fact that Rodgers said nothing at this trial
about being kept in a cubicle and, hence, his testimony
varied. Upon a careful examination of the record, free
from the trial arena , I find it immaterial that Rodgers
used the phrase cubicle in the contempt matter but not in
the instant matter, as what was being referred to in both
instances was the same thing, Harms' office.
Likewise, Rodgers did not lie when he told the General
Counsel before the civil and criminal contempt
proceedings were instigated that he was confined in the
"cubicle." That was the fact at that time as the contempt
matter began on July 20 before Rodgers obtained
permission to go into the plant. Rodgers also had told the
General Counsel that he had not been reinstated properly
under the injunction as he was not reinstated as a senior
operator but rather he had been reinstated in a training
position. Respondent's counsel admitted this latter fact so
there could have been no "lie" to instigate the contempt
matter.
Finally, Respondent can not sucessfully claim that the
dismissal of the contempt matter went to the merits of the
action, clearing Respondent of the allegations made
therein by the General Counsel thereby establishing that
Rodgers lied in order to bring the contempt matter. The
reason Respondent cannot do this is because there are
many reasons, e.g., lack of proof beyond a reasonable
doubt and removal of the injunction, why the District
Court would dismiss from the bench in these
circumstances.
D. Rodgers' Suspension and Discharge
Rodgers participated in the civil and criminal contempt
proceedings by testifying on September 13, and by being
present in an advisory capacity to the General Counsel on
September 14 and 15, 1967.' As noted above, the Federal
District Court denied the Board's petition for civil and
criminal contempt in a decision from the bench with no
reasons being given.
On the following day, Saturday, September 16, 1967,
Rodgers came to the plant and picked up his check. While
there, he engaged in conversation, for up to 40 minutes,
with two junior operators, a senior operator and a
maintenance man. He talked about the recently issued
(September 12) decision of Trial Examiner Goldberg. He
had a copy of the decision and let some of the others read
its Appendix. There was discussion among them as to
whether or not Angle would sign the Appendix but
Rodgers was of the opinion that it would be posted. They
also talked about the contempt of court proceedings which
had just been concluded. Rodgers told them, "We had
taken a real drubbing there ...... Before he left the plant
that day Rodgers saw Harry Harms, the plant manager,
but had no conversation with him. There were no rules in
effect that the plant was not open to employees who were
not on duty. In fact, many employees visited the plant
during their off-duty hours. Saturday was off duty for
Rodgers.
The event which admittedly triggered the suspension of
Rodgers occurred the following Tuesday, September 19,
1967. Rodgers was on a shift that worked from 8 a.m. to
4 p.m. At around 2 or 2:30 p.m. Rodgers, standing in the
hallway in front of Tyler's office when Tyler came by,
asked Tyler if he had a few minutes for a talk. Tyler
replied that he would have the time and invited Rodgers
into his office where the two sat down. Rogers, with
reference to the Sidney Goldberg decision above, asked
Tyler if the "Goldberg ruling had to be posted." Tyler
replied that he did not know, but if it was supposed to be
posted Respondent would post it because it had posted
everything in the past. Rodgers then said, "Well, I don't
know whether it does have to be. Do you know for sure?"
When Tyler replied that he did not know for sure,
Rodgers called his attention to what was said in the
Appendix of the decision that if there were questions they
should call Kansas City. He then asked Tyler if it would
be all right if he could make a telephone call. Tyler gave
permission and Rodgers went to his car to get his copy of
the Goldberg decision before making the call. On his
return, he went into Harms' office to use his telephone,
but before doing so, asked Tyler if it would be all right to
use Harms' telephone. At that time Tyler replied "No,
you can't talk." Rodgers asked him if he meant that he
couldn't call at all and was told "you can't call now." At
'By letter dated September 27, 1967, Angle refused to pay Rodgers for
the latter 2 days.
1040 DECISIONS OF NATIONAL
that time , Rodgers pointed to the bottom of the Goldberg
decision , wherein , it states "If employees have any
questions concerning this notice or compliance with its
provisions , they may communicate directly with the
Board ' s Regional Office, 610 Federal Building , 601 East
12th Street, Kansas City, Missouri 64106, Telephone FR
4-5181." At that point Tyler told Rodgers "I don't even
know if this is the right thing . I am going to call
Wichita." Rodgers replied , "Well, after you call Wichita
if they say it is all right, can I go ahead and call them
up?" Tyler replied "as it stands now you can't call."
