Armstrong Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 17, 1955

111 N.L.R.B. 998 (N.L.R.B. 1955)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same standards for asserting jurisdiction in Puerto Rico ." Member Murdock's
dissent protested the Board 's refusal to exercise plenary jurisdiction in the premises.
Decided the same day as the Sixto case was Union Cab Company , 110 NLRB 1921
(December 16, 1954 ), a proceeding involving several taxicab companies in An-
chorage, Alaska . Citing another recent taxicab case 3 in which "the Board ruled that
it would not assert jurisdiction over taxicab enterprises [ in the 48 States ]," a Board
majority announced its decision "to adhere to that policy with respect to taxicab
enterprises located in the Territories , despite the fact that the Act gives the Board
plenary jurisdiction over all business enterprises operating in such places ." 4 Mem-
ber Murdock's dissent restated his position that "the Board is bound to exercise
plenary jurisdiction with respect to labor relations in the Territories......
Although one may conjecture regarding the phrase "specially applicable stand-
ards" appearing in the aforementioned Sixto case , I am unable to interpret the Sixto,
Virgin Isles Hotel, and Union Cab cases other than as holding that the Board applies
in all respects the same jurisdictional tests to the Territories as it does to the States.
For the Board has jurisdiction over all the trade and commerce within the Terri-
tories and I do not perceive on what basis the Board would apply tests A, B, and
C and not tests D, E, and F. 1 must conclude , therefore , in accordance with the
aforementioned cases and Jonesboro Grain Drying Cooperative , 110 NLRB 481,
that it would not effectuate the policies of the Act to assert jurisdiction in this mat-
ter and I shall accordingly recommend that the complaint herein be dismissed.
[Recommendations omitted from publication.]
8 Checker Cab Co . and Baton Rouge Yellow Cab Co., Inc., 110 NLRB 683.
4 And also despite the fact that the Board has not entered into an agreement with any
agency of the Territory of Alaska in which the Board has ceded jurisdiction over any
cases in any industry to such territorial agency, in accordance with Section 10 (a) of
the Act. See S. Rept. 105 , 80th Cong . 1st Sess., p . 26 (1947 ) ; H. Rept. 510 , 80th Cong.,
1st Sess. , p. 52 (1947).
ARMSTRONG TIRE & RUBBER COMPANY, TIRE TEST FLEET BRANCH and
HERMAN L. LOYD. Case No. 39-CA-425. March 17, 1955
Decision and Order
On November 19, 1954, Trial Examiner Herbert Silberman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated Section 8 (a) (1) and (3) of the
Act, as alleged in the complaint, and recommending that the com-
plaint be dismissed, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Respondent
filed exceptions to the Intermediate Report and supporting briefs.
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
1 The General Counsel asserts he was seriously and irreparably handicapped in the
presentation of his case by the Trial Examiner 's action, at the opening of the hearing,
excluding the Charging Party from the hearing room along with other witnesses. How-
ever, the Trial Examiner subsequently changed his ruling , and the Charging Party was
permitted in the hearing room during the examination of 3 of the General Counsel's S
witnesses and all of the Respondent 's witnesses . Under such circumstances , we find that
the Trial Examiner did not exceed the bounds of his discretionary control of the hearing
and that the General Counsel was not prejudiced by the Trial Examiner's initial ruling.
The General Counsel excepts further to the Trial Examiner 's refusal to permit him to
make an offer of proof on matter the Trial Examiner ruled was inadmissible as evidence.
We find no merit in the exception because the General Counsel has failed to show , either
at the hearing or in his brief to the Board , how the Trial Examiner 's ruling was pre-
judicial.
111 NLRB No. 166.
ARMSTRONG TIRE & RUBBER COMPANY 999
Intermediate Report, the exceptions and briefs, and the entire record
in the case and hereby adopts, with a minor correction 2 and modifica-
tions, the findings, conclusions, and recommendations of the Trial
Examiner.
In resolving the issues presented in this case, we have taken notice
of, and considered, the entire record and decision in the recent prior
proceeding involving generally the same parties.'
