Mazer Chemicals

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 241 (N.L.R.B. 1984)

MAZER CHEMICALS
Mazer Chemicals, Inc. and Roger Tobara. Case 13-
CA-19983
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 December 1981 Administrative Law
Judge Helen F. Hoyt issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and briefs, and the General Counsel filed
an answering brief and a motion to strike a portion
of the brief. 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order. 2
The judge concluded that the Respondent did
not violate Section 8(a)(1) of the Act by discharg-
ing employee Roger Tobara in April 1980. In so
concluding, the judge found that Tobara was en-
gaged in protected concerted activity under the
Act in making complaints to the Respondent about
unsafe working conditions at its plant. Neverthe-
less, the judge found that Tobara was discharged
for cause, because of the disruptive and belligerent
nature in which he made his complaints, his failure
to adhere to safety and maintenance standards in
the handling of equipment and chemicals, and the
deteriorating quality of his work. We find it unnec-
essary to reach the judge's conclusion that To-
bara's conduct otherwise warranted discharge, for
we find that the General Counsel has not estab-
lished that Tobara was engaged in concerted activ-
ity protected by the Act when he made his safety
complaints.
In our recent decision in Meyers Industries, 268
NLRB 129 (1984), we held that activities will not
be found to be "concerted" within the meaning of
the Act, unless they are engaged in with or on the
authority of other employees. In so doing, we
overruled Alleluia Cushion Co., 221 NLRB 999
(1975), on which the judge relied on finding To-
bara's conduct to be concerted protected activity.
Given our disposition of this case, we find it unnecessary to pas
upon the General Counsel's motion to strike.
The Respondent also filed a motion for leave to cite recent Board
cases. We grant the motion.
2 In the caption of her decision, the judge inadvertently designated
Wanda L. Moses as counsel for the Respondent rather than counsel for
the General Counsel.
270 NLRB No. 43
The judge rejected the General Counsel's con-
tention that Tobara acted in actual concert with
other employees in making certain of his safety
complaints, and the General Counsel renewed this
argument in his exceptions. Based on our review of
the record, we find that, even assuming arguendo a
number of the incidents in which Tobara was in-
volved constituted concerted activity, it is clear
that Tobara was discharged for his entire course of
making complaints, the vast majority of which
were clearly individual complaints in which
Tobara acted alone and for his own benefit.s Ac-
cordingly, we conclude that the General Counsel
has failed to establish by a preponderance of the
evidence that Tobara was discharged for concerted
activities within the meaning of the Act and, apply-
ing Meyers, we shall dismiss the complaint in its en-
tirety.4
ORDER
The complaint is dismissed.
The record reveals that, on one occasion, Tobera complained to Su-
pervisor Guilbault about a ventilation system in the presence of another
employee. However, the record does not establish that Tobar's com-
plaint was engaged in with, or on the authority of, the other employee.
The record also reveals that, on two occasions before his discharge,
Tobar spoke with employee Mike Yuswat regarding separate problems
in the reactor room. On the first occasion, Yuswat filed a maintenance
request over the problem and on the second recommended that Tobara
call the plant engineer. Yuswat was a member of an in-plant discussion
committee, created by the Respondent for the purpose of raising to man-
agement a variety of problems on the job. It is not clear from the record
whether Yuswat acted as an interested employee in discussing these prob-
lems with Tobara, or as an agent of the Respondent's committee. Howev-
er, even assuming that Tobara's conversations with Yuswat constituted
concerted activity protected by the Act, in view of our finding that
Tobara was discharged for a course of complaints, the overwhelming ma-
jority of which were not concerted, we conclude that the Respondent
would have discharged Tobara even absent his concerted protected activ-
ity.
4 On 22 February 1984 the Respondent filed a motion to dismiss the
complaint on the basis of Meyers Industries, 268 NLRB 129 (1984). For
the reasons stated herein, we grant the Respondent's motion.
DECISION
STATEMENT OF CASE
HELEN F. HOYT, Administrative Law Judge. This case
was heard at Chicago, Illinois, on March 5, 6, 16, and 17,
1981, pursuant to a charge filed on June 2, 1980, and a
complaint issued on August 8, 1980. The issue presented
is whether Respondent Mazer Chemicals, Inc. discharged
Roger Tobara because of his concerted protected activi-
ties, in violation of Section 8(aX1) of the National Labor
Relations Act.
