Stauffer Chemical Co.

National Labor Relations Board - Board Decisions

Jun 25, 1958

120 N.L.R.B. 1625 (N.L.R.B. 1958)

CONSOLIDATED CHEMICAL INDUSTRIES 1625
employment with the steamship line which had hired Fowler, and with which the
union was under contract , and it later told him , in effect , that a consequence of his
violating union policy ("'trying to break the Union ' by going to the Frances without
first getting a `clearance ,' and by thus knocking another member out of a job") was
that he would never obtain employment with any other companies under contract
with it (93 NLRB 1523, 1538-1539). Speaking of the Radio Officers and the com-
panion Teamsters cases, the Court stated: "In each case the employer discriminated
upon the instigation of the union. The purposes of the unions in causing such dis-
crimination clearly were to encourage members to perform obligations or supposed
obligations of membership. Obviously, the unions would not have invoked such a
sanction had they not considered it an effective method of coercing compliance with
union obligations or practices " (347 U. S. 52). [ Emphasis supplied.]
The General Counsel's position is in effect a "per se" doctrine, namely a violation
follows union causation . Trial Examiner Arthur Leff explored this proposition
learnedly and exhaustively in Studebaker Corporation, 110 NLRB 1307, 1322-1327;
I agree with , and hereby adopt, his analysis and see no reason to repeat it here.
He concluded , as I do in this case , that an employer does not violate Section 8 (a) (3)
,of the Act where allegedly discriminatory conduct taken at the behest of a union is
"unrelated to any aspect of union membership or union fealty, and within the Com-
;pany's allowable freedom of action " (110 NLRB 1307, 1327).5 In a subsequent
case, Daugherty Company, Inc., 112 NLRB 986, 989 , involving discharge action
caused by a union , the Board sustained Trial Examiner ( now Board Member ) Bean's
holding that "A finding of causation does not ipso facto lead to the conclusion . .
that since the discharges resulted from other reasons and inducement thereof than
failure to pay dues, Section 8 (a) (1) and ( 3) and 8 (b) (1) (A) and (2) of the
Act were transgressed" ( 112 NLRB 1003 ). Distinguishing the Radio Officers' case,
the Board held: "As these employees were thus discharged for reasons unrelated to
union membership or the performance of union obligations , we find that the Re-
spondent Company did not discriminate against them to encourage union member-
ship within the meaning of Section 8 (a) (3)" (112 NLRB 986, 989).
I find that Respondent's action here was based on objective criteria of seniority
standings ,6 which Respondent itself ascertained , and that these seniority standings
were not referrable to considerations of union membership or fealty. Whether or
not such objective criteria are prescribed in a current or even a former agreement,
I conclude that Respondent 's conduct in this case does not violate Section 8 (a) (3)
and (1 ) of the Act .7
[Recommendations omitted from publication.]
6 The Board did not reach this issue in the Studebaker case and, without expressing
any opinion regarding it, specifically reserved ruling thereon.
e See Local 542, International Union of Operating Engineers , AFL (Koppers Company,
Inc.), 117 NLRB 1863 , regarding "an objective criterion unrelated to union membership."
7 One of the alleged discriminatees , Rought, was laid off on September 1, 1956, and
Respondent asserts that Rought 's layoff was for economic reasons. Essentially, however,
Rought 's case is in the same legal position as that of the other alleged discriminatees.
whether the complaint be sustained or dismissed.
Consolidated Chemical Industries , Division of Stauffer Chem-
ical Company and Oil , Chemical and Atomic Workers Inter-
national Union , AFL-CIO. Case No. 39-CA-626. June 25, 1958
DECISION AND ORDER
On January 17, 1958, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
120 NLRB No. 213.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case. It hereby adopts the Trial Examiner's findings and con-
clusions with the following modification and addition thereto.
We agree with the Trial Examiner that Luis Hoyo was discharged
for cause and not as the complaint alleged, in violation of Section
8 (a) (3) of the National Labor Relations Act. With respect to the
allegation in the complaint that Hoyo was discharged in violation
of Section 8 (a) (4) of the Act, the Trial Examiner found that there
was not sufficient evidence to establish that violation. While we agree
with the Trial Examiner's recommendation that this allegation be
dismissed, we are of the opinion that because of our basic finding that
Hoyo was discharged for cause, it necessarily follows that he was
not discharged in violation of Section 8 (a) (4).
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges , as amended , duly filed by Oil, Chemical and Atomic Workers
International Union, AFL-CIO, herein called the Union , the General Counsel for
the National Labor Relations Board, by the Regional Director for the Sixteenth
Region (Fort Worth, Texas ) issued a complaint , dated July 18, 1957 , against Con-
solidated Chemical Industries , Division of Stauffer Chemical Company , herein called
the Respondent or the Company , alleging, as more fully set forth below , that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of various provisions of the National Labor Relations
Act, herein called the Act . Copies of the charges , complaint, and notice of hearing
were duly served upon the Respondent . In its answer the Respondent admits certain
allegations of the complaint but denies the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on September 17, through September 21,
1957, at Houston, Texas, before the duly designated Trial Examiner The parties
were represented by counsel at the hearing at which full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence bearing upon
the issues was afforded to all parties . Counsel waived oral argument at the hearing
and were given opportunity to file briefs . Counsel for the General Counsel and
the Respondent filed briefs which I have fully considered.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The complaint alleges and the answer admits that the Respondent is a California
corporation with its principal office and place of business in San Francisco, Cali-
fornia, and is engaged in the operation of many plants in the heavy chemical industry
throughout the United States, including a plant in Houston , Texas, which is the
CONSOLIDATED CHEMICAL INDUSTRIES 1627
only plant involved in this proceeding. During the 12-month period ending Decem-
ber 1, 1956, the Houston plant manufactured and produced sulfuric acid, alum,
and other chemicals valued in excess of $1,000,000, of which in excess of $50,000
was sold, shipped and transported from Houston to points outside the State of Texas.
I find that the Respondent is engaged in commerce within the meaning of Section 2
(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union, AFL-CIO , is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The pleadings
The complaint alleges that the Company discharged Luis Hoyo about January 14,
1957, because he assisted the Union in the filing of a refusal-to-bargain charge against
the Company on August 31, 1956 (39-CA-601, which was dismissed), and gave
testimony regarding the charge to Board agents. The complaint also alleges that
Hoyo was terminated because he joined and assisted the Union and engaged in
concerted activities for the purpose of collective bargaining or other mutual aid or
protection By reason of these acts the Company violated Section 8 (a) (4) (3) and
(1) of the Act The complaint further alleges that from about August 16, 1956,
to July 18, 1957, the Company has withdrawn working benefits and refused to re-
instate them and make them part of a working agreement between the Union and
the Company in order to discourage the union activities of its employees, in violation
ofSection8 (a) (1).
The Company in its answer concedes to the filing and dismissal of the Union's
charge, but avers that it is without information in respect to the allegation that Hoyo
assisted the Union therein or that he gave testimony to Board agents. The Company
admits it discharged Hoyo because he committed a dischargeable offense and denies
that he was terminated for the reasons alleged in the complaint. In brief, the Com-
pany denies the allegation that it withdrew working benefits and refused to reinstate
them.
B. Background of the alleged unfair labor practices
1. Collective-bargaining agreements between the Company and the Union
It is conceded that the Company and the Union executed a collective-bargaining
agreement, covering the production and maintenance employees at the Houston plant
(with the usual exclusions) effective from March 24, 1955, through January 31,
1957, with the right of either party to reopen the agreement, upon 60-day written
notice, on January 1 and July 1, 1956, for the sole purpose of negotiating changes
in the straight time base rates of pay. The agreement also provided that employees
covered thereunder shall select five employees who shall comprise the workmen's
committee which shall represent them in collective bargaining and grievance nego-
tiations with the Company. The agreement was signed by representatives of the
Company and the president of the local union, an international representative and
committee members
On January 4, 1956, the parties modified the agreement by increasing the base
pay rates, eliminating the provision relating to the reopening of these rates on
July 1, 1956, and continuing the modified agreement in effect until February 1, 1957.
On June 12, 1957, the parties executed an agreement effective through June 3,
1958 This agreement provides for a checkoff of union dues.
Hubert C. Snowden, general superintendent, stated he supervises and directs the
operations of 8 plants including the Houston plant and that the employees in 6 of
these plants are represented by a union. From 1941 to March 1955. Snowden was
manager of the Houston plant and throughout that period the employees were
represented by a nationally affiliated union or unions.
Ludy Earl Hays, an employee and at one time a member of the workmen's com-
mittee, said there has been a union at the plant continuously during the 10 years
of his employment, that he joined the Union in 1949 when it came into the plant
as bargaining agent for the employees and for sometime prior to that date the em-
ployees were represented by the Gas, Coke and Chemical Workers Union, CIO.
Forest H. Craig, international representative, testified that the Union, Local 4-227,
is a very large local and has about 35 collective-bargaining agreements with em-
ployers in the area, some of which include more than 1 plant of the particular
employer. While Craig had no dealings with the Company until the latter part of
,1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1956, when he attended I or 2 negotiating meetings, he knew that for many years
-the Company and the 'Union had had a checkoff arrangement, not. incorporated in
the contract, under which the Company checked off dues and reported monthly to
,the Union as to employees from whom dues were collected and the amount thereof
2. Hoyo's employment and activities on behalf of the Union
Hoyo was employed on June 6, 1955, as a general helper and about 3 months
later became a number 2 operator, which job held until January 14, 1957, when
he was terminated.
-Prior to his-employment with the Company, Hoyo had been a seaman for 14
years, was a member of the National Maritime Union and at times served as ship's
delegate and was port agent for the union at San Juan, Puerto Rico, for about 11
months. On direct examination Hoyo testified he indicated his union membership
in his application for employment with the Company for, in answer to the question
to name organizations to which he belonged, he stated the NMU and Odd Fellows.
