Lion Elastomers

National Labor Relations Board - Board Decisions

May 29, 2020

369 N.L.R.B. 88 (N.L.R.B. 2020)

369 NLRB No. 88
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lion Elastomers LLC and United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Al-
lied Industrial and Service Workers Interna-
tional Union, Local 228. Cases 16–CA–190681,
16–CA–203509, and 16–CA–225153
May 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On April 25, 2019, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel and the Charging Party Union each filed answering
briefs, and the Respondent filed a reply brief. In addition,
the General Counsel and the Charging Party Union each
1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
positions of the parties.
2 The Respondent has excepted to the judge’s denial of its request for
a copy of an affidavit given to the regional office by a witness who was
called to testify by the Respondent and not by the General Counsel or the
Charging Party, or an adverse inference regarding that affidavit. For the
reasons stated by the judge, we affirm his denial of the Respondent’s
request.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
We agree with the judge that the Respondent violated Sec. 8(a)(1) by
threatening employee Joseph Colone with discharge when the Respond-
ent’s production manager, James Mosley, pointing his finger at Colone,
said: “You ain’t gonna make it.” Colone asked Mosley what he said, and
Mosley repeated it. We rely particularly on the facts that Colone, a union
representative of many years’ standing, is an active grievance filer, and
Mosley made and repeated the statement during a heated argument at a
grievance meeting where he and plant manager Tony Wisenbaker openly
expressed their hostility toward Colone’s grievance-filing activity.
Contrary to his colleagues and the judge, Member Emanuel would not
find that Mosley’s comment to Colone was unlawful. Member Emanuel
finds that the statement is open to interpretation and too vague to consti-
tute a threat of discharge. See Phoenix Glove Co., 268 NLRB 680, 680
fn. 3 (1984) (reversing the judge and dismissing an allegation that the
employer issued a threat when a supervisor told an employee that em-
ployees did not need a union and would be “messing up” if they got one;
the statement was “too vague and ambiguous to rise to the level of a vi-
olation . . .”).
In addition, we agree with the judge that the Respondent violated the
Act by disciplining Colone on July 20, 2017, for his conduct at the July
12, 2017 safety meeting. Unlike the judge, however, we do not pass on
whether Colone engaged in protected concerted activity at that meeting
under the Meyers Industries cases. 268 NLRB 493 (1984) (Meyers I),
filed limited exceptions, and the Respondent filed answer-
ing briefs.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,2 find-
ings,3 and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.4
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 5 and
renumber the subsequent paragraphs accordingly.
“5. The Respondent violated Section 8(a)(3) and (1) by
disciplining Colone on July 20, 2017, for engaging in pro-
tected union activity.”
ORDER
The National Labor Relations Board orders that the Re-
spondent, Lion Elastomers LLC, Port Neches, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert.
denied 474 U.S. 948 (1985), on remand Meyers Industries, 281 NLRB
882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Instead, we find,
consistent with the complaint allegations, that Colone was acting in his
protected capacity as a union representative when he raised concerns
about the employees’ working conditions to the Respondent’s safety
manager at the safety meeting. See Entergy Nuclear Operations, Inc.,
367 NLRB No. 135, slip op. at 1 fn. 1, 12 (2019) (finding that union
steward Amaral engaged in union activity when she raised concerns
about a working condition to the respondent’s employee concerns pro-
gram coordinator). We also agree with the judge, for the reasons he
states, that Colone did not lose the Act’s protection by his conduct at the
meeting. As a result, we find that the Respondent violated Sec. 8(a)(3)
and (1) by disciplining Colone for his protected union activity at that
meeting. See, e.g., Success Village Apartments, 347 NLRB 1065, 1069
(2006).
Finally, we agree with the judge, for the reasons he states, that the
Respondent violated Sec. 8(a)(3) and (1) by discharging Colone on June
8, 2018, because he engaged in union activity.
4 In his limited exceptions, the General Counsel correctly observes
that the judge failed to properly remedy the Respondent’s unlawful July
20, 2017 discipline of Colone. We thus amend the judge’s conclusions
of law to reflect the violation found and amend the remedy to require the
Respondent to rescind that disciplinary action, remove from its files any
reference to it, and notify Colone in writing that this has been done. We
deny, however, the Charging Party’s request for a notice-reading remedy
because we find that the Board’s standard remedies are sufficient to ef-
fectuate the policies of the Act. Further, in adopting the judge’s remedial
provisions regarding adverse tax consequences and Social Security re-
porting requirements, we rely on AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016), and Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014), not Latino Express, Inc., 359 NLRB 518
(2012), cited by the judge in the remedy section of his decision. Finally,
we shall modify the judge’s recommended Order to conform to the vio-
lations found, the amended remedy, and the Board’s standard remedial
language, and in accordance with our recent decision in Danbury Ambu-
lance Service, Inc., 369 NLRB No. 68 (2020); and we shall substitute a
new notice to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(a) Threatening employees with discharge if they en-
gage in activities on behalf of the Union.
(b) Issuing disciplinary warnings to employees because
of their support for and activities on behalf of the Union.
(c) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor or-
ganization.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the unlawful discipline issued to Joseph Colone on July
20, 2017.
(b) Within 14 days from the date of this Order, offer
Joseph Colone full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any other rights
or privileges previously enjoyed.
(c) Make Joseph Colone whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(d) Compensate Joseph Colone for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 16,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline and
discharge, and within 3 days thereafter, notify Joseph
Colone in writing that this has been done and that the dis-
cipline and discharge will not be used against him in any
way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
5 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
(g) Post at its Port Neches, Texas facility copies of the
attached notice marked “Appendix.”5 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 16, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
October 24, 2016.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 16 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. May 29, 2020
John F. Ring, Chairman
_
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted by Order
of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
LION ELASTOMERS LLC 3
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT threaten you with discharge if you engage
in activities on behalf of the Union.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union or any other
labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the unlawful discipline issued to Joseph
Colone on July 20, 2017.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joseph Colone full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Joseph Colone whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest, and WE WILL
also make Colone whole for his reasonable search-for-
work and interim employment expenses, plus interest.
WE WILL compensate Joseph Colone for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 16, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discipline and discharge of Joseph Colone, and WE WILL,
within 3 days thereafter, notify him in writing that this has
1 29 USC §§ 151-169.
2 The complaint alleged that this incident occurred “[a]bout Novem-
ber 24, 2016,” but the undisputed proof established that the meeting oc-
curred on October 24, 2016.
3 The Respondent’s motion to correct the transcript, dated April 23,
2019, is granted with the exception of the proposed change on page 358,
been done and that the discipline and discharge will not be
used against him in any way.
LION ELASTOMERS LLC
The Board’s decision can be found at
http://www.nlrb.gov/case/16-CA-190681 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
Bryan Dooley, Esq., for the General Counsel.
Steven Cupp, Esq. and Jaklyn Wrigley, Esq. (Fisher & Phillips,
LLP), of Gulfport, Mississippi, for the Respondent.
Sasha Shapiro, Esq. (United Steelworkers), of Pittsburg, Penn-
sylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was
tried in Houston, Texas, on February 26, 2019. The United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied In-
dustrial and Service Workers International Union, Local 228 (the
Union) alleges that Lion Elastomers (the Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act)1 by
threatening to terminate employee and Union Leader Joseph
Colone during a grievance meeting on October 24, 2016.2 The
Union further alleges that the Respondent violated Section
8(a)(3) and (1) by warning Colone on July 31, 2017, and dis-
charging him on June 8, 2018, because he filed numerous griev-
ances pursuant to a collective-bargaining agreement between the
Respondent and the Union. The Respondent denies the allega-
tions and asserts: (1) Colone was given numerous opportunities
to improve his inappropriate conduct, but it persisted; and (2) he
was presented with an opportunity to remain employed pursuant
to a last chance agreement, but he refused to sign and was law-
fully discharged.
On the entire record,3 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent, I make the following
line 58, which the parties agree should be “argument” instead of “arm.”
In addition, the bound exhibits inadvertently included R. Exh. 33, which
was neither identified nor received in evidence. As such, I have not con-
sidered that document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an office
and place of business in Port Neches, Texas, where it is engaged
in the manufacture and the nonretail sale of petrochemicals and
synthetic rubber products, and annually purchases and receives
goods valued in excess of $50,000 directly from points located
outside the State of Texas. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
The Respondent operates a “24/7” manufacturing facility
where it produces styrene butadiene rubber (SBR). It has ap-
proximately 207 employees at the facility, which operates four
12-hour rotating shifts—A, B, C and—each of which has a shift
superintendent. David Davenport is the production supervisor
for the C shift, which has 20 employees. Work shifts vary. A 4-
day shift consisted of 4 workdays consecutively followed by 7
days off, then 4 work nights followed by 3 days off, then 3 work-
days followed by 1 day off, then 3 work nights followed by 3
days off, and then back to 4 days again. Employees were sup-
posed to work 36 1 week and 48 the next.
The Respondent’s admitted statutory supervisors and agents
pursuant to Section 2(11) and (13) of the Act include: Tony
Wisenbaker—plant manager; Trudy Lord—human resources di-
rector; Paula Sharp—senior director of human resources; Brad
Dean—safety and security manager; James Mosley—production
manager; and Randy Watson—warehouse supervisor. Within
the production department are shift superintendents with respon-
sibility for each of the four 12-hour shifts: Luke Wolfford, Rob-
ert Burnett, David Davenport, and Phillip Parks. Below them are
four shift supervisors: Carl Tarver, Trey Priest, Russel Hinkle,
Darrik Reynolds.
Prior to his termination, Joseph Colone had been employed by
the Respondent for 41 years. At the time of his termination, he
was working as a pigment/soap senior tech operator making latex
for synthetic rubber on the C-shift. Colone had a good work rec-
ord. He served multiple terms as a union steward, committee-
man, group chairman, and member of the Joint Resolution Com-
mittee. In those capacities, Colone participated in contract ne-
gotiations and actively advocated on behalf of bargaining unit
employees, filing more grievances than any other committee-
man.
B. The Respondent’s Plant Rules4
The Respondent’s plant rules, provide, in pertinent part, the
following policies governing employee conduct, safety and work
performance, as well as penalties for violating the rules:
To maintain orderly, safe and efficient plant operations, general
rules of conduct, safety, attendance and work performance are
established for all employees. It is the responsibility of each
4 GC Exh. 2.
employee to know the rules, to have a thorough understanding
of one's job, to share information needed for orderly, safe and
efficient operations, and to notify management of training
needs. Violation of plant rules and performance standards by
exhibiting unsatisfactory behaviors may result in disciplinary
action up to and including termination of employment.
Following is a listing of unsatisfactory behaviors with respect
to the general rules and performance standards for the site. This
listing is not intended to be all-inclusive and may be supple-
mented or modified as required.
SAFETY
Safety and Operating procedures are designed to protect per-
sonnel in the plant from injury and facilitate efficient operation.
All employees are expected to be knowledgeable of these pro-
cedures and follow them. If for any reason procedures cannot
be followed, approval from supervision and plans to insure
safety must be obtained and documented, if at all possible, be-
fore proceeding.
FAILURE TO FOLLOW LIFE CRITICAL SAFETY RULES
will (unless modified by the Plant Manager) result in termina-
tion. These Life Critical Procedures/Rules include:
• Making entry into a confined space
• Working on energized equipment (LOTO)
• Working at heights
• Performing hot work
• Line breaks
• Excavations
• Rail car movements
• Disabling safety interlocks
Unsafe acts caused by negligence, carelessness, or failure to
observe all safety rules or generally accepted safe work prac-
tices as outlined in the plant’s Standard Practice Instructions
(SPI's) are unacceptable. The list below consists of unsafe be-
haviors and is not intended to be all-inclusive.
1. Failure to report immediately to your supervisor any
observed unsafe condition or unsafe practice
2. Failure to report all incidents, including near hits, and
all occupational injuries/illnesses to your supervisor and/or
safety representative, regardless of severity, on the shift it
occurs or when it first recognized
3. Unsafe act(s) that lead to serious or excessive acci-
dent(s), incident(s), unsafe act(s) or near miss(es)
4. Failure to follow Lockout (LockOut/TagOut—
LOTO), Confined Space Entry, Hot Work, Line breaking or
Hazardous Work procedures with permits
5. Failure to wear the proper personal protective equip-
ment required for the area of the plant in which you visit or
work, as outlined in the Standard Practice Instructions
(SPI's).
This includes, but is not limited to flame retardant cloth-
ing (FRC), hard hats, safety
glasses, respiratory protection and hearing protection
LION ELASTOMERS LLC 5
. . .
11. Operating a forklift truck, cherry picker, track-mo-
bile, or utilizing other specialized equipment without for-
mal training and/or certification . . .
18. By-passing safety switches, reaching around safety
guards or disabling safety devices anywhere in the plant or
making any modifications without appropriate management
of change (MOC) documentation and approval
. . .
20. Failure to immediately report defective, damaged or
empty fire extinguisher to your supervisor and/or a safety
department representative
. . .
34. Other unsatisfactory safety performance that could
result in an employee injury, environmental incident or
equipment damage
CONDUCT AND WORK PERFORMANCE
1. Failure to observe standards of conduct and practices
2. Insubordination, abuse, or disrespect of your supervi-
sor(s) or failure to follow the legitimate instructions of your
supervisor(s) or site security
. . .
5. Willful damage of machinery, equipment, material,
records, documents or Company
property
6. Disorderly conduct such as, but not limited to: engag-
ing in or provoking a fight, horseplay, practical jokes
7. Harassment or unwelcome conduct, whether physi-
cal, verbal, or visual, that is based on sex, color, race, reli-
gion, national origin, age, physical or mental disability or
other protected status
8. Behavior, threats or other indecent, inappropriate or
obscene conduct that creates an intimidating, hostile, or of-
fensive working environment
. . .
