Lion Elastomers LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 25, 2019

16-CA-225153 (N.L.R.B. Apr. 25, 2019)

JD–36–19
Port Neches, Texas
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LION ELASTOMERS
and Cases 16-CA-190681
16-CA-203509
UNITED STEEL, PAPER AND FORESTRY, 16-CA-225153
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION, LOCAL 228
Bryan Dooley, Esq., for the General Counsel
Steven Cupp, Esq. and Jaklyn Wrigley, Esq.
(Fisher & Phillips, LLP), Gulfport, MS,
for the Respondent
Sasha Shapiro, Esq., (United Steelworkers),
Pittsburg, PA, 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 Industrial 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 discharging him on
June 8, 2018 because he filed numerous grievances pursuant to a collective bargaining agreement
between the Respondent and the Union. The Respondent denies the allegations 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 lawfully discharged.

1 29 USC §§ 151-169.
2 The complaint alleged that this incident occurred “[a]bout November 24, 2016,” but the undisputed
proof established that the meeting occurred on October 24, 2016.
JD–36–19
2
On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
5
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company with an office and place of business in Port 10
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. 15
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
20
The Respondent operates a “24/7” manufacturing facility where it produces styrene
butadiene rubber (SBR). It has approximately 207 employees at the facility, which operates four
twelve-hour rotating shifts – A, B, C and D – each of which has a shift superintendent. David
Davenport is the production supervisor for the C shift, which has twenty employees. Work shifts
vary. A four-day shift consisted of four work days consecutively followed by seven days off, 25
then four work nights followed by three days off, then three work days followed by one day off,
then three work nights followed by three days off, and then back to four days again. Employees
were supposed to work 36 one week and 48 the next.
The Respondent’s admitted statutory supervisors and agents pursuant to Section 2(11) 30
and (13) of the Act include: Tony Wisenbaker – plant manager; Trudy Lord – human resources
director; 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 responsibility for each of the
four twelve-hour shifts: Luke Wolford, Robert Burnett, David Davenport, and Phillip Parks.35
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 forty-
one 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 record. He served 40
multiple terms as a Union steward, committeeman, group chairman, and member of the Joint
Resolution Committee. In those capacities, Colone participated in contract negotiations and

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, 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 considered that document.
JD–36–19
3
actively advocated on behalf of bargaining unit employees, filing more grievances than any other
committeeman.
B. The Respondent’s Plant Rules4
5
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 10
responsibility of each 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.15
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 supplemented or modified as required.
20
SAFETY
Safety and Operating procedures are designed to protect personnel in the plant from
injury and facilitate efficient operation. All employees are expected to be knowledgeable
of these procedures and follow them. If for any reason procedures cannot be followed, 25
approval from supervision and plans to insure safety must be obtained and documented, if
at all possible, before proceeding.
FAILURE TO FOLLOW LIFE CRITICAL SAFETY RULES will (unless modified by
the Plant Manager) result in termination. These Life Critical Procedures/Rules include:30
• Making entry into a confined space
• Working on energized equipment (LOTO)
• Working at heights
• Performing hot work35
• Line breaks
• Excavations
• Rail car movements
• Disabling safety interlocks
40
Unsafe acts caused by negligence, carelessness, or failure to observe all safety rules or
generally accepted safe work practices as outlined in the plant's Standard Practice
Instructions (SPI's) are unacceptable. The list below consists of unsafe behaviors and is
not intended to be all-inclusive.
45

4 GC Exh. 2.
JD–36–19
4
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 recognized5
3. Unsafe act(s) that lead to serious or excessive accident(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 equipment required for the area of the10
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 clothing (FRC), hard hats, safety
glasses, respiratory protection and hearing protection
* * *
11. Operating a forklift truck, cherry picker, track-mobile, or utilizing other specialized15
equipment without formal 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
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 damage25
CONDUCT AND WORK PERFORMANCE
1. Failure to observe standards of conduct and practices
2. Insubordination, abuse, or disrespect of your supervisor(s) or failure to follow the30
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: engaging in or provoking a fight,35
horseplay, practical jokes
7. Harassment or unwelcome conduct, whether physical, verbal, or visual, that is based
on sex, color, race, religion, national origin, age, physical or mental disability or other
protected status
8. Behavior, threats or other indecent, inappropriate or obscene conduct that creates an40
intimidating, hostile, or offensive working environment
* * *
10. Falsifying, providing false information, or causing others to falsify a Company
record, work document, information on an application for employment, job resume,
medical history form, attendance & overtime report, time sheet/card or electronic time45
keeping/payroll system, process documentation or log, laboratory documentation or other
Company report. This includes misrepresentation through omission
JD–36–19
5
* * *
22. Engaging in illegal work stoppages, illegal work slowdowns, sabotage, espionage,
terrorism, or un-American activities
* * *
25. Unsatisfactory job performance5
* * *
26. Neglect of job duties created by distraction or inattention to work responsibilities,
including gambling on plant property, sleeping during work hours, bringing or playing
unauthorized TVs, working on hobbies or crafts, interfering with another person's work
or pursuing personal business. This includes reading of non-work related publications in 10
operating area of the plant, including labs and control rooms, or playing games,
electronic or other, anywhere in the plant
* * *
29. Failure to follow standard work practices or assigned procedures
* * *15
DISCIPLINE POLICY5
INTENT
20
To provide guidelines for issuing progressive discipline to employees 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.
25
SCOPE
This policy applies to LION ELASTOMERS employees assigned 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 30
interferes with them or other employees achieving company work standards, safe work
practices, or proper workplace behavior.
POLICY
35
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 responsible for 40
complying with all applicable policies, procedures, 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 individual(s) involved, the individual's supervisor, or to their
own supervisor's attention. Each employee is also responsible for ensuring that45