On cross-examination, when confronted with his application, Hoyo admitted he
made no mention of his membership in the NMU.
Hoyo stated that when he first reported for work Ovel Kimball, superintendent
in charge of the acid and alum plant, assigned him to his job and talked to him
for about an hour. Kimball told Hoyo, according to Hoyo's first version of the
conversation, that there was a union at the plant and while the Company did not
care whether he joined or not, "We like our boys to join" because the Company
had no trouble with the Union and they got along "pretty good." Later Hoyo quoted
Kimball as saying neither the Company nor the Union liked strikes, that they got
along pretty good, "so I [Kimball] like good boys like you to,join in the union.
That way we don't have any trouble at all with the union."
.In the early period of his employment Hoyo talked to several employees who told
him there was no use joining the Union because it was not doing anything, that
"they were playing hands with the company," and there was no reason to pay dues
of'$4 a month. However, Hoyo became a member at the expiration of his 90-day
probation period, about September 6, 1955. At that time he was a number 2
operator and worked under Foreman Herbert L. Sullins.
According to Hoyo only 86-out of approximately 180 employees,were members
of the Union in the period June to September 1955, but at the time of his discharge
in January 1957, the number had increased to 168, without any increase in the
total number of employees.' Hoyo asserted he signed up a big majority of the
employees and that.his activities, set forth below, resulted in the increase in union
membership.
•In October 1955, Hoyo attended a meeting of the employees held for the purpose
of electing 5 members to the workmen's committee. Since only 6 employees were
present, 5 were elected as regular members of the committee and Hoyo was elected
alternate delegate. The regular members were W. H. Williamson, James Thiesson,
Klaus -R. Gerlach, Sam Sheffield, and N. D Posey. In May 1956 Hoyo became
a regular member of the committee and in October 1956, he was elected chairman.
Hdyo testified that as chairman he was "more or less the boss of the workmen's
committee in the plant."
,In November 1955, the workmen's committee met with company representatives,
including O. D..Massey, plant manager, and Kimball, for the purpose of discussing
wage increases for certain operators, in accordance with the reopening provisions
of the existing agreement. In the course of the discussion Kimball said he had been
an operator and-he knew what they did on the night shift. Hoyo had heard Kimball
used to take naps while on night duty, so he "snapped back" and told him, "we ain't
keeping blankets in our lockers anymore." Kimball did not reply to this remark.
About 20 minutes later Hoyo, in an argument with Kimball, declared the contract
was his "bible in the plant" and when asked to explain this statement he replied,
"I know what,this contract says that I can do and where I can go and what I should
not do." Kimball remarked that "according to this bible I can fire you anytime I
feel like it " Williamson, a member of the committee, said to leave out personalities
and the matter was apparently dropped.
On,December 15 a second negotiating meeting was held between the same repre-
sentatives and at,that,time Massey asked Hoyo to leave since he was an alternate
and sixth member of the committee and the contract provided for a committee of
I F M Hadden, personnel director, testified there were 167 employees in the bargaining
'unit as -of January 1, 1955, and 187 as of August 1957 The Company's checkoff records
show ,that it collected dues -from 102 employees in, June 1955 , 106 in September 1955 ;
,156 in January 1957 and 159 in August 1957.
CONSOLIDATED CHEMICAL INDUSTRIES 1629
five members . When Sheffield offered to leave Massey withdrew his objection and
Hoyo remained with the committee . Hoyo related that when Massey, for the fourths
time, inquired how long he had been working at the plant , he replied since June-
6, 1955 , that Massey knew the date and that "I understood he tried- to threaten me,
and I don 't scare that easy ." Massey replied he had some employees with 30 years"
service who had never talked to the Company as Hoyo had and if Hoyo ever did,'
anything wrong or neglected his duties "you won 't be one ' minute in this plant
Hoyo said he would not neglect his duties. The next day Hoyo made a written report:
on the meeting to the president of the local.
As appears above the Company and the Union • executed a modified agreement
on January 4, 1956.
Gerlach said Hoyo acted as spokesman for the committee even though: he wag
not the chairman . He also stated that at one of the meetings Massey , during an
argument with Hoyo , stated that if Hoyo "ever make a mistake I will-fire you."
Thiesson attended the negotiating meetings and stated that Posey , chairman, and
Hoyo spoke for the committee and that every member had a chance to talk. At
one of the meetings, Thiesson could not remember the date or whether the repre-
sentatives were in session , an argument started and Hoyo , referring to the contract,
said , "this is my little Bible and as long as I go by it you can't do anything to me."
Kimball replied , "If your little Bible is what you are going by, you could be fired
any day of the week." At another meeting an argument arose as to how long Hoyo
had worked at the plant during which "tempers got a little warm " and Massey told
Hoyo to watch his step.
Both Massey and Kimball denied making the remarks attributed • to them by
Hoyo. In substance Massey and Kimball stated that at times Hoyo acted as spokes-
man for the committee at various bargaining and grievance meetings but that
officials of the Union as well as the chairman of the committee also acted as spokes-
man and that all members of the committee freely expressed their opinions at meet-
ings with company representatives.
L. Tom Fox, secretary-treasurer of Local 4-227, testified he was present at some'
negotiating and grievance meetings between representatives of the Union and the
Company, he could not recall the dates , and that he had an opportunity to observe
the manner in which members of the workmen 's committee conducted themselves.
In Fox's opinion Hoyo and Posey were equally determined in presenting contract:
proposals and in processing grievances but that Hoyo was more demanding and a
little better prepared than Posey.
3. The grievance in respect to, the issuance - of acid-resistant clothing
On January 5, 1956 , Hoyo asked Kimball to do something about acid -resistant
clothing and Kimball said he had been working on that matter for 5 years but so
far only the loadermen - and instrumentmen had protective clothing. Kimball also,
stated this was a nonnegotiable item and if it was kept out of the Union he- was-
willing to work on it . This was agreeable to Hoyo. Hoyo knew the modified-or
supplemental agreement of January 4, 1956, was effective until February 7, 1957,
and contained no reopening clause whatever . He was also aware of the fact that-
for 5 years the Company had had an arrangement with the loadermen and instru-
mentmen in respect to safety or protective clothing, which had never been included
in collective -bargaining agreements . Hoyo understood that Kimball was willing
to make a similar arrangement for the operators , provided all participated in the,
program and would wear the clothes at all times while working . He further admitted
that if these conditions were acceptable , the Company . would pay for the first suit
and'one half of each additional suit . Kimball , apparently in February , asked Hoyo
and each of the operators if they were willing to participate and wear the clothing"
at all' times . At first operators Pruitt and Dean refused to participate but after'
Hoyo talked to them they agreed to come into the program and later all of the
employees signed up for the clothing.
Around August 6, John Hajovsky , safety director , commenced issuing the clothing
and requested the employees to sign a payroll deduction form , which Hoyo did.'
Shortly thereafter , Salisbury , an operator , complained to Hoyo to-the effect that
he was not going to lose a day's pay if he left his safety clothing at home and,
Hajovsky stopped issuing the clothes . The next day Hajovsky told Hoyo than he
had-stopped issuing the clothes because Salisbury wanted to pay cash for them and'
had stated that if he left the clothing at home he wanted to work that day'and he,
was not losing a day's pay . At the same time Hajovsky requested Hoyo to sign a
receipt for the clothes which stated that "the Company 's safety rules require me• to
wear such acid-resistant clothing at all times at the plant." Hoyo refused to sign'
the receipt and informed Hajovsky that while he had agreed to wear the clothing
and was willing to do so, he had never agreed to sign any kind of a document. He-
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also stated the above -quoted language was in violation of the existing contract which
provided that the Company would furnish clothes where its safety rules required
the'employees to wear such clothing. The conversation then ended . The same
night Hoyo made substantially the same complaint to Kimball and while they dis-
cussed the subject no conclusion was reached.
Later, about August 28 , the receipt was discussed at a meeting between the com-
mittee and the Company on a grievance having no connection with the clothing. At
that time Hoyo informed Kimball he was willing to sign a letter stating he would
wear the clothes , but not as a safety rule . Kimball said he would prepare a docu-
ment along this line and give it to Posey the next day and see if the committee and
all the operators would agree to it. Hoyo replied he now wanted to bring the Union
into the program and before the committee would sign any document he was going
to take it up with the Union to be certain it was legal for the parties to sign such a
document . Kimball said that was satisfactory to him and the conversation ended.
The next day Kimball gave Posey a modified receipt which eliminated all reference
to company safety rules and stated the employees agreed to wear the clothing at all
times while at work. Posey gave the receipt to Hoyo who admitted it was in sub-
stantial accord with terms of the agreement with Kimball. That afternoon Hoyo
conferred with Marion Ladwig, attorney for the Union , concerning the receipt but
Ladwig was unable to advise him at that time whether the employees should sign it,
that he would talk to Tom Davis, company counsel , and to call him the next day.
Hoyo telephoned Ladwig the following day and met with him on August 30, when
they discussed the filing of an unfair labor practice charge, which charge was filed
on August 3 1.
Apparently the same day the Company posted a notice dated August 31 , informing
the employees that it had no safety rule and no requirement that operators wear acid-
resistant clothing while working and that the wearing of such clothing was optional
with employees.