10. Falsifying, providing false information, or causing
others to falsify a Company record, work document, infor-
mation on an application for employment, job resume, med-
ical history form, attendance & overtime report, time
sheet/card or electronic time keeping/payroll system, pro-
cess documentation or log, laboratory documentation or
other Company report. This includes misrepresentation
through omission
. . .
22. Engaging in illegal work stoppages, illegal work
slowdowns, sabotage, espionage, terrorism, or un-Ameri-
can activities
. . .
25. Unsatisfactory job performance
5 R. Exh. 3.
. . .
26. Neglect of job duties created by distraction or inat-
tention to work responsibilities, including gambling on
plant property, sleeping during work hours, bringing or
playing unauthorized TVs, working on hobbies or crafts, in-
terfering with another person's work or pursuing personal
business. This includes reading of non-work related publi-
cations in operating area of the plant, including labs and
control rooms, or playing games, electronic or other, any-
where in the plant
. . .
29. Failure to follow standard work practices or as-
signed procedures
. . .
DISCIPLINE POLICY5
INTENT
To provide guidelines for issuing progressive discipline to em-
ployees of the Port Neches Plant. The policy will be applied
when employees deviate from the appropriate code of conduct,
work standards, safe work practices, attendance, or when
deemed appropriate by management.
SCOPE
This policy applies to LION ELASTOMERS employees as-
signed to work at the Port Neches Plant and supersedes all prior
site discipline policies or practices. The purpose of the policy
is to encourage corrective action of employees demonstrating
behavior which interferes with them or other employees
achieving company work standards, safe work practices, or
proper workplace behavior.
POLICY
Employee Responsibilities
Each employee is considered a responsible individual who is
expected to manage his/her time and work skills to accomplish
his/her assigned job tasks and make a contribution toward
achieving plant objectives. To this end, each employee is re-
sponsible for complying with all applicable policies, proce-
dures, and expected standards of behavior and performance. In
addition, any employee who observes or becomes aware of a
safety or environmental problem that may negatively influence
the plant is expected to bring this to the attention of the individ-
ual(s) involved, the individual's supervisor, or to their own su-
pervisor's attention. Each employee is also responsible for en-
suring that contractors or visitors to their work area comply
with all applicable policies, procedures and expected standards
of behavior at all times. Employees are expected to fully co-
operate with all company investigations and failure to do so
may result in discipline.
Supervisor Responsibilities
Supervisors are responsible for implementing the Discipline
Policy and holding employees accountable for their behavior
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
relative to the applicable policies, rules, procedures and the per-
formance management process. Supervisors will issue disci-
pline to their subordinates. As required, the Human Resources
Manager or Department Manager will provide counsel to su-
pervision regarding the application of these guidelines.
Procedure
When an employee fails to perform at the expected perfor-
mance standard by violating one or more Company policy,
rule, or standard, discipline may be warranted. Any infraction
will result in discipline and employees will advance within the
progression regardless of the nature of the violation (in other
words, each type of violation does not result in a separate pro-
gression). The appropriate discipline to be taken will depend
upon the seriousness of the issue.
In addition to the circumstances surrounding the problem or in-
cident, other factors that may be considered include:
• Work history of the employee who is involved
• Nature of the problem
• Actual or potential impact, in terms of plant safety,
product quality, work productivity, or other factors
Discipline may be administered as a Counseling Only, Verbal
Warning, Written Warning, 2nd Written Warning, Last Chance
Agreement/Suspension or Termination. These forms of disci-
pline are not necessarily progressive. Depending on the seri-
ousness of an incident or work situation as determined by the
facts, the Company reserves the right to determine the appro-
priate disciplinary action
.
Counseling Session Only
In an effort to increase awareness and achieve understanding, a
discretionary, informal meeting with the employee may be
conducted by the supervisor to discuss the work performance
problem and stress the importance of the work rule or perfor-
mance standard. The work performance problem may involve
attendance, safety, conduct or other work related situation. The
supervisor may counsel the employee to help him/her recog-
nize that a problem exists and coach him/her to comply with
the work rule and/or performance standards.
Verbal Warning
In a private, formal documented meeting with the employee the
supervisor may discuss the work performance problem and
stress the importance of the work rule or performance standard.
The work performance problem may involve attendance,
safety, conduct or other work related situation. The supervisor
may counsel the employee to help him/her recognize that a
problem exists and emphasizes the importance of compliance
with the work rule and/ or performance standards, The Verbal
Warning is active for 12 months (defined as the time period in
which the employee is actively working).
Written Warning
A Written Warning documents a formal meeting between su-
pervision and an employee about a serious or continuing per-
formance problem that requires immediate correction (see
LION ELASTOMERS Plant Rules, Policies and Procedures).
The employee must make a commitment to correct the prob-
lem. Supervisors have the option of including their immediate
supervisor, the Human Resources Manager, or other appropri-
ate member of site management in the disciplinary meeting.
The Written Warning is active for 12 months (defined as the
time period in which the employee is actively working).
Second Written Warning
A Second Written Warning documents a formal meeting be-
tween supervision and an employee about a serious or contin-
uing performance problem that requires immediate correction
(see LION ELASTOMERS Plant Rules, Policies and Proce-
dures). The employee must make a commitment to correct the
problem. Supervisors have the option of including their imme-
diate supervisor, the Human Resources Manager, or other ap-
propriate member of site management in the disciplinary meet-
ing. The Second Written Warning is active for 12 months (de-
fined as the time period in which the employee is actively
working).
Last Chance Agreement
A Last Chance Agreement is a more severe form of discipline
that can lead to termination of employment. It may be used
when an employee has demonstrated more serious perfor-
mance problems or has failed to improve or correct a prior
problem. The Last Chance Agreement consists of a written
agreement prepared and signed by plant management, which
must also be signed by the employee and the Union, if applica-
ble. In the agreement, the employee acknowledges that the
Company has just cause for termination based on the employ-
ee's performance problem(s) but that the Company agrees to
give the employee one last chance to retain his/her employ-
ment. As a condition of continued employment, the employee
agrees to demonstrate improved work performance and satis-
factory conduct that is acceptable to the Company for the next
24 months. This is defined as the time period the employee is
actively working on the job. Failure by the employee to abide
by all provisions of the agreement will result in termination of
employment. The supervisor and employee will review the em-
ployee's progress midway through the 24-month period. If the
employee has demonstrated improvement for the 12-month pe-
riod and not received any additional discipline, the Last Chance
Agreement may be deactivated and so documented (this is a
discretionary option that management may invoke).
Termination of Employment
Termination of employment for an employee may occur when:
Other discipline efforts have failed to bring about a positive
change in an employee's behavior or work performance, or
A single offense of a major consequence is committed such as,
but not limited to, a serious safety or environmental offense,
insubordination, theft of property, fighting or other unruly con-
duct, consumption of alcoholic beverages or use of illegal
drugs on company property, disclosure of classified Company
information, etc.
Blatant or willful disregard of LION ELASTOMERS Plant
Rules, policies and/or procedures has occurred.
LION ELASTOMERS LLC 7
In making the decision whether to terminate or not, the Com-
pany may consider such factors as length of company service,
total employment record, and the nature and seriousness of the
violation(s) or performance problem(s).
Suspension
Suspension may be used when an employee’s behavior is so
serious that immediate removal from the plant is necessary. It
may also be used in conjunction with an investigation where
management determines that it is appropriate for an employee
to be out of the workplace during the course of the investiga-
tion. In the context of potential disciplinary action, the Com-
pany may suspend an employee without pay and the employee
shall be required to leave the plant pending completion of the
investigation. Examples of behavior requiring suspension in-
clude: safety or environmental offenses, insubordination, theft
or destruction of company property, violence or threats of vio-
lence, and other serious violations of Lion Elastomers Plant
Rules. This list is not all inclusive, but merely represents exam-
ples of behavior that could warrant a suspension.
Probationary Employees
The first one hundred eighty (180) days of employment for
hourly employees is a probation period. During this period such
employees are subject to removal from Company employment
without regard to, the disciplinary procedures discussed above.
Such removal, however, must be reviewed in advance with the
proper levels of management.
C. The Collective-Bargaining Relationship
The Respondent and the Union have been parties to collective-
bargaining agreements for some period of time prior to July
2016. The most recent collective-bargaining agreement (CBA),
effective from July 1, 2016 to June 30, 2020, covers wages, hours
and other terms and conditions of employment for the approxi-
mately 85 to 90 employees in the following bargaining unit:
All hourly employees employed as operating employees in job
classifications set forth in Article VI,6 but excluding all other
employees such as shipping and receiving clerks, engineering
stockroom clerk's, machine shop and tool room clerks, all of-
fice clerical and secretarial employees, plant protection em-
ployees, laboratory employees, all professional and technical
employees, research and development unit employees, and all
supervisory employees with the authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of
employees.
Pertinent portions of the CBA include a provision setting forth
management’s rights with respect to various functions, unless
otherwise stated within the agreement:
Section 2.1 (a) Except as expressly modified or restricted by a
specific provision of this Agreement, all statutory and inherent
managerial rights, prerogatives, and functions are retained and
vested exclusively in the Company, including, but not limited
to, the rights, in accordance with its sole and exclusive
6 “Poly VAR, Recovery Technician, Reactor Technician, Tank Farm
Technician, Pigment/Soap Technician, utility Technician, Unloader,
judgment and discretion: to reprimand, suspend, or otherwise
discipline employees; to discharge employees for cause; to de-
termine the number of employees to be employed; to hire em-
ployees, determine their qualifications and assign and direct
their work, to promote, demote, transfer, lay off, and recall to
work employees; to set the standards of performance and
productivity, the products to be produced, and/or the services
to be rendered; to determine the amount and forms of compen-
sation for employees; to maintain the efficiency of operations;
to determine the personnel, methods, means, and facilities by
which operations are conducted; to set the starting and quitting
time and the number of hours and shifts to be worked; to use
independent contractors to perform work or services; to sub-
contract, contract out, close down, or relocate the Company's
operations or any part thereof; to expand, reduce, alter, com-
bine, transfer, assign, or cease any job department, operation,
or service; to control and regulate the use of machinery, facili-
ties, equipment, and other property of the Company; to intro-
duce new or improved research, production, service, distribu-
tion, and maintenance methods, materials, machinery, and
equipment; to determine the number, location and operation of
departments, divisions, and all other units of the Company; to
issue, revise, eliminate, and enforce policies, rules, regulations,
and practices, including but not limited to drug and alcohol test-
ing policies; and to take whatever action is either necessary or
advisable to determine, manage and fulfill the mission of the
Company and to direct the Company’s employees.
(b) The Company has the right to manage its facility and direct
its employees in its sole discretion, unless restricted by the ex-
press language of this Agreement. This management rights Ar-
ticle is not all inclusive and does not exclude any other rights
of management not specified herein.
(c) The Company’s failure to exercise any right, prerogative, or
function in a particular way, shall not be considered a waiver
of the Company’s right to exercise such right, prerogative, or
function or preclude it from exercising the same in some other
way not in conflict with the express provisions of this Agree-
ment.
The grievance and arbitration process consists of three steps.
Grievances are directed to the immediate supervisor at Step 1
and, if not resolved, referred to the superintendent and depart-
ment head at Step 2. If not resolved at that point, the grievance
can be appealed to the human resources manager at Step 3. Fi-
nally, if still not resolved, the Union may arbitrate.
Prior to the most recent union election on November 2017,
Colone was on the Union committee along with Joseph Wells,
Duane Newman, Gerald Richard and Mark Vickers. After the
election, Colone served with Bobby Rodgers, Robert Griggs and
Terrence Young.
D. The Protected Concerted Activities at Issue
1. The October 24, 2016 meeting
On October 24, 2016, Colone was called to a meeting by Mos-
ley and Wisenbaker. He assumed that the subject related to the
Process VAR, Coagulation Technician, Blend Technician, Packaging
Operator, or Lift Truck Operator (Warehouse).”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
process of putting on and taking off protective gear. After learn-
ing that none of the other Union committeemen were invited, he
got Vickers and Griggs to attend. When the meeting started, the
subject (donning and doffing) did not come up. Instead,
Wisenbaker complained that Colone was the only one filing
grievances and asked why he filed a grievance about the diver-
sion of certain unit work to contractors in place of newly hired
forklift drivers. During the exchange that followed, Colone in-
sisted the new drivers were qualified to perform the overtime
work, and the unit employees were being displaced and having
riskier duties imposed on them. Mosley and Wisenbaker said
that Colone was hurting the Union by filing such grievances and
pointed to letter agreements resolving the issue by the two absent
committeemen—Joe Wells and Jordan Johnston. Colone coun-
tered that the agreement of only two committeemen was ineffec-
tive on behalf of the union committee.
At some point, Vickers left the meeting, but Griggs remained.
Colone and Mosely then became involved in a heated argument.
During that discussion, Mosley pointed his finger at Colone and
said, “[y]ou ain’t gonna make it.” Colone asked what he said,
and Mosley repeated the statement. Colone replied that he had
“been making it out here for 39 years. You better watch how
you talking to me.” He then asked Wisenbaker about the griev-
ances, which the latter proceeded to deny.7 In response to Mos-
ley’s remarks, Colone filed a grievance.
Lord handled Colone’s grievance regarding Mosely’s com-
ment by speaking to the employees present at the meeting and
took notes. She received a written account of the meeting from
Wisenbaker on November 3, 2016. Lord also interviewed
Griggs on November 3, 2016. Her notes confirmed Griggs ren-
dition of a dysfunctional meeting in which Wisenbaker, Mosley
and Griggs all acted inappropriately: “Most dysfunctional meet-
ing I have ever been to out here. No resolution b/c of anger &
frustration by James, Tony, & KC.”