5 R. Exh. 3.
JD–36–19
6
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
cooperate with all company investigations and failure to do so may result in discipline.
Supervisor Responsibilities5
Supervisors are responsible for implementing the Discipline Policy and holding
employees accountable for their behavior relative to the applicable policies, rules,
procedures and the performance management process. Supervisors will issue discipline to
their subordinates. As required, the Human Resources Manager or Department Manager 10
will provide counsel to supervision regarding the application of these guidelines.
Procedure
When an employee fails to perform at the expected performance standard by violating 15
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 progression). The appropriate discipline to be taken will depend upon
the seriousness of the issue.20
In addition to the circumstances surrounding the problem or incident, other factors that
may be considered include:
● Work history of the employee who is involved25
● 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 30
Warning, 2nd Written Warning, Last Chance Agreement/Suspension or Termination.
These forms of discipline are not necessarily progressive. Depending on the seriousness
of an incident or work situation as determined by the facts, the Company reserves the
right to determine the appropriate disciplinary action.
35
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 performance standard. 40
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 coach him/her to comply with the work rule and/or performance
standards.
45
JD–36–19
7
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 5
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).
10
Written Warning
A Written Warning documents a formal meeting between supervision and an employee
about a serious or continuing performance problem that requires immediate correction
(see LION ELASTOMERS Plant Rules, Policies and Procedures). The employee must 15
make a commitment to correct the problem. Supervisors have the option of including
their immediate supervisor, the Human Resources Manager, or other appropriate 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).
20
Second Written Warning
A Second Written Warning documents a formal meeting between supervision and an
employee about a serious or continuing performance problem that requires immediate
correction (see LION ELASTOMERS Plant Rules, Policies and Procedures). The 25
employee must make a commitment to correct the problem. Supervisors have the option
of including their immediate supervisor, the Human Resources Manager, or other
appropriate member of site management in the disciplinary meeting. The Second Written
Warning is active for 12 months (defined as the time period in which the employee is
actively working).30
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 35
performance 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 applicable. In
the agreement, the employee acknowledges that the Company has just cause for
termination based on the employee's performance problem(s) but that the Company 40
agrees to give the employee one last chance to retain his/her employment. As a condition
of continued employment, the employee agrees to demonstrate improved work
performance and satisfactory 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 45
termination of employment. The supervisor and employee will review the employee's
progress midway through the 24-month period. If the employee has demonstrated
JD–36–19
8
improvement for the 12-month period 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 Employment5
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, or10
• 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 conduct, consumption of alcoholic beverages or use of
illegal drugs on company property, disclosure of classified Company information, 15
etc.
• Blatant or willful disregard of LION ELASTOMERS Plant Rules, policies
and/or procedures has occurred.
20
In making the decision whether to terminate or not, the Company 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).
Suspension25
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 investigation. In the context of potential 30
disciplinary action, the Company 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 include: safety or environmental offenses,
insubordination, theft or destruction of company property, violence or threats of violence,
and other serious violations of Lion Elastomers Plant Rules. This list is not all inclusive, 35
but merely represents examples of behavior that could warrant a suspension.
Probationary Employees
The first one hundred eighty (180) days of employment for hourly employees is a 40
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.
45
JD–36–19
9
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 5
of employment for the approximately 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 10
office clerical and secretarial employees, plant protection employees, laboratory
employees, all professional and technical employees, research and development unit
employees, and all supervisory employees with the authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees.
15
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 20
retained and vested exclusively in the Company, including, but not limited to, the rights,
in accordance with its sole and exclusive judgment and discretion: to reprimand, suspend,
or otherwise discipline employees; to discharge employees for cause; to determine the
number of employees to be employed; to hire employees, determine their qualifications
and assign and direct their work, to promote, demote, transfer, lay off, and recall to work 25
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
compensation 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 30
independent contractors to perform work or services; to subcontract, contract out, close
down, or relocate the Company's operations or any part thereof; to expand, reduce, alter,
combine, transfer, assign, or cease any job department, operation, or service; to control
and regulate the use of machinery, facilities, equipment, and other property of the
Company; to introduce new or improved research, production, service, distribution, and 35
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 testing policies; and to take whatever action is either
necessary or advisable to determine, manage and fulfill the mission of the Company and 40
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 express language of this Agreement. This management

6 “Poly VAR, Recovery Technician, Reactor Technician, Tank Farm Technician, Pigment/Soap
Technician, utility Technician, Unloader, Process VAR, Coagulation Technician, Blend Technician,
Packaging Operator, or Lift Truck Operator (Warehouse).”
JD–36–19
10
rights Article 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 5
conflict with the express provisions of this Agreement.
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
department head at Step 2. If not resolved at that point, the grievance can be appealed to the 10
human resources manager at Step 3. Finally, 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.15
D. The Protected Concerted Activities at Issue
1. The October 24, 2016 Meeting
20
On October 24, 2016, Colone was called to a meeting by Mosley and Wisenbaker. He
assumed that the subject related to the process of putting on and taking off protective gear. After
learning 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 25
grievance about the diversion of certain unit work to contractors in place of newly hired forklift
drivers. During the exchange that followed, Colone insisted 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 30
committeemen – Joe Wells and Jordan Johnston. Colone countered that the agreement of only
two committeemen was ineffective 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 35
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 grievances, which the latter
proceeded to deny.7 In response to Mosley’s remarks, Colone filed a grievance.

