Union Carbide Corp.

National Labor Relations Board - Board Decisions

Jun 21, 2000

331 N.L.R.B. 356 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
Union Carbide Corporation and Rex A. King. Case 9–
CA–36332
June 21, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On June 9, 1999, Administrative Law Judge William N.
Cates issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed cross-exceptions, a supporting brief, and an answer-
ing brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Union Carbide Corporation, South
Charleston, West Virginia, its officers, agents, successors,
and assigns shall take the action set forth in the Order.
Patricia Rossner Fry, Esq., for the General Counsel.
Roger A. Wolfe, Esq., for the Company.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is a
wrongful discharge case. At the close of a 1-day trial in Charles-
ton, West Virginia, on May 11, 1999, I rendered a Bench Deci-
sion in favor of the General Counsel (Government) thereby find-
ing a violation of 29 U.S.C. 158(a)(1). This certification of that
Bench Decision, along with the Order which appears below,
triggers the time period for filing an appeal (Exceptions) to the
National Labor Relations Board. I rendered the Bench Decision
pursuant to Section 102.35(a)(10) of the National Labor Rela-
tions Board’s (Board) Rules and Regulations.

1 We agree with the judge that employee Rex A. King was dis-
charged for pursuing his contract rights. The judge found that King
was attempting to find out his continuous service date (CSD), which is
used to determine eligibility for contract benefits including vacation
and severance. The record, however, shows that King had been in-
formed that his new CSD was July 31, 1977, and that he was attempt-
ing to find out whether the contractual provisions allowing employees
to take their CSD as a holiday applied to him (i.e., to permit him to take
July 31, 1998, as a holiday).
We also agree with the judge that King’s conduct was not so “out of
line” as to remove him from the protection of the Act, and find that
Carolina Freight Carriers Corp., 295 NLRB 1080 (1989), relied on by
the Respondent, is distinguishable. In Carolina Freight, the Board
found that an employee’s behavior in asserting a contract right consti-
tuted insubordination because he persisted in challenging his supervi-
sor’s direct order to clock out. Id. at fn. 1. (Emphasis in the original.)
In the instant case, King’s behavior was at most rude and disrespectful.
See Severance Tool Industries, 301 NLRB 1166, 1170 (1991), enfd.
953 F.2d 1384 (6th Cir. 1992).
For the reasons stated by me on the record at the close of the
trial, and by virtue of the prima facie case established by the
Government, a case not credibly rebutted by Union Carbide Cor-
poration (Company), I found the Company violated Section
8(a)(1)1 of the National Labor Relations Act, as amended, (Act),
when on August 28, 1998, it discharged its employee Rex A.
King (King) because of his concerted protected activity of raising
an issue addressed in a collective-bargaining agreement. Inter-
boro Contractors, 157 NLRB 1295 (1966), and NLRB v. City
Disposal Systems, Inc., 465 U.S. 822 (1984). I rejected the Com-
pany’s contention that as a probationary employee King had no
contractual rights until he completed his probationary period. I
also rejected the Company’s contention it was justified in dis-
charging King in as much as King’s conduct in pursuit of any
contract right was “too far out of line” to be protected by the Act.
I found Carolina Freight Carriers Corp., 295 NLRB 1080
(1989), relied upon by the Company on this point, to be factually
distinguishable. Finally, I rejected the Company’s contention it
was not wrongfully motivated in discharging King. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
I certify the accuracy of the portion of the transcript, as cor-
rected,2 pages 293 to 313, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
Based on the record, I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act; that it violated the Act in the particulars and for
the reasons stated at trial and summarized above and that its vio-
lations have affected and, unless permanently enjoined, will con-
tinue to affect commerce within the meaning of Section 2(2) and
(6) of the Act.
REMEDY
Having found that the Company has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found the Company discriminatorily discharged its
employee Rex A. King, I shall recommend he, within 14 days
from the date of this Order, be offered full reinstatement to his
former job, or if his job no longer exists, to a substantially
equivalent position, without prejudice to his seniority, or any
other rights or privileges previously enjoyed, and make him
whole for any loss of earnings or other benefits suffered as a
result of the discrimination against him, with interest. Backpay
shall be computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
1 There was no showing on this record that King’s discharge was
motivated by any effort to discourage membership in Local Lodge 598
of District Lodge 20, of the International Association of Machinists and
Aerospace Workers, AFL–CIO (Union). I note Union President Bow-
ers even participated in the only hiring decisions at the Company in
several years. Accordingly, I dismiss the 8(a)(3) allegations of the
complaint.