Rodgers said "Okay" and went back to his job in the
control room . This whole incident lasted from 3 to 5
minutes, including the time it took Rodgers to go to the
car for the copy of the decision . The above facts are based
on the credited testimony of Rodgers . Tyler admitted that
following the conversation with Rodgers he telephoned
Angle twice before the end of the day and once more in
the evening about Rodgers . The first call went "ten or
fifteen minutes" and the "second one was longer."
The following day, September 20, 1967, shortly after
Rodgers reported for work, Tyler had him come to his
office where ne handed him an envelope and told him to
open it and read the letter enclosed therein . After Rodgers
had read the letter , which suspended him until further
notice , Tyler told him to get his lunch bucket and then he
accompanied Rodgers to the main gate of the plant.
The letter which Tyler handed Rodgers was dated
September 19, 1967. It was introduced into evidence as
General Counsel's Exhibit No. 4 and, except for the
headings , it is reproduced in full as follows:
Henry Tyler has reported to me the events of today in
which, as I understand it, you insisted that certain
written material be posted immediately on the plant
bulletin board by Mr. Tyler; insisted that he read this
document that you had in your possession; and
attempted to make a private long distance telephone
call from the plant and when Mr. Tyler refused to allow
you to do so on company telephone and company time,
you questioned him repeatedly as to whether this was
his final decision.
This conduct by you occurred on a day when the plant
was off-line and certain emergency conditions occurred
and recurred. Mr. Tyler was extremely busy, as was
everyone else in the plant, but you saw fit to select this
time to create a disturbance concerning matters for
which you have no responsibility and which are entirely
foreign to your duties in the plant.
I want you to understand that Mr. Tyler is in charge of
this plant and you are not in charge of it, and you will
not be allowed to dictate to Mr. Tyler what is to go on
the bulletin board or anything else with respect to the
operation and maintenance of this plant and its
personnel.
I also wish to inform you that I agree completely with
Mr. Tyler' s decisions in this matter . You will not be
permitted to make or transmit reports to the NLRB or
anybody else outside the plant , on company time or
with the use of company facilities. Whatever complaints
you may have as to the management of this company or
the plant operations , you are completely free to report
to anyone you choose so long as you do it on your own
time.
As the result of today' s activities , you are suspended
until further notice from me, in writing. Your
suspension is effective immediately and is without pay.
LABOR RELATIONS BOARD
You are not to come on the company premises during
the period of your suspension . Your check for wages
due you through today will be sent to your home.
Very truly yours,
KANSAS REFINED
HELIUM COMPANY
George A. Angle
GAA:mvs
cc: Mr . Henry Tyler
By letter dated September 27, 1967, (G.C. Exh. 6)
Respondent sent Rodgers a check covering "the pay
period ended September 17 plus the 2 days September 18
and September 19." This was the letter telling Rodgers he
was not being paid for September 14 and 15, 1967 because
he had concluded his testimony on September 13 and was
merely advising the General Counsel the other 2 days.
Some 5 days later on October 2, 1967, Angle wrote the
letter to Rodgers which discharged him. This appears in
the record as General Counsel ' s Exhibit No. 5, and,
because reasons for the discharge are given in the letter,
the body of it is set forth completely as follows:
Dear Mr. Rodgers:
During the time that you have been on suspension
from the Kansas Refined Helium plant , I have obtained
detailed reports from the plant personnel respecting the
incident which brought on the suspension and, in
addition , I have reviewed carefully your performance in
the plant and your activities and attitude over the entire
sixty-day period of your employment from July 19 to
September 19.
The information now at hand is sufficient to convince
me that the events in which you were involved on
September 19, were not just an isolated instance of
misconduct , but, instead , were part of a recurring
pattern of behavior from which it is perfectly clear that
you are in the plant for the purpose of causing trouble
for me and for the employees, rather than to perform
the work and services for which you are paid. The
principal events and circumstances to which I refer are
these:
In addition to interfering with Mr. Tyler's
management of the plant in the manner described in my
letter of suspension , I have since learned that on the
preceding Saturday , you came to the plant during your
off-duty hours and talked to some of the employees
who were on duty, about the N. L.R.B. Examiner's
Report, and expressed opinions to them that KRH was
required to post copies of the Report and made various
observations about the affect of this Report on the
plant and its personnel.'