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
JD–36–19
11
Lord handled Colone’s grievance regarding Mosely’s comment 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 rendition of a dysfunctional meeting in which Wisenbaker, Mosley 5
and Griggs all acted inappropriately: “Most dysfunctional meeting 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 10
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 that “it’s (sic) sounds like KC was the aggressor,” a remark inconsistent with the other
entries and one that was not conveyed to her by Griggs.8
15
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 Grievances20
On March 22, 2017, Colone filed a grievance form regarding the staffing of the reactors
on behalf of two production employees – Gerardo Zamora and Willian Fobbs – with an
occurrence date of March 21, 2017:
25
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 Reactor Operator were dropping reactors and
blowdowns and also maintenance, preparing for a start up in 8CC and also maintaining 30

Union representative. (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.)
9 The Respondent’s continued insistence that it was entitled to production 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 pursuant 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 Respondent. (Tr. 376-
382.) The Respondent sought production of the affidavit because the General Counsel inquired about it
on cross-examination. However, it was the Respondent that initially asked if Griggs provided 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).
JD–36–19
12
8CA reactor job duties at the same time. This is multitasking jobs in a PSM area. It’s a
unsafe act, and unfair to the operator. . .
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-5
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 multitasking. He withdrew the grievance the following day
and verbally apologized to Taylor. Colone also wrote a note to management apologizing for the 10
incorrect information, indicating that he was “corrected by” Zamora and Fobbs, and replaced it
with grievance 03-2017 on behalf of “USW Workers.” That grievance 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 resolved at Step 2, however, with
an explanation by Mosley that Colone accepted “the explanation of this being a scheduled then 15
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
20
In response to the March 22 and 23 grievances, Wofford interviewed Zamora. At some
point, Wofford presented Zamora with a typed statement or report containing Wofford’s version
of the interview, followed by Zamora’s handwritten comments. The statement or report
confirmed that Colone had indeed spoken with Zamora about the staffing of the reactors before
filing the grievance and that Colone’s concerns were not baseless:25
● 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.30
● 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 section and Zamora agreed that
what was written about the activities of Wednesday 3/22/17 were not the activities he 35
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.
40
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:

10 Colone’s credible testimony that he was informed that the reactor functions in question were
actually performed by Taylor was not disputed. (GC Exh. 3-5; Tr. 86-88).
11 The grievance listed the date of occurrence as March 21, not March 22, 2017.
JD–36–19
13
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 5
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 10
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 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.15
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 complaints to people who
have not complained. Situations like this seriously affect your credibility as we deal with 20
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 25
failed to identify 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
agreement yes or no. He would not answer." Let me ask you a question. How would you
respond to a person who accuses you of having amnesia and asking you the same30
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 inflammatory and insulting language of this sort inhibits our attempts to
create a cooperative working relationship and atmosphere. Furthermore, your continued
personal attacks and false statements on a member of the management team is in direct 35
violation of Lion Elastomers' Plant Rules — Conduct and Work Performance #2, #8, #10
and #14.
#2 – disrespect of your supervisor(s)
#8 — Behavior, threats...or conduct that creates an intimidating, hostile, or offensive 40
working environment
#10 – Falsifying, providing false information...or other Company report. This includes
misrepresentation through omission
#14 – Actions of an employee that bring into disrepute the image or reputation of LION

12 Wofford did not testify but his report reflected the suggestive nature of the interview. (R. Exh. 48.)
13 There is no documentation as to what Fobbs told Lord or any other manager. (Tr. 278.)
JD–36–19
14
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 aggravation if you 5
do.14
Lord also sent a copy of the April 3 letter to Union officials on the same day, requesting
their “assistance in helping him to understand the importance of following the contract.”15
10
4. The July 12 Safety Meeting
On July 12, Dean conducted a monthly safety meeting with about twenty C-shift unit
employees. Wofford, supervisor Arthur Finley and scheduler Gary Richards were also present.
The meeting started with a discussion about incidents from the previous month. After several 15
minutes discussing a screw press fire investigation, the conversation shifted to open questions
and answers. Chris Cleary asked why employees were forced to work longer than the twenty-
five hours of overtime permitted by company policy. When Dean disputed that assertion,
Jonathan Bailey and others confirmed that they too were working overtime hours in excess of
seventy-two hours per week. Dean initially denied the assertion but relented when others 20
confirmed Cleary’s assertion and conceded that the Respondent planned to increase work hours
to eighty-four hours per week. Colone, who typically asked questions at safety meetings,
followed up asking about for information 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 liability for injuries resulting from those conditions and 25
asked Dean several times as to how the Company planned to deal with these questions. Dean
agreed to provide the paperwork and initially said he did not know the answer. Colone persisted,
however, and repeated his question several times. Dean tried to ignore Colone but finally
relented by saying that the increased overtime would be on a case by case basis, at one point
mentioning the “API standard.” 30
Sherman McCray was in the meeting and tried to walk out because he was frustrated
from the discussion, but Colone implored 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 35
computer 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 replied that Dean was not
doing his job and asked if Dean was upset. At that point, Dean became angry, stood up and

