Armstrong Tire and Rubber Co.

National Labor Relations Board - Board Decisions

Feb 18, 1955

111 N.L.R.B. 708 (N.L.R.B. 1955)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and each of them immediate and full reinstatement to their former or substantially
equivalent positions 14 without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of pay suffered as a result of the discrimina-
tion against them , by payment to each of them of a sum of money equal to the amount
he or she would have earned from the date of his or her discriminatory discharge to
the date of the offer of reinstatement less net earnings 15 to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289, 291-294. Earnings in any one particular quarter shall have no effect
upon the back-pay liability for any other such period . It will also be recommended
that the Respondent make available to the Board , upon request , payroll and other
records to facilitate the checking of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, and disclose a propen-
sity on the part of the Respondent to continue , although not necessarily by the same
means, to defeat self-organization of its employees, it will also be recommended that
the Respondent cease and desist from infringing in any manner upon the employee
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, AFL, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Clyde H.
Hartman, Savoy Nelson , Harvey L. Winstead, Margaret Strickland , and Alfred L.
Tucker, thereby discouraging membership in the Union, the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
11 The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827.
15 Crossett Lumber Company, 8 NLRB 440 , 447-498; Repubho Steel Corporation v.
N. L. R. B, 311 U. S. 7.
ARMSTRONG TIRE AND RUBBER COMPANY, TIRE TEST FLEET BRANCH
and UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF
AMERICA, CIO. Case No. 39-CA-359. February 18,1955
Decision and Order
On April 8, 1954, Trial Examiner Stephen S. Bean issued his In-
termediate Report in the above-mentioned proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices, and
recommended that the compaint be dismissed with respect to such
allegations. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
111 NLRB No. 116.
ARMSTRONG TIRE AND RUBBER COMPANY 709
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications and
additions :
1. We agree with the Trial Examiner that the repeated threats and
promises of benefit, found by him to have been made by Respondent's
supervisory personnel during the Union's organizational drive,' were
in violation of Section 8 (a) (1) of the Act.
2. We also agree with the findings of the Trial Examiner that the
Respondent discriminatorily discharged employee Erwin A. Albrecht,
in violation of Section 8 (a) (3) and (1) of the Act,3 and that the Re-
spondent did not unlawfully discriminate against employee Fred G.
Estill in refusing to rehire him after he resigned to go into business
for himself.
3. In accordance with our decision in the recent Aiello case,4 we
find that, having had knowledge of the Respondent's misconduct 5 yet
proceeding to a representation election, which it lost, the Union may
not now urge facts which took place before the election as grounds for
' Nine of the eleven unlawful threats and promises found by the Trial Examiner were
made by Manager Haidet ; the other two, by Road Supervisor Scharmen.
2 Since we have found Respondent in violation of Section 8 (a) (1) of the Act on the
basis of numerous acts of its supervisors , and our Order broadly requires Respondent to
cease and desist from such acts , and similar activity, we consider it unnecessary to decide
whether the following activity of the same supervisors which the Trial Examiner did not
find to be a violation , also violated Section 8 ( a) (1) : (a) Road Supervisor Scharmen's
statement to several employees that he had once worked in a partly organized plant where
the nonunion employees worked full time with much overtime and the union employees
worked only a few days at a time ; ( b) Scharmen 's interrogation of employee O'Neal, ask-
ing him what he -thought started the union deal and telling him he had the wrong attitude
and ought to forget the things that had been going on , and ( c) Manager Haidet's state-
ment to assembled employees that he wanted the employees to quit having union meetings
until the vice president had talked to them.
3 The General Counsel had the burden of proving that the discharge was discriminatory,
and we find that he has sustained that burden and has disproved, inter alia, the Respond-
ent's defense that the Respondent had adopted , published , or applied a rule on or before
the date of the discharge , whereby the performance of work such as Albrecht engaged in
without permission while on leave of absence constituted a cause for discharge of its em-
ployees in the test fleet division
The Respondent 's motion to remand the case for a hearing on the back-pay issue is de-
nied , as such a matter should more properly be left for determination at the compliance
stage , at which time the issue may be litigated , in the event of disagreement on the amount
of back pay due. Coca -Cola Bottling Company of Louisville, Inc., 108 NLRB 490 (foot-
note 23)
4 Aiello Dairy Farms, 110 NLRB 1365.
5 Although there is no direct evidence of union knowledge of all the Section 8 (a) (1)
conduct found herein, such knowledge is inferred from the testimony by Union Representa-
tive Steinke that 8 days before his request to the Respondent for recognition , he tele-
phoned Manager Haidet, complained about Haidet 's "promises and threats " which "dif-
ferent employees . . . had called to my attention ," and "told him that if he didn't cease
such . . unfair labor practices , that I was going to file charges with the NLRB." No
charges were filed until after the election.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding an unlawful refusal to bargain. We therefore do not find that
the Respondent violated Section 8 (a) (5).'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Armstrong Tire and Rub-
ber Company, Tire Test Fleet Branch, San Antonio, Texas, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO, or in any other labor organi-
zation by discriminatorily discharging or refusing to reinstate em-
ployees or by discriminating in any other manner in regard to hire,
tenure of employment, or any term or condition of employment.
(b) Threatening its employees with discharge if they engage in
union activities.
(c) Threatening to close down. and move out if the employees go
Union.
(d) Threatening employees with loss of pension benefits and pay
for nondriving time if they continue having union meetings.
(e) Telling employees that they would not be discharged if they
would get the union organizer out of town.
(f) Expressing to employees the belief that they would receive a
raise in pay or other benefits if they voted against the Union.
(g) Promising employees who voted against the Union that they
would be taken care of.
(h) Telling employees that the fleet would never go Union.
(i) Interrogating employees concerning union activities in a man-
ner constituting interference, restraint, or coercion in violation of Sec-
tion 8 (a) (1) of the Act.
(j) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organiza-
In view of this disposition of the case, we deem it unnecessary to pass upon whether
the General Counsel established the Union's majority status, upon the Trial Examiner's
finding of a good-faith doubt on that pal t of the Respondent, or upon the Respondent's other
defenses to the Section 8 (a) (5) allegation
ARMSTRONG TIRE AND RUBBER COMPANY 711
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Erwin A. Albrecht immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy."
(b) Post at its place of business in San Antonio, Texas, copies of
the notice attached hereto marked "Appendix."' Copies of such
notice, to be furnished by the Regional Director for the Sixteenth Re-
gion, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt
thereof, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that the notices are not altered, defaced, or
covered by any other material.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amount of back pay due.
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps it
has taken to comply herewith.
IT Is FURTFIER ORDERED that, except as otherwise found above, the
complaint be, and it hereby is, dismissed.
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words, "Pursuant to a Decision and Order" the words
"Pursuant to a Deciee of the United States Court of Appeals, Enforcing an Order "
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed on September 4, 1953, by United Rubber, Cork, Linoleum
and Plastic Workers of America, CIO, herein called the Union, the General Coun-
sel for the National Labor Relations Board, respectively herein called the General
Counsel and the Board, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued a complaint dated October 12, 1953 (and amendment to the
complaint dated December 4, 1953), against Armstrong Tire and Rubber Company,
Tire Test Fleet Branch, herein called the Respondent, alleging that Respondent has en-
gaged in and is engaging in certain unfair labor practices within the meaning of Sec-
tion 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, herein called the Act.
With respect to unfair labor practices, the complaint and its amendment, as fur-
ther amended several times during the hearing, in brief, alleges that: (1) Respondent
discharged Erwin A. Albrecht and thereafter refused or failed to reinstate him and
discriminated against Fred G. Estill for the reason that they joined or assisted the
Union or engaged in other concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection; (2) on or about May 12, 1953, and at all times
thereafter, Respondent refused to bargain with the Union as the exclusive representa-
tive of an appropriate unit of Respondent's employees; and (3) on numerous dates
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between May and August 1953 , Respondent committed certain acts (specified in a
dozen subparagraphs of the complaint and a score of amendments scatteringly made
during the hearing ), variously constituting interference with , restraint , or coercion
of its employees in the exercise of their statutory rights. Respondent filed an answer
in which it denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at San Antonio, Texas, from January 5 to
January 20, 1954, before the Trial Examiner, duly designated by the Chief Trial Ex-
aminer. All parties were represented and afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing on the issues.
On January 5, 1954, the first day of the hearing, I allowed Respondent's motion to
dismiss all allegations of the complaint relating to a refusal to bargain , on the ground
that at an election conducted by the Board held June 5, 1953, the employees in an
appropriate unit had rejected the Union as their bargaining agent and since no timely
objection to the conduct of the election had been made, the questions as to whether
Respondent had refused to bargain and had engaged in any unlawful conduct
affecting the results of the election were not before me. The General Coun-
sel applied for special permission to appeal from this ruling. On January 7, 1954,
the Board granted both permission to appeal and the appeal without prejudice or
final determination of the position of any party as indicated in the appeal , reserving
consideration of the matter upon the full record should that thereafter become
necessary.