Griggs told Lord there was friction from the start. Regarding
the first grievance, Griggs stated that Colone’s “beef” should be
with the Union Committee. As for the meeting, he felt that it
“wasn’t good” and he “didn’t think anything about it other than
there were no resolutions.” Griggs also told Lord that he did not
perceive Mosley as being threatening. Lord noted her opinion
7 The Respondent notes that Colone omitted any mention about being
misled about the purpose of the meeting in his Jenks affidavit, but his
impression was confirmed by Griggs. (Tr. 77–88, 174–176; R. Exh. 9;
R. Exh. 32 at 01590.) Wisenbaker did not recall, but Colone’s detailed
description of the discussion is consistent with the testimony of Griggs
and Mosely that the latter made the statement about Colone not “making
it.” (R. Exh. 32 at 001595.) Mosely insisted that he was referring to the
Union, not Colone. He also conceded that he failed to act professionally
and Colone did not act in an aggressive manner. Griggs, on the other
hand, understood it to refer to Colone’s job security, but discounted the
remark at the time on the belief that Colone had nothing to worry about
because of his good work performance and position as a Union repre-
sentative. (Tr. 363–364, 374–375, 405–406, 409–414, 417–424, 428–
433, 452–454, 465–467, 470–479; R. Exh. 4–5, 7, 11, 31–32, 46.)
8 Griggs credibly testified that portions of Lord’s notes were incorrect
notwithstanding his earlier affirmative response to counsel ’s leading
and hypothetical question as to whether he would have any reason to
doubt the accuracy of her notes. (Tr. 339–340, 361–375; R. Exh. 32 at
2–3.)
that “it’s (sic) sounds like KC was the aggressor,” a remark in-
consistent with the other entries and one that was not conveyed
to her by Griggs.8
Lord interviewed Griggs again by telephone on January 17
and 18, 2018. Her notes of the January 18 interview confirmed
Mosely’s remark at the October 24 meeting that Colone “ain’t
gonna make it.”9
2. The March 22 and 23, 2017 grievances
On March 22, 2017, Colone filed a grievance form regarding
the staffing of the reactors on behalf of two production employ-
ees – Gerardo Zamora and Willian Fobbs—with an occurrence
date of March 21, 2017:
The Union charges the Company with a specific violation of .
. . Letter of understanding Health and Safety [and] Sec. 17.2
Entire Agreement and any other provisions of the Agreement
that may be found to apply . . . The Union and the Company
had agreement on staffing the reactors on a start-up. 8CC Re-
actor Operator were dropping reactors and blowdowns and also
maintenance, preparing for a start up in 8CC and also maintain-
ing 8CA reactor job duties at the same time. This is multitask-
ing jobs in a PSM area. It’s a unsafe act, and unfair to the op-
erator. . .
The “remedy requested” stated that the “agreement in the JRC
meeting was to staff a operator for a reactor start-up. The Union
main concerns or the safety and well being of four co-workers
and the quality of the product we make.”
After filing the grievance, however, Colone was informed that
it was actually Tim Taylor, the shift foreman, who was multi-
tasking. He withdrew the grievance the following day and ver-
bally apologized to Taylor. Colone also wrote a note to manage-
ment apologizing for the incorrect information, indicating that
he was “corrected by” Zamora and Fobbs, and replaced it with
grievance 03-2017 on behalf of “USW Workers.” That griev-
ance alleged the same safety concerns based on staffing. The
grievance was denied at Step 1 on the grounds that it did not list
the name of a specific aggrieved employee. It was then then re-
solved at Step 2, however, with an explanation by Mosley that
Colone accepted “the explanation of this being a scheduled then
9 The Respondent’s continued insistence that it was entitled to pro-
duction of Grigg’s Jenks affidavit or alternatively an adverse inference
is a non-issue since it is undisputed that Griggs did not consider Mosley’s
remark to be a threat at the time. In any event, I sustained the General
Counsel’s objection to the production of Grigg’s Jencks affidavit pursu-
ant to Clear Channel Outdoor, Inc., 346 NLRB 696 fn. 1 (2006), on the
ground that he was not called by the General Counsel but by the Re-
spondent. (Tr. 376–382.) The Respondent sought production of the affi-
davit because the General Counsel inquired about it on cross-examina-
tion. However, it was the Respondent that initially asked if Griggs pro-
vided an affidavit to the Region and the General Counsel followed-up by
asking if management had ever questioned him about that affidavit and
how management would have known that he gave one. (Tr. 362, 371–
372.) Thus, the General Counsel’s inquiry did not relate to the substance
of a prior statement, but rather, reasonably appeared to elicit whether the
Respondent engaged in unlawful questioning of protected activity in
preparation for the hearing pursuant to Johnnie’s Poultry Co., 146 NLRB
770, 774–775 (1964).
LION ELASTOMERS LLC 9
non scheduled start up . . . would like further dialogue in JRC
meeting to discuss more details and LOU or MOU.10
3. Lord’s response to the March 22–23 grievances
In response to the March 22 and 23 grievances, Wolfford in-
terviewed Zamora. At some point, Wolfford presented Zamora
with a typed statement or report containing Wolfford’s version
of the interview, followed by Zamora’s handwritten comments.
The statement or report confirmed that Colone had indeed spo-
ken with Zamora about the staffing of the reactors before filing
the grievance and that Colone’s concerns were not baseless:
 I asked G. Zamora if he was aware of the grievance and
he said that K.C. Colone said he was going to file one but
Zamora was not aware that it was going to be filed on his
[behalf]. (emphasis supplied) Zamora did state that
while talking with K.C. Colone, Mr. Colone said that the
company did have the manpower to cover the job but
chose not to.
 I did explain to Zamora the company could not staff extra
due to the only reactor operators available were working
days (W. Fobbs and G. McCray). Mr. Zamora then made
to comment that Mr. Colone lied to him.
 We went line by line of the content of the complaint sec-
tion and Zamora agreed that what was written about the
activities of Wednesday 3/22/17 were not the activities he
performed.11
 Under the remedy requested section safety and quality
were in question. Zamora agreed that he was not asked to
do anything unsafe. Zamora does not agree with the
charges in the grievance.
Below that typed portion of the report, Zamora’s handwritten
comment pushed back on the notion that Colone lied to him, but
without clarification as to what Colone lied about:
I did say K.C. lied to me however, he was misinformed and did
not know the entire situation. I believe he was misinformed
and later realized the entirety of everything going on that day.12
On April 3, Lord replied to Colone’s filing of the March 22
grievance and his withdrawal of that grievance, warning him
about the accuracy of his allegations and tone going forward, and
the possibility of discipline:
We have received your note dated March 23, 2017, apologizing
‘for being misinformed on the multitasking in 8CA reactors.’
The grievance underlying that issue, dated March 22, attributed
the grievances to Gerardo Zamora and William Fobbs.13 As we
investigated that grievance, we learned they were unaware of
the grievance you filed on their behalf and they did not agree
10 Colone’s credible testimony that he was informed that the reactor
functions in question were actually performed by Taylor was not dis-
puted. (GC Exh. 3-5; Tr. 86–88).
11 The grievance listed the date of occurrence as March 21, not March
22, 2017.
12 Wolfford did not testify but his report reflected the suggestive na-
ture of the interview. (R. Exh. 48.)
13 There is no documentation as to what Fobbs told Lord or any other
manager. (Tr. 278.)
with the allegations you attributed to them. Before we could
take any action on this apparent falsification, you sent us your
apology note and a revised grievance.
This letter is not a formal warning or reprimand, as you appear
to have discovered your error before disciplinary action could
be taken. However, I must caution you about what you say in
these grievances, particularly when you attribute the com-
plaints to people who have not complained. Situations like this
seriously affect your credibility as we deal with you on issues
affecting the plant. In a worst case scenario, your actions could
be viewed as a direct fabrication or falsification, which would
be grounds for termination.
As noted above, we received the revised grievance, # 03–2017,
initially dated March 23, regarding failure to staff reactors at
start-up. That grievance was denied because you failed to iden-
tify who was aggrieved. We need that information so we can
properly investigate the grievance. In your March 29 statement
attached to the grievance, you accuse Mr. Mosley of having
“amnesia” and asking him "three times do we have an agree-
ment yes or no. He would not answer." Let me ask you a ques-
tion. How would you respond to a person who accuses you of
having amnesia and asking you the same question three times
in your usual argumentative tone? How would you respond if
told, as you said in your March 30 statement, that "people in
the position of leadership have no integrity? Using inflamma-
tory and insulting language of this sort inhibits our attempts to
create a cooperative working relationship and atmosphere. Fur-
thermore, your continued personal attacks and false statements
on a member of the management team is in direct violation of
Lion Elastomers' Plant Rules—Conduct and Work Perfor-
mance #2, #8, #10 and #14.
#2—disrespect of your supervisor(s)
#8—Behavior, threats...or conduct that creates an intimidating,
hostile, or offensive working environment
#10—Falsifying, providing false information...or other Com-
pany report. This includes
misrepresentation through omission
#14—Actions of an employee that bring into disrepute the im-
age or reputation of LION
ELASTOMERS or its employees
In closing, I encourage you to be more careful by checking your
information sources before filing a grievance and tempering
your remarks in a manner consistent with how you want to be
treated yourself. It will save both of us a lot of time and aggra-
vation if you do.14
Lord also sent a copy of the April 3 letter to Union officials
14 Lord denied that management was “not fond of Mr. Colone and the
way that he conducted Union business.” She also denied that her letter
suggested that Colone could be disciplined if the allegations in a griev-
ance turned out to be wrong, as opposed to the filing of “false statements
and misstated information.” However, her explanations for the warnings
that followed this letter were not credible, and her responses were vague
and contradicted information conveyed to her by unit employees. In fact,
cross-examination of her explanations for this letter and many of her sub-
sequent determinations in response to Colone’s steward activities were
evasive, longwinded and nonresponsive. (GC Exh. 2; Tr. 37–49.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
on the same day, requesting their “assistance in helping him to
understand the importance of following the contract.”15
4. The July 12 safety meeting
On July 12, Dean conducted a monthly safety meeting with
about twenty C-shift unit employees. Wolfford, supervisor Ar-
thur Finley and scheduler Gary Richards were also present. The
meeting started with a discussion about incidents from the pre-
vious month. After several minutes discussing a screw press fire
investigation, the conversation shifted to open questions and an-
swers. Chris Cleary asked why employees were forced to work
longer than the twenty-five hours of overtime permitted by com-
pany policy. When Dean disputed that assertion, Jonathan Bai-
ley and others confirmed that they too were working overtime
hours in excess of 72 hours per week. Dean initially denied the
assertion but relented when others confirmed Cleary’s assertion
and conceded that the Respondent planned to increase work
hours to 84 hours per week. Colone, who typically asked ques-
tions at safety meetings, followed up asking about for infor-
mation about the standards and asserting that the employees were
fatigued and working in a dangerously hot environment for too
many hours. He also warned that the Respondent could face li-
ability for injuries resulting from those conditions and asked
Dean several times as to how the Company planned to deal with
these questions. Dean agreed to provide the paperwork and ini-
tially said he did not know the answer. Colone persisted, how-
ever, and repeated his question several times. Dean tried to ig-
nore Colone but finally relented by saying that the increased
overtime would be on a case by case basis, at one point mention-
ing the “API standard.”
Sherman McCray was in the meeting and tried to walk out
because he was frustrated from the discussion, but Colone im-
plored him to stay. Eventually, McCray became frustrated and
got up again to leave, and Colone, also frustrated, told him to
“just go ahead and leave. We don’t need you anyway.” After
the meeting ended, Dean sat down at his desk to work at his com-
puter and employees left the room. As he was leaving, Colone
asked Dean for the “paperwork” relating to the new overtime
policy. Dean, visibly annoyed, replied by offering to show
Colone how to find the information on the internet. Colone re-
plied that Dean was not doing his job and asked if Dean was up-
set. At that point, Dean became angry, stood up and argued
briefly with Colone asking if Dean was calling him a liar, to
which Dean replied by asking if Colone was calling him a liar.16
After the meeting, Dean reported the encounter with Colone
to Wisenbaker and Lord. Notwithstanding Colone’s penchant
for questioning him during past safety meetings, Dean had never
15 R. Exh. 34.
16 The testimony of Dean, Colone, Bailey and McCray was fairly con-
sistent about what happened during the safety meeting. Dean, as he typ-
ically did, stood during the meeting while everyone else sat. He had a
vague recollection as to what Clearly and others told him, but conceded
that he and Colone became loud and frustrated when Colone accused him
of not doing his job after the meeting ended. Moreover, McCray’ con-
firmed that Colone told him that he “can go ahead and leave” as he stood
up to leave. Bailey credibly testified that Colone, who typically asked
questions at these meetings, was calm and sitting the entire time that he
interacted with Dean, while Dean appeared frustrated by the questions
and there was “bickering, moaning and complaining.” With respect to
reported Colone’s conduct in a safety meeting before. Wisenba-
ker issued Dean a verbal warning and asked Lord to investigate
Colone’s conduct at the safety meeting.17
Within the next week, Lord interviewed several people in con-
nection with the investigation. Lord and Wisenbaker inter-
viewed Colone on July 18. They took a confrontational approach
in the questioning Colone and he became angry. In addition to
asking Colone what happened at the July 12 meeting, Wisenba-
ker challenged the legitimacy of several questions that Colone
asked, for example:
What were you intending with your question[?] . . . We had
JRC meeting day before I asked 4 or 5 times is there anything
else from a safety perspective we need to discuss. Why didn’t
you bring these questions up at the JRC? . . . Do you think that
in any way you created animosity or disruption.[?] . . . No, I’m
not [calling you a liar]. What I said was that I find it hard to
believe that no one brought up the 73 hrs prior or that no one
had the conversation. There’s a time and place to ask ques-
tions. . . The way KC asked the questions is what started the
meeting down the path it went? . . .