Hoyo testified that after the meeting at which Kimball said he was issuing a second
document , August 28 (which was handed to Posey August 29) and subsequent to
August 31, Hajovsky told him the Company wanted him to return the safety clothing
that had been issued to him. Hoyo said he would turn in the clothing when he
received a letter giving the reason therefor . Hajovsky said he would bring him such
a letter and left. Again , sometime after August 31, Kimball inquired if he wanted
to keep the clothes and when Hoyo said he did , Kimball replied the money would
be deducted from his paycheck . Hoyo asked about the unfair labor practice charge
that had been filed and Kimball told him the Company would go to court, plead
guilty, pay a small fine and that would finish it. The foregoing , as stated by Hoyo,
"is what I hear about the clothing from the company officials."
On September 7, the Company posted another notice to the effect that if it required
employees to wear protective clothing it would be furnished at no expense , as pro-
vided in the contract , and if employees desired to wear acid -resistant clothing the
Company would sell such clothing to them at actual cost, through the payroll deduc-
tion plan.
On September 10, a grievance was filed by the committee stating that under the
notice of September 7, 12 of the operators would have to pay the full cost for their
clothing, whereas 10 operators who were issued clothing on August 6, did not have
to do so.
On Friday , September 28, the committee met with company representatives regard-
ing the grievance at which time Hoyo, who acted as spokesman, drafted a proposed
notice, the gist of it being that the Company would furnish safety clothing to or ra-
tors with the understanding that they wear the clothes while at work. Both Massey
and Hoyo expressed their desire to confer with their attorneys and they agreed to
meet on Monday, October 1. Massey was unable to meet on the latter date but a
meeting was held the next day and Massey informed the committee that the clothing
offer was withdrawn , that the Company would not negotiate further on the item,
and that in the future if any employee wanted safety clothing he would have to pay
the full price, although the Company would try to get them a discount.
Hoyo worked the midnight shift from Tuesday, October 2 , to Wednesday morning
and about 7:30, Foreman Sullins came to the control room and talked to Tony
LaBoa, a number 1 operator . Hoyo, who was behind a partition, heard LaBoa ask
Sullins what was the matter with the clothing and Sullins answered he had known
since Friday that the operators were not getting the clothes . When LaBoa inquired
how he knew this, since the representatives had agreed to meet the following Monday,
Sullins said that Snowden "blew his top" when Hoyo left the room to call his lawyer
and told Massey "to tell them people to go to heck," be nice to them , but "We won't
give them anything."
CONSOLIDATED CHEMICAL INDUSTRIES 1631
On October 15, Hoyo wrote a lengthy letter to the Company 's insurance company
complaining about accidents at the plant and how they could be eliminated . Copies
of the letter were sent to officials of the Company and Ladwig.
The Union and the Company engaged in correspondence concerning the grievance
and the matter was finally scheduled for an arbitration hearing on January 30, 1957.
Counsel stipulated that on January 24, the hearing , at the request of the Union, was
postponed indefinitely because of contract negotiations at another plant and the pend-
ing of the present unfair labor practice charge.
LaBoa, who was elected to the committee sometime in October 1956, testified
substantially the same as Hoyo concerning his conversation with Sullins. -
Snowden testified that the Company was interested in a protective clothing project
provided all employees joined therein and agreed to wear the clothing while working.
When Snowden was assured that there would be 100-percent participation he appro-
priated the money to buy the clothes. However, when the clothing was being issued
it was apparent there would not be full and complete participation so the issuance
ceased . Snowden stated that while several proposals were made at the meeting of
September 28, there was no proposal that all the employees involved would wear the
clothing while at the plant . Snowden denied that he blew up or got mad at Hoyo or
any committeeman , or that he had reached any decision as to whether or not the
Company would go forward with the program . On the afternoon of Monday, Octo-
ber 1, Snowden conferred with top company officials in regard to policy with respect
to protective clothing at this plant as well as its plant at Fort Worth , where the item
was included in a collective-bargaining agreement . As a result of this conference
the Company decided to adhere to the policy announced in its notice of September 7,
set forth above.
Massey said . that at the September 28 meeting the Union made several proposals
in respect to an appropriate notice and he thought the last one submitted , as appears
above, looked all right but he wanted to check with management and agreed to meet
with the committee on Monday , October 1. Massey stated Snowden did not blow
up at the meeting , nor did Snowden tell him anytime that day that the program was
not going through. On Monday Massey informed the committee he had not had a
chance to discuss the proposal with management and arranged a meeting for the
following day . On Monday evening Snowden advised Massey the Company did not
want to get into the clothing business on a contractual issue and would not further
negotiate on the clothing item. The next day , October 2 , Massey advised the com-
mittee that company policy had changed since the last meeting , that it was not going
into the clothing business and that its policy was set forth in the notice of September 7.
Kimball denied that Snowden became mad at any union representative at the
meeting of September 28. He also stated that no decision was reached on that date
as to whether the Company was going into the clothing program . Kimball denied
he ever told Hoyo that the Company would plead guilty to the unfair labor practice
charge and pay a small fine.
Sullins denied having any conversation with LaBoa regarding the clothing matter
as related by Hoyo and LaBoa.
4. The charge in Case No . 39-CA-601 ; Hoyo's activities in connection therewith
As stated above, Hoyo conferred with Ladwig on August 30 , and on the basis of
information he had that the Company refused to issue safety clothing "we " decided
to file an unfair labor practice charge. On August 31, a charge was filed by attor-
neys for the Union . In brief the charge alleged that by engaging in individual bar-
gaining in respect to the clothing , by offering benefits to individuals it refused to offer
to the Union , by changing its safety rules to avoid bargaining with the Union and to
retaliate against employees for attempting to bargain through the Union and by at-
tempting to undermine the Union the Company violated Section 8 (a) (1) and (5)
of the Act.
Ladwig testified that he discussed the above matter with Hoyo, whom he con-
sidered as spokesman for the committee , and that Hoyo authorized and encouraged
him to file the charge . This he did, after the president of the local had authorized
him to do so . Ladwig never informed any company representative Hoyo had en-
couraged him to file the charge.
Hoyo signed an affidavit , dated October 3, for an agent of the Board in connec-
tion with the charge . There is no evidence , nor contention , that any representative
was present when Hoyo executed the affidavit or that the Company had any knowl-
edge of the fact or that it was furnished a copy thereof at anytime prior to the
hearing. During the morning of October 18, Hoyo requested permission from
Sullins for LaBoa, Salisbury , and himself to leave the plant that afternoon for the
purpose of going to the Board 's office. When his request was refused , Hoyo wrote a
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter to Massey requesting that the 3 men be permitted to leave work at I o 'clock
in order to submit affidavits to the Board. Massey sent a letter to Hoyo denying his
request for the reason that it would create a hardship in the operating department.
When Hoyo received Massey's reply, from Sullins, he told Sullins he had arranged
for replacements for the three men, although he knew the Company would have to
pay them overtime rates . Counsel stipulated that the 3 men would have finished,
their shifts at 4 o'clock that day and that the Board's office in Houston closed at 4:45;
in the afternoon.
The record discloses, and counsel stipulated, that by letter dated October 11, 1956,
the Regional Director advised the Union that he was refusing to issue a complaint in,
the matter. The Union thereupon filed an appeal with the General Counsel and by;
letter dated December 20, 1956, the General Counsel informed the Union that the
appeal was denied and the action of the Regional Director sustained.
5. Hoyo's grievance in respect to a layoff
As previously stated Hoyo was elected chairman of the committee in October 1956.
About November 13, 5 men who worked in the bone plant were ordered to report'
to the labor gang, under Foreman Barrington, to pick up some tile. When the men,
reported Barrington informed them they were getting 10 cents an hour less because
they were working as laborers. When one of the men advised Hoyo what had,
happened, Hoyo went to Barrington and told him it was not fair to reduce their rates,
which constituted a temporary demotion. Barrington asked if Hoyo wanted him to,
do that or lay off the men. Hoyo said if he was going to lay off anybody it would
not be these men, it would be union men because he did not believe "in sacrificing
the senior men for the union men." Barrington said "Okay." The following morn-
ing a notice was posted on the bulletin board stating that five men, all union mem-
bers, were being laid off next Friday. When Hoyo spoke to Barrington about the,
notice, Barrington replied he had asked for an answer and now he had one. The
same afternoon Hoyo requested Massey not to lay off the employees but Massey told
him he had no work of any kind for them. Hoyo then asked if Massey could place
these men with some of the independent contractors doing work at the plant and
Massey gave him the name of the foreman for Brown & Root, which firm was building
a retaining wall at the docks. Hoyo contacted the foreman who said he would put
the men to work on Monday. Hoyo was at the union hall on Monday morning when
the five men came in and reported Brown & Root was not going to hire them. Hoyo
said there was nothing he could do about it.
Massey stated it was necessary to reduce the work force in the bone plant and five:
men would have been laid off irrespective of any complaint from Hoyo.
C. The discharge of Hoyo
The General Counsel's Case
Hoyo was working as a number 2 operator when Sullins, apparently in December
1956, told him he was being promoted to the sulphur pits. Hoyo said he was not
going because Erwin D. Dutoit had seniority over him. Sullins then asked if he-
liked the sulphur pits and he answered, "Heck no, that is Siberia to me." Sullins
said he would send Dutoit. However, due to another vacancy, both Hoyo and,
Dutoit were transferred to the sulphur pits on the same date, December 18. Hoyo
was in training from Tuesday, December 18 through Friday, December 21. On,
the morning of December 20, Edward G. Lang, assistant superintendent in charge-
of the sulphuric plant, told Hoyo he was taking the same shift on Sunday and Dutoit
another shift. Hoyo testified he told Lang, "Well, if I am ready I will take it.
If I ain't ready I don't believe I would. If not, I won't be responsible for it '
When Lang said he had to take the shift Hoyo inquired if he would be fired if he.
ran over the pits and Lang replied that was a matter for the Company to decide.