Briefs filed by Respondent and the General Counsel on March 2 and 3, 1954, have
been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material hereto, a corporation duly organ-
ized under and existing by virtue of the laws of the State of Delaware, having its prin-
cipal office and place of business and a manufacturing plant in the city of Natchez,
Mississippi, and maintaining a tire test fleet branch in the city of San Antonio,
Texas, for the purpose of testing tires manufactured by Respondent outside the
State of Texas. In the course and conduct of its business operations, of which
the test fleet branch is an integral part, during the 12-month period prior to October
1953, Respondent purchased raw materials and equipment necessary for the produc-
tion of tires of a value in excess of $500,000, 80 percent of which were shipped in in-
terstate commerce to its manufacturing plants from points outside the State of manu-
facture. During the same period, Respondent sold products valued in excess of
$1,000,000, 80 percent of which were shipped in interstate commerce from its plants
to points outside the State of manufacture.
I find that , as admitted , Respondent is engaged in commerce within the meaning
of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization which admits to membership employees of Re-
spondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
This case concerns itself mainly with the organizational efforts of the Union, 3
meetings of employees at the plant, what was said there by persons holding supervisory
positions, the discharge of 1 employee, the nonrehiring of another, whether the Union
at any time represented a majority of Respondent's employees in an appropriate unit,
and whether Respondent refused to bargain in good faith with the Union.
In response to a request made by Lytton E. Bulwer, employed by Respondent as
a test truckdriver, Talmadge Steinke, a field representative for the Union, came to
Bulwer's home on April 27, 1953, where he talked to his host and another employee.
On the following evening, April 28, a meeting attended by Steinke and about 15
employees was held at the residence of employee Herman Loyd and on the follow-
ing afternoon, April 29, a meeting attended by Steinke and about 18 employees was
held at Bulwer's residence. The next meeting between Steinke and employees, about
35 in number, was held at the "drive in" of Erwin A. Albrecht, also an employee, on
the afternoon of May 1 or 2. A fourth meeting was held on a vacant lot at Al-
brecht's premises the following day. Two or three further meetings took place at
C. W. A. Hall in San Antonio on and around May 9. By May 8, 46 of Respond-
ARMSTRONG TIRE AND RUBBER COMPANY 713
ent's 79 drivers, maintenance mechanics, tire technicians, and night garageman (con-
stituting a unit which the parties ultimately agreed was appropriate) had signed
cards designating the Union as their bargaining agent and authorizing it to represent
them, and on that day Steinke wrote Respondent's manager, Harvey A. Haidet, re-
questing recognition and bargaining negotiations.
In the meantime, on April 29, the day following the meeting at Loyd's residence,
Harvey A. Haidet, Respondent's manager at San Antonio, asked Loyd how the
meeting at his house had been and stated, in the presence of about 10 employees,
that he could not understand why so good a friend of his as Loyd had started a union
behind his back. That night at the change of shifts Haidet assembled, talked to, and
answered questions asked by, some 30 or more oncoming and offgoing test car and
truckdrivers. Statements claimed to have been made at this meeting form the basis
for most of the allegations of:
B. Interference, restraint, and coercion
1. The April 29 meeting
Upon a synthesis of the credited testimony of employees Albrecht, Loyd, Pat
Weatherly, Gordon A. Hill, Bulwer, William E. Condrin, Ansil A. Buckelew, James
L. Sanders, Thomas E. Yantis, Harvey C. and Talmadge A. Littlefield, Louis E.
Wright, John F. Condrin, L. L. Pitts, and Clifford E. O'Neal, witnesses called by the
General Counsel,
I find i that at this meeting, in addition to voicing numerous relatively immaterial
ideas, Haidet said that he understood a union was starting and the employees knew
what was going to happen to them, he had not thought the men would organize
behind his back, he was not in favor of a union, and their action might cost him his
job. He then read a copy of a letter he had previously written to Respondent's
president or vice president as an illustration of his attempt to procure them a pay
raise. He told the assembled group that they were getting ready to be fired and all
he had to do was to telephone Balmer Hill, Respondent's assistant secretary and
treasurer, at Natchez and he knew Hill's answer would be to give him orders to
start firing; the Company could not stand strikes and if the employees went union
the fleet would close down and just move out; the Company could sell out its land
and buildings in San Antonio at a large profit and leave 79 families to suffer; that
the best thing for the employees to do would be to put the union organizer on the
train and ship him out of town and he would then forget about calling Hill.2
1 Much of the evidence upon which facts concerning interference, restraint, and coercion
as well as those related to the alleged discrimination and refusal to bargain are found, is
disputed, some admitted, and some undenied In several instances, I shall refer in foot-
notes (in order to avoid too broken a narrative) to testimony of witnesses at greater or
lesser variance with that which I have been able to believe Discredited, exaggerated, or
distorted testimony, evidence resulting fiom a listener's lack of capacity or unwillingness
to understand what was said and other evidence wanting in reliability or probativeness or
substantiality neither requires nor merits exposition. Throughout it has been my aim to
weigh each witness' power and oppoitunity of accurate obseivation, ability of expression,
faculty of recollection, degree of aprosexia, and extent of self-interest, as well as his ap-
pearance and attitude as he testifies, ever endeavoring to remember that truth is a sensi-
tive companion ready to fly away should suspicion appear.
Z Haidet's version of the more material statements lie made at this meeting was that
he told the men he understood they were trying to organize the place; he did not see why
they were going behind his back ; he had told them a year earlier a union organizer who
was coming from Natchez would be welcome ; he had called the meeting to find out what
was happening and what the employees wanted in order that he might inform Hill ; a sug-
gested raise of 10 cents an hour was out of reason ; the employees should use their heads ;
if there were strikes and shutdowns in San Antonio, it was possible the Company would
be forced to shut down and 79 families would suffer; and he felt the garage which had
cost $70,000 could be sold for twice that much and the lot which had cost $6,000 could
be sold for $18,000. Randall A Scharmen, a road supervisor claimed by the General Coun.
sel to be a "supervisor within the meaning of the Act" and whose status will be discussed
in subsection III B 4 b (1), nc/re, denied that Haidet said he would get orders from Hill
to start firing or that he would recommend shutting down the fleet. He did testify that
in response to a question Haidet replied that if the fleet were shut down 79 families might
suffer and that the building was acquired when prices were lower and probably could be
sold for what the Company paid. Other witnesses called and interrogated by Respondent
concerning the April 29 meeting, included Alton H. Justi, who testified Haidet told the
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The May 5 meeting
Upon the basis of a composite of the credited testimony of most of the 15 witnesses
named at the head of section III B 1, above, I find that Haidet notified all employees
of a paid-for meeting to be held on the evening of May 5. Not all responded. At
this gathering Haidet stated that if the employees cared to talk to him, C. K. Novotny,
vice president of Armstrong Rubber Company, would come to San Antonio to try
to iron out the situation and that he wanted the employees to quit having meetings
until Novotny had talked to them. Employee Howard Snarr asked Haidet if he
thought Novotny would agree to grant the employees a 5-cent or 10-cent-an-hour
raise if they voted against the Union and Haidet replied he believed he would and
stated he thought he could get a reduction in the retirement age from 65 years to 60
if the men did not go into the Union but that he could do nothing for them if they
did go into the Union. He also said that if the employees wanted to work under a
contract, Novotny would make a direct agreement between the Company and them.
This meeting concluded by an indication on the part of a majority of the employees
present that they would like to be addressed by Novotny.3
3. The May 11 meeting
On conflicting evidence-as to some portions of the following narration-I find on
the credited testimony of Frank R. Vernotzy, the Company's industrial relations man-
ager, its vice president, C. K. Novotny, its local assistant manager, Russell A. Biechlin,
and Scharmen, that on the afternoon of May 11 at a meeting attended by practically
all of Respondent's employees, Vernotzy stated that the law forbade the Company to
interfere with an employee's right to choose whether or not he wanted to join or
support a union , that the Company could give its employees its opinion of unions,
employees that the Company might be forced to shut down if there were shutdowns due to
union strikes in which event there would be men out of work, suffering in their families,
and the Company's building and property could be disposed of at a profit, Mack Johnson,
who testified that Haidet did not say that upon his calling Hill, the latter would instruct
the starting of firing but that be would have to call Hill to let him know what was going
on, that it would be better for everyone if the union man were put on a train, that similar
companies in Arizona and California had shut down due to union and labor troubles and
that if anything like that happened in San Antonio the Company could sell the building
and property which had been purchased when it was reasonably cheap and it would be the
employees who would suffer and not the Company, and, L J. Linecum, who testified that
Haidet said he would like to know what was going on so he could inform Hill but did not
say he would recommend that employees should be fired or that Hill would tell him to
start firing, that Haidet had seen another similar plant shut down when a union came in,
that what might happen in San Antonio depended on what actions the Union might take,
that in the event of a shutdown it would be the employees and their families that would
suffer, that the property and building could be sold at a profit, and it would be better for
the whole bunch if a certain gentleman was on the train.
It is unremarkable that I have not found that Haidet made all the statements attributed
to him by some of the 16 witnesses called and questioned by the Geneial Counsel concern-
ing this meeting As Judge Learned Hand has said, "It is no reason for refusing to accept
everything that a witness says, because you do not believe all of it ; nothing is more com-
mon in all kinds of judicial decisions than to believe some and not all" N. L R B v.
Universal Camera Corp, 179 F. 2d 749, 754 (C. A. 2), reversed on other grounds 340 U S.
474. As examples, I do not regard as accurate quotations the testimony of Loyd, that
Haidet said he could give the employees a nickel increase to keep down unionism talk or
that he would be the fist one to be fired , of Bulwer, that Haidet said Hill would just pack
everything up in a suitcase and take out , of Wright, that Haidet said he had his men at
the union meetings at Albrecht's and Loyd's, knew every word that had been said, and
intended to keep men telling him things like that, or, of Pitts, that Haidet said the em-
ployees would not get the privileges they presently enjoyed if they joined the Union.