On the entire record, including my observation of the
witnesses, and all briefs filed by the parties, I make the
following
-
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Illinois corporation with an
office and place of business at Gurnee, Illinois, where it
is engaged in chemical processing. During the past fiscal
year preceding the issuance of the complaint, a repre-
sentative period, the Respondent sold and shipped goods
valued in excess of $50,000 from its Gurnee, Illinois plant
directly to points located outside the State of Illinois. I
find that the Respondent is an employer engaged in com-
merce within the meaning of the Act, and that to assert
jurisdiction over its operations will effectuate the policies
of the Act.
II. THE BUSINESS OF THE RESPONDENT AND
BACKGROUND
Mazer Chemicals employs approximately 100 persons
who custom blend chemicals at the Gurnee location. The
Company operates seven chemical reactors in its reactor
room. The employee operators work in shifts from from
7 a.m. to 3:30 p.m.; 3 to 11:30 p.m.; and 11 p.m. to 7:30
a.m. and rotate the shifts every 4 months. Supervisors,
however, do not rotate with employee operators and the
supervisors' shifts are begun 2 months into the operators'
shift and rotate in the opposite direction. Thus, each shift
has a different supervisor every 2 months.
Employees receive daily work orders for blending of
various chemicals from the supervisor or foreman at the
beginning of each shift.
Officers and supervisors at Mazer include Glen Leith,
plant manager in charge of product control. Leith works
under direct control of John Roach, vice president and
general manager. Michael Guibault was the shift foreman
at the time of the Charging Party's termination; Patrick
Kingston was engineering office coordinator; Dennis
Dingsdale, general foreman reporting directly to the
plant manager; Joe E. Peterson Jr., maintenance depart-
ment head; and Ron Schwartz, plant engineer.
The Respondent maintained a procedure whereby re-
quests for maintenance could be filed by any employee
when repairs for various pieces of equipment were
needed for ensuring safety. The procedure was set forth
in the production employee manual given to each em-
ployee entering the Respondent's employment. Complet-
ed maintenance requests forms were retained by Mazer,
and Kingston was custodian as well as the official who
supplied blank forms for employees. During the period
February 1979 to April 1980 approximately 600 requests
were filed by employees. Of these requests the Charging
Party herein filed two on March 27, 1980.
Among the other means available to Mazer employees
to bring safety problems to the attention of the Respond-
ent were: (1) the safety committee composed of employ-
ees from each department who conduct site inspections
once a month accompanied by any employee who
wished to participate; (2) any monthly managers' meeting
with officers where safety matters could be discussed by
safety committee members invited to attend; (3) safety ci-
tations written by any employee and distributed to the
immediate supervisor of the offender and to the offender;
(4) the discussion committee where representatives from
each department expressed opinions of their fellow em-
ployees on safety matters; and (5) accident report forms
completed by shift foremen.
Further safety protections provided by the Respondent
included masks, hats, gloves, and boots when protective
clothing was needed during work.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The Charging Party, Roger Tobara, was employed by
Mazer Chemicals from February 7, 1979, to April 4,
1980. He was an operator-helper and then an operator
when the job title was changed. As a chemical room op-
erator, Tobara would load one of the several reactors.
This involved setting up, moving and weighing of chemi-
cals, charging them to the reactor, monitoring the reac-
tions, and unloading when the reactions were finished.
The Charging Party is 27 years old with some college
training at Eastern New Mexico University and two
courses in chemistry at College of Lake County. One of
these courses was paid for in part by the Company. In
January 1980 Tobara contacted Occupational Safety and
Health Administration's regional office in Chicago by
phone and received from the agency a copy of the gen-
eral industry handbook and literature on occupational
cancer.' Also in January 1980, Tobara had a conversa-
tion in the quality control lab with technician Mike
Curtis. Tobara asked Curtis about dioxane because
Tobara was concerned that "a lot of dioxane" was being
stripped from products in the reactor room. Tobara was
concerned that the chemical had contamination possibili-
ties. Curtis described to Tobara what the FDA standards
were and that .05 parts per million were allowed but
FDA was changing that to permit only a trace level.
Tobara was basing his question on information taken
from unspecified chemical essays which he had found in
the library at the College of Lake County. The material
from the unnamed source dealing with dioxane was
copied by Tobara.
About the middle of January, Tobara began keeping
personal notes about the mixing data of Mazer products. 2
At the end of January 1980, Joe E. Peterson Jr. had
several conversations with Tobara about maintenance re-
quest forms. Tobara told Peterson that the "hot well"
was continuously leaking into the reactor room; that
there was escaping vapor and that the contents of the
well were bubbling onto the floor of the reactor room.