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
grievance 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 subsequent determinations in response to
Colone’s steward activities were evasive, longwinded and nonresponsive. (GC Exh. 2; Tr. 37-49.)
15 R. Exh. 34.
JD–36–19
15
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 5
never reported Colone’s conduct in a safety meeting before. Wisenbaker 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 connection with the
investigation. Lord and Wisenbaker interviewed Colone on July 18. They took a confrontational 10
approach in the questioning Colone and he became angry. In addition to asking Colone what
happened at the July 12 meeting, Wisenbaker 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 15
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 questions. . . The way KC asked the 20
questions is what started the meeting down the path it went? . . .
Lord’s interview notes of Dean and others essentially confirmed Colone’s version of the
meeting, including the fact that his questions followed those of other unit employees concerned
about work hours: 25
Gary Richard – “Brad brought some of this on his own.” Wofford – “Brad could have
controlled it better. He played in to KC’s hand and KC won that battle.” . . . “[t]ypical
KC probing. 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 30
voice – at first, . . . Original 3 ques were not inappropriate there were okay for open topic

16 The testimony of Dean, Colone, Bailey and McCray was fairly consistent about what happened
during the safety meeting. Dean, as he typically 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’ confirmed 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 what transpired after the meeting
between Dean and Colone, I found Dean’s explanation more credible than Colone’s paraphrased and
inconsistent versions as to what Dean said and did when asked for the “paperwork.” However, I do credit
Colone’s unrefuted testimony that their argument 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 questioning 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.)
JD–36–19
16
section. . . . liable question I thought was inappropriate.” Findley – “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 saying that you said you were going to get me that [the paperwork].” Herb 5
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 a week? Brad seemed 10
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 15
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 representative on July 20, 2017. 20
During this meeting, Lord issued Colone a “Performance Correction Notice” memorializing a
verbal discipline based on “Policy/Procedure Violation” and “Behavior/Conduct Infraction” at
the July 12 meeting. Colone became angry. He was sitting close to Wisenbaker and the latter
asked him to move his chair back:19
25
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 unacceptable conduct with a line of questioning that was provoking, 30
misleading, and inappropriate. You continued to ask the questions repetitively thereby
creating an intimidating work environment for the Safety Manager and an offensive,
uncomfortable environment 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 conflict with statements from other employees who 35
attended the meeting. You were also cautioned in the April 3rd letter about providing
fabricated or false information and you were informed that behavior, in a worst case

18 Other than editorial comments in her notes, Lord produced no documentation or other credible
evidence to support her conclusion that Colone disrespected or berated Dean during the safety meeting.
Moreover, 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 consistent 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 testimony 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. 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.)
JD–36–19
17
scenario, would be grounds for termination. This behavior, which is in direct violation of
our Plant Rules is not acceptable and will not be tolerated. 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/Mutual Respects from the C8A 5
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 follow the legitimate
instructions of your supervisor(s) or site security; #6 Disorderly conduct such as, but
not limited to engaging in or provoking a tight, horseplay, practical jokes; #8 Behavior,
threats...or conduct that creates an intimidating; hostile, or offensive working 10
environment; #10 Falsifying, providing false information...or Company report. This
includes misrepresentation through omission. #14 Actions of an employee 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, 15
instruction, and example in order 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....]
20
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 inappropriate interaction with Brad Dean during the 25
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 receiving the verbal
corrective action notice.30
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 anyone else in the
room to complete their statements. And [i]nstead of remaining calm and seated, carrying 35
on a professional 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 40
management will meet with you on an individual basis until you have demonstrated the

20 Lord conceded that she did not know at what point employees became 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.)
JD–36–19
18
ability to conduct 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 forward concerns or issues that need to be addressed. We just want
you to understand that having an additional member of management will likely happen
when you approach a management person to have a discussion.215
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. 10
The oversight resulted in two 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 performing as required.” Colone grieved that discipline, asserting that “he opened
valve for steam – no procedure in place to violate,” but it was denied.22
15
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,
Wofford charged that Colone made up a soap batch with an excessively “high pH level resulting 20
in 4588,000 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:25
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 30
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 system was new and “all new [systems] will have problems, he had 35

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 anti-union animus. (R. Exh. 18, 29;
Tr. 256-257, 294, 438-439, 481.) That determination, however, is not controlling 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 later conduct as long as it is not given independent and
controlling weight); Delta Finishing Co., 111 NLRB 659, 665 (1955) (same).
JD–36–19
19
“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
5
On November 13, Colone was informed that the employees on a previous shift could not
get the automated “shortstop” system to pump. The system is used to stop reactions in the
reactors. Mike Barnett was called in to repair the related computer program 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 10
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 conversation, 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 alleging that management personnel wrongly 15
accused him of sabotaging operations.
Colone’s grievance was denied at first and second steps. At first step, Lord merely stated
that “[a]n investigation was completed 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 20
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 Grievance25
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 environment when Butler disagreed and walked away, then Butler 30
followed 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:
35
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."