Neither do I believe that Haidet employed the following precise words ascribed to him as an
unconcealed threat by O'Neal i. e , "If you do go union, we are going to sell out this build-
ing and move out to Florida I feel sorry for you men because there are going to be 75
families here in town without work "
3 Haidet's testimony was that when Snarr asked if Novotny would give a raise in pay
if the men would not go through with the Union, he replied lie would like to see him get a
raise but the Company could not give any. Any other traversing by witnesses called by
Respondent of evidence concerning this meeting given by witnesses called by the General
Counsel is no more than obtuse.
ARMSTRONG TIRE AND RUBBER COMPANY 715
answer a union's attacks on a company, ask its employees to vote against a union in
an election , and tell employees the facts concerning its negotiations with unions. He
then pointed out that the Company could not warn or hint to employees that it would
take any action against them for choosing a union in spite of its views, could not
promise or suggest that employees would be rewarded for rejecting a union, nor could
it hide a threat or promise behind the mask of an opinion and added that whether
or not the employees should accept the Company's views, the choice of joining a
union was theirs. Then Novotny took over and led the discussion in what developed
into more or less of a question and answer session. Among other inquiries, a ques-
tion was asked as to whether or not the Company could eliminate the pension plan
at any time. Novotny replied that, an employee became an insured person and after
a certain number of years built up an equity based upon the amount of his contribu-
tions which became deposited in a trust fund and could not be taken away by the
Company regardless of the circumstances under which the employee left the Com-
pany, the plan was voluntarily given to the employees by the Company which could not
guarantee that it would always be continued, it was a negotiable matter and he could
not foretell what could happen in the future although the Company hoped it could
be permanent. After some discussion concerning seniority and permanent shift as-
signments , Novotny, in response to a question as to what could be done if employees
could not solve their differences with Haidet, replied that employees or someone se-
lected by them had the privilege of writing to anyone in higher management. In re-
ply to a question as to whether employees would lose any of the benefits they then
enjoyed if they had a union , Novotny said that he was unable to tell them what would
result if they became represented by a union because he could not foresee what de-
mands a union might make, it might turn out that what the employees then termed
benefits would not be listed among things demanded by a union; the Company would
not have to agree to a union 's demands, would have a few ideas of its own, and a
union would bargain as hard as it could for what it wanted and the Company, in its
turn, would bargain as hard as it could for its position as is the way in negotiations;
the test fleet was costing the Company a half a million dollars annually and it could
not afford to run an operation which is just an outlay of money, inefficiently. In
response to a question as to whether, if they had a union , the drivers would lose pay
during such times as their vehicles were laid up due to bad road or weather condi-
tions (it was the custom to pay the drivers full time during these infrequent periods),
Novotny stated he was unable to foretell what a union might want and what their
demands might be.4
4. Other alleged coercive conduct
a. Statements by Haidet and Assistant Manager Russell A. Biechlin
The record discloses and I find despite Haidet's denial, that Haidet told Harvey C.
Littlefield-and I am not unmindful of the fact that Littlefield may resent the fact
that he has never been given the position of machinist for which he originally ap-
plied-that the plant would never go union; the employees who were trying to get
the Union in were going to be without jobs; the Company would move out "before"
the employees went union and, the men who voted against the Union were going to
be taken care of. It also appears-and this is virtually admitted-that Biechlin, at
the close of the May 11 meeting, in substance, suggested to Loyd in the presence of
employees Snarr and Mirtzbaugh the preferability of employees dealing directly
with Novotny rather than through the Union.5
4 Among testimony I am constrained to disregard as not reflecting an accurate under-
standing of what Novotny said is that of Albrecht, that the hours would be different and
if a car were wrecked a man would be sent home without pay, of Weatherly, that if the
employees decided to go union it would be a fight to the finish and he would fight them all
the way, of Bulwer, that the employees would lose all their benefits and would not have
near the pension plan they were then enjoying, of Buckelew, that if the employees went
union there would be certain things which they would not get that they had been getting;
of Condrin, that the employees would lose all their benefits if they organized and that if
they had a union they were not going to have any more sick leave ; and, of Pitts, that, if
the employees went union such benefits as bad weather pay and pensions would be taken
away from them and Novotny expected the benefits they enjoyed would be cut off if they
should unionize
B As is implicit in subsection III B 5, hereunder, I am not of the opinion that Biechlin's
conduct was coercive
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Conduct of Randall A. Scharmen
(1) His status
The General Counsel contends, and Respondent denies, that Scharmen comes with-
in the Act's definition of a "supervisor."
An extraordinarily large amount of evidence-running up to at least the equivalent
of 100 pages of uninterrupted material-concerning this man's duties, responsibilities,
and authority, was spread on the record. Treatment of this disputed question re-
quires more than a modicum of disquisition. It seems necessary to relate the fol-
lowing facts: At all material times Respondent employed three persons whose title
was "road-supervisor." They were Scharmen, Guy Stalmaker, and Guy Walters.
They were paid $1.90 an hour as against a top wage of $1.67 and $1.75 an hour paid
respectively to all other passenger car and truckdrivers. They, with Wilson, the
garage superintendent admitted to be a supervisor, punch the time clock as do the
other men. The tire testing process is carried out in substantially the following
manner: Automobiles and trucks are fitted with tires to be tested and driven virtually
24 hours a day by three shifts of operators, driving 8 hours each, over a prescribed
route at a prescribed speed, until the tires are worn out. Each shift comprises a
group of about 14 drivers and is accompanied on the road by 1 of the 3 road super-
visors who themselves exchange to a different group each week. In order to per-
form the tests properly, it is necessary that the vehicles be run at a relatively constant
speed. At various intervals the tires are measured and, in some cases, rotated.
These times are prescribed by the nature of the tests to be run. In some of the vehi-
cles gasoline is tested. Records are maintained as to the mileage of the vehicles and
the tires.
Upon coming on the shift which he is to accompany, the road supervisor checks to
see if the oncoming tow car man is present. Either the tow car man or the supervisor
records the gasoline pumped into each automobile. Before leaving for the road trip
the oncoming supervisor may receive information as to road or weather conditions
from the offgoing supervisor or from management personnel. After the run is
started, the road supervisor often takes the lead especially when the weather is bad.
Occasionally he doubles back along the line of automobiles to observe the manner of
operation of the test drivers. When the lead car driver encounters dangerous road
conditions he may stop or signal or warn the other drivers. If the road supervisor is
in the lead, he does this. Ordinarily the road supervisor will be in the lead in bad
weather and will turn the convoy around if driving appears to be dangerous. The
employees generally take two 15-minute breaks and a half-hour lunch stop but the
road supervisor may extend or shorten the time so as to conform with the hour the
fleet is due to return. At the last break, the road supervisor directs the drivers as to
the order in which they shall proceed to and arrive at the garage. He has been given
a list of the automobiles to be filled with special gasoline by an employee of the
corporation for whom Respondent runs gas tests. The road supervisor orders the
drivers to go to particular pumps. He has been given lists of automobiles on which
tires are to be rotated upon reaching the garage. He sends the drivers of these cars
in before the operators of the vehicles not designated for tire changes. After the last
stop the road supervisor returns to the garage, gasses and oils his automobile, some-
times assists his relief driver in rotation, and frequently may clean up the vehicle
he has been operating.
Each driver, including the road supervisor, makes an individual gas and mileage
report. For automobiles the tow car man makes up a master report. The off-
going road supervisor prepares the master gas report on trucks. After all reports
are in, he checks the individual gas and mileage reports. The road supervisors call
drivers' attention to excessive speeds and careless or dangerous operation but usually
take no other action. On rare occasions they call such conduct to the attention of
Haidet who may check the tactograph which is a device recording speeds and stops
at all times, thereon. In the case of a breakdown, the road supervisor generally de-
cides whether the car should be towed in or not. Except as to the trucks, it is the
road supervisor who usually decides whether the fleet should turn around because of
icy roads. The road supervisor, when present, takes charge of wreck situations to
the extent that he assists the police in making the investigation and gathers evidence.
Road supervisors have no different privileges, such as vacations and sick leave and
tire-buying privileges, than other employees. They have no authority to assign
particular automobiles or to permit employees to swap assignments. They do not
make shift assignments.
It appears from the credited testimony of Albrecht that the road supervisors give
orders to the test drivers on the road; of Loyd, that Mr. Werne (Haidet's predecessor
ARMSTRONG TIRE AND RUBBER COMPANY 717
as manager ) told him that Scharmen was his boss when out on the road , that Haidet
said the road supervisors had authority to pull drivers' cards out of the time clock, and
that Scharmen once followed him to see that he would not get off the prescribed
route; of Weatherly, that Scharmen has told him where to stop and warned him
about running too close to another car, ordered him to dim his headlights , and that
when he was first hired Haidet , in introducing him to Scharmen and Walters, told
him they were supervisors in charge when on the road ; of Bulwer , that Scharmen
tells the drivers what do do and what not to do, watches every driver closely when
he is on the road , and checks to see where the drivers stop; of Condrin , that Scharmen
has control over the drivers from the time they leave the garage until they get back,
tells them how long they can stop for lunch and rest periods and when and in what
order they may leave, and that when he was hired Werne told him the road super-
visors were the bosses while they were on the road and he should consult them about
anything that might come up; and, of Buckelew, that Haidet stated the road super-
visors had the authority to take away the drivers ' car keys, bring them into the office
and recommend that they be fired if they did anything on the road they were not
supposed to do, and that Scharmen had stopped him on the road, opened his tacto-
graph , told him he was driving too fast, and said that when he was in a convoy he
should keep his distance and not crowd the man in front.