Tobara testified that he filled out a maintenance request
and gave it to Peterson to have the hot well gaskets
changed and the well completely sealed up. 3 This hot
Tobara made only general requests of the OSHA contact and re-
ceived the "General Industry Handbook" on the agency's safety and
health standards. This book is part 1910, Title 29 of the Code of Federal
Regulations. The "cancer" literature if separate from the data contained
in the handbook was not further specified during the hearings.
2 This early date for Tobara's copying efforts and the fact that some of
the data copied did not concern his complaints demonstrated that Tobara
probably had some other motive for the copying than his professed inter-
est in health and safety of his coworkers.
3 While Tobara claims the form was filled out by him, testimony in
these hearings showed that he signed only those maintenance requests of
March 27, 1980. I have concluded that this was an oral request to Peter-
son.
242
MAZER CMEMICALS
well is connected to the vacuum system and prevents
contaminants from escaping into the atmosphere. Tobara
discussed the hot well system with Mike Yuswat, Bill
Worthington, and Dave Curley, three other reactor
room operators.
About February 15, 1980, at the reactor room desk on
the third shift, Tobara spoke with Mike Yuswat, the
safety representative for the shift, about the problem of
the hot well system leaking into the reactor room. There
had not been a response to a previous maintenance re-
quest and Tobara told Yuswat that a maintenance request
should be filed again. Yuswat agreed and he initiated the
writing of another maintenance request. This request was
given to Joe Peterson by Yuswat. The contaminant that
Tobara was concerned about was dioxane that was being
stripped from the product being run in the reactor. On
the same date and shift, Tobara also had a conversation
with Richard Chopin, the shift's lead operator, about the
leaking hot well, and Chopin agreed that he had also
asked that the Company seal or remove it from the reac-
tor room but it had remained.
On February 16, 1980, Tobara had a conversation with
Mike Guibault, foreman from another shift, while the
two were in the reactor room, during a shift overlap.
Tobara told Guibault that there was trouble with the hot
well system leaking and bubbling over and that another
request had been made to have it repaired. Guibault re-
plied that the system had been operating like that for
years and that he was glad that he was a foreman and
did not work in the reactor room with all that "gar-
bage."
Again on February 16, 1980, Tobara spoke with Joe
E. Peterson in the reactor room during the very early
morning part of the shift. Peterson had been called to the
reactor room during the very early morning part of the
shift. Peterson had been called to the reactor room on
the paging phone by Tobara. The two went into the re-
actor room where the hot well system was bubbling over
on the reactor room floor. Tobara told Peterson that the
employees could not have this continually happening,
and Peterson told Tobara that there was no danger.
After Tobara told Peterson that there was dioxane in the
bubbling water as a byproduct of the manufacturing
process producing ethylene glycol then working the re-
actor, Peterson agreed to get maintenance to take care of
it. Tobara noted the presence of fumes in the reactor
room area. The fumes had an irritating smell and taste
but Tobara continued working. About 5 a.m. a mainte-
nance man began working on the pump, and when
Tobara left about 7 a.m. he did not know what had been
accomplished.4
Also on February 16, 1980, Tobara had a conversation
with Howard Punzel, the relieving shift foreman. The
conversation took place at 7 a.m. when Tobara told
4 I have accepted Tobara's factual recitation including the presence of
a maintenance man and reject as beyond the scope of Tobara's knowl-
edge what was accomplished, since it does not appear logical that a
maintenance man would have worked for 2 hours with "nothing" being
done. I further draw the inference that Tobara would have accepted
nothing less than sealing up of the irritant, the hot well system, and that
if his analysis of the problem was rejected by maintenance, then "noth-
ing" was done.
Punzel that "we had had problems" with the hot well
leaking and bubbling over. Punzel acknowledged the in-
formation as being received from one of the foremen and
that he knew that maintenance was working on it.
On February 29, 1980, Tobara had a conversation with
Mike Guibault about the hot well system when Tobara
was on the second shift and Guibault was the supervisor
of the shift. While at the reactor room desk during this
shift Tobara told Mike Guibault that the hot well was
still leaking and periodically bubbling over, and that
"we" had filed a maintenance request to have it repaired,
but that nothing had been done.5 At the time the system
was giving off steam vapors and bubbling over while
dioxane was being stripped from the product in the reac-
tor.