As noted above, we agree with the Trial Examiner that the Re-
spondent has not committed the unfair labor practices alleged in the
complaint. However, there are a number of findings made by the
Trial Examiner, not affecting the ultimate conclusion dismissing the
complaint, which we do not adopt. We find, as did the Trial Exam-
iner, that the Respondent's discharge of Phillips did not violate Sec-
tion 8 (a) (3) of the Act. However, unlike the Trial Examiner, we
find that Haidet's remarks to Phillips, on June 17, 1954, did not demon-
strate any effort by the Respondent to provoke Phillips to quit his job,
because the record establishes that each time Haidet spoke to Phillips
about his failure to perform certain of his regular tasks, the work
had, in fact, not been performed.
We also agree with the Trial Examiner's dismissal of the portions
of the complaint alleging that the Respondent independently violated
Section 8 (a) (1) of the Act. However, we do not pass upon the
Trial Examiner's statement that even if the Respondent had actively
promoted circulation of the antiunion petition among its employees
there would be doubt such action violated the Act, because, as other-
wise found by the Trial Examiner, the record does not support a find-
ing that the Respondent promoted circulation of the petition. Fur-
thermore, although we agree with the Trial Examiner's finding that
the Respondent did not circulate the petition among its employees,
we do not adopt, as one of the grounds for our finding, the Trial
Examiner's conclusion that Vernotzy, as an experienced industrial
relations counselor, would not have made the statement about the
petition attributed to him by Weatherly.
[The Board dismissed the complaint.]
2 We note the following correction of a typographical error appearing in the Interme-
diate Report :
With respect to the reported conversation between Weatherly and Vernotzy , the Trial
Examiner clearly intended to state it was not unlikely that Weatherly placed a biased
construction on Vernotzy 's statement.
8 Armstrong Tire and Rubber Company, Tire Test Fleet Branch, 111 NLRB 708.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed on June 25, 1954, by Herman L. Loyd, an individual, the
General Counsel for the National Labor Relations Board 1 by the Regional Director
' The General Counsel and his representative at the hearing are referred to herein as
the General Counsel.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Sixteenth Region (Fort Worth, Texas), issued a complaint, dated August
10, 1954, against Armstrong Tire & Rubber Company, Tire Test Fleet Branch, herein
called the Respondent, alleging that the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called
the Act. Thereafter, said Regional Director by an order issued August 12, 1954,
amended the caption of the instant proceeding. The caption as amended is used
hereinabove. Copies of the charge, complaint, amended complaint, and notices of
hearing thereon were duly served upon the parties. The Respondent by its answer,
verified August 20, 1954, denied the commission of the alleged unfair labor practices.
Pursuant to a motion made by Respondent and an order issued by Trial Examiner
C. W. Whittemore, the General Counsel duly issued and served upon the parties,
on September 1, 1954, a bill of particulars with respect to the complaint herein.
On September 10, 1954, Trial Examiner C. W. Whittemore denied Respondent's mo-
tion to strike certain matters from the bill of particulars without prejudice to the right
of the Respondent to renew its motion at the hearing.