Respondent , in furnishing the list of employees eligible to vote at the June 5, 1953,
election, did not include the names of Scharmen , Stalmaker , and Walters and they
did not vote in the election . Scharmen testified that at times he did not rotate the
tires on his own car as did the other drivers , that he has reported violations of driv-
ing instructions to Haidet , that he tried to stay away from the drivers during the
organizational campaign in order that they might be free to converse in his absence,
that on occasion persons other than himself wash the car he had operated and he
washes it himself less than the drivers wash theirs, that he could alter his course and
drive back and forth in a way the drivers were not expected to and, that the drivers
would do what he told them to do.
Section 2 (11) of the Act provides that the word " supervisor" means any individual
having authority in the interest of the employer to hire, transfer , suspend , layoff,
recall , promote, discharge , assign , reward, or discipline other employees , or respon-
sibly to direct them, or to adjust their grievances , or effectively to recommend such
action , if in connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent judgment.
The several authorities listed in Section 2 (11) are stated in the disjunctive, and
accordingly the courts have held that possession of any one of the enumerated func-
tions is sufficient to classify an individual as a supervisor . N. L. R. B. v. Edward G.
Budd Mfg. Co., 169 F. 2d 571, 576 (C. A. 6), cert. denied 335 U . S 908; Ohio
Power Co. v. N. L. R B., 176 F. 2d 385, 387 (C. A. 6), cert. denied 338 U. S. 899; Red
Star Express Lines of Auburn, Inc. v. N L. R. B., 196 F. 2d 78, 80 (C. A. 2).
Section 2 ( 13) of the Act provides that in determining whether any person is
acting as an "agent" of another person , so as to make such other person responsible
for his acts, the question of whether the specific acts performed were actually author-
ized or subsequently ratified shall not be controlling . Although persons charged with
unlawful conduct may not be "supervisors" an employer may identify itself with
them in the minds of its employees to the extent that it becomes responsible for
their conduct. N. L. R. B. v. Elkland Leather Co., 114 F. 2d 221 (C. A. 3), cert.
denied 311 U. S. 705; N. L. R. B. v. Taylor-Colquitt Co., 140 F. 2d 92, 93-94 (C. A.
4); N. L. R. B. v. American Furnace Co., 158 F. 2d 376, 379 (C. A. 7).
On the basis of the totality of the facts here summarized and their implications,
I am impelled to the conclusion that Scharmen, as well as the other road supervisors,
had and exercised responsible authority in the exercise of independent judgment to
direct the drivers while they were on the road and that Respondent so identified
itself with him and them as to become responsible for his and their conduct. There-
fore I find that Scharmen was a supervisor within the meaning of the Act.
(2) Scharmen 's activities
Upon an amalgam of credited portions of the testimony of employees Albrecht,
Loyd, Weatherly , Buckelew, Sanders , and H . C. Littlefield , I find that Scharmen:
told a number of them that if they continued having union meetings they would lose
their pension plan and their pay for such times as they were not able to operate motor
vehicles because of icy roads; sought to have drivers organize themselves independ-
ently and deal directly with Novotny through a committee consisting of 1 or 2
drivers from each shift or from the truck and the car groups and submitted to Loyd
a list of topics which he suggested could be used in discussions with Novotny ; stated
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was afraid that representation by the Union would tear down the progress em-
ployees had made over the years in gaining privileges voluntarily granted by the
Company; said that the drivers were cutting their own throats and would be without
jobs because the Company was never going to go union; asserted he had once worked
in a partly organized plant where the nonunion employees worked full time with
much overtime and the union employees only worked a few days at a time, stated
that if the employees went union the Company might lease their cars to other fleets,
just keep a couple of cars to do its own testing, and there would be a number of men
out of work; and, asked an employee (O'Neal) what he thought started the union
deal and told him he had the wrong attitude and ought to forget the things that have
been going on.'
5. Conclusions regarding interference, restraint, and coercion
a. Respondent's attitude toward the Union
The question as to whether or not Respondent engaged in independent violations
of Section 8 (a) (1) must be considered both in the light of its feeling toward the
Union which may best be summarized by the statement in 1 of its 3 circular letters
to all its employees that "we frankly do not like the idea of a union in this garage,"
its request in all 3 letters that the employees "vote `no' to the Union," and in the
context of the findings respecting alleged additional misconduct which are to be
made in the following subsections III C and D. There can be no gainsaying that
Respondent regarded the idea of the employees' organizing a union with disfavor.
b. Threats against union support or participation
I conclude that this allegation has been sustained and that by the following con-
duct Respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a)
(1) thereof.
(1) Haidet's statement that employees were getting ready to be fired.
(2) Haidet's statement that all he had to do was to call Hill who he knew would
give orders to start firing.
(3) Haidet's statement that if the employees went union the fleet would close
down and move out.
(4) Haidet's veiled threat that that Company could sell out at large profit and
leave 79 families to suffer.
(5) Haidet's statement that the employees who were trying to get the Union
in were going to be without jobs.
(6) Scharmen's statement that if employees continued having union meetings
they would lose their pension plan and pay for nondriving time.
(7) Scharmen's statement that the drivers would be without jobs because the
Company was never going to go union.
Contrary to the contentions of the General Counsel I find that the following
statements, answers to questions, and remarks were more prophetic than coercive
or more protected as exercise of free speech rather than proscribed as unlawful in-
vasions of employees' rights the paradoxical assertion that employees knew what
was going to happen to them; the request that employees refrain from holding meet-
ings until Novotny could talk to them; the statement that the Company could not
guarantee the continuance of the pension plan, and could not foretell what benefits
employees represented by a union might enjoy; the reference to the fact that the
Company would bargain as hard as it could; and, the expression of apprehension
(Scharmen's-as distinguished from his threat of job loss), that representation by
the Union would lead to reduction in employees' privileges.
c. Promises of benefits to discourage union activity
I conclude that this allegation has been sustained and that by the following con-
duct Respondent interfered with, restrained, and coerced its employees in the exer-
6 Scharnen's version of these conversations is that he said there ought to be an orderly
meeting before Novotny, capable men selected to do the talking and sketched out topics
for discussion to the approbation of Loyd and Weatherly, and he told employees he would
hate to see benefits and good working conditions acquired through the years messed up.
He denied that lie told the employees they could lose their benefits, or some of them, if the
Union prevailed
ARMSTRONG TIRE AND RUBBER COMPANY 719
cise of the rights guaranteed in Section 7 of the Act and thereby violated Section 8
(a) (1) thereof.
(1) Haidet's statement that if the employees would get the union organizer out
of town he would forget about calling Hill.
(2) Haidet's expression of belief that Novotny would agree to raise employees'
pay if they voted against the Union.
(3) Haidet's assertion that he thought he could get a reduction in the retirement
age if the men did not go into the Union.
(4) Haidet's statement that men who voted against the Union were going to be
taken care of.
I am unable to subscribe to the General Counsel's apparent theory that such con-
duct and remarks as reading a letter recommending a pay raise; stating that Novotny
would come to San Antonio to try to iron the situation out, that he would make a
contract directly with the employees, and that the Company hoped the pension
plan could become permanent, suggesting that it would be preferable for employees
to deal directly with Novotny rather than through a union ; and, referring to a plant
where the nonunion men worked full time and the union employees worked only
part time, amounted either separately or in their aggregate to promises of benefits
in return for abstention from union activity. On the other hand, neither do I find
it possible to conclude that Vernotzy's and Novotny's scarcely reassuring state-
ments-unimpeachable in and of themselves-including the meticulously phrased
summary of the law that employees were free to decide whether or not they should
join a union and that the Company could neither promise employees advantages,
nor threaten them with reprisals, effectively disavowed or repudiated Haidet's and
Scharmen's illegal conduct, nor dispelled or neutralized its coercive effect.
d. Interrogation concerning union affiliations
I find that the General Counsel has not sustained the burden of establishing this
allegation and shall recommend therefore that it be dismissed. Biechlin's question
of Loyd as to what the employees wanted, Scharmen's question of employees as to
why they were trying to bring the Union in, and Haidet's question of Wright as to
what he thought was causing agitation for a union were not in my opinion inquiries
concerning employees' union activities of a character proscribed by the Act and,
moreover, were so relatively isolated and offhand as to be devoid of substantial
significance.
e. Surveillance of the Union's meetings and activities
I find that the General Counsel has not sustained the burden of establishing this
allegation and shall recommend that it be dismissed. I have no doubt that Haidet
was well informed by employees who attended the various union organizational
meetings about what happened at them and was cognizant of many of the activities
of employees who favored the establishment of the Union within the garage. But
the record falls short of showing that Respondent delegated or assigned agents to
acquire this information in its behalf. From aught that appears this intelligence
was voluntarily supplied.
f. Other specified conduct
I have found that Respondent violated Section 8 (a) (1) of the Act in 11 of the
detailed respects alleged and specified in the complaint and its various amendments.
Twenty-one other specifications which, if proved, would tend to support the
general allegations of restraint, interference, and coercion were made. Some of
these specifications are so closely related to, or so intimately intertwined with, others
that even if it were possible to distinguish between them it would be an act of im-
practical futility to attempt to do so. Many of the more minimal have apparently
not been deemed worthy of discussion in the General Counsel's exhaustive brief.