2 I have corrected the transcript pages containing my decision. The
corrections are as reflected in the attached App. C (omitted from publi-
cation). The corrections have been made to conform to my intended
words, without regard to what I may have actually said in the passages
in question.
331 NLRB No. 54
UNION CARBIDE CORP. 357
Horizons for the Retarded, 283 NLRB 1173 (1987). I also rec-
ommend that the Company, within 14 days from the date of this
Order, be ordered to remove from its files any reference to Rex
A. King’s unlawful discharge and, within 3 days thereafter, no-
tify Rex A. King, in writing that this has been done and that his
discharge will not be used against him in anyway. Finally, I
recommend the Company be ordered, within 14 days after ser-
vice by the Region, to post an appropriate Notice to Employees,
copies of which are attached hereto as “Appendix B”3 for a pe-
riod of 60 consecutive days in order that employees may be ap-
prised of their rights under the Act and the Company’s obligation
to remedy its unfair labor practices.
On these conclusions of law, and on the entire record, I issue
the following recommended4
ORDER
The Company, Union Carbide Corporation, South Charleston,
West Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in protected
concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Rex A.
King full reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent job without prejudice to his
seniority or any other rights or privileges previously enjoyed.
(b) Within 14 days from the date of this Order, remove from
its files any reference to his unlawful discharge, and within 3
days thereafter, notify Rex A. King, in writing that this has been
done and his discharge will not be used against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents, for its examination and copying, all
payroll records, Social Security payment records, time cards,
personnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, neces-
sary to analyze the amount of back pay due under the terms of
this Order.
(d) Within 14 days after service by the Regional Director for
Region 9 of the National Labor Relations Board, post at its
Charleston, West Virginia facility copies of the attached notice
marked “Appendix B.” Copies of the notice, on forms provided
by the Regional Director for Region 9 after being signed by the
Company’s authorized representative shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that during the pendency of these pro-
ceedings the Company has gone out of business or closed the

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
facility involved in these proceedings, the Company shall du-
plicate and mail, at its own expense, a copy of the notice, to all
employees in Charleston, West Virginia, employed by the
Company on or at any time since August 28, 1998.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 9 of the National Labor Relations
Board sworn certification of a responsible official on a form pro-
vided by the Region attesting to the steps that the Company has
taken to comply.
APPENDIX A
DECISION
293
JUDGE CATES: This is my decision in the matter of Union
294
Carbide Corporation and Rex A. King, an individual, Case 9–
CA–36332. First, let me state as part of my decision that I would
like to thank Counsel for both sides for having done an out-
standing job presenting the evidence in this case. Both Counsel
are a credit to the Parties they represent.
The charge in this case was filed by Rex A. King on October
19, 1998 and thereafter timely served on Union Carbide Corpora-
tion, the Company herein.
During the past twelve months the Company in conducting its
operations of manufacturing chemicals at its South Charleston,
West Virginia facility purchased and received at that facility
goods valued in excess of $50,000.00 directly from points outside
the State of West Virginia.
The evidence establishes, the Parties admit, and I find the
Company is an Employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The evidence establishes and I find that Local Lodge 598 of
the District Lodge 20 of the International Association of Machin-
ists and Aerospace Workers, AFL–CIO, herein the Union, has
been, and is, a labor organization within the meaning of Section
2(5) of the Act.
Certain individuals will be referred to in the decision and I find
they are admittedly either supervisors and/or agents of the Com-
pany. They are Carla Abshire, a Human Resources employee;
Jeff Means, a General Foreman; Mickey
295
Garnes, a foreman; and Danny Lawrence, a foreman. All are
either supervisors and/or Agents of the Company sufficient to
bind the Company for actions they may have taken.
There is a collective bargaining agreement currently in effect
between the Company and Union which by its terms is effective
from December 15, 1997 to December 17, 2000.