Hoyo then agreed to take over the shift on Sunday and asked Lang if he could'
work the midnight shift that night, which was satisfactory to Lang. The next 2,
days, Friday and Saturday, were Hoyo's off days, during which time he injured
his back and he did not report for work until January 3, 1957. On January 3 and,
4; he attended negotiating conferences with the Company and at the latter meeting
he declared that while he had complained to Lang about the length of his training-
at the sulphur pits, he later found out "it was a snap and anybody could do it."
Hoyo, for the first time as an operator, worked the shift from midnight January 4,
to January 5, and thereafter worked 5 full shifts through January 11.
Hoyo said it was his duty to keep,the.pits full and he admitted the Company-
had explained to him that, there was not sdfficient work to keep an operator fully;
CONSOLIDATED CHEMICAL INDUSTRIES 1633
occupied because they wanted to make sure the pits did not overflow . On cross-
examination Hoyo said that Lang actually put him on the pit job, due, to Sullins'
absence , and at or about that time Lang told him it was a serious offense to run
over the pits . Later Hoyo said he could not recall whether Lang was the person
who had so instructed him but he was aware of the seriousness of such an act.
Hoyo also denied that Lang emphasized the seriousness of the offense to himself
and Dutoit when they commenced their training on the job . Still later, Hoyo
admitted that at a hearing before the Texas Employment Commission, held on
March 20, 1957, he testified that Lang had told him.` one of the most serious things
that could happen was to run the sulphur pit over." Again, when asked if he had
previously testified at that hearing that, "I have been impressed down there that
the most serious thing that could happen is to run an acid tank over," he answered,
"Yes, sir. That was my answer. And I stand on it."
The Events of January 12, 1957
Hoyo worked from 4 o'clock January 12, to midnight and at the commencement
of his shift checked with operator Derby, whom he relieved. Derby informed him
he was loading a truck with sulphur and that he had opened the control to the west
pit two turns in order to increase the flow to that pit. Hoyo inquired when the
truck would be loaded and Derby told him about 5 o'clock. Hoyo asked if there
was anything else and Derby said he had been having a little trouble with the lime
feeder which required washing down with the hose. The truck was loaded around
5 o'clock so Hoyo checked the east pit and closed down two turns on what he
thought was the control for the west pit, but actually he was closing the east pit.
After checking the lime feeder and washing it down, Hoyo returned to the control
house where he checked the west pit and found it was coming up instead of going
down, so he again closed down 2 turns on the control. Hoyo then checked the
number 1 and number 7 pits and when he came back he saw the sulphur still rising
in the west pit so he made 4 turns on the control to take care of the excess sulphur.
Hoyo admitted that all the time he had been adjusting the wrong control and
instead of closing the west pit control he was actually closing the east pit control.
About that time Hoyo received a call to pump sulphur to regeneration number 1,
which he did. In this operation Hoyo erroneously doubled the pressure with the
result that more sulphur was being drawn out of the pits than coming in. Around
6 o'clock regeneration number 1, stated they had enough sulphur so Hoyo slowed
down the pump to relieve the pressure. Hoyo then checked the east and west pits
and found they were at the proper level. About that time a railroad tank car
arrived and he proceeded to make preparations to unload it In this respect he
had some difficulty in obtaining proper fittings for the steam hose connection.
During the unloading operations Hoyo again checked the west pit and finding it too
high closed the hand control valve, which shut off the sulphur supply to that pit.
Hoyo also checked the east pit and found it running over. He then started the
transfer pump, to send the sulphur to the main storage tank, and when the pit was
brought to the proper level, he went to the number 7 control room to call Sullins.
On cross-examination Hoyo stated the west pit was his biggest worry and while
he checked it 4 or 5 times he never looked at the east pit. Later he claimed he
checked the east pit 2 or 3 times but conceded he did not check this pit for about
45 minutes prior to its overflowing, although he did check the west pit 2 or 3 times
during this interval. Admittedly, Hoyo could have checked the east pit when he
was checking the west pit by taking a few steps, requiring about 10 seconds, but this
did not occur to him since that pit was running steady. Hoyo admitted he was
not performing any duties which interfered with his checking the east pit and he
did not check it because he took it for granted that the pit was flowing steadily
like it had been for months.
As stated above, Hoyo telephoned Sullins, seemingly around 8 o'clock, in the
presence of Hays, and when Sullins asked how he was doing, Hoyo said, "bad, I run
the sulphur pit over. How about sending me relief,down?" Hoyo also stated he
was not feeling good and to send his relief quickly. Sullins asked what happened
and Hoyo replied he would tell him when he came down, and added, "I run the
sulphur pit over, and I got it coming. I might as well start taking it now." On cross-
examination Hoyo said he told Sullins, "Call my relief, I know what the penalty
is . . . And I am ready to take it." This concluded the conversation. Hays and
Hoyo then went to look at the pit, after which Hays returned to his control room.
About an hour later, around 9 o'clock, Hoyo went to Hays and asked if he had
heard from Sullins. Hays said he had not, so Hoyo made a brief personal telephone
483142-59-vol 120-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
call to LaBoa. Sullins then arrived and the two of them went to the sulphur pit
where they met M. F. Riley, assistant superintendent of maintenance, and Hoyo
explained what had happened to Riley. When Riley criticized Hoyo's actions, Hoyo
told him, "I got it coming. I am ready to take it and that is all there is to it. So
there ain't no sense for you to chewing me out." Sullins and Riley then left,
apparently to check the spilled sulphur, and by that time Hoyo's relief, Dutoit, had
arrived. Hoyo informed Dutoit what had happened and then checked out at 9:12.
The next morning Hoyo telephoned Sullins to find out his penalty and when
Sullins asked what he meant, Hoyo inquired if he was getting 3 days, a week, or a
month. Sullins replied he had quit, which Hoyo denied. Sullins said he had advised
Massey that he had quit and he had better straighten it out with Massey. Hoyo
stated he would see Massey the following day and the conversation ended.
Hoyo said one of the operators, Billy Earl Wylie, had told him that two op-
erators, Newton and Jordan, who had had spillages in 1953 were given a week off
for the first offense and Hoyo understood that to be the penalty because no official
of the Company had advised to the contrary. Hoyo had no knowledge of any
spillage at the sulphur pit, other than his own, during the time of his employment.
The Events of January 14, 1957
In accordance with prior arrangements the union committee and company repre-
sentatives met at the plant about 10 o'clock, Monday morning for the purpose of
discussing an agreement. Craig and Fox were present with the committee. When
Massey observed Hoyo at the meeting he asked what he was doing there and Craig
said he was chairman of the workmen's committee. Massey said Sullins and Riley
had informed him that Hoyo had quit on Saturday night, which Hoyo denied.
Hoyo thereupon called upon Riley to swear that, "I told that I had quit," and Riley
admitted that while he had not used those words, it was his understanding that he
had quit. Posey, according to Hoyo, then jumped up and declared Massey had
been trying to get rid of Hoyo for a long time and was now taking advantage of
a chance to do so. The company representatives then requested a recess and left
the meeting. About 10 minutes later Massey returned and after a brief discussion,
Hoyo and Fox agreed to meet with him at his office. There, these individuals,
with Sullins present, again discussed the subject of whether Hoyo had quit and
Massey, in answer to Fox's suggestion that he be put back to work, stated the only
thing for Hoyo to do was to quit and he would consider rehiring him as a new
employee. Hoyo refused this offer and announced Massey would have to put him
back to work, lay him off I week, or fire him. This concluded the meeting. That
afternoon, around 1 o'clock, Hoyo and Craig met with Massey and again discussed
the topic of his quitting. Hoyo stated that when Craig told Massey he was trying
to get rid of him, Massey replied, "Mr. Craig, I swear with tears in my eyes that
I ain't got nothing against Hoyo, that he's been a good employee. I never had any
complaints against him, and my orders are to let him go." With this, Hoyo repeated
that he be put back to work, laid off for 1 week, or be fired. About 3 o'clock that
afternoon, apparently at the opening of the meeting of the negotiating committees,
Massey asked Hoyo if he wanted to quit and when he said, no, Massey told him
he was fired and gave him his paycheck. When Hoyo remained with the union
committee Massey said he had no business there since he had been fired. Craig
replied he wanted Hoyo present as an adviser, which was agreeable to Massey, so
Hoyo participated in this and other meetings.
On cross-examination Hoyo admitted Massey told him he was discharged for
running the sulphur pit over and for being absent from his job for 17 minutes. Hoyo
did not deny being absent for 17 minutes at the time of his discharge or at the
hearing before the Texas Employment Commission. Hoyo, in explaining his
absence, testified that he left the operators hut on the sulphur pit to go to number 1
regeneration pit, then to the number 1 and number 7 pits, from there to the control
room to make a telephone call and then he met Sullins. Hoyo conceded that his job
duties that night would not have justified his absence from the sulphur pits for 17
minutes, if he was actually gone that length of time.
On January 15, the committee filed a grievance in respect to Hoyo's discharge,
which was denied by the Company. On January 24, the present charge was filed.
Counsel stipulated that the grievance was scheduled for arbitration, that the Com-
pany and the Union had appointed their respective arbitrators, but the third or
neutral arbitrator had not been selected because of the pending unfair labor
practice charge.
Hays testified that about 8 o'clock the evening of January 12, Hoyo came to the
control room and told him he had run over the sulphur pit. Hoyo telephoned Sullins
the pit had overflowed, that he had made a mistake in opening and closing the
CONSOLIDATED CHEMICAL INDUSTRIES 1635
valves, and that he wanted a relief. Hays said that Hoyo was nervous and under
the impression the sulphur had gone into the sewer, so he and Hoyo went to the pit
and Hays was convinced it had not done so. Hays then called Sullins and confirmed
that- the sulphur had not gone into the sewer. The next evening Hays met Sullins
and asked what was the decision on Hoyo. Sullins inquired what he meant and
Hays asked if he had been laid off for 1 or 2 weeks. Sullins said Hoyo had quit
when he called for his relief. Hays replied he would not assume a man quit because
he called for relief. Although Hays was not a sulphur pit operator he knew it was
a very serious matter to overrun the sulphur pit.