Rather than to indulge in an act of profitless triviality and burden this report by
expatiating on each of these accessory allegations, it is sufficient to say with respect
to each of them, except those expressly found in subsection III C 1 b, hereunder,
to have been established, that I find the General Counsel has not sustained the
burden of proof and that therefore they should be dismissed.
C. Discrimination
1. The discharge of Erwin A. Albrecht
a. Discussion
Albrecht had been employed by Respondent since 1945 as a test car driver and
was regarded as a satisfactory employee. On December 13, 1952, he acquired
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a small business establishment where he commenced to sell beer which was con-
sumed on the premises, small groceries, and ice. He set up sleeping facilities in the
storeroom at these premises April 28, 1953. He operated this store with the assist-
ance of his wife, his uncle, and three young men who worked there off and on.
About the middle of May his wife decided to take care of the store without the
uncle's services. Albrecht worked at the store himself, more particularly during
the early evening rush hours and when his shift as a driver permitted. As appears
above, in section III A, union organizing meetings were held at Albrecht's bistro
on May 1 or 2 and in an adjacent lot on May 2 or 3. He attended union meetings
at Loyd's residence and at C. W. A. Hall. He was active in helping procure
employees' signatures to union authorization cards, himself signed up Mirtzbauch,
and on May 5, told Haidet who said he did not like the idea of union meetings
being held behind his back, that he was going to hold another meeting at his place;
(this meeting scheduled for May 9 was transferred to C. W. A. Hall when it
developed that some of the employees objected to repairing to so bibulous a haven
and preferred to resort to a more abstemious forum).
For some years before 1953, Albrecht had been troubled with a dermatitis for
which he had been receiving medical treatment. In the winter and spring of that
year he was under the care of Dr. Willis W. Allen. About May 15, 1953, Albrecht
told Haidet about his rash and requested that he be given sick leave.? Acting on
Haidet's statement that the only way he could be given a leave of absence would
be through a doctor's certificate, Albrecht procured and submitted a statement from
Dr. Allen dated June 1 which diagnosed Albrecht's case as a severe dermatitis
and expressed the opinion that he should have about 60 days' leave from his job
in order to have treatment and seek recovery. Thereupon Haidet granted Albrecht
a 60-day leave which started on June 6. He received full pay for the first 6 days
under Respondent's sick leave policy. Thereafter he was entitled to benefits amount-
ing to $25 a week under a contributory group accident and sickness policy provided
his absence from work was due to incapacities not occupational in character nor
compensable under the workmen's compensation law. Albrecht continued work-
ing at his place of business to about the same extent as he had before. Within less
than a month after commencing his leave, he started building, or having built, a
small addition to his shop to provide for living quarters. This job was performed
by about nine men working odd and intermittent hours. After it started, Albrecht
spent considerable time in supervising the construction. His wife continued to run
the business with the part-time help of Albrecht's father, brother, and others.
Unquestionably Albrecht engaged in some physical effort during the time the
addition was under construction up until July 22, when he was discharged, after
having informed Haidet about July 5, he would return to work before August 8
so as not to run over his 60 days. In the meantime, word that Albrecht was
working at his premises came to Haidet who telephoned to him shortly after July 5
to report for a physical examination to Respondent's (and its workmen's com-
pensation insurance carrier's) physician, Dr. Max E. Johnson, who after Albrecht
had submitted himself to examination, reported on July 20, 1953, that in his opinion
Albrecht had been totally incapacitated from prickly heat in no way connected with
his employment and that he believed he would be able to return to work on the
following day. It appears from the testimony of Haidet and Hill that after reports
concerning Albrecht's activities reached Haidet, the latter talked with Hill in
Memphis on July 2 (about 3 days before Haidet had warned Albrecht that he should
return to work before August 8), and, after discussing the past union organiza-
tional activities, brought up the Albrecht situation. Hill then told Haidet that the
allowance of leaves of absence to employees who perform work while on leave
without permission from the Company was contrary to company policy and that
he should terminate Albrecht the following Monday, July 6. However, Albrecht
was not discharged that day for the reason, these witnesses say, that there came to
Respondent's attention Albrecht's claim dated June 30, 1953, for benefits under
the group accident and sickness policy bearing Dr. Allen's certification dated
June 18, of continuing occupational disability which led Hill, alarmed by a possible
eruption of costly industrial dermatitis claims in Texas, to order the previously
referred to physical examination which resulted in Dr. Johnson's opinion 2 weeks
P I feel Albrecht was mistaken in saying that at this time he informed Haidet that his
physician had advised his taking leave, as I am inclined to believe that Dr. Allen's memory
was accurate when he said that the first time he suggested a leave, as a means of possibly
determining whether his patient's condition might be due to contact at work with chemi-
cals or solvents connected with tires of other materials, was after Albrecht had requested
his leave
ARMSTRONG TIRE AND RUBBER COMPANY 721
later. Then, taking it upon itself to decide the disputed medical question of
whether or not Albrecht's condition was work-related, another claim for benefits
under the group policy, dated July 20, 1953, was prepared by Respondent and in
response to a telephone call from Haidet that he was to pick up his sick leave check
at the office, Albrecht went to the plant where he was told he had to sign, and did
sign, the new claim and was given a check for $128.57 covering incapacity from
June 8 (the first workday after June 5) to July 21, less a 7-day waiting period.
After Albrecht signed the claim and had received the check, Haidet told him his
services were no longer needed. When Albrecht immediately asserted that he
knew he had been released on account of union activities, Haidet replied he could
think whatever he wanted to. On August 14, 1953, Haidet wrote in response to
Albrecht's request of August 10 for a statement of the reason for his discharge that
he was let go because, in the Company's opinion, he had violated his leave of
absence.
A collective-bargaining agreement between Armstrong Tire and Rubber Com-
pany and a local of United Rubber, Cork, Linoleum and Plastic Workers of America,
CIO, covering employees working at the Company's production plant in Natchez,
Mississippi, provides that employment shall be considered terminated for failure to
report at the termination of leave or engaging in a gainful occupation while on leave
of absence without the approval of the Company. While there is some testimony
that Biechlin and Scharmen said Albrecht was terminated for failure to report back
to work on time, Respondent took the definite position at the hearing that Albrecht
violated his leave of absence by engaging in a gainful occupation during its term.
b. Conclusions
If such a policy regarding leave as was contained in the Natchez contract applied
to the workers in San Antonio it is clear from Haidet's testimony that he did not
tell Albrecht either when he embarked upon it or when he informed him immedi-
ately after his conversation with Hill, that he should come back to his job by Au-
gust 8, that he would violate his leave if he should work while taking it. If Haidet's
testimony is to be believed, he knew right along, from what Albrecht told him be-
fore he went on leave, that he was planning to work at his place of business. Yet
it was not until sometime after Respondent wrote Albrecht on August 14 merely
that it opined he had violated his leave, and long after his discharge that Respondent
definitely asserted the specific reason for the separation was Albrecht's engagement
in a gainful occupation. Testimony proffered by Respondent falls short of satisfy-
ing me that any such rule as was incorporated in the contract covering production
workers in Natchez applied to the test fleet drivers 528 miles away in another
State. No such rule had been published there. There was not even anything in
writing in the files. The fact that on October 24, 1952, Hill wrote Haidet he
should not readily reinstate employees who had left to try out other jobs furnishes
scanty support for the concluding that the company policy at San Antonio was to
fire men who worked building or enlarging homes for themselves during leaves of
absence. Hill's testimony as to the existence of such a policy in Texas is not per-
suasive, stating, as he did, that rules were established before Armstrong Tire and
Rubber Company had acquired the test fleet, that he was reasonably sure that it
was communicated to him and Haidet, that about a year previously to told Haidet
never again to put back on, after a leave, a man who was going to try out another job,
and that he did not know who "put the rules in" the fleet. Nowhere does Respond-
ent claim that such other conditions of the Mississippi agreement as employees' re-
course to grievance procedure-which would have prevented the peremptory firing
of Albrecht, or the final effectiveness, thereof, without hearing-reflect policies ap-
pertaining in Texas. Rather it has selected from the 109 sections of that contract
the one subparagraph which it wants us to believe was the rule in Texas. This I do
not believe.
On all the evidence relating to this aspect of the case, I conclude that Respondent
has not sustained its burden of proving that Respondent had adopted, published, or
applied a rule on or before July 22, 1953, whereby performing work such as Al-
brecht engaged in without permission while on leave of absence constituted a cause
for discharge of its employees in the San Antonio test fleet division.
Although the Board is not concerned in these cases with whether the reason ad-
vanced for a discharge is premised on any rule so long as it is the real reason and
not a pretext for conduct which is violative of the Act, I have discussed the sub-
ject of an alleged rule or policy at some length because it is of moment to ascer-
tain whether the asserted reason was genuine or contrived. Here, Respondent had
before it the opinions of two physicians that Albrecht was incapacitated and of one
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of them that the purpose for which the leave of absence was requested was to de-
termine whether improvement in his physical condition might not result follow-
ing removal from contact with irritants supposedly connected with his work. It is
quite well -established that the term "gainful employment" relates to one's usual
employment and does not necessarily include remunerative occupation in other work.