It is clear the Company herein had not exercised an option to
hire employees at its South Charleston, West Virginia facility for
a number of years. Perhaps in excess of ten years.
During the most recent negotiations between the Company and
the Union the Parties negotiated an agreement whereby the Com-
pany could hire four or five employees without having to go
through the long term training program outlined in the collective
bargaining agreement.
As I believe it was Mr. Bowers, the Local Union President,
who testified the Company wanted to hire individuals who could
hit the road running. That is they would be ready to perform
work immediately at a level that was expected of them without
having to train the individuals they would hire.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
A decision was made in March of 1998 to do just that. To hire
either four or five employees. I am primarily focusing on four
employees that were hired into what I shall describe as the Main-
tenance Department.
296
The Company set up an interview process and interviewed and
evaluated a number of applicants. The testimony varies as to
how many employees were actually interviewed and it’s not
critical to this decision that I determine with precision the number
interviewed and/or hired.
The number interviewed perhaps was at least twelve and one
witness said there might have been as many as thirty individuals
who had made application or sought to be employed and inter-
viewed.
There were approximately three or four individuals involved in
the hiring/interview process, one of which was Local Union
President, Bowers, and through a process of rating each of the
individuals seeking employment the Company selected four em-
ployees that as one witness described were the "cream of the
crop." So four individuals were hired one of which was Mr. King,
the Charging Party herein.
There is no dispute that Mr. King was hired on or about June
29, 1998 and was terminated on or about August 28, 1998. There
is no dispute that the Company has a one hundred and twenty day
probationary
297
period that had been negotiated with the Union and is spelled out
in the Parties’ collective bargaining agreement. Any one coming
in as a new hire has to go through this one hundred and twenty
day probationary period.
The four individuals hired at the end of June 1998 were no ex-
ception to that requirement. Each of the four employees, and
specifically Mr. King knew they were probationary employees
and subject to that period of time.
It is undisputed that Mr. King worked for the Company start-
ing in 1973 I believe the testimony will show and worked at vari-
ous locations for the Company and perhaps worked up until 1994
or thereabout for the Company, and from 1994 to 1998 Mr. King,
from time to time, worked at the Company’s facilities as a con-
tract employee for some other company performing work at the
Company location herein.
For example, one witness, I believe testified one of the em-
ployers they worked for in that capacity was Brown & Root Con-
struction Company.
Next we come to the long journey over a short period of time
that Mr. King went through visa vis his relationship with the
Company. As both Counsel for the General Counsel and Coun-
sel for the Company indicated, I believe both indicated, that re-
gardless of which set of facts were credited that the outcome
would be the same. Both contend the outcome would be the
same.
There are differences in the testimony. Some are minor differ-
ences. Others are more substantial. I’m
298
not unmindful that when people are recalling the same events
they will recall them in a slightly different manner than someone
else did with each believing, and perhaps rightly so, that they
were truthfully recalling what occurred.
With respect to the credibility resolutions that I will make I
had the opportunity to watch the witnesses as they testified. I
listened to the differences between the accounts of what took
place, and I believe that Mr. Garnes testified honestly and com-
pletely as best he could.
I believe his testimony to be true for a number of reasons in
addition to his appearance as he testified before me. His testi-
mony persuades me that he is a wheeling and dealing supervisor
who, for example, would not bat an eye about trading an em-
ployee he thought was a trouble maker to somebody else.
He admitted he told supervisor Samples I believe it was that
you can have anybody over here with me that you want except
you can’t have King. He said he knew that Samples would take
King because that’s just the way Samples was; if he thought you
were going to keep somebody he would take them. Garnes ac-
knowledges he engaged in a little deceit with respect to his fellow
supervisors when it came to unloading an employee from one
department to another.
He candidly admitted I was trading my problems off. I was
getting rid of him. He even would tell a supervisor that an
299
employee was being transferred out of his department because it
was a good job and other employees with more seniority might
want that job when he knew the reason the individual was being
transferred was because of problems the Company perceived
with the individual being transferred, namely in this case, Mr.
King.
But, I am persuaded that when Mr. Garnes is pressed to the
wall he will acknowledge his faults and tell the truth. I credit Mr.
Garnes’ version of the events as they pertain to Mr. King.