Lord’s interview notes of Dean and others essentially con-
firmed Colone’s version of the meeting, including the fact that
his questions followed those of other unit employees concerned
about work hours:
Gary Richard—“Brad brought some of this on his own.”
Wolfford—“Brad could have controlled it better. He played in
to KC’s hand and KC won that battle.” . . . “[t]ypical KC prob-
ing. But Brad was dodging the questions, not making . . . Brad
was pushing back, but KC was asking simple questions at first.
He seemed [legit], never raised his voice – at first, . . . Original
3 ques were not inappropriate there were okay for open topic
section. . . . liable question I thought was inappropriate.” Find-
ley—“everybody was being contentious about working 73
hours. [Dean’s] message basically was that “it could be
worse.” . . . [the discussion between Dean and Colone] “went
back and forth . . . Brad was getting agitated and the other guys
were still throwing questions at him” [while Colone] “kept say-
ing that you said you were going to get me that [the paper-
work].” Herb Smith—[Dean] “seemed to have gotten a little
frustrated with all the questions being thrown at him” [and]
“more than one person was asking b/c they were frustrated . . .
KC . . . asked you for the paperwork . . . Brad said, ‘Well I got
it & I’m going to get it to you.” Cleary—“KC was trying to
emphasize that with the heat and, # of days working . . . KC
asked the question about do you think it’s safe to work 73 hrs
what transpired after the meeting between Dean and Colone, I found
Dean’s explanation more credible than Colone’s paraphrased and incon-
sistent versions as to what Dean said and did when asked for the “paper-
work.” However, I do credit Colone’s unrefuted testimony that their ar-
gument caused Findley to ask what was going on. (Tr. 13–30, 89–99,
115–119, 211–215, 341–349, 386–394; R. Exh. 1.)
17 Mosely’s recollection that Dean complained about Colone’s ques-
tioning during the meeting was not credible. Dean only reported concern
over Colone’s comment to McCray during the meeting and the argument
after the meeting. Moreover, in contrast to the Colone’s documented
discipline, there was no evidence that the warning issued to Dean was
also documented. (Tr. 53, 393–394, 460–463.)
LION ELASTOMERS LLC 11
a week? Brad seemed to get irritated b/c KC kept asking do
you think it’s safe, do you think it’s safe? [Dean replied,] The
Company is looking to go to 84 hrs. . . [Cleary also commented
that], I don’t think the Company comes in and talks to us
enough. Needs to tell us what is going on so I can understand
why we are doing what we are doing.” Bailey—“Brad seemed
frustrated that we were frustrated. We caught him off guard.
He wasn’t rude or unprofessional. McCray—[When told that
Colone said that he disrupted the meeting and complained
about overtime: “KC is a liar. . . . KC asked ‘Where are you
going ? 2nd time, just go on out of here then.”18
Lord and Wisenbaker met with Colone and his Union repre-
sentative on July 20, 2017. During this meeting, Lord issued
Colone a “Performance Correction Notice” memorializing a ver-
bal discipline based on “Policy/Procedure Violation” and “Be-
havior/Conduct Infraction” at the July 12 meeting. Colone be-
came angry. He was sitting close to Wisenbaker and the latter
asked him to move his chair back:19
In a letter dated and sent via certified mail on April 3, 2017,
you (Mr. Colone) were cautioned about your actions pertaining
to use of inflammatory and insulting language which inhibits
our attempts to create a cooperative working relationship and
atmosphere. During the C Shift monthly safety meeting on
Wednesday, July 12, 2017; you exhibited that same unaccepta-
ble conduct with a line of questioning that was provoking, mis-
leading, and inappropriate. You continued to ask the questions
repetitively thereby creating an intimidating work environment
for the Safety Manager and an offensive, uncomfortable envi-
ronment for your coworkers attending the meeting. In addition,
during the follow up interview conducted with you on Tuesday,
July 18, 2017 you provided information that was in direct con-
flict with statements from other employees who attended the
meeting. You were also cautioned in the April 3rd letter about
providing fabricated or false information and you were in-
formed that behavior, in a worst case scenario, would be
grounds for termination. This behavior, which is in direct vio-
lation of our Plant Rules is not acceptable and will not be toler-
ated. As a result of your continued inappropriate and disorderly
conduct, you are receiving a formal Verbal level of discipline.20
[Below are the Plant Rules and Enforcement of Standards/Mu-
tual Respects from the C8A that you are in direct violation of:
in the Conduct and Work Performance section of the Plant
Rules: #2. . . . disrespect of your supervisor(s) or failure to fol-
low the legitimate instructions of your supervisor(s) or site se-
curity; #6 Disorderly conduct such as, but not limited to
18 Other than editorial comments in her notes, Lord produced no doc-
umentation or other credible evidence to support her conclusion that
Colone disrespected or berated Dean during the safety meeting. Moreo-
ver, her testimony, as well as that of Wisenbaker, that Colone provide
false information in contrast to what other meeting attendees told them,
was not credible since their interview statements were essentially con-
sistent with what Colone said during his July 18 interview. (Tr. 289-290;
R. Exh. 35.)
19 Lord’s testimony that Colone became angry during the July 18
meeting was not credible, as it was contradicted by Wisenbaker’s testi-
mony that he became angry at the July 20 meeting, and she omitted any
reference to such behavior in her otherwise detailed notes of the meeting.
engaging in or provoking a tight, horseplay, practical jokes; #8
Behavior, threats . . . or conduct that creates an intimidating;
hostile, or offensive working environment; #10 Falsifying,
providing false information...or Company report. This includes
misrepresentation through omission. #14 Actions of an em-
ployee that bring into disrepute the image or reputation of
LION ELASTOMERS or its employees. In the Enforcement
of Standards/Mutual Respect of the CBA . . . the Union agrees
to do everything in its powers to enforce the Company's rules
and regulations through advice, instruction, and example in or-
der to maintain the highest standard of work. The Company
and the Union also recognize that the success of the company
is aided by a strong working relationship with the Union and
that all will benefit from continuous peace and by adjusting any
differences in a rational, common-sense manner. . . .]
After meeting with Colone on July 20, Lord issued a letter to
Colone the following day chastising him for his conduct during
that meeting:
We met with you on Thursday, July 20, 2017, to administer a
verbal corrective action notice resulting from your inappropri-
ate interaction with Brad Dean during the Wednesday, July 12,
2017 shift safety meeting. During our meeting on Thursday,
you became visibly agitated and used an elevated, accusatory
tone while addressing others in the meeting. This is the same
form of behavior we cautioned you about in the certified letter
dated April 3rd and the same behavior for which you were re-
ceiving the verbal corrective action notice.
During the meeting, efforts were made to impress upon you the
importance of conducting oneself in a civil and professional
manner. However, those appeals were unsuccessful due to your
continued interruptions, elevated voice, and refusal to allow an-
yone else in the room to complete their statements. And
[i]nstead of remaining calm and seated, carrying on a profes-
sional and respectful discussion; you interrupted, raised your
voice, became argumentative, got up front your chair, paced
the room and at one point attempted to leave before you were
asked to stay and complete the meeting.
By way of this letter, you are being notified that from this point
forward, no member of management will meet with you on an
individual basis until you have demonstrated the ability to con-
duct yourself in a respectful, civil and professional manner.
This is in no way an attempt to refrain you from performing
your duties as a union representative and/or from bringing for-
ward concerns or issues that need to be addressed. We just want
In any event, Wisenbaker credibly testified that Colone became angry at
some point during both meetings, was sitting close to Wisenbaker on July
20 and Wisenbaker asked Colone to move his chair back. (Tr. 55–56,
463–465.)
20 Lord conceded that she did not know at what point employees be-
came frustrated, baselessly asserted that Colone stood up during the
meeting, focused on Colone’s repeated, but unanswered questions, and
speculated that the other employees “understood that it is not [Dean’s]
call to make regarding those hours.” Moreover, her warning made no
mention of Colone badgering Dean after the meeting. (Tr. 51–57, 289–
294; R. Exh. 15–17.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
you to understand that having an additional member of man-
agement will likely happen when you approach a management
person to have a discussion.21
5. The August 14, 2017 discipline
On August 14, Colone received his first written warning for a
“performance transgression” on July 7 when he failed to apply
steam to a line after making up a flexone batch. The oversight
resulted in 2 days of downtime to clean the pipe and reapply
steam. The corrective plan called for the “employee/supervisor”
to “make rounds and verify that process and equipment are per-
forming as required.” Colone grieved that discipline, asserting
that “he opened valve for steam—no procedure in place to vio-
late,” but it was denied.22
6. The October 20, 2017 discipline
On October 20, 2017, Wisenbaker issued Colone a second
written warning for a performance transgression and procedural
violation on September 30, 2017. Specifically, Wolfford
charged that Colone made up a soap batch with an excessively
“high pH level resulting in 458,000 gallons of off spec latex that
shut down the facility reactors and has taken in excess of 19 days
to rework all of the “out of spec” material. The warning also
noted that Colone failed to notify his superintendent that he had
a soap bath with a high pH. The performance improvement plan
called for Colone to notify his supervisor when the pH was high
and that proper adjustments were made. The remarks concluded
with a stark warning:
Mr. Colone this is our second major operational error and wo
are concerned about your recent inconsistent performance. Both
of these operational errors have been of a serious nature, and
white they are very serious inconsistencies in your performance,
we have elected to only move to the next step of the disciplinary
process. You must immediately understand the seriousness of
your unsatisfactory job performance and take steps to eliminate
it. Please do not hesitate to ask us for assistance if you believe
we can help.
In his written explanation during the investigation, Colone
blamed the problem on several factors. He asserted that the sys-
tem was new and “all new [systems] will have problems, he had
“checked the pH and adjusted it like this for years.” However,
he did not deny failing to notify his supervisor of a high pH.23
7. The November 13, 2017 grievance
On November 13, Colone was informed that the employees on
a previous shift could not get the automated “shortstop” system
21 Lord conceded that the Respondent’s attitude towards Colone
changed after the July 12, 2017 meeting: “We really kind of basically
handled him with kit gloves out of respect for his time in the plant. But
at some point I think other people looked to us as why do you let this
person continue to get away with this, you know.” (R. Exh. 16.)
22 The Respondent introduced evidence that this warning factored into
Colone’s subsequent discipline and the Region dismissed Colone’s
charge that it was motivated by antiunion animus. (R. Exh. 18, 29; Tr.
256–257, 294, 438–439, 481.) That determination, however, is not con-
trolling in this proceeding but does serve as relevant background on the
issue of motivation for Colone’s eventual discharge. See News Printing
Co, 116 NLRB 210 (1956) (evidence of conduct preceding the six-month
period for bringing charges before the Board may be used to evaluate
to pump. The system is used to stop reactions in the reactors.
Mike Barnett was called in to repair the related computer pro-
gram and initially said over the radio that the problem was an
empty tank. Colone heard the comment, went over to check the
system and said that the tank was full. Barnett replied that he
checked the computer system and said that someone must have
turned off the switch. That switch, however, was nonfunctional
since the system was now automated. At some during the con-
versation, Mosely came on the radio and asked Barnett if “they
sabotaging it, Mike?” Barnett replied, “[y]eah, it looks like they
sabotaging it.” Following those remarks, Colone complained to
his foreman, Glen Judices and then filed grievance 14–2107 al-
leging that management personnel wrongly accused him of sab-
otaging operations.
Colone’s grievance was denied at first and second steps. At
first step, Lord merely stated that “[a]n investigation was com-
pleted with the facts presented and no violation of article 17.1
occurred. At meeting, Mr. Colone provided names of employees
to talk to. We agreed to promote grievance to Step 2 for further
investigation.” At second step, Lord stated that “no additional
information presented validated slanderous remarks were made.
Mr. Colone became annoyed and walked out of the meeting.”24
8. The February 15, 2018 grievance
On February 15, 2018, Colone filed a grievance on behalf of
another employee, Wilbur Butler, who got into an argument with
his supervisor, Randy Watson, after the latter accused Butler and
another employee, Burton, of loading the wrong truck. The
grievance alleged that Watson created a hostile work environ-
ment when Butler disagreed and walked away, then Butler fol-
lowed him and “put his hand into Butler face.” The grievance
made no reference to cursing by either individual. Colone based
it on statements made to him by Butler and another employee,
Burton. The requested remedy section indicated that neither
Butler nor Watson was blameless:
Everyone is working hard and a lots of changes in shipping.
We all make mistakes Watson and the workers. [B]oth men
[are] at fault, be men and apologize to each other, and move on.
[B]e more professional.”
This grievance was submitted to and denied at first step by
Watson on March 1. There was no indication on the form that
Lord investigated the allegations before or after it was denied.
However, she became involved and spoke to Watson, Burton and
several other people who had been working in the area at the time
later conduct as long as it is not given independent and controlling
weight); Delta Finishing Co., 111 NLRB 659, 665 (1955) (same).
23 Similarly, the Respondent, but not the General Counsel, contends
that this discipline factored into Colone’s eventual discharge and the Re-
gion’s dismissal of Colone’s charge precludes a finding that it motivated
his discriminatory discharge. (R. Exh. 23–24; Tr. 256–257, 441–442,
482.) Once again, this evidence, introduced by the Respondent, opened
the door to consideration of adverse action as relevant background in de-
termining bias on its part.