23 Similarly, the Respondent, but not the General Counsel, contends that this discipline factored into
Colone’s eventual discharge and the Region’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 determining 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.)
JD–36–19
20
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 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 face5
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, 10
but no action was taken regarding Watson’s conduct during the incident.25
9. The March 23, 2018 Grievances
Christopher Granlee began his employment in April 2017 but was injured on the job in 15
June 2017. He was out of work on workers’ compensation for five months. On March 20, he
was terminated 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 Mosley’s denial of
Granlee’s Weingarten rights when discharged. Finally, Colone grieved the failure to provide 20
Greenlee with refresher safety training. In the remedy section, he added that supervisor “Silas
Ancelet told a group of Baler operators and material 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 25
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 six months, and that Dean had given Greenlee a blue hat
upon returning to work, thus indicating that he was a permanent employee. In addition, Colone
said that “some Baler area workers” told him that Ancelet said “they would have to be trained, 30
qualified and a permanent 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 35
procedures,” while the Weingarten grievance was denied on the ground that Mosley’s March 20
meeting with Granlee was not 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

25 Neither Watson nor Butler testified, but Colone’s credible testimony 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.)
JD–36–19
21
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 repeated the basis for termination
based on violations of critical safety procedures. Each denial was followed by Colone’s
comments.26
5
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
10
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.
15
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, 2016.20
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, 2016.25
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. 30

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
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 alleged 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 employees in order
to determine whether they did in fact make those statements 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.
JD–36–19
22
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 5
resolved at Step 1.
6. The June 23, 2017 Grievance
Colone submitted grievance no. 5-2017 on June 23, 2017 regarding an alleged threat by 10
Mosley toward unit employee Ronald Jones. This grievance was denied at Step 1.
7. The July 12, 2017 Grievance
Colone submitted grievance no. 7-2017 on July 12, 2017, again alleging that Mosley 15
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 regarding the verbal warning he 20
received. This grievance was denied at Step 3.
9. The August 21, 2017 Grievance
Colone submitted grievance no. 12-2017 on August 21, 2017 regarding alleged 25
slanderous remarks toward him by an unidentified member of management. This grievance was
denied at Step 1.
10. The March 18, 2018 Grievance
30
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
35
On June 8, 2018, Lord presented Colone with a “Last Chance Agreement” (LCA) that
would have been effective for twelve months:28

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.)
JD–36–19
23
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 direct fabrications or falsifications of information. However, since that time, 5
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 the10
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 dispatched to remove the piping and open the line to clear the reported
plug. After two hours spent removing the piping from the area identified by Mr. Calcine, 15
no plug in the line was found. In addition, Mr. Colone told the Capital Projects
Coordinator that the issue was probably in the 3 inch piping. After tracing the line out, it
was determined not to be the area of concern 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 20
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 information during the initial troubleshooting 25
as well as during the investigation. ln fact, he called another employee a liar and
contradicted 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 citing that slanderous remarks 30
were made on the radio by management and the engineering department. Mr. Colone
specifically 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

Wisenbaker confirmed that the action was premised on Colone’s grievances: “It was more around false
information.” (Tr. 485-486.)
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
reference to the oversight as “untruthful” was an overdramatization; there is no credible evidence to
support an inference that Colone, after detecting the problem and apprising his supervisor of it,
intentionally misled his supervisor about its source. Moreover, Lord conceded that the November 7
incident alone was insufficient to warrant the issuance of a last chance agreement. (Tr. 62-63.)
JD–36–19
24
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 5
work environment 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 finger 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 10
importantly, Mr. Burton stated that he did not tell Mr. Colone or 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 information
during an investigation that was invalidated by the witness.31
15
On March 27, 2018, Mr. Colone submitted a handwritten attachment for grievances 02-
2018 and 04-2018. In the statement, Mr. CoIone cited that Cheryl Benoit questioned Mr.
Chris Granlee about the length of his absence and the possibility of retraining. 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 conversation20
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 probationary employment). When questioned, Mr. Dean stated that he
does not distribute hardhats of any color to employees. Finally, Mr. Colone stated that he
had spoken to Baler area workers regarding a statement made by Mr. Si Ancelet. When 25
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 six months experience at the
Port Neches Elastomers Facility before being eligible to be classified as an authorized
person to energize, de-energize and isolate electrical equipment located at an MCC." Mr. 30
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 progressed through the35
disciplinary process [counseling, verbal, written, 2nd written] due to violations of

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.)
31 Lord’s conclusion that the grievance contained “false information” was yet another slanted version
of an event. She premised that conclusion 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 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.)
JD–36–19
25
Company Policy/Plant Rules for unacceptable behavior and/or job performance
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 5
to preserve his employment with the Company under the terms and conditions 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:
10
• Mr. Colone, at all times, must demonstrate satisfactory 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.
15
• Mr. Colone will not be eligible for promotion for the duration of this Last
Chance Agreement unless expressly 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 provisions set forth in this agreement, no matter how minor the 20
infraction 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 25
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 periods 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 30
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 employees. Mr. 35
Colone agrees that he has been fairly and appropriately 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 disciplinary action taken by the
Company against him during the effective period of this Last Chance Agreement. Should
Mr. Colone nevertheless pursue a timely and properly processed grievance for any 40
discharge pursuant to this Agreement, the only issue which may be presented to and
considered by an arbitrator 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 45
caused him to sign it; that this Agreement has not been obtained by any duress; and that
he fully understands the meaning and intent of this document. More specifically, he
JD–36–19
26
understands 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 5
enforce or challenge 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 refused to sign it. As a result, he was discharged on June 8, 2018. 10
LEGAL ANALYSIS
I. THE OCTOBER 24, 2016 MEETING
15
An employer violates Section 8(a)(1) of the Act when the employer 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 employment 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 20
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
coercively 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) 25
(company 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 protected concerted activity. 30
Colone had been called to a meeting with Wisenbaker and Mosley for a discussion about the
grievances he had filed on behalf of other employees, and the statement 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.
35
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.
40
The Respondent contends that the statement was, nevertheless, not a threat because
Mosley, Wisenbaker, and Griggs all indicated that they did not find it threatening,33 and because
Mosley did not intend it as a threat. But the standard for what is coercive is objective, not