On March 4, 1980, Tobara had a conversation with
Pete Buffer and Stanley Clark, Mazer employees, about a
production problem in the blending in a large kettle of
the product dimethyl polysiloxane. The two named em-
ployees had the product on the floor and on their hands.
While attempting to load one of the drums onto a forklift
to dump the chemical contents into the tank, the drum
fell and spilled chemicals onto the floor and the opera-
tors. When Tobara inquired if the employees had been
given specific instructions in the handling of the spilled
chemicals, they indicated they had not.
On March 6, 1980, Tobara spoke with Guibault about
two employees whom Tobara had observed dumping
bags of chemicals into a melt tank. Tobara had asked
these employees what they are making and what their in-
structions were concerning the use of a respirator mask
or gloves. The employees told Tobara they had no spe-
cific instructions and, after showing the label to the em-
ployees, Tobara paged Guibault to come to the reactor
room were the bags were sitting and asked Guibault why
these employees had not had instructions to wear respira-
tors or to have on gloves. There was a cloud of chemi-
cals in the air where the conversants were working.
Later during the shift, Tobara saw the two employees
wearing dust masks.6
Again on March 6, 1980, Tobara in conversation with
Guibault complained that an uncovered drum in front of
the tech service lab contained volatile chemicals, half-
filled with a liquid, was in a no-smoking area and that
there were cigarette butts on the floor leading up to the
drum. Guilault replied that this was one being used as a
slop drum by tech service personnel. Tobara identified to
Guibault that the drum was a drum of the same chemi-
cals which had been spilled by the two employees sever-
al days before. The particular drum was not marked
flammable but as a slop drum. The product in the drum
was not necessarily the product shipped in that drum, di-
methly polysiloxane. The area where the drum was lo-
cated was a no-smoking area and a flammable solvent
locker was sitting next to the drum.
' Tobara repeatedly used "we" when the testimony shows that Tobara.
if acting at all, was acting alone.
6 The expected reaction to one standing in an area where dangerous
chemicals are being inhaled would be to get the masks first and then take
action to notify the supervisor. There was no duty on the employee to
give Tobara any information as to their instructions.
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several days after March 6, Tobara had a conversation
with Joe Peterson Jr. in the locker room at Mazer at
11:30 p.m.-the end of the shift. Peterson was the reliev-
ing shift foreman. Tobara told Peterson about the drum
incident and that, although the slop drum had been cov-
ered, it had not been removed and in Tobara's opinion
the covered drum was a safety concern.
About March 21, 1980, Tobara had a conversation
with Ron Schwartz about the hot well system. The con-
versation took place in the breakroom at the beginning
of the shift in the presence of Joe Peterson Jr. Tobara
complained that new gaskets should be installed on the
hot well system and that it be sealed or removed.
Schwartz replied that gaskets had been changed and that
different gaskets had been ordered because they deterio-
rated so fast they could not be kept up with; Peterson
confirmed this.
On either March 26 or 27 Tobara had a conversation
with an employee Pete Buffer, about the product he was
making in reactor no. 8. The conversation took place in
the highrise.7 Buffer told Tobara the product was a mon-
omer acid cooking in the reactor. After Tobara left the
highrise he noticed a hose running off of reactor no. 8
and venting on to the railroad tracks and underneath the
train. Two employees were unloading the train and,
when Tobara asked them if they had been told what the
hose was doing there, they responded that they had not.
Tobara then told the employees that, based on Tobara's
knowledge, the vapors given off were of a toxic nature
and should not be breathed for a long period of time.
Guibault was told by Tobara about the incident. In a
conversation in the latter part of March 1980 with Gui-
bault during the second shift when another employee
was present, Tobara asked why "we" had not received a
response to a maintenance request concerning the venti-
lation system in the reactor room. Guibault suggested
that Tobara go to see either Ron Schwartz or Pat Kings-
ton. In a conversation immediately thereafter with
Kingston and Peterson, Tobara asked why a maintenance
request he had "filled out" a few weeks prior requesting
that the ventilation be fixed in the reactor room had not
been acted upon. Kingston was not aware of the request
but told Tobara that, even if the ventilation system was
as Tobara had described to him, the ventilation system
would continue operating at a sufficient air flow with all
the adjustable heads open, but if the missing heads were
replaced and the holes plugged it would maximize the ef-
ficiency of the system on the reactor where vapors came
off.