24 Colone credibly testified that the switch was nonfunctional and that
he heard Mosely make the remark about sabotage. (Tr. 99–104; GC Exh.
9.) While Mosely denied making the comment, he did not deny that
someone made the sabotage accusation over the radio. (Tr. 443; R. Exh.
25.)
LION ELASTOMERS LLC 13
of the incident. She was informed by Colone that an employee
overheard Burton curse in the course of telling Watson to get his
hand out of his face and that Burton told him that Watson had
also cursed. In the course of her investigation, Lord’s focus
turned to Colone’s statement that Burton told him that Watson
cursed during the incident. She interviewed Burton three times.
Each time he denied hearing Watson curse but did hear Watson
tell Butler not to curse. During the third interview, Lord had
Burton sign a statement to the effect. At the conclusion of her
investigation, Butler was disciplined for cursing at Watson, but
no action was taken regarding Watson’s conduct during the inci-
dent.25
9. The March 23, 2018 grievances
Christopher Granlee began his employment in April 2017 but
was injured on the job in June 2017. He was out of work on
workers’ compensation for 5 months. On March 20, he was ter-
minated for violating lockout/tagout procedures. On March 23,
2018, Colone grieved Granlee’s discharge on the ground that
Greenlee should have received service credit while on workers’
compensation due to a heat related injury. He also grieved Mos-
ley’s denial of Granlee’s Weingarten rights when discharged.
Finally, Colone grieved the failure to provide Greenlee with re-
fresher safety training. In the remedy section, he added that su-
pervisor “Silas Ancelet told a group of Baler operators and ma-
terial handlers they could not lockout equipment if they were not
trained and probationary employees.”
On March 27, Colone submitted a statement in support of the
discharge and safety training grievances. He asserted, among
other things, that Greenlee informed him that Cheryl Benoit from
human resources told Greenlee that he would have been required
to undergo retraining if he had been out of work for 6 months,
and that Dean had given Greenlee a blue hat upon returning to
work, thus indicating that he was a permanent employee. In ad-
dition, Colone said that “some Baler area workers” told him that
Ancelet said “they would have to be trained, qualified and a per-
manent worker to sign off on [lockout/tagout] permits.” Colone
concluded that statement by asking, “Is this a OSHA standard.”
On April 6, 2018, the Respondent denied the grievances. The
discharge grievance was denied on the grounds that Granlee
“was terminated for repeated violations of critical safety proce-
dures,” while the Weingarten grievance was denied on the
ground that Mosley’s March 20 meeting with Granlee was not
25 Neither Watson nor Butler testified, but Colone’s credible testi-
mony that Butler called him to report the incident was unrefuted. (Tr.
105–107; GC Exh. 10.) Lord’s selective memory of the investigation,
on the other hand, was not credible. She testified that she took notes of
investigatory interviews “most of the time” and referred to having taken
“statements” regarding this grievance. Lord also conceded that Colone
told her that another employee heard Butler tell Watson to get his hand
out of his face, but could not recall whether it was during that statement
that Butler cursed. Nor did she recall even asking Burton that question,
simply relying on the fact that Watson denied the allegation. Yet, with
the exception of a brief statement that she had Burton sign denying that
he heard Watson curse, Lord produced no other notes of her discussions
with Colone, Butler or anyone else. (Tr. 268–269, 322–326; R. Exh. 38.)
26 Lord’s rationale in concluding that Colone misstated the facts,
based on the denials of the grievance allegations by Benoit, Dean and
Ancelet, was not credible. In doing so, she misconstrued Colone’s
an investigatory interview. Finally, the Respondent’s denial of
the safety training grievance at first step stated: “No member of
the safety department made the statement cited in this grievance
(04–2018). Mr. Granlee did not express a need for refresher
training.” Mosley’s denial of the grievance at second step re-
peated the basis for termination based on violations of critical
safety procedures. Each denial was followed by Colone’s com-
ments.26
e. Colone’s Additional Protected Concerted Activities
In addition to the aforementioned grievances, Colone engaged
in other protected activities between August 2016 and June
2018.27
1. The August 26, 2016 grievance
Colone submitted grievance no. 13–2016 on August 26, 2016
regarding the pigment automation project. It was withdrawn and
resubmitted.
2. The October 15, 2016 grievance
Colone submitted grievance no. 16–2016 on October 15, 2016
regarding a letter of understanding related to the use of contract
employees. This grievance was denied at Step 3 on October 24,
2016.
3. The October 12, 2016 grievance
Colone submitted grievance no. 17–2016 on October 12, 2016
regarding the pigment automation project. This Grievance was
denied at Step 3 on October 24, 2016.
4. The January 5, 2017 grievance
Colone submitted grievance no. 1-2017 on January 5, 2017
regarding a staffing issue in the Baler area. This grievance was
satisfactorily resolved at Step 1.
5. The January 30, 2017 grievance
Colone submitted grievance no. 2–2017 on January 30, 2017,
regarding the Respondent’s alleged failure to pay two employees
the appropriate wage rate. This grievance was satisfactorily re-
solved at Step 1.
6. The June 23, 2017 grievance
Colone submitted grievance no. 5–2017 on June 23, 2017 re-
garding an alleged threat by Mosley toward unit employee
Ronald Jones. This grievance was denied at Step 1.
March 27 statement as either stating or implying that he had personal
knowledge of Benoit’s remarks to Granlee or Dean’s providing Granlee
with a blue hardhat. However, the grievance merely alleged that Benoit
and Dean made the statements to Greenlee. Moreover, Colone credibly
testified that he based the grievances on the information he received from
Greenlee and there is no evidence that Lord spoke with Greenlee about
the source of Colone’s allegations. Similarly, with respect Ancelet’s al-
leged remarks, Colone’s statement stated that he got the information
from Baler area employees. Once again, Lord relied solely on the denial
of Ancelet, but produced no evidence that she spoke to Baler area em-
ployees in order to determine whether they did in fact make those state-
ments to Colone. (Tr. 65–66, 109–114, 308–312, 450–451; GC Exh. 11–
13; R. Exh. 27–28.)
27 The Respondent introduced these grievances as proof of Colone’s
other protected activities for which he did not incur repercussions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
7. The July 12, 2017 grievance
Colone submitted grievance no. 7–2017 on July 12, 2017,
again alleging that Mosley threatened Jones. This Grievance
was denied at Step 1.
8. The July 27, 2017 grievance
Colone submitted grievance no. 9–2017 on July 27, 2017 re-
garding the verbal warning he received. This grievance was de-
nied at Step 3.
9. The August 21, 2017 grievance
Colone submitted grievance no. 12–2017 on August 21, 2017
regarding alleged slanderous remarks toward him by an uniden-
tified member of management. This grievance was denied at
Step 1.
10. The March 18, 2018 grievance
Colone submitted grievance no. 5–2018 on March 18, 2018
alleging that Lord violated the grievance process. This grievance
was denied at Step 1.
F. The June 8, 2018 Discharge
On June 8, 2018, Lord presented Colone with a “Last Chance
Agreement” (LCA) that would have been effective for 12
months:28
Job Performance
In April and July 2017, we sent you letters cautioning you to
conduct yourself in a civil and professional manner, along with
warning you to cease from actions that could be viewed as di-
rect fabrications or falsifications of information. However,
since that time, you have continued to make false accusations
using inflammatory and insulting language both verbally and
through submission of grievances. Examples of tins ongoing
unacceptable behavior are as follows:
On Tuesday, November 7, 2017 Mr. Colone reported that the
soap line going into the Flexzone make up tank in 9C building
was plugged. When questioned about the lineup by the Area
Engineer, Mr. Colone ensured him that the valve line-up was
correct, which in fact was incorrect and untruthful. As a result
of Mr. Colone's report, two maintenance contractors were dis-
patched to remove the piping and open the line to clear the
28 Lord testified that the LCA was presented due to “multiple issues”
as an option of last resort to Colone and “out of respect for his time in
the plant and his position we probably gave him more chances than we
should have to address that behavior.” (GC Exh. 7; Tr. 312–317.) The
record established that her problem was with numerous grievances filed
by Colone. When asked to elaborate, Lord speculated that Colone
“would take a complaint and I think he created his own facts about what
he believed about the complaint, and he would make these statements,
and when I investigated them, they were never what he said they were .
. . Sometimes when he would write a grievance, . . . he was very broad
and I would have to follow up and ask him to please give me the names
of who he was referring to, or the dates of the incidents, or things like
that. He wasn’t very clear. And so then he would go back and he would
try to write a statement and give me the information . . . I just know they
were not true statements.” (Tr. 65–66.) Wisenbaker confirmed that the
action was premised on Colone’s grievances: “It was more around false
information.” (Tr. 485–486.)
reported plug. After two hours spent removing the piping from
the area identified by Mr. Calcine, no plug in the line was
found. In addition, Mr. Colone told the Capital Projects Coor-
dinator that the issue was probably in the 3 inch piping. After
tracing the line out, it was determined not to be the area of con-
cern as the line resulted in a dead end. Then, upon tracing the 1
inch line that comes off the discharge piping of the pump, the
Capital Projects Coordinator identified that a gate valve on the
discharge pipe exiting from the Soap charging pump was
closed. At that point, Mr. Colone opened the valve, along with
the control valve which resulted in a full flow of soap. Mr.
Colone's failure to properly trouble shoot the line and correctly
identify the root cause for no flow within the line resulted in
extra downtime and in inefficient usage of Lion employee and
contractor resources. Mr. Colone also provided false infor-
mation during the initial troubleshooting as well as during the
investigation. ln fact, he called another employee a liar and con-
tradicted testimony with his own version that did not coincide
with the outcome of the investigation.29
On November 15, 2017, Mr. Colone submitted a grievance cit-
ing that slanderous remarks were made on the radio by man-
agement and the engineering department. Mr. Colone specifi-
cally stated that he heard James Mosley on the radio say that he
(Mr. Colone) was sabotaging operations. Mr. Colone also
stated that James Mosley is a liar if he denies that he said it. At
no point during the investigation did anyone corroborate Mr.
Colone's allegation. No one has come forward and validated
the allegation or state that they heard lames Mosley on the radio
say that Mr. Colone was sabotaging operations.30
On February 15, 2018, Mr. Colone filed a grievance on behalf
of Wilbert Butler. In the grievance, Colone cited that Randy
Watson, Warehouse Supervisor created a hostile work environ-
ment by accusing W. Butler and L. Burton of loading trucks
incorrectly. In addition, during the investigation, Colone stated
that Burton told him that Randy cursed Wilbert and put his fin-
ger in Wilbert's face during the incident in the Shipping Office.
Upon follow up, Burton stated that he did not witness Randy
Watson's hand or fingers in Butler's face. He stated that all he
could see was that they were in close proximity. More im-
portantly, Mr. Burton stated that he did not tell Mr. Colone or
29 The Respondent provided no documentation of this incident other
than its inclusion in the LCA; nor is there any indication that he was
disciplined. In any event, it is undisputed that Colone “[failed] to
properly trouble shoot the line and correctly identify the root cause for
no flow within the line.” On the other hand, although undisputed that
Colone provided the engineer with “incorrect” information, Lord’s ref-
erence to the oversight as “untruthful” was an overdramatization; there
is no credible evidence to support an inference that Colone, after detect-
ing the problem and apprising his supervisor of it, intentionally misled
his supervisor about its source. Moreover, Lord conceded that the No-
vember 7 incident alone was insufficient to warrant the issuance of a last
chance agreement. (Tr. 62–63.)
30 Lord produced no credible evidence to confirm that Colone lied
about what he heard over the radio. In fact, her characterization of
Colone’s allegations as misstatements was premised solely on a slew of
denials or lack of knowledge on the part of employees that she spoke to.
In fact, she knew that “it basically came down to one person's word
against another.” (Tr. 63–65, 296–299.)
LION ELASTOMERS LLC 15
Mr. Butler that he witnessed Randy Watson cursing Wilbert.
He stated that all he heard was Randy telling Wilbert, "We
don't need the cursing.” Again, Mr. Colone provided false in-
formation during an investigation that was invalidated by the
witness.31
On March 27, 2018, Mr. Colone submitted a handwritten at-
tachment for grievances 02–2018 and 04–2018. In the statement,
Mr. CoIone cited that Cheryl Benoit questioned Mr. Chris Gran-
lee about the length of his absence and the possibility of retrain-
ing. Upon being questioned during the investigation, Mrs. Benoit
stated that she has never had a conversation with Chris Grantee
about the length of his absence nor a conversation regarding
training requirements. In addition, the statement from Mr.
Colone cited that Brad Dean gave Mr. Granlee his blue hat upon
his return and not an orange hat signifying permanent versus pro-
bationary employment). When questioned, Mr. Dean stated that
he does not distribute hardhats of any color to employees. Fi-
nally, Mr. Colone stated that he had spoken to Baler area workers
regarding a statement made by Mr. Si Ancelet. When questioned
about this statement, Mr. Ancelet was very adamant that Ile has
a strict script that he follows when training or discussing the
LOTO/Control of Hazardous Energy (SPI-10). He reads from the
procedure: “Persons must have 6 months experience at the Port
Neches Elastomers Facility before being eligible to be classified
as an authorized person to energize, de-energize and isolate elec-
trical equipment located at an MCC.” Mr. Ancelet stated that he
does not discuss whether a person is a "permanent employee or
not" as Mr. Colone alleged in his handwritten attachment to
Grievances 02–2108 and 04–2018.32
Prior to this performance transgression, Mr. Colone had pro-
gressed through the disciplinary process [counseling, verbal,
written, 2nd written] due to violations of Company Pol-
icy/Plant Rules for unacceptable behavior and/or job perfor-
mance transgressions.