With respect to the unfair labor practices, the complaint, as further amended dur-
ing the hearing, alleges, in substance, that the Respondent on June 17, 1954, dis-
criminatorily discharged and thereafter has failed and refused to reinstate George
C. Phillips, and, since February 2, 1954, by various acts set forth in the complaint,
has interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
Pursuant to notice, a hearing was held at San Antonio, Texas, from September 21
to 24, 1954, before Herbert Silberman, the duly designated Trial Examiner. All
parties were represented at the hearing by counsel and were afforded full opportu-
nity to be heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues. Respondent's motions, made during the hearing, to strike
certain matters from the bill of particulars were granted in part only. Respondent's
motion to dismiss the complaint on the ground that the charge herein was filed by
an individual who was "fronting" for a labor organization which has not complied
with the requirements of Section 9 (f), (g), and (h) of the Act was denied. Decision
was reserved on Respondent's motion, made at the conclusion of the General Coun-
sel's case, to dismiss the amended complaint. Said motion is now disposed of in
accordance with the findings of fact and conclusions of law made below. The parties
waived the opportunity afforded them to engage in oral argument at the close of the
hearing. In accordance with permission granted the parties at the hearing, the Re-
spondent, but not the General Counsel, has duly filed a brief with the Trial Examiner
which has been given careful consideration.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation having its principal office and manufacturing
plant in the city of Natchez, Mississippi, maintains a Tire Test Fleet Branch in the
city of San Antonio, Texas, for the purpose of testing tires manufactured by Respond-
ent outside the State of Texas. In the course and conduct of its business operations,
of which the Tire Test Fleet Branch is an integral part, during the 12-month period pre-
ceding the issuance of the complaint herein, which period is representative of all times
material hereto, Respondent purchased raw materials and equipment valued in excess
of $1,000,000, 80 percent of which was shipped in interstate commerce to its manu-
facturing plant from points outside the State of Mississippi. During the same period,
Respondent sold products valued in excess of $2,000,000, 80 percent of which was
shipped in interstate commerce from its Natchez, Mississippi, plant to points outside
the State of Mississippi. Also, during the same period, Respondent, at its San An-
tonio, Texas, Tire Test Fleet Branch, furnished goods or services in excess of $200,000
to an enterprise or enterprises which produced or handled goods destined for out-of-
State shipment valued in excess of $100,000.
Upon the basis of the foregoing uncontroverted facts, I find that the Respondent
is, and at all times relevant hereto was, engaged in commerce within the meaning
of the Act.
If. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum & Plastic Workers of America, CIO, herein re-
ferred to as the Union, is a labor organization within the meaning of Section 2 (5)
of the Act.
ARMSTRONG TIRE & RUBBER COMPANY
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
1001
In a prior unfair labor practice proceeding, Case No. 39-CA-359, instituted
against the Respondent herein, another Trial Examiner, after hearing, concluded that
during the spring and summer of 1953 the Respondent, who was hostile to the organ-
ization of its San Antonio employees by the Union, had engaged in certain unfair
labor practices in violation of Section 8 (a) (1) and (3) of the Act and had not en-
gaged in other alleged unlawful conduct. An appeal based upon exceptions to the
Intermediate Report in that case filed by both the General Counsel and the Re-
spondent is pending before the Board. The General Counsel requests the Trial Ex-
aminer to take judicial notice of the findings in the earlier proceeding as a frame
of reference within which to measure and evaluate the evidence in the instant case.
The parties agree that it would be improper to take judicial notice of the Trial Ex-
aminer's findings in the earlier proceeding before the Board has passed upon the
exceptions to his Intermediate Report. The Respondent has made a motion for leave
to file a supplemental brief in the event the Trial Examiner deems it necessary to take
judicial notice of the Board's findings in Case No. 39-CA-359. The General Counsel
does net oppose the motion but requests that the Respondent be required to file its
supplemental brief not later than 15 days from the date of the Board's Order in said
case. I have read and considered the pleadings, Intermediate Report, and exceptions
in Case No. 39-CA-359. If the Board should affirm those portions of the said
Intermediate Report which sustained the General Counsel's complaint and should
overrule the findings of the Trial Examiner dismissing other portions of said com-
plaint and I were to take judicial notice of such Decision and Order of the Board
and also were to take judicial notice of certain testimony adduced in the prior pro-
ceeding as to which my attention has been specifically directed by the General
Counsel, I, nevertheless, would recommend that the complaint in the instant proceed-
ing be dismissed. Therefore, I do not perceive that any useful purpose would be
served by delaying the issuance of my report in the instant case until after the Board
issues its Decision and Order in Case No. 39-CA-359.
The previous proceeding involved events which occurred in the spring and summer
of 1953 during a period when there was considerable organizational activity on be-
half of the Union among Respondent's employees at its San Antonio Tire Test Fleet
Branch. Although the intensity of organizational activity at the Tire Test Fleet
Branch may have subsided considerably since early January 1954, it appears that
many employees, including particularly the witnesses at the instant hearing, are di-
vided into pronouncedly partisan prounion and antiunion factions. Likewise, the
Respondent does not appear to be any more favorably disposed towards the organiza-
tion of its employees than it was in 1953. With this background in view I shall now
discuss the evidence as it relates to the unfair labor practices alleged in the complaint
herein.