(For the Texas law, see the oft-cited case of Great South Western Life Insurance
Company v. Johnson, 25 S. W. 2nd 1093, 1097.) It is probable that Albrecht could
have managed to continue along as a test driver , although with likely deleterious
results to his physical condition , but medically , it was agreed by both physicians
that he was disabled from that work . Despite this and the likelihood that evidence
most favorable to Respondent 's position would not establish as a matter of law that
Albrecht engaged in "gainful employment " while on leave of absence , Respondent
claims it discharged him on that dubiously applicable ground in pursuance of a
policy which it asserts but has not shown, was prevalent in San Antonio. So here we
contemplate the sudden imposition of the harsh penalty of discharge without warn-
ing, for reasons that do not stand up under scrutiny , upon an employee whose work
over a period of 8 years his employer admits was satisfactory, who had agreed to
return to work before the expiration of a leave which had cost his employer nothing
(the 6 days sick leave pay was given all employees annually on September 30,
whether or not they took the leave), and are led to inquire what could have been
the actual purpose behind Respondent's conduct.
If, as the General Counsel alleges , Albrecht was discharged and denied reinstate-
ment for the reason that he engaged in concerted union activities , a preliminary
inquiry must be made into the question of Respondent 's knowledge of such activi-
ties as Albrecht has previously in this report been found to have engaged in. The
answer is not hard to find and it is in the affirmative . At the company meeting
when Haidet took offense at the fact that union meetings were being held behind
his back and announced that he knew that a meeting had been held at Albrecht's,
Albrecht stated that another meeting was projected to be held at his place on May
9 and invited Haidet's attendance . When Steinke suggested that Haidet probably
knew that some meetings had been held at Albrecht 's establishment , Haidet replied
that he certainly did.
Respondent undertakes to make the point that even if Haidet knew about Al-
brecht's union activities , which it denies , there is no evidence that Hill who it con-
tends actually made the decision to discharge was aware of them and, inferentially
argues that there can be no finding of discrimination based upon a decision to dis-
charge by a person without knowledge of an employee's union activity. Entirely
apart from my feeling that it is incredible that any responsible employer would,
even if it had a rule proscribing gainful employment while on leave, be so unrea-
sonable as to discharge a faithful employee known to be suffering from a disability
for merely helping to build an addition to his house or continuing to do such part-
time work in a store as he had been doing right along while actively employed-
work not involving such conflict of interests as was referred to by Hill's letter of
October 24, 1952-I can not believe that Haidet concealed from Hill his knowledge
of Albrecht's involvement in union affairs . By Hill's own admission , Albrecht's case
was brought up during the same conversation when the employees ' organizational
efforts was discussed with Haidet. This affair had culminated in defeat of the Union
at the election 4 weeks earlier . It had become a dead issue . Not ordinarily do
busy men of affairs waste time in idle ruminations . But assuming , arguendo, that
Hill was kept in ignorance of Albrecht' s union involvement, it is entirely clear that
had it not been for Haidet's resentment over his activities-expressed in manners
about to be mentioned-Albrecht would have returned to, and would have been put
to work by the time Haidet on or about July 5 notified him he should return. In
any event , the cause leading to the discharge was put in motion by Haidet and it mat-
ters not what other particular official may have participated in its implementation,
if the discharge be found discriminatory . Respondent is responsible for discrim-
inatory conduct violative of the Act whether it be that of Haidet or of Hill or of
both.
There is no need of reiterating in detail the fact of Albrecht holding two union
meetings at his drive -in and the plan to hold a third one there and of his other active
union support . In coming to a final conclusion , however, as to whether it was
because of these activities that he was discharged , it is of relevance to note such con-
duct as Haidet's statement before the election to Harvey C. Littlefield that Respond-
ent was going to get rid of the "sons of bitches" that were trying to put the Union in,
his statement to Littlefield after Albrecht was discharged that he was one of the
"sons of bitches" who had gone, his statement to Condrin after the election that
he had six organizers whom he was going to fire , and his statement to Condrin 2 or
3 days after Albrecht was discharged that one of the organizers was down and five
ARMSTRONG TIRE AND RUBBER COMPANY 723
to go. Illustrative of the extent of Haidet's resentment toward Albrecht, is his
unjustifiable accusation at the hearing that Albrecht had drawn compensation falsely
from the group accident and sickness insurance company when as a matter of fact
the $128.57 he received was paid on a claim prepared by the Company itself and
on the basis of its own physician's certificate of total disability.
I am satisfied that the reason advanced by Respondent for the discharge was
pretextuous and that the real reason was its opposition, to and in retaliation for,
Albrecht's known union activities . In arriving at this conclusion I have in mind
such considerations as Respondent's open avowal of opposition to the Union; Al-
brecht's several satisfactory years of employment; his prominence in the organization
and activities of the Union ; the assertion that employees engaging in union activities
were getting ready to be fired, were going to be without jobs, and the revelation of
Respondent 's manager 's resentment toward him. When this entire sequence of
events is considered, it becomes apparent that Respondent seized upon the fact of
Albrecht's occupation of his time in manual work during his leave of absence as an
excuse for getting rid of him in the hope that its real reason, his union activities,
might be obscured. Upon weighing all related factors, I am satisfied that by dis-
charging and failing to reinstate (discharging before the return due date) Erwin A.
Albrecht, Respondent violated Section 8 (a) (3) and (1) of the Act.
2. The refusal to rehire Fred Estill
Estill resigned on May 29, 1953, to go into business for himself. About 2 months
subsequently he asked to be taken back. Haidet declined to hire him saying there
were no jobs open then but to check later. After a period, he again applied for
work without avail. Estill then asked Haidet if his union activities had anything
to do with his not being hired and stated he was through with the Union. Haidet
replied that he did not know Estill was in the Union. Estill testified that there was
a third conversation over the telephone about September 25 in which Haidet de-
clined to employ him saying that he had to know what side a man was on. Estill
does not recall that the subject of the Union or the word "union" was in this con-
versation. Haidet testified he did not remember any telephone conversation. He
credibly testified that he never told Estill anything about having to know what side
people were.on. If, as Estill testified, he once asked a question of Haidet as to why
he was opposed to the men 's organizing a union it can hardly be said that any infer-
ence of the Company's considering him a union adherent should be drawn there-
from. In the normal course of events neutral, or procompany, employees would be
much more likely to seek the Company's views on unionization than a union
enthusiast.
At the time of Estill's application for work, Respondent was taking over the Co-
polymer fleet testing which had been conducted under Reconstruction Finance Cor-
poration auspices. There were on file approximately 200 applications from expe-
rienced drivers who had worked with that fleet and were familiar with its equipment.
Of the 56 drivers hired from August 1 through November 30, all but 5 were engaged
to work with Copolymer equipment. The remaining five had been promised jobs
or been under consideration before Estill reapplied for employment. I believe
there were adequate reasons why Haidet did not look with favor upon Estill's appli-
cation. Haidet had been criticized by Hill for rehiring an employee, who had shortly
before resigned to seek other employment and cautioned against rehiring such former
employees when there were other applications pending. Estill had falsely stated in
his application for unemployment compensation that he had been laid off and this
was known to Haidet.
There was testimony from Estill that Haidet said Estill was "too quick to pop off
about the Union." Assuming this was said, although Haidet denies it, I am not of
the opinion such a remark is of controlling significance. Estill told Haidet-and it
is by no means clear whether the statement was made before or after the alleged
reference to "popping off"-that if he could get his job back he would forget all
about the Union. It is just as likely that, if uttered, the remark was a disavowal by
Haidet of the conclusion to which Estill jumped that union activities had a bearing
on his being rehired, as that it was an indication of the reason for Estill's not being
reemployed. It is apparent from Estill's own testimony that he was far from an
enthusiastic protagonist of the Union. As it was known by fellow employees that
he had previously been a member of a union , some of them did come to him for
information . The extent of his support of the self-organizational idea was his telling
them that he did not see anything wrong with the union to which he had belonged
and that if a union was what the men wanted it would be a good thing, if the Com-
pany and the Union could get along. The General Counsel would have us believe
344056-55-vol. 111-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Estill was an "active proponent of the Union ," but his testimony shows that
his position veered but slightly from one of guarded neutrality. Contrary to the
situation in the case of Albrecht , where there was clear evidence of Respondent's
knowledge of union support there is little or no proof and no direct testimony in
Estill's case that Respondent was aware of what very little he may have done in
furtherance of the Union 's cause. I can make no finding of discrimination on the
mere suspicion that Respondent may have felt that Estill was a more vigorous union
advocate than he actually was or conclude that his failure to secure reemployment
was violative of the Act, simply because the Company's representatives were opposed
to the Union and had indulged in the coercive conduct in which it elsewhere has
been found they engaged . I must guard against the tendency, which is common to
most all humanity, to lend a more receptive ear to an accusation than a denial. I
must be guided by the concept, fully embedded in our law, that the burden of proof
is imposed upon the accuser. I am not satisfied that the evidence preponderates in
favor of the General Counsel's allegation and I therefore find that Respondent did
not discriminate against Fred G. Estill in violation of Section 8 (a) (3) and (1) of
the Act.
D. The alleged refusal to bargain
1. Factual considerations and conclusions
Rather than delay all expression of opinion respecting this part of the case, I think
it appropriate , in some instances at least to express my views concerning various
aspects of this elusive problem as we go along.