Mr. King ‘s long journey starts even before he actually repored
for work. Mr. King thought he was supposed to be paid more
than his letter of employment indicated he was going to be paid.
More specifically Mr. King testified that he was told he would
be paid as a second year employee but when he got his letter
inviting him to accept an offer to work with the Company he
found out the pay would be somewhat less. The difference being
somewhere between $16.00 and change to $17.00 and change.
Mr. Garnes testified, and I credit his testimony, that he was not
offered more money ahead of time but that when Mr. King raised
the matter with him he went back to see if he could get Mr. King
the additional money and in doing so he spoke with General
Foreman or Maintenance Director Means.
Means told Garnes it was a “take it or leave it” situation. Gar-
nes went back to Mr. King
300
and told him he could either take the job at the pay outlined in the
letter or they would hire someone else. I credit Mr. Garnes’ tes-
timony that Mr. King told him “God damn it I’m not even back
on the payroll and you’re screwing me.”
Mr. Garnes testified that caused him some problems. He
thought maybe he might even have a problem with King before
he got Mr. King back on the job. Mr. Garnes testified about some
safety glasses incidents he had with Mr. King. Garnes testified
he observed Mr. King on I believe at least three occasions with-
out safety glasses and when he pointed this out to him Mr. King
put his glasses on even though, according to Mr. Garnes, it
seemed like he didn’t really want to.
The next area where it appears that Mr. King encountered
some difficulty at least from Mr. Garnes’ point of view was that
when Mr. Garnes was explaining the overtime situation to Mr.
King and the other employees. Mr. Garnes testified he advised
the new hires they could sign up to participate in overtime, and if
UNION CARBIDE CORP. 359
they signed up they would be subject to working overtime. Gar-
nes told the new hires if they did not sign up and enough indi-
viduals did not sign up they could be drafted to work overtime.
Garnes testified Mr. King responded that he might be stuck out
there every night. Mr. Garnes told King he would have to make
that decision.
Mr. Garnes went on vacation near the end
301
of July, perhaps the last week in July 1998 and in Mr. Garnes’
place Mr. Derrick Peaks filled in for him. Peaks testified, and I
don’t think there is any dispute with respect to this, that Mr. King
raised with him what his CSD or continuing service date was.
Mr. King had already talked with Mr. Garnes about this. Mr.
Peaks called Carla Abshire in the Human Resources Department
and ask her about King’s CSD. Abshire didn’t have a ready an-
swer for Peaks but promised to get an answer. Mr. Peaks conveys
that to Mr. King. In fact I believe Mr. Peaks testified that Mr.
King was standing right there meaning next to him when he
made the inquiry of Human Resources.
Next supervisor Danny Lawrence needs an employee to help
out over in his Department. Garnes figures this is a way for him
to get rid of his problem so he sends his problem over to Supervi-
sor Lawrence.
Employee King reports to Supervisor Lawrence and he asked
Supervisor Lawrence to seek out an answer for him on whether
the continuous service date for him would be such that he could
take July 31, 1998 as a holiday or exactly when the computation
for his continuing service date would be.
Supervisor Lawrence told King he didn’t know when it would
be computed but tells Mr. King he will check with Human Re-
sources. Lawrence called Carla Abshire and she told him she was
already checking on it and would get back to
302
him but didn’t have an answer at that time.
Lawrence did not want to be troubled with King’s problem
and did not know what to do so he asked his supervisor, Cliff
Samples, what to do. Samples told Lawrence he didn’t think
anything could be done about it until Mr. King had been reem-
ployed for at least six months. Supervisor Lawrence conveyed
that to Mr. King.
Supervisor Lawrence said that that was the first time it had
ever been mentioned to him. Now that’s contrary to Mr. King’s
testimony but, I am persuaded that Mr. Lawrence’s testimony
falls into a pattern and I credit his testimony on that point.
Mr. Lawrence does give Mr. King some advice. He tells him,
and I believe this to be a quote, “Rex, lay off this. Everybody in
the Plant knows about it. Don’t make no more trouble until you
get a hundred and twenty days in.”