B. The discharge of George C. Phillips
George C. Phillips was hired by Respondent on June 29, 1945, as a test driver.
About 1952, he was reclassified to tire technician and was assigned primarily to do
night work in Respondent's shop and garage in San Antonio. Harvey Haidet, man-
ager of the Tire Test Fleet, was Phillips' immediate supervisor. Phillips' principal
duty, at least since October 1953, was to clean the garage, the employees' lounge and
the washroom. His hours of work, which were from 9:45 p. m. to 6:14 a. m.,
overlapped the morning and night changes of shift. In May 1953, Phillips desig-
nated the Union as his bargaining representative, and since that time has been con-
tinuously active in its behalf. Because his working hours overlapped two shift
changes Phillips was able to and from time to time did relay messages concerning
union matters to the employees on all three shifts. Respondent 's supervisors, in-
cluding Harvey Haidet, knew of Phillips' union membership and that he acted as a
conduit for the transmission of union information to the employees of the San An-
tonio Tire Test Fleet Branch.
The event which precipitated Phillips' discharge occurred about 10:20 p. m. on
June 17, 1954, in the presence and hearing of at least five other employees.
According to Phillips:
He [Haidet] came walking up and he said, "Phillips, I thought I told you time
and again to keep these scales wiped off." . I says, "Harvey," I says, "I
cleaned them scales off every night since awhile back when you got on me about
them , and I 'm getting tired of you jumping on me every few night about some-
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing that I have done every night" and he says, "I am getting tired of these
employees talking back to me in here," and [Haidet] said, "I am going to pull
your card." . Well, I asked him what did he want to do, put me back
on the road and put some of his brown noses in there in my place. . . . I said,
"Well, go ahead and pull it. I can't keep you from it. Your're the boss." And
then he says, "These employees talk back to me all the time in here and I am
gettin tired of it." I says, "Look like you would get tired of firing these fellows
after awhile." I says, "You fired one fellow, and he' s going to come back to
work any time." He says, "He hasn't come back yet." 1 said, "Well, he's going
to come back. He's beat you in every court so far." He says, "Well, I would
like to see him come back. He's a good fellow." I said, "That ain't the way
you talked about him when you let him go." . . . I told him I didn't figure he
[Haidet] would be there over 2 weeks longer, that we had some stuff that
was cooking that we thought would get his [Haidet's] job. . So, he says,
"Well, I'm going back in there and pull your card. You are fired." I says,
"Okay, your're the boss." 2
Haidet's version of the incident differs from Phillips' version in only one material
respect. Haidet testified that after he called Phillips' attention to dust on the scales,
Phillips asserted he was being picked upon. Haidet unsuccessfully tried to placate
Phillips, but the latter, who would not be quieted, accused Haidet of trying to get
rid of him. According to Haidet, Phillips first spoke about pulling his card and
several times challenged Haidet to discharge him until finally Haidet did pull Phillips'
timecard thereby signifying that Phillips was discharged. Haidet's version of the
conversation was corroborated by the testimony of 5 employees who overheard the
altercation between the 2. However, it is to be noted that these five witnesses fall
into the antiunion faction among Respondent's employees.
The General Counsel's theory is that because Phillips occupied a position which
permitted him to act as union messenger for the employees in the various shifts the
Respondent was anxious to terminate his employment. In furtherance of this pur-
pose, about early May 1954, Haidet began criticizing Phillips' work with the hope
that eventually Phillips because of such harassment would quit his employment or
engage in some conduct which would give Respondent a purported nondiscriminatory
reason for discharging him.