Melvin D Newton, a first-class operator and a member of the Union, stated that
in February 1953, he overran the number 1 and number 7 sulphur pits for which
he was given a 5-day layoff. Jordan who was operator on the previous shift drew
a similar penalty. Newton was aware of the fact that operator Byrd was given a
5-day suspension for a spillage occurring shortly before his and he understood Byrd
had a second spillage in the period of Newton's layoff. He did not see Byrd at
the plant following his second spillage. Newton could not recall whether his
foreman had advised him, about March 1953, that it was a dischargeable offense to
run over a sulphur pit, but he understood that it was. Newton knew that Robb ran
the pit over in the summer of 1953 and that he left and never returned to work.
He further stated that he had never heard the sulphur pit referred to as Siberia, until
Hoyo made the remark at the hearing.
Charles E. Jordan testified he received a 5-day layoff, as stated by Newton. At
that time he was told by Sullins and W. T. Richardson, acting plant manager, that
such an offense called for a 5-day layoff the first time, 10 days the second time, and
dismissal for the third offense. Jordan relieved Byrd when he overran the pit for
the second time, about February 28, 1953, and he understood Byrd was given the
choice of resigning or being discharged. Jordan said he was not thereafter advised
that it was a dischargeable offense to overflow the pit. Jordan also relieved operator-
Robb the night he ran the pit over, about July 25, 1953, and that Robb told him
he had written down what had happened and left. According to Jordan this was
Robb's first spillage and there were no other spillages at the pits until the one
involving Hoyo.
Johnny Fountain, Jr., stated that about July 11, 1954, he was working as a
number 2 operator at the sulphur pit when a tank car he was loading ran over and
that he was given a 5-day layoff.
Wylie, a company employee for some 5 years, testified he had an overflow on
the west pit in October 1952, due to the fact that he was having trouble with the
filters and had more work than he could handle. Prior to the overflow Wylie had
a helper advise his foreman, as well as Kimball, of his difficulties. Wylie explained
the situation to Massey and other officials and was neither reprimanded nor laid off
because of the overflow. Wylie was not even questioned concerning any conver-
sations he might have had with Hoyo.
Fox was not examined in respect to the meeting on the morning of January 14,
at Massey's office.
Craig testified that on the morning of January 14, Fox told him Hoyo was
having some difficulties so he, Fox, would like to sit in at the negotiating meeting.
When the representatives met, Massey objected to Hoyo being present since he was
no longer an employee of the Company. Craig conceded that the contract provided
that members of the workmen's committee must be employees, but in any event,
Massey agreed Hoyo could remain as a union representative, which he did. Although
Craig did not want grievances to become involved in contract negotiations there
was much discussion concerning the question of whether Hoyo had quit. In the
course of the argument Hoyo asked one of the company representatives if he would
swear that Hoyo had said he quit and he answered, no, but that was the impression
given. That afternoon Craig, Hoyo, and Massey met in the latter's office, at which
time Massey asked Hoyo if he was going to resign and Hoyo said he would not
do so. Massey said he would have to fire him. When Craig suggested the matter
be discussed further Massey replied he had orders to fire him. Craig asked the
reason for Hoyo's discharge and Massey stated for running over the sulphur pit and
being away from the pit for 17 minutes. The meeting then ended.
The Company's Case
Massey testified he was assistant plant superintendent from 1945 until September
1953, when he went to another plant, then returned and has been plant manager
since March 1955. Massey was in charge of the design, construction, and installa-
tion of the liquid sulphur handling facilities. '
Shortly after the installation of equipment to fill the sulphur pit, Wylie had a bad
spillage in the fall of 1952. Wylie was not disciplined because the system was too
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
large to allow proper control by an individual, so changes were made as a conse-
quence of the spillage at a cost of about, $10,000. The next spillage occurred about
February 12, 1953, and was caused by Byrd, who was given a 5-day layoff. Jordan
and Newton were then involved in a spillage about February 16, 1953, costing
around $2,500, and each received a similar layoff. Byrd returned to work and had
another spillage on February 28, at which time he resigned. Around March 1, 1953,
E. S. Rothrock, executive vice president, told Massey sulphur spillages at the pits
must stop and that the penalty for such an offense would be discharge.
On July 24, 1953, operator Robb ran over the west pit causing sulphur to flow into
the sewers and on the back of his daily operating report he wrote that he had for-
gotten to close the valve which resulted in overflowing the pit, so "I hereby quit to
save you the necessity of firing me." Massey estimated the cost of this overflow
at about $6,000. He had no knowledge of any subsequent spillages at the pits until
the one involving Hoyo.
Snowden was away from the plant from about February 13 to the second week
in March 1953, and when he came back Rothrock advised him of the pit spillages,
that he had talked to the supervisors on the subject, and informed Snowden that if
spillages continued he would not remain as plant manager. According to Snowden
the Company, during his absence, had instituted a policy of discharge for overrun-
ning a sulphur pit and, following his talk with Rothrock, he called a meeting of all
supervisors to restate that policy and instructed them to see that it was put into
effect. Snowden said he never issued any bulletins specifying various causes for
discipline or penalties, but relied upon supervisors to instruct employees under their
supervision. Prior to this time, Snowden stated each spillage was handled on a
merit basis and he denied there was any policy or practice providing that an employee
would be laid off 5 days for the first spillage, 10 days for the second, and discharge
for the third offense.
Lang outlined the regular line of progression for an employee as going from the
general helper's pool to the operating department as a number 2 operator assigned
to the number 2 operator at the number 7 and number 1 unit, he then goes to the
sulphur pits, from there to the number 5 and number 6 regeneration plants, from.
which he is promoted to number 2 operator and assigned to the number 2 regenera-
tion plant. Thereafter he becomes eligible for promotion to. number 1 operator.
All operators must go through the above steps in order to qualify as a first-class
operator.
Lang was aware of the change in company policy in March 1953, in respect to pit
spillages.
Sullins normally placed employees on the sulphur pit job but, since he was sick,
Lang put Hoyo and Dutoit on the operation. Lang said the primary duty of a sul-
phur pit operator is to control the flow of sulphur into the pits and when Hoyo and'
Dutoit were placed on the job he told them it was a very serious offense to run over
the pits, that the duties were purposely light so they could keep careful watch on the
flow, and that the Company regarded a pit spillage as cause for dismissal. To em-
phasize the point, Lang remarked that about the only worse thing they could do
would be "to piss on the rug in Mr. Massey's office." Lang said he knew of no job
duties which would have required Hoyo to have left the pits following the overflow
on January 12.
Dutoit said when Lang put him and Hoyo on the job, he told them they were not'
to run over the pit and in the course of his talk uttered the remark quoted above.
From this conversation Dutoit understood that the most serious thing they could do
would be to run over the pit.
Sullins, an employee for some 31 years and foreman in the operating department
since 1944, testified that when Byrd ran over the pit on February 28, 1953, for the
second time, he was called to the office that morning and, in the presence of Richards,
was given the choice of resigning or being fired and Byrd resigned. Prior to this
date the Company had no fixed penalty for running over the sulphur pits, but follow-
ing the Byrd incident, Rothrock telephoned Sullins and told him these spillages had'
to stop and any employee who overflowed the pit had to be discharged. Sullins
advised all the employees of the instructions he had received from Rothrock. There-
after only two spillages occurred at the pits, one involving Robb and the other Hoyo.
Sullins stated that Hoyo telephoned him about 8 o'clock the evening of January 12,
and said he was mixed up and was quitting hisjob. Sullins inquired if he was sick
and the reason for his quitting. Apparently Hoyo made no reply so he then asked
if he had overrun the pit and stopped up the sewers and he answered, "I don't know.
I just want relief and I am not going to give the company a.chance to get rid of me."
Sullins told him he would be out shortly and the conversation ended. Sullins then
received a call from Hays who reported he would check the pit and that Hoyo
should not make any decision until he knew what had happened. Sullins told him
CONSOLIDATED CHEMICAL INDUSTRIES 1637
to make the check and that he would be out in a little while. Sullins telephoned
Massey about the spillage and also called Riley, whom he agreed to pick up and
drive out to the plant. In the meantime, Hays called back to say that the sewers
were not stopped up. Sullins then went to Riley's home, where he called Dutoit to
relieve Hoyo, and the two of them drove to the plant. Sullins and Riley went directly
to the pit but could not find Hoyo, so they checked the area where the sulfur had
spilled. After this they returned to the sulphur pit and still not seeing Hoyo , Sullins
walked toward the number 7 unit where he observed Hoyo making a telephone call
and as he approached the door Hoyo joined him, the two of them going back to the
pit. Riley checked the interval between the time of their arrival at the pit and Hoyo's
return thereto as 17 minutes. Sullins stated there was no excuse for Hoyo being
absent from the pits for a period of 17 minutes. Upon reaching the pits, Riley asked
what happened and Hoyo answered, "I just pulled a dumb stunt. I just tried too
hard. I know what the penalty is. So I am leaving the company." About that time,
Dutoit arrived and talked to Hoyo. Massey also arrived at that time and he and
Sullins and Riley walked down to the spillage area. When they came back Hoyo
was gone so Sullins went to the clock house and found he had punched out at 9:12
,and left the plant. Sullins then instructed Foreman Starns to get a relief for Hoyo's
next shift and arrange the shift for the following week until another man could be
transferred to fill Hoyo's place.
The next morning Hoyo called Sullins and inquired what decision had been made.