Lawrence gets word he is to send King back to Garnes, but in
the meantime on August 17th or thereabout, 1998, an employee
named Plumley speaks with Supervisor Lawrence about Charg-
ing Party King’s problems. According to Lawrence, Plumley
tells him he is trying to help out a good employee. that he doesn’t
want him to get messed over and doesn’t want anything to hap-
pen to him. I’ll pick up more on this in a minute.
303
Before I get to King reporting back to Garnes on or about Au-
gust 17, 1998, Lawrence testified he had observed King in a
mandatory hard hat area, on three separate occasions, with only a
baseball or soft type cap on. On two of the occasions he did not
speak to King, but the third time as they were walking along
together between jobs he told King you need to wear your hard
hat in this area.
Apparently there was some employee at Union Carbide or at
the Company herein, that made it her point to observe any safety
violations and speak to the proper persons if she observed anyone
not observing the safety regulations.
As indicated earlier King reported back to Garnes on or about
August 17, 1998. King tells Garnes this “continuing service
date” thing has kindly gotten blown out of proportion and he
would like for it to settle down.
Garnes testified he told King that if anybody had blown it out
of proportion it was King by his continually raising his CSD
problem and advised King to let the system work its way out and
eventually it would resolve itself.
Garnes told King about Supervisor Lawrence being brought
into the situation. Garnes told King that as soon as King had
gotten over to Lawrence’s area he had brought up this continuing
service date problem and King, according to Garnes, whose
304
testimony I credit, said “Danny (meaning Lawrence ) is a fucking
liar.”
Garnes testified about a meeting on August 18, 1998 when he
was making his rounds where at he talked with King and em-
ployee Plumley. According to Garnes’ testimony, Plumley told
him that he had spoken with Lawrence as an Alternate Steward in
order to help King out. Plumley did not testify in that manner.
Lawrence did not say that Plumby had come to him as an Alter-
nate Steward, but I am persuaded it was communicated to Garnes
by Lawrence, or others, that that’s what had taken place at that
meeting.
Thereafter on August 28th King is terminated. Supervisor
Garnes testified that on this day he gave everyone a job assign-
ment except King and that King wanted to know what was going
on. Garnes told King they needed to go talk with Supervisor
Means over in the Human Resources Department They did so.
Garnes testified he signed a letter and gave it to King. The two
of them told King he was terminated. Garnes walked King to his
vehicle and retrieved his vehicle pass and his personal pass. King
again wanting to know why he was being terminated, and Mr.
Garnes told him he could not talk about it.
Mr. Means testified he was the one who made the decision to
terminate Mr. King and that he did so for a number of reasons.
He said he was aware of and it factored into
305
his decision that Mr. King did not wear his safety glasses on at
least three occasions, and that Mr. King kept magnifying and
raising the problem about his continuous service date. In fact Mr.
Means said he spent more time on that issue than he did with
anything else from anyone else during that period of time. He
said this problem with Mr. King’s continuous service date came
up constantly in the Human Resources Department.
Means said that although he transferred Mr. King to Mr. Law-
rence’s department he transferred him back because he didn’t
want Mr. King to get lost in the shuffle. That he wanted to be
able to keep a close eye on Mr. King and if necessary document a
case on which Mr. King could be removed from the Company
because he had started having doubts about Mr. King when Mr.
King first made comments about the Company not treating him
kindly with respect to his rate of pay before he was hired.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
Mr. Means said he terminated Mr. King because his behavior
was disruptive regarding his seeking a status on his continuous
service date. That it involved three Human Resources Represen-
tatives he had contacted. He was tying up everyone’s time.
Means testified it was a complicated issue and that Mr. King
simply would not cease and desist and let the system work.
Means said he also took into consideration the fact that Mr.
306
King made the comments I find he made about Supervisor Law-
rence being a fucking liar, and that overall Mr. King had a nega-
tive attitude and he terminated him.
Now applying those facts to the law did the Company violate
the Act when it discharged Mr. King on August 28, 1998. There
are at least two series or sets of cases I wish to call your attention
to and then apply those particular holdings to this case.
First any case that turns on an employer‘s motivation needs to
be analyzed under the teachings of the Board ‘s decision in
Wright, W-r-i-g-h-t, Line, L-i-n-e, a Division of Wright Line,
Inc., 251 NLRB 1083.