Mr. Colone recognizes that in view of his serious misconduct,
just cause exists for his discharge. Nevertheless, the Company
agrees to provide Mr. Colone with one last chance to preserve
his employment with the Company under the terms and condi-
tions of the parties' collective bargaining agreement (“CBA”)
and past practices, except as modified by this Agreement. Mr.
Colone’s continued employment will be governed by his strict
compliance with the following conditions:
 Mr. Colone, at all times, must demonstrate satisfac-
tory job performance and conduct that is acceptable
to management. His job performance and conduct
must comply with all Company rules, policies and
procedures, including those relating to attendance,
the union labor contract, and any other written rules
and policies.
 Mr. Colone will not be eligible for promotion for the
31 Lord’s conclusion that the grievance contained “false information”
was yet another slanted version of an event. She premised that conclu-
sion on the denials or lack of knowledge on the part of Burton and others
in the warehouse that they witnessed Watson curse at Butler. However,
she made no reference to Butler’s version of the incident, which is what
duration of this Last Chance Agreement unless ex-
pressly agreed to by the Union and Company.
The conditions set forth above are effective for a period of
twelve (12) months. If Mr. Colone violates any of the provi-
sions set forth in this agreement, no matter how minor the in-
fraction may be, he will be subject to immediate discharge. If,
during the period of twelve (12) months from the first day Mr.
Colone returns lo work, Mr. Colone engages in any conduct
that would reasonably warrant any form of counseling and/or
discipline for misconduct, the parties agree that Mr. Colone
shall be terminated immediately and that his termination shall
be considered for all purposes to be final. In that respect, this
Agreement eliminates the just cause provision as it applies to
Mr. Colone during this probationary period. The twelve (12)
month period shall include vacations, holidays, and other forms
of paid leave under the CBA, but shall exclude any other peri-
ods when Mr. Colone is on leave of absence or otherwise not
actively working for any reason. No other mitigating factors or
mitigation of the penalty shall be considered by the parties, any
arbitrator, or any other adjudicator.
The terms of this Agreement are without precedent or prejudice
to future similar cases, involving employees other than Mr.
Colone, and the terms of this Agreement will be of no value as
evidence in any arbitration proceedings involving other em-
ployees. Mr. Colone agrees that he has been fairly and appro-
priately represented by his union. Mr. Colone agrees not to seek
appeal through the grievance/arbitration procedure provided in
the applicable collective bargaining agreement of any discipli-
nary action taken by the Company against him during the ef-
fective period of this Last Chance Agreement. Should Mr.
Colone nevertheless pursue a timely and properly processed
grievance for any discharge pursuant to this Agreement, the
only issue which may be presented to and considered by an ar-
bitrator is whether or not Mr. Colone violated any one of the
conditions set forth in this Agreement. Mr. Colone further
acknowledges that the only consideration for his signing of this
Agreement are the retention of his job and other terms included
in this Agreement; that no other promise or agreement of any
kind has caused him to sign it; that this Agreement has not been
obtained by any duress; and that he fully understands the mean-
ing and intent of this document. More specifically, he under-
stands that in return for his continued employment, he agrees
to work under the terms the Agreement contains.
Additionally, the Union and the Company specifically agree
that each reserves and maintains any and all rights that they
have under the CBA, and any past practices to enforce or chal-
lenge applicable work rules and similar policies in the future.
The LCA had been previously presented to unit employees by
the Respondent without objection by the Union. In this instance,
Colone simply disagreed with the allegations in the LCA and re-
fused to sign it. As a result, he was discharged on June 8, 2018.
led Colone to file the grievance. (Tr. 65, 105–108, 299–305; GC Exh.
10; R. Exh. 38.)
32 Lord testified that Colone’s made false statements in relation to the
Granlee grievances, but when pressed about it conceded that she could
not say whether or not Colone made up the statements. (Tr. 65.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
LEGAL ANALYSIS
I. THE OCTOBER 24, 2016 MEETING
An employer violates Section 8(a)(1) of the Act when the em-
ployer restrains or coerces an employee in the exercise of his or
her statutory right to engage in concerted activity. Statements
that would lead a reasonable employee to fear an adverse em-
ployment action as a result of union activity are considered
threatening. See Overnite Transp. Co., 332 NLRB 1331, 1335
(2000) (remarks that would reasonably lead an employee to fear
adverse employment prospects for engaging in union activity
were prohibited by the Act). Statements that do not specify a
particular consequence for engaging in concerted activity are
still coercive when they would lead an employee to anticipate
some adverse consequence. E.g., Id. (an employer acted coer-
cively when a supervisor told an employee that his future with
the company was “real iffy” because of his participation in a
picket line); Amptech, Inc., 342 NLRB 1131, 1135 (2004) (com-
pany acted coercively by indicating that a union organizing drive
was a personal attack and informing employee that it would keep
its “options open”); Union National Bank, 276 NLRB 84, 88
(1985) (employer acted coercively by telling employee “watch
yourself.”).
Here, there is no question that Colone was engaged in pro-
tected concerted activity. Colone had been called to a meeting
with Wisenbaker and Mosley for a discussion about the griev-
ances he had filed on behalf of other employees, and the state-
ment made by Mosley arose in the context of that discussion.
The Respondent does not dispute that Colone’s activity—filing
grievances—was concerted, and thereby protected by the Act.
Mosley’s statement—that Colone wasn’t “gonna make it”—
is very similar to the sorts of statements made in Overnite
Transp. Co., 332 NLRB at 1335 and Amptech, Inc., 342 NLRB
at 1135, in that it implied a future adverse consequence, even if
it did not explicitly state what that consequence would be.
The Respondent contends that the statement was, neverthe-
less, not a threat because Mosley, Wisenbaker, and Griggs all
indicated that they did not find it threatening,33 and because Mos-
ley did not intend it as a threat. But the standard for what is
coercive is objective, not subjective. See Crown Stationers, 272
NLRB 164, 164 (1984) (the test for interference or coercion is
whether the conduct may reasonably be said to tend to interfere
with the free exercise of employee rights). Therefore, even if the
other three people present did not intend or perceive the words
as a threat, if a reasonable employee in Colone’s position would
tend to do so, the words are be prohibited.
The Respondent also argues, without any support, that telling
an employee “you ain’t gonna make it” is not objectively threat-
ening. I disagree. Indeed, the statement in this case was a more
specific and tangible threat than the one in Amptech, Inc. The
threat that Colone wouldn’t “make it” reasonably suggested the
possibility of discharge, a specific adverse employment conse-
quence. By contrast, the statement found to be a threat in
Amptech Inc.—that the employer would “keep its options
open”—was much more open-ended.
33 As discussed above, Griggs understood the comment to relate to
Colone’s job security, but believed at the time it was unlikely the threat
Finally, the Respondent argues that the fact that Colone was
not discharged for more than 18 months after this statement was
purportedly made is further evidence that Mosley did not make
a threat. A threat, however, does not need to be carried out in
order to be threatening and to chill union activity. See Crown
Stationers, 272 NLRB at 164 (The Board has . . . consistently
held that the motive or effect of the coercion is immaterial to the
finding of a violation.”) (emphasis supplied).
Under the circumstances, Mosley’s statement to Colone on
October 24, 2016, that he “ain’t gonna make it” unlawfully
threatened Colone in violation of Section 8(a)(1) of the Act.
II. THE JULY 12, 2017 SAFETY MEETING
The General Counsel argues that Colone was unlawfully dis-
ciplined as a result of the comments he made during the safety
meeting on July 12, 2017. The Respondent argues that the dis-
cipline was justified because Colone’s comments were not pro-
tected and, if they were, his behavior during and after the meet-
ing was offensive enough to lose the Act’s protection.
A. Whether the Activity was Concerted
An employee may be engaged in concerted activity when
he/she speaks in the presence of co-workers to address work-re-
lated concerns. Whittaker Corp., 289 NLRB 933, 933 (1988)
(quoting Root Carlin, Inc., 92 NLRB 1313, 1314 (1951) (“the
guarantees of Section 7 of the Act extend to concerted activity
which in its inception involves only a speaker and a listener, for
such activity is an indispensable preliminary step to employee
self-organization.”). The “activity of a single employee in en-
listing the support of his fellow employees for their mutual aid
and protection is as much ‘concerted activity’ as is ordinary
group activity . . .[s]uch individual action is concerted as long as
it is engaged in with the object of initiating or inducing ...group
action...” Id. (internal quotations omitted).
Here, Colone, an elected union representative, made protected
complaints relating to mandatory overtime hours, heat and safety
(other terms of employment), all mandatory subjects of bargain-
ing under the Act. By objecting to his employer’s proposed
changes to these working conditions in the presence of other em-
ployees, Colone engaged in concerted activity. Enterprise Prod-
ucts, 264 NLRB 946 (1982) (an employee was engaged in con-
certed activity by objecting, during a group meeting, to em-
ployer’s proposal that employees increase their productivity in
exchange for event tickets instead of higher wages); Whittaker
Corp., 289 NLRB at 934 (finding concerted activity when an em-
ployee raised his hand and complained about his employer’s re-
fusal to increase wages, even where no other employees com-
mented at the meeting).
The Respondent contends that Colone’s activity was not pro-
tected because no employees asked him to raise questions on
their behalf. The argument overlooks the fact that the over-
time/heat/safety issues were raised by coworkers before Colone
joined the discussion. In any event, that is not the test; the test is
whether, in the presence of fellow employees, Colone protested
a change in an employment term affecting those employees.
Whittaker Corp, NLRB at 934, 940–941 (employee’s speech was
would be carried out given his good work performance and position as a
union representative.
LION ELASTOMERS LLC 17
concerted where made in the presence of other employees and it
related to a change in an employment term even where “no em-
ployees . . . indicated group action or approval of [employee’s]
statements” and the speaking employee “did not seek support
from other employees before or after the meeting.”).34
The Respondent also argues, relying on Media General Oper-
ations, Inc., 346 NLRB 369 (2006), that because Colone’s ques-
tions were about the company’s liability, they did not relate to a
term and condition of employment, and thus were not made for
the purpose of mutual aid or protection. However, Media Gen-
eral Operations, Inc. is inapplicable; that case dealt with a situ-
ation where an employee raised objections when an employer
sought to reprimand him for a workplace mistake—an entirely
personal issue that was not of concern to other employees. Here,
Colone did express concerns about the way the workplace
changes would affect the safety of his fellow employees. More-
over, his reference to the Respondent’s potential liability expo-
sure was obviously not over concern for its legal and financial
interests but a tactical approach in advocating employees’ con-
cerns relating to overtime, heat and safety.
Finally, Respondent contends that Colone’s persistence in de-
manding a copy of the work-set API standard after the meeting
was not in the nature of concerted activity. That argument also
fails since the standard was requested during the meeting and
Dean agreed to provide it before the discussion became conten-
tious. The fact that Colone made the request as he was leaving
the room and most others had left did not remove it from the res
gestae of the meeting.
B. Whether Colone Forfeited the Protection of the Act
Employees involved in what would normally be concerted ac-
tivity may lose the protection of the Act if they engage in suffi-
ciently opprobrious conduct. In Atlantic Steel Co., 245 NLRB
814, 816 (1979), the Board outlined the applicable factors in de-
termining whether an employee’s outburst is sufficiently oppro-
brious to lose the protection of the Act: (1) the place of the dis-
cussion; (2) the subject matter of the discussion; (3) the nature of
the employee's outburst; and (4) whether the outburst was, in any
way, provoked by an employer's unfair labor practice.
1. Place of discussion
Spontaneous employee comments made during group meet-
ings are more likely to be protected. Datwyler Rubber & Plas-
tics, Inc., 350 NLRB 669, 670 (2007) (employee’s comment that
a supervisor was a devil and God would punish him and the em-
ployer for making employees work 7 days a week was protected
when it arose as a “spontaneous remark” during a meeting in
protest on behalf of employees on a matter of concern to many
employees). Colone’s comments were not more impertinent
than calling a supervisor a devil, speech found not to lose the
Act’s protection in the context of group meetings. Id.
The Respondent argues that Colone’s comments were not
made during a group meeting because it was constructively ter-
minated by his disruptive conduct. Yet the cases cited by the
Respondent are inapposite or distinguishable. Atlantic Steel Co.,
34 Under the same reasoning, the question of whether or not Colone
was acting in his capacity as a union steward is not determinative of
whether the activity was concerted, despite the Respondent’s suggestion
245 NLRB at 816 (employee lost the Act’s protection where he
made remarks during production time, as opposed to at a meet-
ing); Public Service Co. of New Mexico, 364 NLRB No. 86
(2016) (meeting terminated where employee repeatedly inter-
rupted linemen when they attempted to ask questions, and, after
being asked to leave, refused and instructed that the meeting stop
and that employees leave); Carrier Corp., 331 NLRB 126 (2000)
(employee lost Act’s protection by insisting on discussing a sub-
ject unrelated to the meeting and refusing to acquiesce to re-
peated directions that his concerns could be discussed later at a
more appropriate time). Here, Colone’s conduct is not of the
kind at issue in those cases. He did not insist that the safety
meeting end, nor did he interrupt it by speaking on unrelated is-
sues; the concerns he voiced were directly related to the subject
of the meeting, which was employee safety. Moreover, the meet-
ing accomplished its primary purposes—Dean presented safety
information and the customary question and answer session fol-
lowed. Questions arose about overtime work hours and Dean
and employees became frustrated over Dean’s statement that
overtime requirements would increase. The meeting ended when
it became clear that the meeting had run its course, as Dean was
unable to placate employees’ concerns over overtime working in
hot conditions and its impact on their safety.