Phillips testified that during the 2 months preceding his discharge Haidet spoke
to him 7 or 8 times about his work, whereas prior thereto Haidet rarely spoke to
him about his work. The nature of the remarks made by Haidet which Phillips
construed as indicative of the fact that Haidet was "jumping" on him are, as follows:
"George, you ain't keeping them scales cleaned off, are you?," "How come I
[Phillips] didn't clean that up around there?" (referring to oil that had run onto
the garage floor), "Phillips, I want you to clean these chairs up." On these occasions
Phillips also found Haidet's tone of voice objectionable. It is clear that from the
record, however, that each time Haidet told Phillips to clean a particular area in
the garage there was some basis for such direction although perhaps in the course
of his night's work Phillips would have done the cleaning even if he had not been
given specific instructions. Despite this latter possibility and although during May
and June 1954, Haidet may have been inspecting Phillips' work more closely than
he had been accustomed to do theretofore and in speaking to Phillips regarding the
latter's work may have used an unpleasant tone of voice, contrary to the contention
of the General Counsel, the fact that Haidet, Phillips' immediate supervisor, made
statements such as described above in connection with Phillips' regular duties 7 or 8
times within a period of 2 months does not demonstrate a serious effort to provoke
Phillips to the point where the latter would find his job so unbearable that he would be
compelled to quit his employment with the Respondent. Thus, the basic premise
upon which the General Counsel's theory of his case rests is unsupported by the
evidence.3
2 The foregoing is a synthesis of relevant portions of Phillips' testimony which was
given on direct and on cross-examination Also, Phillips specifically testified that he
twice said to Haidet, "Go ahead and pull my card"-once after Haidet "started or threat-
ened" to pull his card and again after Haidet "threatened" to pull the card the second
time
S In effect, the General Counsel's theory is that Haidet's conduct was such that had
Phillips quit his employment the Board would construe such quitting as a constructive dis-
charge. However, had Phillips quit on the night of June 17 the facts would not sustain
the finding of a constructive discharge Cf N L R. B. v Saxe-Glassman Shoe Corpora-
tion, 201 F 2d 238 (C A. 1) ; Olin Industries, Inc, 97 NLRB 130; Indianapolis Wire-
Bound Box Company, 89 NLRB 617, 632; Macon Textiles , Inc., 80 NLRB 1525, 1536.
ARMSTRONG TIRE & RUBBER COMPANY 1003
An employer who discharges an employee for reasons interdicted by Section 8
(a) (3) of the Act is not exonerated from the consequences under the Act for such
discrimination because there may have existed concurrently some justifiable ground
for the employee's discharge. In such case, nevertheless, the burden still is upon the
General Counsel to establish that the Respondent was motivated by an unlawful rea-
son. Here, the General Counsel has shown that Respondent was hostile towards the
organization of its San Antonio employees and was aware of Phillips' union member-
ship. These circumstances and the further fact that Respondent also knew that Phil-
lips acted as union messenger on the job may constitute sufficient circumstantial
proof to indicate that Phillips was discharged because of his union membership and
activity. However, such indicia of discriminatory motivation is subject to rebuttal
by proof of cause, not within the prohibition of the Act, sufficient in itself to war-
rant or justify the discharge. The Respondent asserts as its defense that it discharged
Phillips, not for any reason related to his union membership or activity, but because
of his "intemperate and insubordinate language and conduct, which occurred in the
presence of other employees" on the night of June 17, 1954. Phillips admitted that
he accused Haidet of wanting to replace him with one of Haidet's "brown noses,"
threatened Haidet that the latter would lose his job within 2 weeks because "we had
some stuff that was cooking," and twice challenged Haidet to fire him. This vitupera-
tive outburst exceeded the bounds of condonable reaction to such remarks on the
part of Haidet which Phillips considered to have been offensive and furnished rea-
sonable justification for Phillips' discharge. Furthermore, Phillips' behavior to-
wards Haidet on that occasion, particularly because it occurred in the presence of
other employees, in my opinion, gave Haidet no choice other than to discharge Phil-
lips consistent with the normal desire on the part of the manager of a business enter-
prise to retain the respect of and stature in the eyes of his subordinates. The Gen-
eral Counsel argues that immediately after Phillips complained to Haidet that the
latter was "jumping" on him, Haidet replied, "I am going to pull your card," which
in effect was the signal for Phillips' discharge and anything Phillips said thereafter
did not influence Haidet's action. However, it is doubtful that Phillips understood
that he was discharged at this point in their. conversation 4 because he then asked
Haidet whether the latter wanted to put Phillips back on the road (driving a test
car) and to replace him in the garage with one of Haidet's "brown noses." Also,
Phillips, at least, a second time challenged Haidet to pull his card, which would have
been unnecessary had Phillips been finally discharged earlier in the course of the
conversation. Contrary to the General Counsel's argument, I am of the opinion
that even under Phillips' version of his altercation with Haidet the entire exchange
of remarks between the two must be weighed in determining Respondent's motive
for discharging Phillips.