On March 26, 1980, Tobara had a conversation with
Yuswat and Worthington in the reactor room about a
cloud of vapor coming into the reactor room from the
slop pit behind this room. The vapors could be smelled
and seen. Yuswat recommended that the plant engineer
be contacted to check on the problem. Later during that
day Tobara had a conversation with Schwartz by the
slop pit located 4 or 5 feet from the reactor room.
Present were Tobara, Yuswat, Schwartz, and later Gui-
bault. Yuswat, as a shift safety representative, had called
7 This in an area where chemicals are stored and is separate from the
reactor room.
in Schwartz. Tobara told Schwartz that "we couldn't
have the vapors coming off the slop pit and rolling back
into the reactor room like that." s Schwartz suggested
that the piping needed to be reworked to vent the roof.
When Guibault arrived he was told by Tobara that
Schwartz was being made aware of the vapor problem in
the reactor room. Guibault wanted to know if water was
put on the condensers and Tobara went to the second
floor where the controls were located and determined
that the condenser was at 150 degrees and the water on.
Guibault sought out and found Tobara in the shower
room on March 26, 1980, preparing to terminate his shift
early while a pump Tobara had been using was left run-
ning causing potential damage to the seals of the pump.
To Guibault's query as to "Why," there was a response
of "Bullshit." On March 31, Guibault found Tobara in
the plant handling sulphuric acid without wearing safety
goggles.
In March 1980 Dennis Dingsdale reported to Leith
that Mike Guibault "was having trouble getting Roger to
perform his job . . . Roger did a lot of complaining
.... When assigned a job, he would go to the job but
then he would come back complaining all the time . . .
it was getting worse and worse .... " Leith instructed
Guibault that he did not have to put up with it and that
if Tobara was not doing his job and keeping Guibault
from doing his, then Guibault would have to let Tobara
go. Leith was aware of Tobara leaving his job and of the
pump incident and other difficulties Guibault was having
with Tobara.
On April 4, 1980, during a check of a stationary tank
in a different part of the plant from where Tobara was
working, he sought to determine whether the product in
the tank was liquified. He opened the bottom valve and
was sprayed down the front with chemicals-either a
fatty animal or vegetable acid. Tobara went to the qual-
ity control lab where Shift Supervisor Guibault was
called out and shown the valve. Guibault noted that the
nitrogen line had been sheared off the top of the valve
and when the valve was opened the liquid was directed
out of the broken pipe. Guibault promised to have main-
tenance make repairs. While on the way to the scene
from the lab, Tobara told Guibault that he was aware
that people were becoming irritated with him about his
constant complaining about safety and health problems.
Guibault was told by Tobara that he would go to OSHA
or FDA. Guibault responded that a certain amount of
breakdowns were expected in a job. Shortly after the in-
cident, Guibault called Tobara to the reactor room desk
where Guibault told Tobara that he was tired of Tobara
"bitching" about the plant and suggested that if Tobara
did not like the conditions he could leave Mazer employ.
Tobara replied that there were Federal laws and regula-
tions and that he intended to go the following Monday
to contact OSHA and report what was going on in the
plant. Twenty minutes later in the presence of Bill Wor-
thington and John Moncatch, Guibault told Tobara that
Dennis Dingsdale had discharged Tobara in a phone
8 The record is silent on what product was being worked and if the
vapors contained dangerous materials.
244
MAZER CMEMICALS
conversation with Guibault. Tobara, in the company of
Guibault, telephoned Dingsdale, general plant manager.
Tobara inquired if Dingsdale had just fired him and was
told that he had been fired for "a lot of bitching, a lot of
complaining." Further, Dingsdale indicated to Tobara
that he believed Tobara had "set up" the incident with
the vapors in order to have grounds for calling Ron
Schwartz to the reactor room to complain. Tobara
denied that he set up the instance and told Dingsdale
that it was against the "law" for Dingsdale to fire
Tobara for that reason.
On April 7, 1980, Tobara asked Glen Leith for his job
back but was refused. On April 9, 1980, when Tobara
went to the Respondent's office to pick up his check,
Leith received Tobara in his office and at Tobara's re-
quest had Guibault in as well. Guibault, in Leith's pres-
ence, told Tobara that his discharge was because Tobara
was constantly complaining about health and safety
problems. Tobara replied that all his complaints were
valid ones concerning defects in the plant which were
"killing" his friends.' Tobara again listed the complaints
he had previously enuniciated.