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 would be carried out given his good work performance and
position as a Union representative.
JD–36–19
27
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. 5
The Respondent also argues, without any support, that telling an employee “you ain’t
gonna make it” is not objectively threatening. 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 10
employment consequence. 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.
Finally, the Respondent argues that the fact that Colone was not discharged for more than
eighteen months after this statement was purportedly made is further evidence that Mosley did 15
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).
20
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
25
The General Counsel argues that Colone was unlawfully disciplined as a result of the
comments he made during the safety meeting on July 12, 2017. The Respondent argues that the
discipline was justified because Colone’s comments were not protected and, if they were, his
behavior during and after the meeting was offensive enough to lose the Act’s protection.
30
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-related 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 35
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 enlisting 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 40
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 bargaining under the Act. By objecting to his employer’s proposed changes to these working 45
conditions in the presence of other employees, Colone engaged in concerted activity. Enterprise
Products, 264 NLRB 946 (1982) (an employee was engaged in concerted activity by objecting,
JD–36–19
28
during a group meeting, to employer’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 employee raised his hand and complained about his employer’s
refusal to increase wages, even where no other employees commented at the meeting).
5
The Respondent contends that Colone’s activity was not protected because no employees
asked him to raise questions on their behalf. The argument overlooks the fact that the
overtime/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 10
934, 940-41 (employee’s speech was concerted where made in the presence of other employees
and it related to a change in an employment term even where “no employees…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
15
The Respondent also argues, relying on Media General Operations, Inc., 346 NLRB 369
(2006), that because Colone’s questions 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 General Operations, Inc. is inapplicable; that case dealt with a
situation where an employee raised objections when an employer sought to reprimand him for a 20
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. Moreover, his reference to the Respondent’s potential liability
exposure was obviously not over concern for its legal and financial interests but a tactical
approach in advocating employees’ concerns relating to overtime, heat and safety. 25
Finally, Respondent contends that Colone’s persistence in demanding 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 contentious. The fact that Colone made the request as he was 30
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 activity may lose the 35
protection of the Act if they engage in sufficiently opprobrious conduct. In Atlantic Steel Co.,
245 NLRB 814, 816 (1979), the Board outlined the applicable factors in determining whether an
employee’s outburst is sufficiently opprobrious to lose the protection of the Act: (1) the place of
the discussion; (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. 40

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 that the activity was not concerted because Colone was only acting in an individual capacity.
JD–36–19
29
1. Place of Discussion
Spontaneous employee comments made during group meetings are more likely to be
protected. Datwyler Rubber & Plastics, Inc., 350 NLRB 669, 670 (2007) (employee’s comment
that a supervisor was a devil and God would punish him and the employer for making employees
work seven days a week was protected when it arose as a “spontaneous remark” during a 5
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 10
because it was constructively terminated by his disruptive conduct. Yet the cases cited by the
Respondent are inapposite or distinguishable. Atlantic Steel Co., 245 NLRB at 816 (employee
lost the Act’s protection where he made remarks during production time, as opposed to at a
meeting); Public Service Co. of New Mexico, 364 NLRB No. 86 (2016) (meeting terminated
where employee repeatedly interrupted linemen when they attempted to ask questions, and, after 15
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 subject unrelated to the meeting and refusing to acquiesce to repeated 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 20
it by speaking on unrelated issues; the concerns he voiced were directly related to the subject of
the meeting, which was employee safety. Moreover, the meeting accomplished its primary
purposes – Dean presented safety information and the customary question and answer session
followed. Questions arose about overtime work hours and Dean and employees became
frustrated over Dean’s statement that overtime requirements would increase. The meeting ended 25
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. 30
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 employment); 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 35
speech concerned issues of safety and working hours, both terms and conditions of employment.
The Respondent argues that this factor weighs against protection because Colone’s
comments were not made during a joint labor-management consultation, a grievance meeting or
a bargaining meeting, and ought to have been reserved for an occasion when they might have 40
been more fruitful, such as when an employer’s representative with more authority was present.
However, there is no legal precedent mandating that employee speech occur within such specific
parameters to merit the Act’s protection. The Respondent’s strongest argument in support of its
proposed concept is Carrier Corp., 331 NLRB 126 (2000) (employee lost Act’s protection by
insisting on discussing a subject unrelated to the meeting and refusing to acquiesce to repeated 45
directions that his concerns could be discussed later at a more appropriate time). The speech in
JD–36–19
30
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 concerns.35
The remarks Colone made were part of an ongoing dialogue between employees and 5
management over a term of employment, and so this factor cuts against the Respondent. See
Mexican 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
workers and management about terms of employment).
10
3. Nature of the Employee’s Outburst
Loud and boisterous behavior, including cutting off a supervisor, 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 15
was “a bunch of baloney” the employee did not forfeit the Act’s protection). 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 n.1 (1988) (employee’s statement, “if you're taking my truck, I'm kicking your ass right 20
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 Atlantic Steel Co.,
245 NLRB 814 (employee turned to another employee 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). 25
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”
because 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 30
speech is of the sort that is protected under the Act. See Consumers Power Co., 282 NLRB 130,
132 (1986) (“The protections Section 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 disputes most likely to engender ill feelings and strong responses.”).
35