I find that the General Counsel has failed to prove by a preponderance of the evi-
dence that the Respondent discharged Phillips because of his union adherence or
activity.5
C. Interference, restraint, and coercion
The principal alleged violation of Section 8 (a) (1) of the Act, independent of
Phillips' discharge, which was litigated at the hearing related to a petition which was
circulated for signatures among Respondent's employees from about June 16 to
June 24, 1954. The significant features of the petition are a statement that the
signers do not want any union to represent them and a request to company manage-
ment for a raise. The complaint alleges that Respondent circulated and assisted in
the circulation of this petition. It does not allege nor is there any evidence to show
that Respondent initiated or was responsible for the formulation of the petition.
Although there is some doubt that there would be a violation of the Act had the
4 For the purpose of this discussion only I am accepting Phillips' version as to the
sequence of remarks
5 James Anderson Shults testified that early in June 1954, Foreman Ray Wilson asked
Shults whether the latter had greater seniority than Phillips. When Shults replied that
he did not, Wilson answered, "I wish you did have so you could take his job " Even if
I were to credit this testimony it would not support the General Counsel's theory that
the Respondent desired to terminate Phillips' employment in order to remove a strong
union adherent from the night job in the garage because Shults also was an admitted and
outspoken union adherent Respondent's alleged purpose would not have been served by
substituting one union man for another union man in the night job.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent actively promoted the circulation of the petition,6 the record does not
support any such finding
There is no evidence that any supervisor signed the petition or encouraged em-
ployees to sign it. However, the General Counsel would have me find on the basis
of the testimony of Pat James Weatherly that the Respondent admitted it had cir-
culated the petition. Weatherly, who is chairman of the union organizing committee,
testified that about June 21, 1954, during a conversation with Frank R. Vernotzy,
Respondent's industrial relations manager, about improving employment conditions
at the San Antonio plant the following exchange took place
He asked me what I thought about management . I told him that I
thought that management was bad. 1 told him I didn't think it was exactly
what it should be. And I told him I didn't think that it was fair for him to,
allow the petition to be circulated there Mr. Vernotzy told me, "Do you think
it's any fairer for you guys to put out those union cards on company premises
than it is for us to circulate that petition?" . . And, then, he told me, when
he heard about the cards being signed on company premises he told Mr. Haidet
to go ahead with his petition.
Vernotzy testified that his conversation with Weatherly occurred in connection with
a survey he was making among the employees in the San Antonio Test Fleet as to
their views with respect to working conditions, wages, and related matters. Among
other questions he asked Weatherly what was his opinion of the cooperation which
existed among the employees at the Test Fleet. According to Vernotzy:
He [Weatherly] stated, when I asked him that question, "Well, this peti-
tion that's going around is causing a lot of trouble," and I made the statement,
"Well, let me ask you a question, Mr. Weatherly, is it causing any more trouble
than when the boys were signing union cards?" And that was the end of the
petition. I went on with the other questions.