The last contact that the Charging Party had with
Mazer was on April 10, 1980, when he told Leith that it
was his impression that OSHA standards required the
Company to provide physicals. Leith refused to provide
Tobara with a physical.
Leith was aware of an accident report concerning To-
bara's fall on slippery stairs on April 3, 1980, the day
before Tobara was fired.
Tobara's complaints pulled Guibault away from his
work and Tobara lost worktime as well to complain
when he had open the option of filing a maintenance re-
quest for the work needed. Guibault urged Tobara to fill
out the maintenance requests. Tobara refused to follow
any established company procedure, and the manner of
the complaints caused Guibault to leave his work to
handle Tobara's complaints while Tobara was not doing
his assigned work. On the day of his discharge, Guibault
noted, even after the current complaint had been
straightened out by his foreman that it was to no avail
and that, "I could see if I had fixed a thousand things
he'd said that night, it would still be the same. It
wouldn't have mattered . . ." Tobara also did school
homework on the job and did not follow safety proce-
dures established by the Respondent.
The only contact that Tobara ever had with OSHA
prior to April 4, 1980, was the call to OSHA to obtain
information about chemical plant operations which call
generated the General Industry Standards Manual being
sent to Tobara. There was no complaint filed with OSHA
or any other agency.
Tobara's complaints concerning safety conditions in
the Respondent's plant clearly are within the protected
activity of an employee. The Board has held that wheth-
er an employee's complaints about safe working condi-
tions are real or imaginary is immaterial to the exercise
of an employee's Section 7 right to complain. C & I Air
9 There is no evidence that death or even injury occurred to other em-
ployees at Mazer.
Conditioning, 193 NLRB 911 (1971).' ° The activity is
protected by Section 7 of the Act. Du-Tri Displays, 231
NLRB 1261 (1977); Alleluia Cushion Co., 221 NLRB 999
(1975).
Certainly the complaints standing alone would consti-
tute protected activity but the uncontradicted evidence
in this record demonstrates that, in each of the incidents
detailed by both the Charging Party and the Respondent,
the complainant's manner became profane, belligerent,
angry, and abusive. Tobara never admitted that he pre-
sented his complaints in a manner so to raise other seri-
ous problems for his supervisors or coworkers; rather he
insisted that his complaint was based on safety and abso-
lute priority over all other activity in the plant. No
matter if it drew company supervisors from other duties
in this chemical plant, and no matter that, in his role as a
safety zealot, Tobara's own work with chemicals began
to deteriorate. There was a damaging cumulative effect
of these constant complaints which, when viewed against
a background of disruption to this Company, created a
safety hazard of dangerous proportion. Tobara's right to
complain does not, however, include the right to disrupt.
Tobara's activity was clearly beyond what can properly
be considered as protected activities under Section 7.
On April 4, 1980, even Tobara had come to see that
his constant complaints had resulted in problems for his
supervisor when this Charging Party told the supervisor
that he knew that numerous complaints were a problem
for the Company and that persons at Mazer had become
"tired" of his complaints. Recognizing his position as
that of a disruptive employee bordering on the termina-
tion of his employment, Tobara then made the ultimate
threat that he would go to OSHA. But the action and
threat had come much too late for it to be considered as
an activity of a sincere individual truly concerned with
the safety in the plant for himself and his coworkers.
If Tobara considered the safety of his coworkers to be
in immediate danger, he took a roundabout road to reach
the ultimate threat on April 4. For part of January, all of
February and March, and into April, Tobara squirreled
away each incident of a failure within the plant and
never approached OSHA or any other governmental or
private agency to seek the relief he demanded. Tobara's
credibility gap is indeed a vast one calling into doubt his
entire pattern of activity from the failure to solve safety
problems while even taking the Company's material and
copying it for his own files. These notes he later admit-
ted giving to an attorney for use in a legal action against
the Company.
Discharge for demonstrated cause when the employee
has become unsuited for further employment has been
found by the Board not to be a violation of Section
8(a)(1) of the Act. United Gas Distribution Co., 187
NLRB 225 (1970). The Board said (at 233):
10 Although the Ninth Circuit set aside this ruling and found that the
complainant must be shown to have acted for mutual aid and protection
of other employees to come within the protection of concerted activity,
486 F.2d 977 (1973). Also the Third Circuit in Mushroom Transportation
Ca. v. NLRB, 330 F.2d 683 (1964), held an individual complaint about
safety cannot be deemed concerted activity because the complaint did
not involve efforts of other employees.