The Board ‘s analytical mold for determining whether the
General Counsel has made out a violation of Section 8(a)(3) and
(1) violation as alleged in this Complaint, or a Section 8(a)(1) as
it appears is the Government’s contention in this case, turns on
whether a prima facia case of unlawful motivation has been
proven by the General Counsel and, if so, whether the Company
has demonstrated that it would have acted the same regardless of
any protected activity on the part of the individual, in this case,
Mr. King.
The Wright Line test was reviewed by the Supreme Court in
NLRB v. Transportation Management Corporation, 462 U.S. 393
and the Court approved the Board’s so called dual motive analy-
sis.
307
Although I might note that the Board in the Wright Line decision
used the term “prima facia” four times, the Supreme Court’s
Transportation Management opinion did not employ that term at
all.
The Court described the formula that it affirmed as “[t]he em-
ployee had the burden of persuading the NLRB that antiunion
animus contributed to the employer’s firing decision; The burden
then shifted to the employer to establish as an affirmative defense
that it would have fired the employee for permissible reasons
even if the employee had not been involved in Union activity".
In order to establish the Wright Line burden the Government
must show that there was union or protected activity, that the
Employer had knowledge of it. Consideration must be given to
the timing of the events, and whether there is employer animus,
and sometimes perhaps even something a little less than that, but
I shall look to those four elements in the current case.
Secondly, a series of cases that perhaps needs to be looked at
is what is sometimes referred to as the Board ‘s Interboro doc-
trine. That is spelled I-n-t-e-r-b-o-r-o. The Board outlined its
doctrine in a case reported at 157 NLRB 1295, a 1966 case.
Now the Board ‘s Interboro doctrine was affirmed by the
United States Supreme Court in NLRB v. City Disposal Systems,
308
Inc., 465 U.S. 822, a 1984 case. The Interboro doctrine boiled
down to its simplest premise is that an employee is engaged in
protected activity when he or she raises issues addressed in a
collective bargaining agreement
It is also Board law that an employee in pursuing rights under
a collective bargaining agreement or invoking the collective bar-
gaining agreement need not be correct in his or her interpretation
of the contract in order to invoke it or to file a grievance. It’s just
that the contentions of the party seeking to invoke the privileges
of contract must be reasonably
based on the contract.
Was there a contract provision involved in this case. The an-
swer is yes. The collective bargaining agreement at, among other
places, Article 15, Section 15.1(c) addresses company service
time utilized for benefits purposes and is defined by UCC Corpo-
rate policy meaning the Company’s policies, as testified to by a
Company witness herein.
So when Mr. King was attempting to find out his continuous
service date he was pursuing a matter that is covered by the col-
lective bargaining agreement. He was trying to invoke the privi-
leges outlined for him and others in the collective bargaining
agreement, therefore the conduct that Mr. King was engaging in
was conduct protected by the Act as stated in the Board’s Inter-
boro doctrine and as affirmed by the United States Supreme
Court in
309
City Disposal Systems, Inc. There is no question that the first part
of the elements the Government must meet has been met.
The General Counsel established the conduct Mr. King en-
gaged in was protected by the Act. Did the Company have
knowledge this was an item protected by the Act that Mr. King
was raising or invoking. Absolutely. The Employer negotiated
with the Union the contract that contained a provision that dealt
with continuous service dates and the contract simply refers to
the policies the Company had on that matter as controlling.
The timing is very pertinent. Mr. King did not make it out of
his probationary period before he was discharged for, among
other reasons, invoking the contract, a protected activity.
Did the Company take adverse action against King. Yes, they
discharged him. The Government has met its burden of estab-
lishing a prima facia case in the matter herein.
I turn now to the Company’s defenses. Did the Company es-
tablish that it would have discharged Mr. King even in the ab-
sence of any protected conduct on his part. I find, for the follow-
ing reasons, the Company failed to establish that it did so.
First there is no question in this case on the facts before me but
that Mr. King performed his job in a very
310
satisfactory if not an outstanding manner.
Mr. King’s complaining about the rate of pay that he would be
paid even in the language that he complained was not language
sufficient to remove him or his conduct from the protection of the
Act. In the give and take of labor relations and in the give and
take of communication between employees and between em-
ployees and supervisors is sometimes a little rougher than would
be in the ordinary discourse between individuals.