Sullins replied he had made his own decision the night before when he stated he was
leaving the Company, that the matter was out of his hands and to call Massey, if
he wanted to reinstate Hoyo it was all right with him. Hoyo said after he reached
home he decided not to quit, that the spillage could have happened to anyone and
he wanted to come back. Sullins again told him to call Massey.
The following day two meetings were held between Massey and other company
officials and Hoyo and Fox at the morning session and Craig at the afternoon session,
and at these meetings Sullins and Riley related what had occurred on Saturday
night . At these meetings the question of whether Hoyo had quit was discussed
as well as his absence from the sulphur pits for a period of 17 minutes. Hoyo ad-
mitted being absent for this period of time and offered no explanation other than he
called LaBoa. The meetings concluded with Massey advising Hoyo he was
discharged for overflowing the pit and being away from his job for 17 minutes.
Hoyo then requested to be put back to work but Massey said he was fired.
Riley, employed by the Company for 27 years and assistant superintendent over
maintenance since 1953, testified that in early March 1953, Rothrock told him that
whenever a sulphur pit overflowed someone, the employee, the superintendent, or the
plant manager, was going to lose his job. The sulphur pit operators, whose primary
duty was to watch the level of the pits, were informed of these instructions by Riley.
On the evening of January 12, Sullins stopped by Riley's home, under the circum-
stances related above, and the two men drove to the plant entering the gate at
8:45 and arriving at the sulphur pit at 8:47. Riley and Sullins did not see Hoyo, so
they inspected the pits, then went down the spillery to check the overflow and came
back to the pits Riley remained at the pit while Sullins walked toward the control
room at number 7 unit and when he and Hoyo returned, Riley checked his watch
and it was then 9:04. According to Riley's timing Hoyo was away from the pits
from 8:47 to 9:04 that evening. Upon his arrival at the sulphur pit control house
Riley asked Hoyo what had happened and he answered he did not know, except
he was trying too hard, that he adjusted the wrong valve and then went to pieces.
Hoyo further stated that when the pit ran over he called Sullins and told him he
was leaving because he knew the consequences. About that time Massey and
Dutoit arrived, Massey continuing toward the spillery and Dutoit coming into the
control house. Riley and Sullins followed Massey and remained at the spillery
for some 4 or 5 minutes and when they returned to the control house Hoyo had left.
A short time later Sullins informed Riley that Hoyo had punched out at 9:12. Riley
was present when Sullins told Starns to line up the shift for the next evening.
Riley attended the meetings at Massey's office on January 14, and the matter of
Hoyo's absence from the pits for 17 minutes was brought up 2 or 3 times and was
stated as one of the reasons for his discharge. Hoyo admitted he was away for that
period and offered no explanation for his absence. Hoyo likewise admitted he had
caused the pit to overflow because he adjusted the wrong valve and when he found
out what he had done, he just went to pieces.
Massey testified Sullins called him the night of January 12, to report that Hoyo
had overflowed the pit, wanted relief and was quitting. Massey went to the plant,
arriving about 9 o'clock, and saw Sullins, Riley, and Hoyo in the sulphur pit control
house. However, Massey went directly to the spillage area to examine the extent
of the overflow and in a- minute or so Sullins and Riley joined him. After checking
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the area they returned to the control house at which time Massey found out Dutoit
had taken over the shift and Hoyo had left.
Massey stated that before the personnel office could process Hoyo's oral resignation
on the morning of January 14, Hoyo, at a meeting held at 10 o'clock, denied he
had quit. As already stated Massey held two meetings that day with Hoyo and
union representatives . At the morning meeting Sullins detailed what had happened
and Hoyo denied making statements as related by Sullins, obviously referring to
the conversations on the subject of Hoyo 's quitting . At this meeting Fox pointed out
that Hoyo was chairman of the workmen 's committee and even if he was guilty
Massey should not do anything to him . While Sullins made no mention of Hoyo
being absent from his job for 17 minutes that matter was brought up by Massey
and Riley at both meetings and Hoyo did not deny his absence for that length of
time. At these meetings Hoyo admitted the spillage but told Massey, "Either fire
me or put me back to work or do whatever you are going to, but . I didn 't quit."
In view of Hoyo's persistent position that he had not quit, Massey finally discharged
him. As reasons therefor , Massey told Hoyo he was discharged for running over
the sulphur pit and for being away from his job for at least 17 minutes . Again,
Hoyo did not deny being away from his job for that period of time. Massey denied
that when he discharged Hoyo he stated, "with tears in my eyes," he had orders
to dismiss him
Massey testified that Hoyo's overflow resulted in 27.1 short tons of sulphur being
spilled on the ground which had to be removed to the dry sulphur pile . (Lang said
the Company maintains 15.000 to 20 , 000 tons of dry sulphur for emergency use.)
Massey prepared a statement showing the cost of the spillage as follows . loss of
sulphur $650 .40; labor costs for cleaning up the sulphur $ 234.96 , and cost for relief
operator $4 . 30, or a total of $889.66. Massey said that when dirt becomes mixed
with sulphur, as here, it is not usable unless it is filtered and when this process is
applied it is possible to recover about 99 percent of the sulphur . However, although
the Company has filtering facilities it does not ordinarily use them , nor were these
facilities being used at the time in question, and Massey estimated it would cost
around $1,000 to commence operations in order to filter the amount of sulphur here
involved . Massey said the dry sulphur pile is maintained only in case the normal
source of supply would not be available.
Concluding Findings
Here the principal issue is whether the Company in discharging Hoyo was moti-
vated by illegal considerations , or in other words whether it seized upon Hoyo's
spillage and absence as a pretext for eliminating an active proponent of the Union.
Actually, on the basis of Hoyo's testimony , considered either alone or in conjunction
with other evidence adduced by the General Counsel, I have no difficulty in finding
that the Company discharged Hoyo for valid reasons and that his dismissal was not
prompted by discriminatory motives on the part of the Company . However, since
the General Counsel, in his brief, has advanced various theories and painstakingly
presented colorable excerpts from the record to support his contentions that Hoyo
was discriminatorily discharged . I have detailed the evidence herein at far greater
length than required by the simple issues involved Further, while the arguments
urged by the General Counsel are firey and entertaining, they are neither enlightening
nor convincing , and are plainly contrary to the law and facts of the case. In short,
the General Counsel relies upon background events, Hoyo's union activities , a stale
threat and a prior baseless charge in an effort to attach some illegal intent to Hoyo's
discharge which was fully justified by his own misconduct.
The evidence clearly shows that the Company for many years has been dealing
with and has had collective -bargaining agreements with various unions at its plants
and for at least 10 years has had continuous agreements with the Union or its
predecessor covering the employees at the Houston plant , including the critical periods
herein. Moreover , there is no evidence indicating that the Company failed to abide
by the terms of these agreements , there is no mention of any strikes , lockouts, or
work stoppages , and there is not the slightest suggestion that the Company at anytime
ever engaged in any conduct or course of action even remotely indicating that it was
hostile to unionization . Of course , background evidence is admissible for the limited
purpose of explaining and clarifying acts occurring within the 6-month statutory
period. (Gagnon Plating and Manufacturing Company, 97 NLRB 104, 107; Senorita
Hosiery Mills , Inc., 115 NLRB 1304-1305 , and Hardware Engineering Company,
Inc., 117 NLRB 896, 899-901.) Here the background evidence , being favorable to
the Company , serves to negate the idea that it entertained any unlawful ' motives in
discharging Hoyo, if any real doubt existed on the question of intent . Under the cir-
cumstances the General Counsel resorted to the only alternatives open to him, namely,
CONSOLIDATED CHEMICAL INDUSTRIES 1639
to cast some suspicion upon the harmonious labor relationship between the Union and
the Company and the union leadership and to build up Hoyo by hanging fancy titles
on him , by magnifying his activities on behalf of the Union and viewing all acts and
conduct of the Company as part of a sinister plan to get rid of Hoyo. There is no
credible or worthwhile evidence from which it might be inferred that there was some-
thing wrong with the relationship existing between the Union and the Company simply
because there were no strikes or work stoppages . As might be expected the only
testimony on this point comes from Hoyo and the best he could come up with was a
single innocuous statement by Kimball , on the first day of Hoyo 's employment, that
the Company liked the employees to join the Union because the Union and the Com-
pany "got along pretty good ." Similarly, Hoyo was the only witness to question the
integrity of the union leaders and he accomplished by the bare accusation , based on
hearsay, that "they were playing hands with the company ." In my opinion this evi-
dence is meaningless and proves nothing whatever.
Thus, having failed to show anything sinister in respect to the Company 's labor
relations history, or the Union 's leaders, the General Counsel then proceeds to de-
scribe Hoyo as the most aggressive , militant union leader the Company had ever
known as spokesman of the workmen 's committee , the outstanding leader of the
Union and in all probability the outstanding leader in the long history in the Com-
pany's labor relations . Of course , these flattering phrases are just plain ballyhoo and
are not justified on the basis of the record . Certainly none of the employees who
testified at the hearing , including Gerlach and Thiesson , gave the slightest indication
that they considered Hoyo as their outstanding leader. Fox expressed the opinion
that Hoyo was more demanding than Posey in dealing with the Company , and Massey
and Kimball stated that Hoyo and all members of the committee freely expressed their
views at meetings with company representatives . Undoubtedly , Hoyo was active in
union affairs as were other employees . However, Hoyo never reached the position
of prominence , importance , or power as pictured by the General Counsel and as-
sumed by Hoyo when he declared that, as chairman , he was boss of the workmen's
committee . From Hoyo's own version of his pronouncements and ultimatums to
company officials , his attitude towards these representatives , from his demeanor and
behavior as a witness at the hearing and from the manner in which he responded to
questions , I would characterize 'him as an arrogant and flippant individual , rather
than an aggressive and militant leader of the Union.