The Union lost the election, which was held on June 5, 1953, by a vote of 46 to 31
out of approximately 79 eligible voters. On or before May 8, 1953, when the Union
expressed its desire to negotiate with , and requested recognition of, Respondent, 45 au-
thorization cards which are in evidence had been signed. Respondent offered testi-
mony seeking to show that the belief of many of the employees who signed cards
was that they were requesting that an election be held and that they were not-as
the cards state-designating the Union as their bargaining representative and au-
thorizing it to request, or petition for, recognition and to represent them in all ques-
tions relating to wages, hours, and conditions of employment. Respondent, although
not admitting the reliability of any of the cards as evidencing the employees ' consid-
ered desires , specifically questions the validity of eight of them . If the results of
the election as a conclusive text are to be ignored , a finding that 3 of the 8 cards spe-
cifically in dispute were validly executed-i. e., that they expressed the intent of the
signatories to designate the Union-is required to make a prima facie showing of
the Union's majority.
Briefly, the credited evidence and my conclusions (based on the premise that the
burden of showing the signer did not intend to designate the Union rests upon Re-
spondent ), with reference to each of these eight cards are as follows:
(1) Eugene Rogers signed a card on May 1 "so that they could have an election
that wasn't the only reason . . . I understood we could benefit by it." I find
that Rogers intended to designate the Union on May 1.
(2) J. K. Hubble signed a card on May 1 "so that we could have the ballots and
get the Union out." He did not "think it would be a good idea to have a union." I
find that Hubble did not intended to designate the Union.
(3) George E. Williams signed a card on May 2 "to keep these guys from bother-
ing me . . . just to get them off my neck . . I knew there was going to be an
election and that I could vote the way I pleased." He did not mean to make the
Union his bargaining representative or want it to be his representative. I find that
Williams did not intend to designate the Union.
(4) Charles E. Brown signed a card on May 1 because "it seemed as though a
majority of the boys was for it. . ..' At the time he signed it was his inclination
that he wanted the Union to represent him. About 2 weeks later he changed his
mind. I find that Brown intended to designate the Union on May 1.
(5) Ballard E. Dayton signed a card on May 1 "just for an election of the Union."
He did not "think the Union would get into the plant without an election." He
wanted the Union to represent him at the time he signed the card. He later changed
his mind sometime between the time Novotny addressed the employees and the elec-
tion. I find that Dayton intended to designate the Union on May 1.
(6) Charles E. Calhoun signed a card on May 1 "in order to get an election to
see whether the entire outfit wanted the Union or not." He was for the Union at
the time he signed the card and up until a week before the hearing. I find that Cal-
houn intended to designate the Union on May 1.
(7) Robert H. Storms signed a card on May 1. He understood that the organ-
izers "bad to have enough cards in order to get the Union to contact the Company
ARMSTRONG TIRE AND RUBBER COMPANY 725
to have a vote," that the cards of a majority of the employees were necessary to have
a secret election. When he signed the card he had not fully made up his mind that
he wanted the Union to represent him and subsequently fully made up his mind that
he did not want to have anything to do with the Union. I find that Storms did not
intend to designate the Union.
(8) Alton H. Juste signed a card on May 1, at a meeting where Steinke stated the
cards themselves did not have much importance and were more or less of an in-
formality, that the more signed cards the better it would look when the Union peti-
tioned for an election and that the Union never expected the Company to recognize
it without an election . When he signed he was undecided whether he favored the
Union or not, he thought unions had good and bad points, he was never entirely for
the Union but was on the fence, and a fellow employee's statement a couple of weeks
before the election that it was going to be made so tough for men who had not signed
cards and whom it was thought were not going to vote in favor of the Union that they
would quit, caused him definitely to become against the Union. I find that Justi did
not intend to designate the Union.
In view of these findings it appears prima facie that at the time of the request to-
bargain , 41 of the approximately 79 employees in an appropriate unit ( and in the
absence of any evidence to the contrary I find that that number 79 appearing on the
tally of ballots and in General Counsel's Exhibit No. 20 is the correct number of
employees in the unit , rather than 81 as stated in Respondent 's brief ), had designated
the Union to represent them. -
But Respondent contends that other employees than these eight specifically referred
to, who signed cards also did so under the misapprehension, attributable to the Union
or its agents, that they were merely enabling the Union to procure an election in order
that the true desires of the employees might be determined by secret ballot . It argues
that the evidence is clear that Steinke induced the signatures of employees by promis.
ing them that they would have an election to determine whether or not they desired
the Union to represent them, that none of the cards, the purpose of which they were
told was to permit the holding of such an election, are proper evidence of employees'
designation of the Union, and that it is inconceivable that a bargaining representa-
tive should be foisted upon employees contrary to their choice at the election because
they had signed cards which they were led to believe were to be used solely to bring
about that very election.
The Board recently held in Coopers Inc., (of Georgia), 107 NLRB 206, that where
the circumstances under which authorization cards are executed give rise to a reason-
able doubt regarding the intention of the employees to be represented by a union, the
cards do not establish that a union is the duly designated bargaining representative.
I have no hesitance in finding that in addition to the 4 employees whom, imme-
diately above, I have found intended to designate the Union there were 22 others,
whose testimony I heard , who knew what they were doing when they signed the
cards and wanted to be represented.8
As to the other 15 employees 9 who signed cards on or before May 8 , 1953, the
record is bereft of any direct evidence of desire . Whether any or all of them in-
tended , or did not intend , to appoint the Union as their bargaining agent is left to
pure conjecture . The presumption is that the signer of any paper subscribes to its
plain meaning. As Respondent has by no means rebutted this presumption, I see
no alternative to concluding that the prima facie showing, that 41 of the 79 em-
ployees in the unit had authorized and designated the Union to represent them by
May 8 when Steinke wrote Respondent the Union desired to receive recognition
from and to negotiate with it, should be found to be the fact . And I can not say,
under the circumstances of this case , that Respondent has created such a sufficiently
"reasonable doubt" concerning the intentions of these 41 signers to be represented by
the Union as to warrant the conclusion that the cards did not establish that at one
time the Union was the duly designated bargaining representative . In civil cases
the doubt operates against him who having the power to prove facts , if existent,
to remove the doubt, has neglected to do so. A reasonable doubt is not mere
possible doubt . Everything related to subjective motives and intentions is open
to some imaginary or possible dubiety. A doubt may not be acted upon unless
8 Albrecht, Loyd. Weatherly, G. A. Hill, Bulwer, W. E. and J. F. Condrin, Buckelew,
Yantis, H. C and T A. Littlefield Wright, Pitts, Trammell. O'Neal, Leonhardt, Schults,
Geissler, King, Johnson , Estill (apparently he and William Rouse were the two who did
not vote at the election ), and Wilson.
9 Turner, Scherz , Huth, Hargrove, Bond, Snarr , Yancy, Schneider , Phillips, Landon.
Mirtzbauch, Stanton, Wolf, McLelland, and Hadley.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is sufficiently strong to direct the understanding and to satisfy to a moral cer-
tainty, as distinguished from an absolute certainty , the reason and judgment of one
who is bound to act conscientiously upon it . It must be more than fanciful , vague,
speculative , or capricious.
However this may be, it of course does no follow that an employer who in good
faith doubts that a union is a majority representative , is guilty of a refusal to bar-
gain when it expresses the belief, although mistaken at the time , that a union does
not represent a majority and, as did Respondent here, declines to agree to consent
representation. Here, where the bare shift of sentiment of a couple of employees
among 79 would have deprived the Union of a majority , it is apparent to me, and
I find , that rather than doubting in bad faith Respondent had a good reason to
feel as it did. It is the General Counsel's contention that the disaffection of some
of the 45 employees who signed cards (presumably at least 14 for only 31 voted for
the Union) between the first week of May and June 5 was due to a course of unfair
labor practices which dissipated the Union's majority. The unfair practices in
which I have found , in subsections III B 5 b and c above , Respondent engaged,
practically without exception took place at the April 29 meeting and thus were
but remotely related in point of time to the June 5 election. It was not until after
this date that any of the 45 employees signed cards . It is therefore difficult, if not
impossible, to believe that vis-a-vis any of these employees , whatever may have been
the reaction on the part of the remaining 34, Haidet's unlawful threats and promises
had any dispersive effect . Indeed there was no majority to be dissipated at that
time. Thereafter enough employees signed cards to create a majority for the time
being. Then later , as is obvious from the election returns, several employees must
have undergone a reversal in sentiment. It is much clearer that Novotny's some-
what disheartening remarks of May 11 and the persuasiveness of Respondent's cir-
culars of May 29, June 1, and June 4 furnished the motivating considerations lead-
ing to the several changes of heart than that Haidet's earlier conduct, which was
not sufficient to deter 45 employees from signing cards almost immediately after
he indulged in it , somehow leaped over this time chasm and considerably later
became operative and influenced employees through fear of reprisals or promise
of benefits, to desert the Union. As I have previously found, Novotny's remarks
were not violative of Section 8 (a) (1) of the Act. In introducing the circulars in
evidence, the General Counsel stated, "we are not contending that anything itself
here is an unfair labor statement ." In his brief, however, the General Counsel
selects Respondent's assertions in the May 29 letter that the Union might cause
trouble, and in the June 4 letter of its belief that grievances could be settled without
outsiders and its readiness to discuss them, as violations of Section 8 (a) (5).
Entirely apart from any question of estoppel, I find nothing there or in the remain-
ing portions of the three circulars that exceeded the permissive limits of Section
8 (c). Considered as a whole, they were legitimate pieces of campaign propa-
ganda containing neither implied promises of benefit if the plant were not unionized
nor implied threats of reprisals if it were.