2. Subject matter of discussion
Speech that relates to terms and conditions of employment is
more likely to be protected. Datwyler Rubber & Plastics, Inc.,
350 NLRB at 670 (2007) (second factor weighed for employee
where the employee’s outburst occurred during a discussion of
employee complaints about terms and conditions of employ-
ment); Mexican Radio Corp., 366 NLRB No. 65, slip op. at 1
(2018) (“email was part of an ongoing dialogue between the
workers and employer and was a reaction to the latter’s failure
to correct the problems perceived by the employees”). Colone’s
speech concerned issues of safety and working hours, both terms
and conditions of employment.
The Respondent argues that this factor weighs against protec-
tion because Colone’s comments were not made during a joint
labor-management consultation, a grievance meeting or a bar-
gaining meeting, and ought to have been reserved for an occasion
when they might have been more fruitful, such as when an em-
ployer’s representative with more authority was present. How-
ever, there is no legal precedent mandating that employee speech
occur within such specific parameters to merit the Act’s protec-
tion. The Respondent’s strongest argument in support of its pro-
posed concept is Carrier Corp., 331 NLRB 126 (2000) (em-
ployee lost Act’s protection by insisting on discussing a subject
unrelated to the meeting and refusing to acquiesce to repeated
directions that his concerns could be discussed later at a more
appropriate time). The speech in that case, however, was
deemed disruptive because it was entirely off-topic, not merely
because—as the Respondent would have it—it was voiced in a
forum that was less-than-ideal for resolving employee’s
that the activity was not concerted because Colone was only acting in an
individual capacity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
concerns.35
The remarks Colone made were part of an ongoing dialogue
between employees and management over a term of employ-
ment, and so this factor cuts against the Respondent. See Mexi-
can Radio Corp., supra at 21 (employees were protected when
they were disciplined for speech that occurred via email, when
such speech was part of an ongoing dialogue between the work-
ers and management about terms of employment).
3. Nature of the employee’s outburst
Loud and boisterous behavior, including cutting off a supervi-
sor, and delivering words in an “animated and challenging tone,”
is still not opprobrious enough to lose the Act’s protection. Air
Contact Transp. Inc., 340 NLRB 688 (2003) (holding that where
an employee cut off a supervisor, spoke heatedly, and turned to
other employees and said that the supervisor’s response was “a
bunch of baloney” the employee did not forfeit the Act’s protec-
tion). Even language that is suggestive of violence and contains
profanity may be protected. Kiewit Power, 355 NLRB 708, 710
(telling a supervisor that things could “get ugly” and that he
should “bring his boxing gloves” did not cause an employee to
lose the Act’s protection); Leasco, Inc., 289 NLRB 549, 549 fn.
1 (1988) (employee’s statement, “if you're taking my truck, I'm
kicking your ass right now,” did not cause him to lose the Act’s
protection because it was a “colloquialism that standing alone
does not convey a threat of actual physical harm.”); but see At-
lantic Steel Co., 245 NLRB 814 (employee turned to another em-
ployee and either called the foreman a “lying son of a bitch” or
stated that the foreman had told a “m—f—lie” or was a “m—f—
liar” on the production floor, and lost the Act’s protection).
Here, Colone spoke persistently and argumentatively, and
made a brusque, impolite statement to an employee who was
leaving the meeting that he should “just go ahead and leave” be-
cause he was not needed; he also, upon Dean refusing to provide
him with the paperwork related to the new overtime policy, told
Dean that he was not doing his job. Yet Colone’s heated speech
is of the sort that is protected under the Act. See Consumers
Power Co., 282 NLRB 130, 132 (1986) (“The protections Sec-
tion 7 affords would be meaningless were we not to take into
account the realities of industrial life and the fact that disputes
over wages, hours, and working conditions are among the dis-
putes most likely to engender ill feelings and strong responses.”).
The Respondent argues, based on Atlantic Steel Co.,36 that
Colone’s outburst was offensive enough for this factor to cut
against him. Atlantic Steel is distinguishable for two reasons.
First, Colone did not directly insult a supervisor during the meet-
ing (nor use any profanity). Second, and more importantly,
35 The Respondent additionally cites Postal Service, 268 NLRB 275
(1983), for the proposition that Colone’s conduct might only have been
justified in a grievance meeting: (“[I]n the administration and resolution
of grievances under the collective-bargaining agreement, because of the
nature of these endeavors, tempers of all parties flare and comments and
accusations are made which would not be acceptable on the plant
floor.”). However, while Postal Service (in the process of drawing a
comparison to a similar case where an employee was protected because
his comments were made in the context of a grievance resolution) does
say that behavior that would be unacceptable on the plant floor might be
acceptable during the resolution of a grievance, it does not state this is
Atlantic Steel largely turned on the fact that the employee’s out-
burst was unwarranted under the specific circumstances at issue
in that case. Atlantic Steel Co., 245 NLRB at 814 (holding that
the employee “reacted in an obscene fashion without provoca-
tion” and indicating that a spontaneous outburst in other circum-
stances—such as a formal grievance proceeding—might not
have lost protection).
4. Whether the employee’s outburst was provoked by an unfair
labor practice
Many outbursts that are protected are not motivated by unfair
labor practices. E.g. Leasco, Inc., 289 NLRB at 549 fn. 1. Not
surprisingly, Colone made the statements at issue during griev-
ance and disciplinary meetings, but they were not shown to have
been spurred by the commission of unfair labor practices.
Given that the first three factors weigh in favor of Colone, his
conduct during the July 12, 2017 meeting did not forfeit the pro-
tection of the Act.
The Respondent also argues that because it was not shown to
have anti-union animus, its July 20 discipline of Colone was not
unlawful. Yet a showing of antiunion animus is not always nec-
essary to make out a violation of the Act. E.g., Meyers Indus-
tries, 281 NLRB 882 (no mention of anti-union animus in its
analysis). The factors the Respondent lists for consideration in
determining if union animus was present (the timing of the em-
ployer’s adverse action in relationship to the employee’s pro-
tected activity, the presence of other unfair labor practices, state-
ments and actions showing the employer’s general and specific
animus, the disparate treatment of the discriminatee, departure
from past practice, and evidence that an employer’s proffered
explanation for the adverse action is a pretext) are relevant to
analyzing circumstantial evidence under a Wright Line standard
in a mixed-motive case where the Respondent claims that it
would have disciplined in the absence of union activity for a le-
gitimate business reason. 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981). E.g., PAE Technologies, 367 NLRB
No. 105, fn. 11 (2019) (explaining the purpose of a Wright-Line
analysis). Here, there is no need to consider circumstantial evi-
dence given that the disciplinary letter clearly refers to Colone’s
protected behavior during the meeting.
Furthermore, the Respondent’s alleged justifications for dis-
ciplining Colone on July 20 are inauthentic. The Respondent
bases its discipline of Colone on “behavior which violated the
Respondent’s policies” and for providing “fabricated or false in-
formation” during a follow-up interview on July 18, 2017, to in-
vestigate the incident. As discussed above, I do not credit the
assertion that Colone made false statements during his interview.
the only context removed from the “plant floor” where a greater degree
of aggressive speech might be permissible.
36 The Respondent also cites Public Service Co. of New Mexico, 364
NLRB No. 86, and Carrier Corp., 331 NLRB 126, without fully explain-
ing why it believes them relevant to this factor of the analysis. As dis-
cussed at greater length above, those cases are not especially relevant to
this factor, nor applicable to this case, as they deal with situations where
an employee actually cut a meeting short and where an employee dis-
rupted a meeting by engaging in a wholly off-topic outburst, respec-
tively.
LION ELASTOMERS LLC 19
The argument that Colone was disciplined for behavior during
the safety meeting which violated the Respondent’s policies is
circular. The conduct that is alleged to have violated its policies
during the meeting was the protected concerted activity dis-
cussed above. The Respondent also contends that Colone spoke
aggressively and angrily during the follow-up interview with
Lord and Wisenbaker on July 18. However, while referencing
his conduct during the safety meeting and the allegation that he
provided false information during his interview on July 18, the
disciplinary letter emphatically does not say anything about his
conduct towards Lord and Wisenbaker during that interview. As
such, I did not credit that this was a reason for his discipline.
Even if it was, the fact that his protected activity was a significant
motivating factor in his discipline still makes that discipline un-
lawful. Consolidated Bus Transit, Inc. 350 NLRB 1064, 1065
(2007) (all the General Counsel must show to make out a case
under Section 8(a)(1) is that union animus—such as animus to-
wards a protected concerted activity—was a substantial or moti-
vating factor in the adverse employment action); Trailways,
Inc., 237 NLRB 654, 662 (1978) (“[T]he General Counsel must
establish that the Respondent acted at least in part with a pro-
scribed motive.”).
III. THE RESPONDENT’S DISCHARGE
The complaint alleges that the Respondent discharged Colone
because he was engaged in protected concerted activity. The Re-
spondent maintains that Colone was lawfully discharged after
having been given a Last Chance Agreement that followed two
prior written warnings for legitimate performance issues, and
that the basis of the Last Chance Agreement was not that he was
filing grievances, but that he was filing false grievances.
Colone received two written warnings for performance prior
to the Last Chance Agreement—one on August 14, 2017, and
another on October 20, 2017. Those incidents were not alleged
to have been factors in the Respondent’s decision to present
Colone with the LCA, nor is claimed that they were driven by
antiunion animus. Nevertheless, the LCA referenced them by
implication and, as such, they served as predicates for the ad-
verse action.37 But the Last Chance Agreement itself was not
issued because of these prior incidents; it does not mention them
specifically, and the inquiry is whether the incidents it does men-
tion are legitimate grounds for discharge, or merely a pretext for
discriminatory action. Pursuant to the terms of the Respondent’s
policy on Last Chance Agreements, they must be issued for just
cause based on an employee’s “performance problem(s).”38
It is true that an employee loses the Act’s protection where the
employee engages in bad-faith conduct or deliberate and mali-
cious falsehoods. See, e.g., Ogihara America Corp., 347 NLRB
110, 111–112 (2006) (employee lost protection of Act when he
inserted a different co-worker’s name on the return address label
37 “Prior to [the March 27, 2018] performance transgression, Mr.
Colone had progressed through the disciplinary process [counseling, ver-
bal, written, 2nd written] due to violations of Company Policy/Plant
Rules for unacceptable behavior and/or job performance transgressions.”
38 The Respondent’s policies indicate that discipline does not need to
be progressive. Thus, the Respondent was not required to discipline
Colone with written warnings before implementing the LCA. However,
the policy also suggests that the Respondent generally tries to progress
of an anonymous letter critical of supervisor because he feared
employer repercussions); HCA/Portsmouth Regional Hospital,
316 NLRB 919, 930 (1995) (no protection where employee tried
to raise support for a supervisor’s removal by recklessly spread-
ing false rumors about a supervisor). On the other hand, when
an employee files a grievance which is merely overzealous or
contains mistakes, that act is protected. Roadmaster Corp., 288
NLRB 1195, 1195–1196 (1988) (discharge of an employee who
improperly signed other individuals’ names to grievance forms
was unwarranted where the employee had no intent to deceive,
where the grievance forms, as opposed to other company paper-
work, “merely initiated a procedure through which personnel de-
cisions would be determined” and was driven by a motive—a
concern about contractual time limits after being unable to reach
the employee by telephone—that was reasonable under the ex-
tenuating circumstances of the case).
There was no credible evidence that any of the errors in the
grievances filed by Colone were intentional or that he had a ma-
licious intent to deceive the Respondent. In his March 22 griev-
ance, he incorrectly identified Zamora and Hobbs as employees
who had been multitasking; the following day, he learned that
Taylor, the shift foreman had in fact been the one to step in and
perform extra duties. Colone withdrew the grievance and apol-
ogized for the incorrect information. His error was one as to the
identity of the workers involved; the substantive safety concerns
he raised about the dangers inherent in multitasking, however,
remained the same in both the original and revised grievances.
With regards to Colone’s November 12, 2017 grievance, the
Respondent was unable to corroborate his assertion that he was
accused of sabotaging the Respondent’s operation; however, the
mere absence of corroborating evidence does not mean that
Colone maliciously lied, only that the Respondent determined
that his grievance was without merit. The same is true of
Colone’s February 15, 2018 grievance; although the Respond-
ent’s investigation did not corroborate his allegations, nothing
shows that Colone, in filing the grievance, did anything other
than rely on statements made to him by another employee, But-
ler. Finally, in support of three grievances he filed on March 23,
2018, the Respondent provided no evidence, however, to refute
Colone’s written allegations that he received the information
from the grievance and/or employees in a particular work area.
Construed in a light most favorably to the Respondent, Colone’s
alleged misstatements do not reveal the bad faith needed to lose
the Act’s protection.
In short, the record supports the conclusion that the Respond-
ent scrutinized Colone’s grievance for discrepancies between his
version of events and those of other witnesses. The Respondent
found such discrepancies in four grievances filed over the course
up the disciplinary scale in escalating order of severity: “When an em-
ployee fails to perform at the expected performance standard by violating
one or more Company policy, rule, or standard, discipline may be war-
ranted. Any infraction will result in discipline and employees will ad-
vance within the progression regardless of the nature of the violation (in
other words, each type of violation does not result in a separate progres-
sion). The appropriate discipline to be taken will depend upon the seri-
ousness of the issue.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
of about a year.39 These inconsistencies provide the basis for his
Last Chance Agreement, and the Respondent claims they justify
Colone’s discharge. But even assuming Colone was indeed mis-
taken in each of these instances, these four or five statements that
contain discrepancies with the accounts of other witnesses do not
prove that Colone had any wrongful motivation or intention to
deceive the Respondent. Cf. HCA/Portmouth Regional Hospi-
tal, 316 NLRB at 930 (employee’s discipline justified where the
employee submitted information without verifying it and was
motivated by personal concerns, rather than a desire to improve
employees’ working conditions, and the information was dam-
aging and defamatory). The more reasonable conclusion is that
these incidents were seized upon by the Respondent as a pretext
to discharge Colone for being a highly active and zealous union
steward. The mistakes in his grievances do not serve to make
the act of filing those grievances anything other than concerted
activity which is protected by the Act.