At the time you were reinstated, and for several days
thereafter , it appears to me that you must have given
untruthful accounts of the value and nature of the
reorientation program which Mr. Tyler and I had
worked out for you. I base this chiefly upon the fact
that the statements of the National Labor Relations
Board lawyers and their claims to the Court, are utterly
inconsistent with your later testimony under oath on
depositions and at the trial . Furthermore, your
testimony in the depositions and at the trial of the
contempt action was not accurate and departed from
the testimony of others and from information furnished
to me by other people at the plant . In other words, it
seems clear to me from what took place in the
contempt hearing , that you deliberately set out to give
false reports and help build a case of contempt against
KANSAS REFINED HELIUM CO. 1041
me which was not justified by the facts.
During the time that you have been reemployed, you
have kept notes concerning the activities of Mr. Tyler
and other supervisors in the plant, taken, down
information concerning my telephone calls and requests
for information at the plant , and you have turned this
information , which really was none of your business,
over to government authorities , presumably in the hope
that it would be useful in the attempted prosecution for
civil and criminal contempt . I want to make it clear
that I think you have the right to talk to government
authorities or N.L. R.B. lawyers or anyone else, and
you have the right to convey complaints to them, so
long as they are truthful , which , I am of the opinion,
they have not always been . But truthful or not, you do
not have the right to spend time at the plant while I am
paying you, gathering and writing down information
which is really none of your concern , for any purpose,
or to pass along to anyone , and that is what you have
been doing.
The fact that you intend to continue utilizing
company time to gather information which you think
might be used to my disadvantage , is amply supported
by your testimony in the depositions taken in the
contempt action . You made it clear in your testimony
that you would continue to use company time to gather
and write down information as long as you felt it was
to your advantage personally.
I believe that one of the most serious departures
from proper conduct , is revealed by one of the
notations in your notebook which I first learned about
during the contempt trial and which I believe was to the
effect that when Mr . Tyler asked you questions during
your retraining program in order to find out what you
had learned and what you had not learned in the
program, you were very noncommital in your answers.
I am again convinced that this was a deliberate effort
on your part to impair the effectiveness of a retraining
program which Mr. Tyler was administering in good
faith, at my instructions , and for your education so that
you could assume normal duty in the plant. In this
connection , I have also been furnished information
from other employees to the effect that you did not
seriously attempt to retrain yourself, but rather, stood
around without asking questions or giving any
indication of what you needed to learn in order to be
properly trained to do your job.
You have presented me with very serious problems
from the standpoint of your relationship with other
employees in the plant , and these arise from two
sources:
First, in the latest N.L.R.B . hearing , although
subpoenaed as a witness by the government, you were
not called upon to testify, but instead , sat beside the
government lawyer and transmitted information to him
from which to examine and cross-examine other
employees in the plant . I could understand this and
even overlook it, but your fellow employees resented it
and I can understand their attitude as well.
Second , is the fact that according to other
employees , some of the information which you gave
from the witness stand in the contempt hearings and
particularly your testimony that certain senior
operators had neglected to carry out Mr. Tyler's
instructions respecting your retraining , were false. This
was a reflection upon your fellow employees which they
deeply resented.
You are aware, of course , that since the decision of
the Court of Appeals , I have had no obligation to
continue your temporary reinstatement ; however, I had
made up my mind to continue your employment in the
hope that you would straighten out after the contempt
action was over , enter into the retraining program and
become a good and qualified employee . I thought that
once that case was successfully defended , perhaps you
would stop your efforts to harass the management of
KRH and the other employees, but it is perfectly
apparent from your conduct between Friday , September
15, and Tuesday, September 19, when you were
suspended , that your attitude and your conduct have
not changed . It is now perfectly clear to me that you
will not straighten out and will not become a
satisfactory employee and that your continued presence
in the plant will serve only to create difficulties between
yourself and other employees , and continue to take the
time and attention of Mr . Tyler and myself, and others
who have the responsibility for the management and
operation of that plant.