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 the only context removed from the
“plant floor” where a greater degree of aggressive speech might be permissible.
JD–36–19
31
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 meeting (nor use any
profanity). Second, and more importantly, Atlantic Steel largely turned on the fact that the
employee’s outburst was unwarranted under the specific circumstances at issue in that case. 5
Atlantic Steel Co., 245 NLRB at 814 (holding that the employee “reacted in an obscene fashion
without provocation” and indicating that a spontaneous outburst in other circumstances—such as
a formal grievance proceeding—might not have lost protection).
4. Whether the Employee’s Outburst was Provoked by an Unfair Labor Practice10
Many outbursts that are protected are not motivated by unfair labor practices. E.g.
Leasco, Inc., 289 NLRB at 549 n. 1. Not surprisingly, Colone made the statements at issue
during grievance and disciplinary meetings, but they were not shown to have been spurred by the
commission of unfair labor practices. 15
Given that the first three factors weigh in favor of Colone, his conduct during the July 12,
2017 meeting did not forfeit the protection of the Act.
The Respondent also argues that because it was not shown to have anti-union animus, its 20
July 20 discipline of Colone was not unlawful. Yet a showing of anti-union animus is not always
necessary to make out a violation of the Act. E.g., Meyers Industries, 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 employer’s adverse action in
relationship to the employee’s protected activity, the presence of other unfair labor practices, 25
statements 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 legitimate business reason. 251 30
NLRB 1083 (1980) enf’d 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 evidence given that the disciplinary letter clearly refers to
Colone’s protected behavior during the meeting.
35
Furthermore, the Respondent’s alleged justifications for disciplining 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 information” during a follow-up
interview on July 18, 2017 to investigate the incident. As discussed above, I do not credit the
assertion that Colone made false statements during his interview. The argument that Colone was 40

36 The Respondent also cites Public Service Co. of New Mexico, 364 NLRB No. 86, and Carrier
Corp., 331 NLRB 126, without fully explaining why it believes them relevant to this factor of the
analysis. As discussed 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 disrupted a meeting by engaging in a wholly off-topic outburst, respectively.
JD–36–19
32
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 discussed 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 5
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
unlawful. Consolidated Bus Transit, Inc. 350 NLRB 1064, 1065 (2007) (all the General 10
Counsel must show to make out a case under Section 8(a)(1) is that union animus—such as
animus towards a protected concerted activity—was a substantial or motivating 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 proscribed motive.”).
15
III. THE RESPONDENT’S DISCHARGE
The complaint alleges that the Respondent discharged Colone because he was engaged in
protected concerted activity. The Respondent maintains that Colone was lawfully discharged
after having been given a Last Chance Agreement that followed two prior written warnings for 20
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 25
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 adverse 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 mention are legitimate grounds 30
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-35
faith conduct or deliberate and malicious falsehoods. See, e.g., Ogihara America Corp., 347

37 “Prior to [the March 27, 2018] performance transgression, Mr. Colone had progressed through the
disciplinary process [counseling, verbal, 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 up the disciplinary scale
in escalating order of severity: “When an employee fails to perform at the expected performance 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 progression). The appropriate
discipline to be taken will depend upon the seriousness of the issue.”
JD–36–19
33
NLRB 110, 111-12 (2006) (employee lost protection of Act when he inserted a different co-
worker’s name on the return address label 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 spreading false rumors about a supervisor). On the other hand, when an employee 5
files a grievance which is merely overzealous or contains mistakes, that act is protected.
Roadmaster Corp., 288 NLRB 1195, 1195-96 (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 paperwork, “merely
initiated a procedure through which personnel decisions would be determined” and was driven 10
by a motive—a concern about contractual time limits after being unable to reach the employee
by telephone—that was reasonable under the extenuating 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 malicious intent to deceive the Respondent. In his March 22 15
grievance, 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 apologized 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 20
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 25
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 Respondent’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, Butler. Finally, in support of three
grievances he filed on March 23, 2018, the Respondent provided no evidence, however, to refute 30
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 Respondent scrutinized Colone’s 35
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 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 mistaken in each
of these instances, these four or five statements that contain discrepancies with the accounts of 40
other witnesses do not prove that Colone had any wrongful motivation or intention to deceive the
Respondent. Cf. HCA/Portmouth Regional Hosp., 316 NLRB at 930 (employee’s discipline
justified where the employee submitted information without verifying it and was motivated by