In my opinion, the General Counsel has not succeeded in proving by a preponder-
ance of the evidence that between May 8 when the Union requested recognition
and June 5 when the election was held, Respondent engaged in a course of conduct
which destroyed the Union's majority. During this period the Union filed its
petition for certification of a unit including all drivers which, when amended by
adding maintenance mechanics, tire technicians, and night garageman, immediately
gained Respondent's consent to an election. This does not bespeak conduct indica-
tive of attaining time to undermine the Union. The Union never filed objections to
conduct affecting the results of the election or requested its setting aside. It should
not be impertinent to inquire why, if the Union sincerely believed Respondent
unlawfully destroyed its majority, it did not take this appropriate and timely step.
No objections having been filed, the Regional Director on June 15, in reliance
upon Section 102.61 of the Board's Rules and Regulations certified that the Union
did not represent a majority of the employees in the unit involved. In summary,
I find that Respondent's expressed doubt of the Union's majority of a unit, either
of drivers alone or, of drivers, mechanics, and tire techmcians,10 was a genuine,
10 Should it become material I would find, as stipulated between Respondent and the
General Counsel, that an appropriate unit for the purposes of collective bargaining is all
drivers, mechanics, and tire technicians, exclusive of office-clerical employees and super-
visors as defined in the Act and all other employees, and further find for reasons set forth
in subsection III 4 b 1, above, that Randall Scharmen, Guy Walters, and Guy Stalmaker,
whose duties, responsibilities, and authorities were similar to Scharmen's should be ex-
cluded from the unit.
ARMSTRONG TIRE AND RUBBER COMPANY 727
and not a simulated doubt , and conclude that under all the circumstances the
General Counsel has not established the fact that Respondent has violated Section
8 (a) (5) of the Act.
2. Discussion of particular defenses
Should eventualities require findings with respect to other defenses advanced by
Respondent to the refusal to bargain allegation , it seems practicable in order
possibly to avoid procedural complications for me briefly to consider such defenses
here. They are three in number:
First, Respondent contends that a finding of a refusal to bargain requires a
ruling that the election be set aside. And it argues that since the Board has held
in Great Atlantic and Pacific Tea Company. 101 NLRB 1118, that it will not
consider election objections based upon interference which may occur prior to the
execution of a consent-election agreement and since there was no interference subse-
quent to the consent stipulation, the election may not be set-aside and consequently
there can be no finding of a refusal to bargain. The allegation is that requests to
bargain were made on or about May 8 and 15, and Respondent refused to bargain
on or about May 12, and at all times thereafter.
The overt act of refusal to bargain is alleged to have taken place on May 12,
when Respondent expressed its belief that the Union did not represent a majority
and that therefore it was unwilling to agree to consent representation. We are
confronted with a novel situation where a union to whom recognition was denied
then lost an election and thereafter failed to file objections to conduct affecting the
result of the election and to request the Board to set aside the result. It only filed
a refusal to bargain charge based upon the original declination of May 12. Thus
I do not have before me for determination (as do Trial Examiners in the conven-
tional , and as far as I have discovered the invariable, situation where an objection
to an election is consolidated for hearing with a refusal to bargain complaint),
the question of whether the election should be set aside and voided. Patently, had
the facts warranting such a conclusion existed, a refusal to bargain before the elec-
tion would have been susceptible of having been found. But they were not there.
In "A and P" no issue of refusing to bargain either before or after an election was
involved. We need not question the propriety and applicability of the ruling in that
case to the evidence disclosed and issues raised. The fallacy underlying Respondent's
syllogism is the failure of its minor premise. There was no election before the
alleged refusal to bargain and hence nothing to be set aside. A void cannot be
invalidated , neither a nothingness nullified.
Second, Respondent contends that the Union did not with sufficient clarity
demand recognition or specify the constituency of the unit. There was an express
request that Respondent recognize the Union as the exclusive bargaining agent of
its employees other than supervisory employees and an expression of the Union's
desire to institute negotiations. Even though the Union did not employ the im-
perious word "demand" the clear though affable implication was that it desired
to bargain , preferably without the necessity of being obliged to file a petition asking
for certification. Although the Union first described the unit as consisting of all
production and maintenance employees , Respondent did not base its unwillingness
to recognize the Union on any inappropriateness of the unit or uncertainty as to
its composition . It was agreeably stipulated that the unit should comprise the
entire working group most of whom it is true, if one desires to be technical, could
not be called "maintenance employees" in the sense that Respondent manufactured
goods. But I am satisfied that Respondent 's very intelligent officials well knew that
the Union referred to the drivers when alluding to production people. I believe
under the circumstances of this case it would be little less than captious to recognize
merit in Respondent 's argument that the Union did not adequately demand recogni-
tion or describe the unit.
Third, Respondent contends that no refusal can be found because the Union was
unwilling to offer reasonable proof that it represented a majority of the employees.
Steinke originally limited his offer of a card check to an inspection by a Board
field examiner . It can quite readily be agreed that this was not a sufficient proof
of majority representation. Shortly thereafter, however, on May 15, after having
conferred with his superior he told Haidet that the Union would allow a card check
against the Company's payroll in order to prove to Respondent 's satisfaction that
the Union represented - a majority of its employees . Haidet's reply was that the
Company had decided to take the matter into an election . Although Respondent's
insistence upon an election , is by no means open to criticism, I cannot subscribe
to Respondent 's contention that the Union failed to offer reasonable indication of its
assertion of majority representation.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The motion to dismiss
Finally we come to the Board 's reservation of final consideration , should it be
necessary , of the appeal from my ruling dismissing the 8 ( a) (5) allegations. I
have construed the Board 's action as not necessarily indicative of disagreement with
the ruling but as a direction to ieceive evidence on the issue in order to obviate
a possible further hearing. I, of course , complied with this directive . Since there
are conceivable exigencies which could lead the Board to deem necessary a con-
sideration of the matter on the full record, 1 believe I should state , in order to
make this report complete, that my ruling is that the allegations of a continuing
refusal to bargain should be dismissed on the ground that since a question of
representation was resolved by an election, to which no objections were filed, and
the Regional Director issued a certification that the Union did not represent a
majority of employees, no order setting aside the election as a nullity would lie in
this proceeding even were it found that a bona fide question of representation never
existed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in
connection with the operations of the Respondent set forth in section I, above, have
a close, intimate , and substantial relation to trade , traffic, and commerce among the
several States , and tend to lead to labor disputes buidening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I will recom-
mend that it cease and desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
Having found that Respondent has engaged in certain acts of interference, re-
straint , and coercion , I will recommend that it cease and desist therefrom.
Having found that Respondent discriminatorily discharged Erwin A. Albrecht
on July 22, 1953, and thereafter failed and refused to reinstate him to his former
or substantially equivalent position , 1 will recommend that Respondent offer him
full and immediate reinstatement to his former or substantially equivalent position
and make him whole from the date of discrimination against him to the date of
offer of reinstatement, for any loss of pay he may have suffered by reason of such
discrimination by payment to him of a sum of money equal to that which he would
normally have earned as wages less his net earnings , the back pay to be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
Because of the Respondent 's unlawful conduct and its underlying purpose and
tendency , I am of the opinion that the unfair labor practices found are persuasively
related to other unfair labor practices proscribed by the Act and that danger of
their commission in the future is to be anticipated from the course of the Respond-
ent's conduct in the past. The preventative purpose of the Act will be thwarted
unless the order is coextensive with the threat . In order , therefore , to make effec-
tive the interdependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices , and thereby to minimize industrial strife which burdens and ob-
structs commerce, and thus effectuate the policies of the Act, I will recommend that
the Respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
For reasons stated above , I will recommend that the complaint be dismissed
insofar as it alleges that Respondent in violation of Section 8 (a) (3) of the Act
discriminated against Fred G. Estill and in violation of Section 8 (a) (5) of the
Act refused to bargain collectively with the Union.
Upon the basis of the above findings of fact , and upon the entire record in th--
case, I make the following:
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a
labor organization admitting to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of Erwin
A. Albrecht, thereby discouraging membership in the Union , Respondent has en-
gaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By the above unfair labor practices and by interfering with, restraining, and
coercing employees in the exercise of rights guaranteed in Section 7 of the Act,
AVCO MANUFACTURING CORPORATION 729
Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondent has not discriminated in regard to the hire and tenure of em-
ployment of Fred G. Estill.
6. Respondent has not, as alleged in the complaint, refused to bargain with the
Union.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Rubber, Cork, Linoleum and Plastic Workers of
America, CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE WILL NOT discourage membership in United Rubber, Cork, Linoleum and
Plastic Workers of America, CIO, or any other labor organization by discrim-
inatorily discharging or refusing to reinstate employees or by discriminating
in any other manner in regard to hire, tenure of employment, or any term or
condition of employment.
WE WILL offer to Erwin S. Albrecht immediate and full reinstatement to
his former or substantially equivalent position without prejudice to any seniority
or other rights or privileges previously enjoyed, and make him whole for any
loss of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the above-named
Union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any em-
ployee because of his membership in or activity on behalf of any such labor
organization.
ARMSTRONG TIRE AND RUBBER COMPANY,
TIRE TEST FLEET BRANCH,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Avco MANUFACTURING CORPORATION (LYCOMING DIVISION) and LOCAL
1010, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Case No.
2-CA-326.. February 18,1955
Decision and Order
On June 23, 1954, Trial Examiner Thomas S. Wilson issued his In-
termediate Report in the above-entitled proceeding, finding that the
111 NLRB No. 118.