The Kansas Refined Helium plant is not a shoe
factor or assembly line operation . This plant is a very
technical, complex plant , the first volume liquid helium
plant ever built, the largest liquid helium plant in the
world . It is a highly automated plant , but it is
dependent entirely on the individual decisions made by
the plant personnel. Often these decisions must be made
within the matter of seconds both by the senior
operator , charged with the responsibility of running the
plant , and any one of the junior operators , under his
supervision . Therefore, it is important that all KRH
operating personnel be entirely familiar with the plant
and their duties, alert and constantly 100% attentive to
their duties in order to prevent a mistake that could
possibly amount to thousands of dollars, and perhaps,
injure or kill other employees . This responsibility falls
primarily on the senior operator who is in complete
charge of the plant operations and the operating
personnel under him. I have several years of my life
and most of my assets at stake in the sucessful
operation of this plant. Given a choice , I cannot afford
to have employees in the plant who have a desire to
embarrass or harrass the plant management , and who
spend their time doing something else than learning
their job and performing it.
Under these circumstances, I feel that I have no
alternative but to discharge you, and that is the purpose
and ultimate conclusion of this letter . I want to make it
clear to you , again, that I have, in the past and will, in
the future, comply with the orders of any court
rest ecting the employment, continued employment, or
reinstatement of any employees; but so long as I am
free to determine whether or not I will employ you, I
will have to base the decision upon your attitude and
your performance , and its comparison with the attitude
and performance of other employees . I am sorry that
your reinstatement at the plant has not been successful,
but it has been entirely the result of your own conduct.
Very truly yours,
George A. Angle
E. Respondent's Defense, Analysis and Conclusions
There are three issues , according to the brief filed by
Respondent , in this matter and they are as follows:
1. Does the Board have jurisdiction to move on the
dismissal of Rodgers who was "temporarily reinstated"
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under a Federal District Court injunction?
2. Is Rodgers a "supervisor?"
3. Was Rodgers ' false statement to the National Labor
Relations Board which caused unfounded civil and
criminal contempt proceedings to be brought against
Respondent , together with Rodgers ' other activities proper
grounds for dismissal , regardless of his supervisory or
temporary reinstatement status?
As to 1 ), Respondent argues that the Board ' s authority
is limited to protect employees relative to permanent
employment but the District Court had authority for
temporary employment under a temporary injunction.
Accordingly , when Rodgers resumed work in July 1967, it
was under temporary reinstatement from the District
Court' s injunction, and hence, the Board had no
jurisdiction over this temporary reinstatement. This
proposed reading is a notable example for looking at the
bright side of a subject under scrutiny , but I find the
words will not bear the suggested interpretation . It is true
that the District Court is the forum for raising a question
of whether or not a reinstatement under a temporary
injunction fulfills the Court' s order , but the National
Labor Relations Act protects the employee from
subsequent discrimination once compliance with the Court
Order is met . Rodgers ' suspension and discharge were not
made because the injunction had been lifted by the Circuit
Court of Appeals . This is clearly stated by Respondent in
its letter dated October 2, 1967 , in which Angle stated
"You are aware , of course , that since the decision of the
Court of Appeals , I have had no obligation to continue
your temporary reinstatement ; however , I had made up
my mind to continue your employment in the hope that
you would straighten out after the contempt action was
over , go into the retraining program and become a good
and qualified employee ." This established the fact that
Rodgers was retained as an employee after the District
Court ' s injunction had been removed. Thus, the
jurisdiction of the District Court had been lifted.
As to the second proposition , or question of whether
Rodgers was a "supervisor" it is enough to say that this
question need not be resolved in this case. Whatever
Rodgers ' position was as a senior operator before his
discharge in 1966, it is clear that from July to September,
1967 he was not a senior operator by the admission of
Respondent ' s own counsel , and was no "supervisor" in
these proceedings . This does present a problem with
respect to the Remedy. A remedy of reinstatement in this
case could only go to reinstatement of Rodgers as an
employee undergoing a retraining program for senior
operators as that is all that is before me. Hence I do not
pass on the question of reinstatement under the Goldberg
decision , but if such is finally ordered , it, and not this
decision , will govern the ultimate reinstatement of
Rodgers.