Each of the items that the Company said they discharged Mr.
King for in my opinion were all colored by and seized upon to
bolster the bottom line reason for his discharge, namely that he
was constantly and consistently pursuing what he perceived to be
a right under the collective bargaining agreement.
The fact that he, in no uncertain terms said, a supervisor
wasn’t speaking the truth does not remove Mr. King from the
protection of the Act.
UNION CARBIDE CORP. 361
The fact that this (CSD) was a complicated issue is demon-
strated by the fact it took the Company an extremely long time
into 1999, perhaps as late as February of 1999, to resolve exactly
how one computed a continuous service date. Part of that can be
understood because this Company had not hired employees in a
number of years, perhaps in excess of ten. Also they had not had
an opportunity
311
apparently to rehire someone that had been off for a long period
of time and to consider their continuing service date.
In fact I believe the Company’s documents will show that the
final and persuasive factor in this matter was a piece of corre-
spondence from I guess the Central Office of the Company in
which the individual said it would be such and such date and
that’s how the Company arrived at Mr. King’s date.
Now in finding that the Company failed to meet its burden that
it would have discharged Mr. King even in the absence of any
protected conduct on his part I do not mean to imply that Mr.
King didn’t spend some of his time constantly raising the issue,
and I’m sure that it became annoying to the Company but it still
was insufficient to remove him from the protection of the Act.
Perhaps Mr. King—would have been better advised to have
pursued it with less vigor. It’s apparent that Mr. King was very
interested in when he could get a vacation, when he could get a
day off, when he could be some place else with pay but in all that
activity Mr. King stayed within the frame work of the protection
of the Act because he was legitimately pursuing, with a reason-
able basis, a determination on his continuing service date.
Absent his having done that I’m fully persuaded the Company
would not have discharged Mr. King. The other factors
312
would not have brought about his discharge. For example the
warning early in his employment to get his safety glasses al-
though he resented doing so would not have brought about his
termination.
The fact that he was warned about getting his hard hat on in-
stead of his baseball cap, or the fact that he may not have been
candid with his supervisors as to how many times he had raised
this continuing service date with various persons connected with
Management would not have brought about his discharge I’m
fully persuaded that absent his pursuing the CSD issue he would
not have been discharged.
Accordingly, I shall order the Company to reinstate Mr. King
to his previous job and if his previous job no longer exists to
substantially equivalent employment without loss to his seniority
or other privileges and to make him whole for any earnings he
may have lost, and to post an appropriate notice.
I shall prepare and serve on the Parties a certification of my
decision as soon as I receive a copy of the transcript from the
Reporting Agency. I will certify those pages of the transcript
constituting my decision.
I will make any corrections that are necessary and then serve it
on the Parties. It is my understanding that the appeals period
runs from that time but please be governed by the Board‘s Rules
and Regulations rather than my understanding of them because
you will always be in better stead.
313
Let me again say that I urge the Parties still to resolve this mat-
ter. There may be some grounds that you can resolve it on and
not have to proceed any further with it. If you’re unable to do so
the appeals process is outlined in the Board‘s Rules and Regula-
tions.
Let me state that it has been a pleasure to be in Charleston,
West Virginia in this gorgeous restored Court Room on the banks
of a river whose names escapes me at the present and in the
shadows of the Robert Byrd Federal Building across the street,
and with that this trial is closed.
(Off the record.)
(Whereupon, the hearing in the above entitled matter was
closed.)
APPENDIX B
NOTICE TO EMPLOYEES
Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to post
and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid and protection
To choose not to engage in any of these concerted ac-
tivities
WE WILL NOT discharge employees for engaging in pro-
tected concerted activities.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Rex A. King full reinstatement to his former job, or if his job no
longer exists to a substantially equivalent job without prejudice to
his seniority or other rights or privileges previously enjoyed; and
WE WILL make him whole for any loss of earnings and other
benefits resulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL within 14 days from the date of this Order remove
from our files any reference to his unlawful discharge, and within
3 days thereafter, notify Rex A. King, in writing that this has
been done and his discharge will not be used against him in any
way.
UNION CARBIDE CORPORATION