As indicative of Hoyo's leadership the General Counsel refers to his actions at two
negotiating meetings held in November and December 15, 1955, respectively. At the
first meeting Hoyo snapped a remark to Kimball that the men did not keep blankets
in their lockers, implying that Kimball slept on the job while an operator on the
night shift. Kimball did not reply to this retort . Shortly thereafter Hoyo in argu-
ing with Kimball declared the contract was his bible and that he knew what he could
do and could not do under the agreement . Kimball simply remarked that according
to the bible he could discharge Hoyo at anytime . Seemingly the argument ended
when, as related by Hoyo, Williamson , a committee member, declared that per-
sonalities should be left out of the discussion . Since Hoyo was the one who injected
personalities into the discussions, it strikes me that Williamson 's warning was directed
squarely to Hoyo. Thiesson , another committee member, testified the bible remarks
were made in the course of an argument between Hoyo and Kimball.
At the December 15 meeting when Massey , for the fourth time, asked Hoyo how
long he had been at the plant, Hoyo announced he understood Massey's inquiries as
a threat and he did not scare that easily . Massey replied he had employees with 30
years' service who had never talked to company officials as Hoyo had and if he made
a mistake he would be fired. According to Gerlach , Massey uttered the remark
during an argument with Hoyo and Thiesson said Massey told Hoyo to watch his step
while they were engaged in an argument during which "tempers got a little warm "
Assuming the events occurred as described by the General Counsel's witnesses, and
overlooking the denials by Massey and Kimball , I fail to see where they shed any
light on the issues In my opinion Hoyo's conduct at the November meeting was
nothing more than a demonstration of his ability to provoke arguments, engage in
personalities and needling , and to sound off to one and all that he was a keen student
of the agreement . At the December 15 meeting Hoyo maintained his ability to
provoke arguments , but this time he also twisted Massey's inquiry concerning his em-
ployment into a threat which finally culminated in Massey stating he would discharge
him if he made a mistake . Although Gerlach and Thiesson may have given some
token support to Hoyo, they were quick to state the respective remarks which they
heard were in the course of arguments involving Hoyo , Massey, and Kimball. Un-
der the circumstances I would attach no importance to evidence of this character even
if it had occurred within the statutory period . The theory that Massey carried out
his supposed threat 13 months later is ridiculous for there is not a word of testimony
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or contention, not even from Hoyo, that the Company thereafter discriminated against
him in any manner or that his progression as an employee was ever hindered or
impaired.
Equally without merit is the innuendo that Massey did something wrong when he
merely questioned Hoyo's right, under the agreement, to appear at meetings as a mem-
ber of the workmen's committee when he was only an alternate member and again
after he had been discharged. This is much ado about nothing for when committee
members and Craig requested that Hoyo be allowed to remain with the committee,
Massey withdrew any objection he might have raised concerning his presence.
As previously stated the Company and the Union executed an agreement on
January 4, 1956, effective to February 7, 1957. Immediately after the execution
thereof Hoyo admitted he requested Kimball to do something in regard to acid-
resistant clothing and Kimball, after pointing out that this was a nonnegotiable
item , finally agreed to a program whereby the Company would share the cost of the
clothing provided all operators wore the clothing at all times while working. From
the testimony detailed above (pp. 1629-1631), I find that when all the operators
agreed to these conditions the Company commenced issuing clothing on August 6,
1956, at which time operator Salisbury stated he was not losing a day's pay if he left
his clothing at home, so the issuance of clothing was halted immediately. The next
day the Company, through Hajovsky, requested employees who had received
clothing to sign a receipt which included a statement that the Company safety rules
required the employees to wear the clothing at all times at the plant. Hoyo refused
to sign the receipt because of the reference to the safety rules and the Company
concedes the receipt was in error in this respect. Subsequently on August 29,
following a meeting with the committee, Kimball gave Posey a modified receipt
which eliminated all reference to safety rules and merely stated the employees
agreed to wear the clothing at all times while working. Although Hoyo admitted
this receipt was in accord with his agreement with Kimball, he refused to sign it
and conferred with union counsel. On August 31, the Union filed a charge alleging
a refusal to bargain on the part of the Company, but the Regional Director on
October 11, refused to issue a complaint in the matter and on December 20, the
General Counsel of the Board sustained this action.
During the pendency of the charge the Company, on September 7, posted a
notice to the effect that it would furnish protective clothing if it required the wearing
thereof and if the operators wished to wear such clothing the Company would sell
it to them at actual cost. On September 10, the Union filed a grievance and at a
meeting held on September 28, the Company and the committee discussed the form
of a receipt or notice, without any conclusion being reached. Finally, on October
2, Massey advised the committee that the Company had decided it was not going
into the clothing business and its policy in respect to clothing was set forth in the
notice of September 7.
Hoyo and LaBoa testified that in the early morning of October 3, Sullins told
LaBoa he had known since Friday, September 28, that the operators were not
getting the clothing. Sullins denied making any such statement. Snowden testified
no decision was reached in regard to the clothing until the afternoon of October
1 and he advised Massey of the decision the same evening. On the basis of the
testimony of Sullins, Snowden, and Massey, I find that Sullins did not make the
statement as claimed by Hoyo and LaBoa.
From these findings it is obvious that the Company engaged in no violation of
the Act and they fully support the actions of the Regional Director and the General
Counsel concerning this charge. I am convinced that while the facts show the
Company's willingness to enter into good-faith discussions with Hoyo or any of its
employees regarding working conditions, it strikes me that Hoyo by urging the
quick filing of a charge and by arguing over the form of a receipt to which there
was no substantial objection was more interested in litigating or wrangling over
the clothing program rather than bringing the matter to a prompt and successful
conclusion. Certainly, the Company was not obligated to engage in endless dis-
cussions on this item and its statement of position on October 2 was fully justified.
Here the same subject matter is presented as a violation of Section 8 (a) (1) of
the Act, with the complaint alleging that from about August 1956 to the date of
its issuance, July 18, 1957, the Company has withdrawn working benefits and re-
fused to reinstate them and make them part of a working agreement between the
Company and the Union in order to discourage union activities. Apparently, the
General Counsel's position is that the Company's notice of September 7 eliminated
a more favorable arrangement in the purchase of protective clothing for some
operators prior to Hoyo's having raised the matter as a negotiable item for all
operators, and as a consequence Hoyo and the committee "received a :black eye
CONSOLIDATED CHEMICAL INDUSTRIES 1641
from" the Company. Frankly, I do not believe the evidence supports the propo-
sition that operators who were issued clothing. on August 6, gained a greater ad-
vantage than operators desiring to purchase clothing subsequent to September 7,
but assuming the latter group suffered some disadvantage they can attribute their
situation to the actions of Hoyo. From the foregoing findings I conclude that the
Company did not engage in any conduct in violation of Section 8 (a) (1) of
the Act.2
About November 13, 1956, the Company found it necessary to make a layoff
and, apparently, in order to give some of the individuals additional work trans-
ferred 5 men from the bone plant to the labor gang, under Barrington, at a re-
duction of 10 cents an hour in their pay rate. Five men were laid off a few days
later and there is no question as to the propriety thereof. Admittedly, Barrington
and Massey discussed the subject with Hoyo and further, Massey gave Hoyo the
name of the foreman for Brown & Root so Hoyo could contact him in an attempt to
find jobs for these men. The General Counsel opines that Brown & Root refused
to hire these men, "all to the discredit of Hoyo for having tried in the first place to
save these employees a 100 an hour cut." I confess I can state no reason for
the foreman's action, other than perhaps he was unaware of Hoyo's reputation or
that he was "boss" of the committee. Whatever the reason, it is immaterial.
In December 1956, when Hoyo was notified by Sullins of his transfer to the
sulphur pit, he claimed he told Sullins he did not like going there for he considered
it as Siberia, an easy place for an employee to be framed. Manifestly, this assertion
amounts to nothing more than a sorry attempt to cover up his subsequent mis-
handling of the job. As to be expected, not a single employee who testified at the
hearing referred to the sulphur pit as Siberia and Newton, an employee with 5 years'
service and a witness for the General Counsel, testified the first time he ever heard
this expression was when it was used by Hoyo on the witness stand. Again, when
cross-examined on the question of whether he had been framed, Hoyo became so
elusive and evasive with "I won't say yes and I won't say no," answers, I asked him
the direct question, . . now, do you contend that the company framed you on
this [spillage]?" and he replied, "No, sir, I didn't."
On December 18, Lang, in Sullins' absence, transferred Hoyo and Dutoit to the
sulphur pit where they remained in training through December 21. Hoyo admitted
it was his duty to keep the pits full and that someone from the Company explained
there was not sufficient work to keep an operator fully occupied because the Com-
pany wanted to make sure the pits did not overflow. While Hoyo gave several
different versions of the instructions he received when placed in training he did admit
that Lang stated it was a serious offense to run over the pits. Hoyo denied that
Lang stressed the seriousness of a pit spillage by comparing it to an employee's
defecating upon Massey's rug. Lang testified he instructed Hoyo and Dutoit that
it was a very serious offense to overflow the pits, that it was cause for dismissal
and concluded with the defecation remark. Dutoit corroborated Lang to the extent
that Lang used the above expression and that it was a very serious offense to overflow
the pits. I credit the testimony of Lang and Dutoit and find that both Iloyo and
Dutoit were adequately instructed that a pit spillage was a dischargeable offense.3
On December 20 Hoyo and Dutoit were assigned to shifts by Lang, but Hoyo,
because of time off, injuries, and attendance at negotiating meetings, did not assume
his duties until midnight, January 4, 1957. Hoyo at the time of his assignment raised
some question as to whether he was ready to take over as an operator but at the
negotiating meeting of January 4, he stated the job "was a snap and anybody could
do it." Hoyo worked five full shifts as an operator between January 4 and
January 11.