Although the submission of inaccurate grievances may have
been the main transgression described in the LCA, it was not the
only one. The LCA also accuses Colone of making “false accu-
sations using inflammatory and insulting language,” in connec-
tion with the grievances that he filed. It cites a couple of in-
stances by referring to the warning letters Colone received in
July and April of 2017; the first of those letters, as discussed
above, upbraided Colone for his speech during an employee
safety meeting. The April warning letter criticizes, in part, state-
ments by Colone made in connection with his pursuit of a griev-
ance, where he accused a supervisor of having amnesia and as-
serting that “people in the position of leadership have no integ-
rity.”
Section 7 of the Act entitles employees to file and process
grievances, and disciplining or discharging of employees for do-
ing so violates Section 8(a)(1). Interboro Contractors, Inc., 157
NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967),
approved in NLRB v. City Disposal Systems, 465 U.S. 822, 831–
32 (1984). As discussed above, an employee may lose the Act’s
protection if the employee’s conduct is sufficiently opprobrious.
However, in the context of grievances, the standard is a high bar,
and inflammatory, rude, or even profane language does not meet
that bar—rather, such language is part of the res gestae of the
grievance discussion. Thor Power Tool Co., 148 NLRB 1379,
1380–1381 (1964), enfd. 351 F.2d 584 (7th Cir. 1965) (calling
a superintendent a “horse’s ass” following a grievance discus-
sion was not a basis for discharge, but rather “part and parcel” of
the employee’s participation in protected grievance activity);
Clara Barton Terrace Convalescent Center, 225 NLRB at 1029
(the “abrupt and officious” tone in which a grievance was
worded did not cause an employee to lose the Act’s protection);
Desert Cab, Inc., 367 NLRB No. 87, slip op. at 14–15 (2019)
(when an employee is discharged for conduct that is part of the
res gestae of protected activities, the question is whether the
39 The Respondent’s Last Chance Agreement also references Colone’s
allegedly false statements during his July 2017 interview with Lord and
Wisenbaker. As discussed above, I do not find credible any assertion
that Colone made false statements during this interview.
40 The Respondent argues that it is not possible to evaluate the offen-
siveness of the language in Colone’s statement because the General
conduct is so egregious as to take it outside the protection of the
Act, or of such character as to render the employee unfit for fur-
ther service). A steward’s processing of grievances is protected
unless “his excess is extraordinary, obnoxious, wholly unjusti-
fied, and departs from the res gestae of the grievance procedure.”
Union Fork and Hoe Co., 241 NLRB 907, 908 (1979) (arbitrator,
who had ruled a union steward was discharged for just cause,
failed to consider the great extent to which a union steward is
protected during the grievance process).
Besides those already mentioned, the Respondent offers no
concrete examples of exactly what Colone said while processing
grievances that might have gone so far as to lose the Act’s pro-
tection. The examples that are referenced in the Last Chance
agreement are not sufficiently opprobrious to do so. Colone’s
comments during the safety meeting were protected for the rea-
sons discussed above. The language described in the April 3 dis-
ciplinary letter is likewise protected. See Phoenix Transit Sys-
tem, 337 NLRB 510, 510 (2002) (“the views of workers and the
union need not be expressed with any excessive regard for the
niceties of courtesy, or in the politest of terms. It is recognized
that Federal law gives license in the collective-bargaining arena
to use intemperate, abusive, or insulting language without fear of
restraint or penalty . . .”). Colone’s statement did not contain
language as extreme as that found protected in Thor Power Tool
Co.; he did not use vulgar language to insult a supervisor.40 He
did not act unlawfully. Fork and Hoe Co., 241 NLRB at 908 (in
some cases an employee may not be disciplined even for acting
unlawfully in “a moment of animal exuberance” if not driven by
improper motives). His tenacity and stubbornness, such as it
was, did not even rise to the level of threatening a supervisor with
any adverse consequence. Clara Barton, 225 NLRB at 1029–
1030 (employee was protected after telling supervisor “this is a
warning if it happens again you will be given a reprimand.”).
Thus, Colone was discharged for conduct that was part of the res
gestae of concerted activity.
The Last Chance Agreement does mention one other perfor-
mance-related incident on November 7, 2017. However, even
assuming (given the lack of evidence on the issue) that this inci-
dent was indeed a legitimate performance-related incident since
no discipline was issued, the Respondent does not argue that this
single event, which occurred almost 7 months before Colone’s
discharge, would have justified the issuance of a LCA in the ab-
sence of his protected activity; in fact, Wisenbaker testified to
precisely the contrary. See In re Alamo Rent-a-Car, 236 NLRB
1155, 1156 (2001) (“[T]he Board must determine based on all of
the evidence whether the employer has established that it ‘would
have fired’ the employee, not merely that it could have done so.”)
(internal quotation omitted).
Given that the performance-related issue mentioned would not
have provided an independent basis for discharge and given that
the Respondent’s proffered motivation for discharging Colone—
Counsel never entered it into evidence. However, although the statement
was not entered into evidence, the warning letter was, and the disrespect-
ful comments described therein do not rise to the level required for an
employee to lose the protection of the Act.
LION ELASTOMERS LLC 21
provision of false statements—is illegitimate, it is not necessary,
as the Respondent claims, to perform a Wright Line analysis. A
Wright Line analysis applies in mixed-motive cases, where an
employer discharges an employee in part because of concerted
protected activity but argues that it would have discharged the
employee regardless of that activity, for a legitimate business
reason. Wright Line, supra); PAE Technologies, 367 NLRB No.
105 fn. 11 (2019).41 Wright Line requires that the General Coun-
sel demonstrate by a preponderance of the evidence that the em-
ployee’s protected conduct was a motivating factor in an em-
ployer’s adverse action by showing: 1) that the employee’s ac-
tivity was protected, 2) that the employer knew about the pro-
tected activity, and 3) the employer’s animus. See Consolidated
Bus Transit, 350 NLRB 1064, 1065 (2007) (referencing Wright
Line). The Respondent argues that it lacked antiunion animus
and lists a range of factors it believes relevant to this determina-
tion.42
However, even assuming that Wright Line applied, the Re-
spondent’s defense would still fail under such an analysis. There
is no question that Colone engaged in protected activity, for the
reasons discussed above, nor that the Respondent knew about
such activity. The considerations the Respondent lists for deter-
mining antiunion animus (the third Wright Line factor) are only
used to determine antiunion animus if no direct evidence of such
animus exists and the only evidence available is circumstantial.
Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004)
(unlawful motivation may be found based upon direct evidence
of employer animus toward the protected activity). They are ir-
relevant here, because there is such direct evidence. In its Last
Chance Agreement, the Respondent directly references Colone’s
“using inflammatory and insulting language,” as well as the
warning letter of April 2017 and the written discipline of July
2017 urging him to conduct himself in a “civil and professional
manner.” This means that the Respondent expressly issued the
Last Chance Agreement to Colone because of protected activity
that was part of the res gestae of his role as a union steward. E.g.,
Thor Power Tool Co., 148 NLRB at 1380-81 (1964) (offensive
language part of the res gestae of the grievance discussion). If
further evidence of the Respondent’s hostility towards Colone’s
protected activity were needed, Mosley’s threat that Colone
would not “make it,” which was prompted by Colone filing
grievances, demonstrates such hostility.
Finally, the Respondent argues that it terminated Colone be-
cause he refused to sign the Last Chance Agreement, not because
of his concerted activity per se. This argument fails, because
when an employee is discharged for refusing to sign off on a dis-
ciplinary action that would not have been taken but for the em-
ployee’s protected activity, the discharge is still unlawful. See,
e.g., Air Contact Transport, Inc., 340 NLRB 688 (2003) (reject-
ing employer’s reliance on employee’s refusal to sign unlawful
41 A Burnup and Sims analysis is likewise not appropriate in this situ-
ation, as that case deals with a disputed issue of fact—i.e. whether or not
the employee actually engaged in the conduct for which he was disci-
plined. 379 U.S. 21, 23 (1964). Here, there is no question that Colone
filed the grievances at issue. The only dispute is whether to characterize
his behavior as protected or as having lost the protection of the Act.
42 These factors are: (1) the timing of the employer’s adverse action
in relationship to the employee’s protected activity, (2) the presence of
reprimand as independent basis for discharge).
In essence, this dispute does not pit enforcement of Colone’s
Section 7 rights as a union steward against the Respondent’s
management rights under the CBA with respect to employee per-
formance. Colone’s conduct as a union steward tenaciously ad-
vocating on behalf of unit employees’ terms and conditions of
employment did not fall within the ambit of discipline. Manage-
ment certainly had a right to complain about his grievance-re-
lated behavior to the Union and Lord certainly did that. How-
ever, the Respondent was not lawfully entitled to discipline him
because he was annoying and filed grievances based upon what
unit employees told him. Under the circumstances, the Respond-
ent’ violated Section 8(a)(3) and (1) of the Act by discharging
Colone on June 8, 2018, because of his protected and concerted
activities as a union steward.
CONCLUSIONS OF LAW
1. Lion Elastomers LLC is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The United Steel, Paper and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial and Service Workers Interna-
tional Union, Local 228 (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Union is the exclusive labor representative of employ-
ees of the following bargaining unit:
All hourly employees employed as operating employees in job
classifications set forth in Article VI, but excluding all other
employees such as shipping and receiving clerks, engineering
stockroom clerk's, machine shop and tool room clerks, all of-
fice clerical and secretarial employees, plant protection em-
ployees, laboratory employees, all professional and technical
employees, research and development unit employees, and all
supervisory employees with the authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of
employees.
4. The Respondent, by James Mosley, threatened employee
Joseph Colone’s job security in violation of Section 8(a)(1) of
the Act on October 24, 2016 by telling Colone that he “ain’t
gonna make it” because he refused to settle or withdraw griev-
ances.
5. The Respondent discharged Colone on June 8, 2018, in vi-
olation of Section 8(a)(3) and (1) because he filed numerous
grievances.
6. The aforementioned unfair labor practices affected com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent discriminatorily discharged
Joseph Colone, the Respondent shall be ordered to offer Colone
other unfair labor practices, (3) statements and actions showing the em-
ployer’s general and specific animus, (4) the disparate treatment of the
discriminatee, (5) departure from past practice, and (6) evidence that an
employer’s proffered explanation for the adverse action is a pretext.
Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op. at 11
(2018), citing National Dance Institute—New Mexico, Inc., 364 NLRB
No. 35, slip op. at 10 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
reinstatement to his former position or, if that position no longer
exists, in a substantially equivalent position without prejudice to
his seniority or other rights and privileges previously enjoyed,
discharging, if necessary, any employees hired in his place.
Colone shall be made whole for any loss of earnings he may have
suffered due to the discrimination against him. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall also be required to expunge from its
files any reference to the unlawful termination of Colone and to
notify him in writing that this has been done. In accordance with
our decision in King Soopers, Inc., 364 NLRB No. 93 (2016),
enfd. in relevant part 859 F.3d 23 (D.C. Cir. 2017), the Respond-
ent shall be ordered to compensate Colone for his search-for-
work and interim employment expenses regardless of whether
those expenses exceed his interim earnings. Search-for-work
and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in
New Horizons, supra, compounded daily as prescribed in Ken-
tucky River Medical Center, supra.
Respondent shall file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar quarters.
Respondent shall also compensate Colone for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year, Latino Express,
Inc., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended43
ORDER
The Respondent, Lion Elastomers LLC, Port Neches, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively telling any employees that their employment
may be in jeopardy if they file grievances alleging violations of
our collective bargaining agreement with the United Steel, Paper
and Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers International Union, Local 228 (the Un-
ion).
(b) Discharging or otherwise discriminating against any em-
ployee for engaging in protected concerted activity on behalf of
the Union or any other union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Joseph Colone full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges
43 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
previously enjoyed.
(b) Make Joseph Colone whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the decision.
(c) Compensate Joseph Colone for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards, and file
with the Regional Director for Region 16, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar years.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify the employee in writing that this
has been done and that the discharge will not be used against him
in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Port Neches, Texas, copies of the attached notice marked
“Appendix.”44 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by the Respondent at any time since October 24, 2016.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 16 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. April 25, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
44 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
LION ELASTOMERS LLC 23
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against any
of you for supporting the United Steel, Paper and Forestry, Rub-
ber, Manufacturing, Energy, Allied Industrial and Service Work-
ers International Union, Local 228 or any other union.
WE WILL NOT tell you that your employment may be in jeop-
ardy if you file grievances alleging violations of our collective
bargaining agreement with the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, Local 228.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Joseph Colone full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
WE WILL make Joseph Colone whole for any loss of earnings
and other benefits resulting from his unlawful termination, less
any net interim earnings, plus interest, and WE WILL also make
him whole for reasonable search-for-work and interim employ-
ment expenses, plus interest.
WE WILL compensate Joseph Colone for the adverse tax
consequences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region 16,
within 21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the backpay
awards to the appropriate calendar years.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Joseph
Colone, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be
used against him in any way.
LION ELASTOMERS LLC
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/16-CA-190681 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.