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.
JD–36–19
34
personal concerns, rather than a desire to improve employees’ working conditions, and the
information was damaging 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. 5
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
accusations using inflammatory and insulting language,” in connection with the grievances that
he filed. It cites a couple of instances by referring to the warning letters Colone received in July 10
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, statements by
Colone made in connection with his pursuit of a grievance, where he accused a supervisor of
having amnesia and asserting that “people in the position of leadership have no integrity.”
15
Section 7 of the Act entitles employees to file and process grievances, and disciplining or
discharging of employees for doing so violates Section 8(a)(1). Interboro Contractors, Inc., 157
NLRB 1295, 1298 (1966), enforced 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 20
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, 1380-81 (1964), enforced, 351 F.2d 584 (7th Cir. 1965)
(calling a superintendent a “horse’s ass” following a grievance discussion was not a basis for
discharge, but rather “part and parcel” of the employee’s participation in protected grievance 25
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 conduct is so egregious as to take it outside the protection of the Act, or of such 30
character as to render the employee unfit for further service). A steward’s processing of
grievances is protected unless “his excess is extraordinary, obnoxious, wholly unjustified, 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). 35
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
protection. 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 40
reasons discussed above. The language described in the April 3 disciplinary letter is likewise
protected. See Phoenix Transit System, 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…”). 45
Colone’s statement did not contain language as extreme as that found protected in Thor Power
JD–36–19
35
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 5
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 performance-related incident on 10
November 7, 2017. However, even assuming (given the lack of evidence on the issue) that this
incident was indeed a legitimate performance-related incident since no discipline was issued, the
Respondent does not argue that this single event, which occurred almost seven months before
Colone’s discharge, would have justified the issuance of a LCA in the absence of his protected
activity; in fact, Wisenbaker testified to precisely the contrary. See In re Alamo Rent-a-Car, 236 15
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 20
independent basis for discharge, and given that the Respondent’s proffered motivation for
discharging Colone—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 25
legitimate business reason. Wright Line, supra); PAE Technologies, 367 NLRB No. 105, fn. 11
(2019).41 Wright Line requires that the General Counsel demonstrate by a preponderance of the
evidence that the employee’s protected conduct was a motivating factor in an employer’s adverse
action by showing: 1) that the employee’s activity was protected, 2) that the employer knew
about the protected activity, and 3) the employer’s animus. See Consolidated Bus Transit, 350 30
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 determination.42

40 The Respondent argues that it is not possible to evaluate the offensiveness of the language in
Colone’s statement because the General Counsel never entered it into evidence. However, although the
statement was not entered into evidence, the warning letter was, and the disrespectful comments described
therein do not rise to the level required for an employee to lose the protection of the Act.
41 A Burnup and Sims analysis is likewise not appropriate in this situation, 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 disciplined. 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 other unfair labor practices, (3) statements and actions showing the
employer’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 p. 11 (2018), citing National
Dance Institute—New Mexico, Inc., 364 NLRB No. 35, slip op. at p. 10 (2016).
JD–36–19
36
However, even assuming that Wright Line applied, the Respondent’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 determining antiunion animus (the third Wright Line5
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 irrelevant here, because there is such direct
evidence. In its Last Chance Agreement, the Respondent directly references Colone’s “using 10
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 15
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 because he refused to sign the20
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 disciplinary action that
would not have been taken but for the employee’s protected activity, the discharge is still
unlawful. See, e.g., Air Contact Transport, Inc., 340 NLRB 688 (2003) (rejecting employer’s
reliance on employee’s refusal to sign unlawful reprimand as independent basis for discharge).25
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
performance. Colone’s conduct as a union steward tenaciously advocating on behalf of unit
employees’ terms and conditions of employment did not fall within the ambit of discipline. 30
Management certainly had a right to complain about his grievance-related behavior to the Union
and Lord certainly did that. However, 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 Respondent’ 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.35
CONCLUSIONS OF LAW
1. Lion Elastomers LLC is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.40
2. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, Local 228 (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
45
3. The Union is the exclusive labor representative of employees of the following
bargaining unit:
JD–36–19
37
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 office clerical and
secretarial employees, plant protection employees, laboratory employees, all professional 5
and technical employees, research and development unit employees, and all supervisory
employees with the authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees.
4. The Respondent, by James Mosley, threatened employee Joseph Colone’s job security 10
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 grievances.
5. The Respondent discharged Colone on June 8, 2018 in violation of Section 8(a)(3) and
(1) because he filed numerous grievances.15
6. The aforementioned unfair labor practices affected commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY20
Having found that the Respondent discriminatorily discharged Joseph Colone, the
Respondent shall be ordered to offer Colone reinstatement to his former position or, if that
position no longer exists, in a substantially equivalent position without prejudice to his seniority 25
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). 30
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 Respondent shall be ordered to compensate Colone for his 35
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 Kentucky River Medical Center, supra.
40
Respondent shall file a report with the Social Security Administration 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 backpay awards covering periods
longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).
45
JD–36–19
38
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended43
ORDER
5
The Respondent, Lion Elastomers LLC, Port Neches, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
10
(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 Union).
15
(b) Discharging or otherwise discriminating against any employee 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.20
2. Take the following affirmative action necessary to effectuate 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 25
position, without prejudice to his seniority or any other rights or privileges 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.30
(c) Compensate Joseph Colone for the adverse tax consequences, 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 appropriate calendar years.35
(d) Within 14 days from the date of the Board’s Order, remove 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.
40
(e) 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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records

43 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order 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.
JD–36–19
39
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Port Neches, Texas
copies of the attached notice marked “Appendix.”44 Copies of the notice, on forms provided by 5
the Regional Director for Region 16, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily 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 10
Respondent customarily communicates with its employees 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 pendency of these proceedings, 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 15
former employees employed 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 responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.20
Dated, Washington, D.C. April 25, 2019
25
_________________________________
Michael A. Rosas
Administrative Law Judge
30

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.”
JD–36–19
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, Local 228 or any other union.
WE WILL NOT tell you that your employment may be in jeopardy 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, restrain, 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 previously 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 employment 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.
JD–36–19
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
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (682) 703-7489.