Hoyo was on duty the evening of January 12, when the east pit overflowed under
circumstances detailed above. Admittedly, the overflow was caused by Hoyo's
failure to check the pit and he was performing no duties which would have inter-
2 In view of these findings it is not necessary to discuss the question of whether the
whole matter is not barred by the 6-month limitation for, apart from an agreement to
arbitrate, the last act in this respect occurred on October 2, 1956. (Cf Bowen Products
Corporation, 113 NLRB 731 )
8 The General Counsel seemingly places this incident as occurring at the time Lang
assigned Hoyo and Dutoit to assume responsibility for their respective shifts, on Decem-
ber 20. He also contends that Hoyo's testimony is supported by William G. Smith, an
operator Irrespective of the date, be it December 18 or 20, Smith testified he was present
only part of the time when Lang talked to Hoyo and Dutoit and although he did not hear
Lang make the above-mentioned remark or that a spillage, was a dischargeable offense,
he conceded Lang could have made such statements without his having heard him.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with his checking this pit. The General Counsel concedes that Hoyo, "the
perfectionist , had `goofed'." Despite the evidence and his own admissions the General
Counsel attempts to establish an alibi for Hoyo by asserting that the controls for
the east and west pits were arranged in a "criss-cross manner" which confused him.
I question that this arrangement was confusing even to the average employee, cer-
tainly there is no evidence to that effect, much less a "perfectionist." Accordingly,
I find that the spillage was caused by Hoyo's bungling of his job and inattentiveness
to his duties.
It is undisputed, and I find, that shortly after the incident Hoyo telephoned Sullins
that he overflowed the pit, that he knew what the penalty was and to send a relief
man. Sullins said he would come out to the plant and he and Riley arrived about
8:45 that evening. Sullins and Riley went directly to the sulphur pits, Riley fixing the
time of arrival at 8.47, and not seeing Hoyo around, they examined the spillage.
Sullins went to look for Hoyo and when they returned to the pits it was 9:04, accord-
ing to Riley's watch. Hoyo had a brief conversation with Riley and when Massey
and Dutoit arrived, Hoyo talked to Dutoit, then punched out at 9:12, without con-
tacting either Sullins or Riley. Dutoit took over Hoyo's shift and Sullins told Starnes
to arrange the shifts for the following week until another man could be transferred
to fill Hoyo's place.
The next morning Hoyo called Sullins to find out his penalty, that is the length
of his layoff, and Sullins replied he had quit, which he denied. Sullins then told
him to see Massey.
On Monday, January 14, the subject of Hoyo's quitting was brought up at the
commencement of a negotiating session and later at two meetings with Massey.
At all times Hoyo denied he had quit and at the meetings with Massey, he was
.accompanied by Fox at the first meeting and Craig at the second meeting, Hoyo
demanded that he be returned to work, laid off a week, or be fired. In view of this
ultimatum Massey, at the second meeting, discharged Hoyo for overflowing the pit
and being absent from his job for 17 minutes.
The General Counsel argues it is just implausible to believe that Hoyo, the mili-
tant union leader, would give up and quit simply because he ran over the pit and
only Sullins "held to this lie from the start to the finish." This is strong language
for such a weak premise and if any witness in this case was careless with the truth
it was Hoyo, not Sullins. I fail to see any point in the argument that the Company
had to abandon its defense that Hoyo had quit. Where, as here, an employee com-
mits an offense for which he may be properly discharged and he refuses an oppor-
tunity to resign, I know of no alternative open to the employer other than to fire
him. From Hoyo's own account of his conversation with Sullins the evening of
January 12, 1 believe it was reasonable to infer that he was quitting his job. Un-
doubtedly, he later changed his mind in this respect and so advised Sullins on January
13. Again, at the meetings on January 14, he held to this position, refused to resign,
so Massey had no course other than to fire him.
The General Counsel contends that the Company failed to establish its defense that
,,,any spillage of sulphur" was grounds for discharge and that the Company suffered
only nominal loss as a result of Hoyo's spillage. Of course, the issue here is whether
the Company discharged Hoyo because of his union activities, not the sufficiency
of the reason therefor. Unquestionably, the Company, through Rothrock, took steps
to eliminate pit spillages following the costly overflows in late 1952 and early 1953,
and in March 1953, adopted a policy providing for the dismissal of anyone involved
in a spillage Having found that Lang instructed Hoyo and Dutoit that it was a dis-
chargeable offense to run over the pit and that Hoyo's spillage was entirely his own
fault, it is immaterial what the company policy may have been in cases where the
employee was wholly blameless. Nor is it material what the policy might have been
insofar as acid or tank car overflows are concerned for Hoyo was not accused of
having any such overflows. It is true, as stated by the General Counsel, that Hoyo
was the only employee to be discharged for running over the pits, but he ignores
the undisputed fact that between March 1953 and January 12, 1957, Hoyo was the
only employee involved in a pit spillage, except for Robb and he resigned immedi-
ately, to save the Company the trouble of discharging him.
I do not consider the amount of damage caused by Hoyo as controlling herein,
nor as a limitation upon the Company 's right to dismiss an employee for causing a
spillage be it a costly or an inexpensive one. I find, on the basis of Massey's testi-
mony, that the loss here amounted to $889.66, which in my opinion is a rather sub-
stantial sum. The General Counsel contends the loss was nominal and it is interest-
ing to note how he cavalierly whittles down the above sum. He claims that the
27.1 tons of sulphur ($650 40) can be filtered to the extent that 99th percent can
be recovered, so the loss of sulphur amounts to $3.25. The General Counsel over-
looks the fact that the Company does not ordinarily use its filtering facilities, they
CONSOLIDATED CHEMICAL INDUSTRIES 1643
were not in use at the time, and it would cost about $1 ,000 to commence operations
to filter the quantity of sulphur involved here . The labor cost in removing the
sulphur ($234 94) is eliminated because there was no urgency to clean up the sulphur
and this sum can be included as part of the general maintenance cost at the plant.
The General Counsel concludes by stating the cost of the relief man ($4.30) is not
unusual and occurs from time to time as an expense for various reasons. I am
unimpressed with this rationale and I hold to the opinion that the Company sustained
substantial loss as a consequence of Hoyo's spillage.4
On the evidence I find that Hoyo was absent from his job for 17 minutes on
January 12. Moreover, Hoyo, as he conceded, did not deny being absent for that
period either at the time of his discharge or at the hearing before the Texas Em-
ployment Commission. The General Counsel argues that Hoyo accounted for his
absence at the hearing , that no mention was made on January 12 , of his being absent
and he was not asked to give an explanation therefor on January 14. In view of
Hoyo's failure to timely deny or explain his absence, his detailed account at the
hearing of what he did during that interval is neither convincing nor persuasive
and is rejected The fact that Sullins or Riley did not inform Hoyo of his absence
on January 12, is attributable, in my opinion, to his hasty departure from the plant.
On January 14 Massey specifically told Hoyo and Craig that one of the grounds
for his discharge was his absence from the pits. Certainly, from past performance
Hoyo needed no invitation to express his views to company representatives, so his
failure to offer any explanation on this point convinces me that he was absent from
,his job and there was nothing for him to say to Massey.
Of course, it is well established that an employer may discharge an employee for
any cause or no cause so long as it is not for, or in discouragement of, such activities
as the Act declares permissible.5 It appears to me that the arguments of the General
Counsel are directed to the manner and policy under which the Company operated
its plant rather than to the illegality of the discharge. Speaking on the subject of
discharge under such circumstances, the Court of Appeals for the Fifth Circuit, in
N. L R B v Blue Bell, Inc. (219 F. 2d 796), stated:
Where the employer has proper cause for discharging an employee, the Board
may not rely on scant evidence and repeated inferences to make a finding that
places the Board in the position of substituting its own ideas of business
management for those of the employer.
I find and conclude that in discharging Hoyo, for the reasons found herein, the
Company was not motivated by any unlawful considerations, hence, it did not
violate Section 8 (a) (3) of the Act.
The General Counsel contends that Hoyo was dismissed for giving testimony
under the Act in connection with the charge filed in Case Number 39-CA-601.
The record merely shows that Hoyo talked to Attorney Ladwig about the charge
and that he executed an affidavit for a Board agent , all without knowledge on the
part of the Company. His only other activity in this respect occurred on October
18, 1956, when he requested that he and two other individuals be granted leave that
afternoon for the purpose of going to the Board's office in Houston. The request
was denied because it would create a hardship in the operating department. I find
this evidence insufficient to establish a violation of Section 8 (a) (4) of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of Consolidated Chemical Industries, Division of Stauffer
'Chemical Company, occur in commerce within the meaning of Section 2 (6) and
(7) of the Act.
2. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8 (a), subsections (1), (3), and (4)
of the Act.
[Recommendations omitted from publication.]
f In Macon Textiles, Inc (80 NLRB 1525, 1535 ), the Board held that the employer was
justified in discharging an employee who damaged machinery to the extent of $40, by forc-
ing stuck bobbins off the spindles, even though the employer may have been responsible
in the first instance for the bobbins being stuck
5 N L. R B. v Fulton Bag & Cotton Mills, 175 F. 2d 675, 677 (C. A 5) ; N. L. R. B. v.
Bibb Manufacturing Company, 188 F. 2d 825 , 828 (C . A. 5) ; Magnolia Petroleum Company
v. N. L R. B., 200 F. 2d 148 (C. A 5) ; Rubin Bros. Footwear, Inc., et at v . N. L. R. B.,
203 F. 2d'486, 488 (C. A. 5).