As to the third issue in the brief , I have already
discussed and found that Respondent did not sustain the
burden of proof that Rodgers gave false statements and
hence, this could not have been a cause for the discharge.
As to the other activities they are related in the above
letters and will be taken up in order . Respondent states in
its letter of September 19 that Rodgers " insisted" on
"immediately" posting material on the bulletin board and
"insisted" that Tyler read the document , and attempted to
make a long distance telephone call all at a time when the
plant was undergoing emergency conditions. Angle
characterized Tyler as being "extremely busy, as was
everyone else in the plant ," and that Rodgers selected this
time "to create a disturbance ." The credited testimony
however is to the contrary .' Rodgers first asked Tyler if
he had a few moments for a discussion and Tyler invited
him into his office where they sat down and discussed the
problem . At the time of the discussion with Rodgers,
Tyler did not indicate that he was under pressure or that
Rodgers was making a nuisance of himself or was not
performing something he should have been doing in an
emergency situation . When Tyler told Rodgers that he
could not make the telephone call, that ended the matter
and Rodgers left. This activity of Rodgers cannot fairly be
said to rise to the importance of his attempting to "dictate
to Mr . Tyler what is to go on the bulletin board or
anything else with respect to the operation and
maintenance of this plant and its personnel." Rodgers had
a protected right to discuss the Goldberg decision after
securing Tyler's permission to talk for a few minutes.
Whether or not in fact there was an "emergency
situation," Tyler took much more time in making two
telephone calls that day to Angle reporting on Rodgers
than he took up in talking to Rodgers . Tyler admitted
spending "ten to fifteen minutes" in his first call and
longer ;n the second . Thus he was not too busy to talk to
Rodgers.' Accordingly , I find that the reason given for the
suspension is a pretext and that the real reason, was
Rodgers ' attempt to get the Goldberg decision posted on
the bulletin board which conduct would fall within
protected activity within the meaning of the Act. By
suspending him without pay under these circumstances
Respondent discriminated against Rodgers in regard to
tenure and terms and conditions of employment to
discourage union activity in violation of Section 8(a)(3)
and (1) of the Act.
As to the discharge letter of October 2, 1967,
Respondent indicates in the second paragraph that
Rodgers ' activities were causing him trouble . As the only
activities established by the evidence was protected union
activities it is clear that these were motivating Angle. The
first instance referred to was the protected union activity
of Rodgers in discussing the Goldberg unfair labor
practice decision on Saturday with some other employees.
The second incident relates to the allegation that Rodgers
gave untruthful accounts which allegation has not been
substantiated as found above . The next allegation in the
letter has to do with notes Rodgers took. He admitted to
taking notes, about which there was no restriction or rule.
He was doing this for his own information and protection,
and he refreshed his recollection in giving testimony in the
contempt case from the notes . Under these circumstances
Respondent cannot persuasively urge me to believe this
had anything to do with his discharge . The point
concerning the reference by Rodgers that he was
"non-committal" has been previously discussed and found
to lack merit . Respondent then admits that Rodgers'
testimony at the National Labor Relations Board hearing
had something to do with his discharge. This is an
admission of a clear violation of Section 8(a)(4) of the
'The demeanor of the witnesses has played a most important part in my
crediting Rodgers over witnesses for Respondent where testimony was in
direct conflict . Rodgers was subjected to highly critical and sharp
cross-examination by Respondent ' s counsel yet his testimony had the ring
of truth and sincerity On the other hand , Respondent's witnesses, on
crucial testimony, appeared to flounder and seemed embarrassed over what
they were saying
'Tyler then changed his testimony and said the calls to Angle were short
although the second one involved a conference call with the attorney
involved . I believe his first impression is more accurate and was given
before he had fully thought out all of the consequences
KANSAS REFINED HELIUM CO. 1043
Act, and I so find . As the testimony given by Rodgers has
not been found false there could be no legal grounds for
fellow employees to be resentful and this excuse for the
discharge is found to be without merit . Accordingly, I find
that the letter of October 2 , 1967 is an admission by
Respondent that one of the reasons , and indeed a
controlling reason , for Rodgers ' discharge was because he
gave testimony in a Board proceeding . Employees are
protected from discharge for this reason by virtue of
Section 8(aX4) of the Act.'