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The credibility resolutions concerning certain as-
pects of. . . testimony essentially cripple the major
arguments of discriminatory motivation. The cred-
ited facts as a matter of evidentiary weight reveal
that a preponderance of the evidence supports the
Respondent's contended defense and likewise reveal
an insufficiency of facts to support General Coun-
sel's contention of discharge for discriminatory rea-
sons.
Here the facts of record work against acceptance of
the General Counsel's argument on brief that Tobara
was discharged by the Respondent because of health and
safety complaints and/or because he threatened to report
the Respondent to OSHA and therefore was dis-
charged. 1 The record here clearly has shown that the
latter argument must be rejected. If Tobara had been dis-
charged because of health and safety complaints then he
clearly would be a candidate for reinstatement. But the
evidence is that there were other grave errors in To-
bara's activity. His failure to file complaints concerning
safety with the Company demonstrated his rejection of
any order. I draw from this conduct the inference that
whatever Tobara's motive may have been the health and
safety complaints were merely the vehicle Tobara used
to further his unspecified end goal. Concern for fellow
workers and friends never took the course of even
simple charity-rather Tobara was made to take on
heroic proportion in protection of "his people." But
Tobara was in the end unsupported by these coworkers.
The Respondent has demonstrated why Tobara was
discharged and the sum of its position is that Tobara was
discharged for causes outside his activity regarding
health and safety. These causes include (1) frequent and
sustained disruptive conduct over 3 months in which
Tobara refused to follow required and voluntary proce-
dures by complaints made in anger and in a belligerent
manner causing distraction of management personnel
with potential danger to employees in a chemical plant;
(2) Tobara's frequent failure to exercise on his own
behalf and that of his coworkers' safety and maintenance
standards in handling of chemicals and equipment; and
(3) quality of work and attitude deteriorated by Tobara's
own time away from his duties as an operator in this
chemical plant. An employer does not violate Section
8(a) when it discharges for demonstrated cause. United
Gas, supra. As the Respondent notes on its brief a "trou-
blemaker" may be discharged, R & E Transportation
Corp., 188 NLRB 380 (1971), and even where an em-
ployer had created a safety hazard by locking the front
door to the premises, the employer could discharge an
" The Charging Party throughout his testimony was concerned about
his complaints and did not seek help from OSHA in resolving the dan-
gers to the health and safety of his colleagues.
employee who the employer had found unfit for employ-
ment prior to the employer committing the safety viola-
tion. Peer Enterprises, 218 NLRB 987 (1975). There is no
precise time when Respondent found that Tobara was
subject to discharge but there had been a discussion by
Guibault and Dingsdale that Tobara was a problem and
was taking Guibault away from his duties and not doing
his own assigned jobs. Certainly within the time frame of
late January 1980 and April 4, 1980, ample discussions
had occurred within Mazer whether Tobara should be
retained and even Tobara appeared aware of his status
on the night of April 4 when the final complaint was the
last straw the foreman would tolerate.
Tobara's conduct placed his constant complaints out-
side the protection he could or should expect under the
protected activity covered by the statute. While work in
or near chemicals may conjure up horror stories, reason-
able persons seek to reduce risks and dangers to the bare
minimum. Tobara did nothing of a constructive nature
not because he imagined these dangers but because he
felt he had read, studied, and questioned, thus was quali-
fied to deliver his opinions with the weight of a geomet-
ric axiom. Not even when he saw vapors which he
"thought" were dangerous being breathed did he act
constructively to prevent injury. Rather he collected the
instance as one more he could add to the collection. If
Tobara was sincere, the actions belie the belief.
In sum, I am convinced, conclude, and find that the
preponderance of the evidence reveals that the Respond-
ent discharged Tobara for cause because of its problems
in attempting to supervise Tobara. Accordingly, it will
be recommended that the allegations of discriminatory
conduct in this discharge of Tobara in violation of Sec-
tion 8(aXl) be dismissed. 2
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. At all times relevant herein, Roger Tobara has been
an employee within the meaning of Section 2(3) of the
Act, and not a supervisor within the meaning of Section
2(11).
3. The Respondent did not violate Section 8(a)(1) of
the Act by discharging Roger Tobara because he en-
gaged in activity protected by Section 7 of the Act.
ORDER
The complaint is dismissed.
1" 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 pur-
poses.
246