CONCLUSIONS OF LAW
1. Respondent is, and during all times material has
been , an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union , Oil, Chemical and Atomic Workers,
International Union , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The General Counsel has established by a
preponderance of the evidence that Respondent has
violated Section 8(a)(1), (3) and (4) of the Act as set forth
above . The Remedy therefor will be provided below.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom , and that it take certain affirmative
action designed to effectuate the policies of the Act in the
particulars set forth in the Recommended Order . For the
reasons which are stated in Consolidated Industries, Inc.,
118 NLRB 60, 61, and cases cited therein, I shall
recommend a' broad cease -and-desist Order . Where the
recommendation is to make an employee whole for any
loss of earnings suffered as a result of discharge or other
discriminatory action , the sum to be paid to him shall be
computed in accordance with the formula set in F. W.
Woolworth Company , 90 NLRB 289, with interest
thereon at 6 percent per annum , as provided in Isis
Plumbing & Heating Co ., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
it is recommended that The Respondent, George A. Angle
d/b/a Kansas Refined Helium Company, its officers,
agents , successors and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Oil, Chemical and
Atomic Workers , International Union, AFL-CIO, or any
other labor organization , by suspending employees or by
discriminating against employees in any other manner in
regard to hire, tenure, or any other term or condition of
employment.
(b) Discharging or in any other manner discriminating
against employees because they have given testimony in a
proceeding under the Act.
(c) In any other manner interfering wish, restraining, or
coercing its employees in the exercise of their right to
self-organization , to form, join, or assist Oil, Chemical
and Atomic Workers, International Union, AFL-CIO, or
'Sec. 8 (a) It shall be an unfair labor practice for an employee -
(4) to discharge or otherwise discriminate against an employee because
he has filed charges or given testimony under this Act.
any other labor organization , and to engage in other
concerted activities for the purpose of collective
bargaining or mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all such
activities.
2. Take the following affirmative action which I find
will effectuate the purposes of the Act.
(a) Offer to Arel Rodgers immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges previously enjoyed , and make him whole for
any loss of pay he may have suffered by reason of the
Respondent' s discrimination against him, in the manner
described in "The Remedy" Section of this Decision.5
(b) Notify Arel Rodgers , if 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 and
Training Service Act , as amended , after discharge from
the Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports , and all other
records necessary to analyze the amount of backpay due.
(d) Post at its plant located outside the corporate limits
of Otis, Kansas, copies of the attached notice marked
"Appendix."' Copies of said notice on forms provided by
the Regional Director for Region 17, shall be signed by
George A . Angle , d/b/a Kansas Refined Helium
Company. The posting shall take place 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 such notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of receipt of this
Decision , what steps Respondent has taken to comply
herewith.'
'It is understood that if the final outcome of the "Goldberg decision,"
referred to herein , is that Rodgers is to be reinstated as a senior operator,
or its equivalent , it takes precedence over this case as to the job to which
Rodgers' should be reinstated.
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 17, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in Oil,
Chemical , and Atomic Workers, International Union,
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, or any other labor organization, by
suspending employees or by discriminating against our
employees in any other manner in regard to hire,
tenure , or any other term or condition of employment.
WE WILL NOT discharge or,in any other manner
discriminate against our employees because they have
given testimony under the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization , to form labor organization,
to join or assist the Union , or any other labor
organization , or engage in other concerted activities for
the purpose of collective bargaining or other such
mutual aid or protection as guaranteed in Section 7 of
the Act, or to refrain from any or all such activities.
WE WILL OFFER to Arel Rodgers , full reinstatement
to his former or substantially equivalent position
without loss of seniority or other rights and privileges,
and make him whole for any pay he lost because of the
discrimination against him with interest.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of Oil,
Chemical and Atomic Workers, International Union,
AFL-CIO, or any other labor organization.
Dated By
GEORGE A . ANGLE,
D/B/A KANSAS REFINED
HELIUM COMPANY
(Employer)
(Representative ) (Title)
Note: Notify Arel Rodgers if 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 of 1948 , as amended, after discharge
from the Armed Forces.
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, 610 Federal
Office Building , 601 East 12th Street, Kansas City,
Missouri 64106 , Telephone 374-5282.