Of the witnesses at the hearing, Weatherly and Vernotzy impressed me as having
exerted the most sincere effort to give truthful and accurate testimony. I do not
believe that the testimony of either reflects a conscious attempt to distort the facts
in order to reach a story most favorable to his partisan interest. On the other hand,
it is not likely that Weatherly may have placed a biased construction upon Vernotzy's
statement regarding the circulation of the antiunion petition and his memory of that
conversation may have been affected by such erroneous interpretation of the sense
of the Vernotzy remark. In any event, I find no basis for discrediting Vernotzy's
version of their conversation. Furthermore, I doubt that an experienced industrial
relations counselor, such as Vernotzy, would make the damaging admission suggested
by Weatherly's testimony to one of the known leaders of the union movement at a
time when turbulance which had been aroused by organizational activity among the
employees had not completely subsided. In addition, according to Weatherly's ver-
sion of the conversation, Vernotzy admitted having told Haidet to circulate the peti-
tion when he had learned that union cards were being signed on company property.
The evidence shows that no union cards were being signed at about the time the
petition was circulated but to the contrary that the last cards were signed about 2
months prior thereto and these cards were signed at a meeting which was not held on
company premises. Accordingly, I do not find that the Respondent has admitted
responsibility for circulation of the aforesaid petition.
The only other evidence purporting to link Respondent to the circulation of the
petition is the testimony of several employees 7 that on the night of June 16, 1954,
they saw a note in the room used by the tire technicians addressed to employee Curtis
Rucker from employee Howard Quinn to the effect that the former would be able
to find the petition in the office safe. Although Quinn and Rucker, as well as em-
ployee Hubble, testified that the note said the petition was in the office file, rather
than the office safe, it is unnecessary to resolve this conflict in testimony. Even ac-
cepting the first version as to the content of the note it does not connect Respondent
with the circulation of the petition. Respondent keeps no safe in its San Antonio
plant . There is one file cabinet which is usually kept locked and which some em-
e See N. L R. B v. Cleveland Trust Company, 214 F 2d 95 (C A 6) ; N. L. R. B. v.
Protein Blenders, Inc, 215 F. 2d 749 (C A. 8) ; Ranco Inc., 109 NLRB 998; Blue Flash
Express, Inc, 109 NLRB 591. But see N. L R. B v Louisville Container Corporation,
209 F 2d 655 (C. A 6) ; Red Rock Company. 84 NLRB 521, 524, enfd as to this point,
187 F 2d 76 (C A 5), cert. denied 341 U S 950; Richards and Associates, 110 NLRB
132; H & H Manufacturing Company, Inc, 87 NLRB 1373, 1375
7 Herman L Loyd, George C. Phillips, Albert F. Huth, and Ancii A. Bucklew.
ARMSTRONG TIRE & RUBBER COMPANY 1005
ployees refer to as a safe . However, the testimony of Quinn , who wrote the note,
was to the effect that he intended that the petition would be placed in a folder used
by the tire technicians which was kept in another file cabinet which ordinarily was
not locked . Hubble who received the petition from Quinn testified that when he left
work on the night of June 16 he placed the petition in the folder referred to by
Quinn in the unlocked file cabinet . Rucker testified that was where he found the
petition the next morning. Not only is the evidence insufficient to establish that
the petition was under the control of the Respondent on the night of June 16, but
it does not even show that any responsible management official knew that the peti-
tion was left on company premises that night . On the other hand, the testimony
of Haidet and Vernotzy demonstrates that the Respondent had knowledge of the
petition at about the time it was being circulated among the employees . However,
Respondent 's acquiescense in the circulation of the antiunion petition on the part
of its employees , even if it occurred during working hours, is no violation of the
Act, particularly where it appears that prounion employees were not denied com-
parable privileges.8
The complaint alleges two other violations of the Act based upon statements al-
leged to have been made by Harvey Haidet to Herman L. Loyd. The first alleged
coercive remark was made on February 2, 1954, in a conversation between Haidet
and Loyd. According to Loyd's uncontradicted testimony they were discussing a
certain check, which was in the possession of some of the union adherents who be-
lieved that if the instrument were called to the attention of Haidet's superiors it
would result in his discharge . Loyd testified that:
He [Haidet ] said that Mitchell made it look to him like that I [Loyd] was
carrying the check . I told Harvey , I says, "Well , listen ," I says, "You have got
them men out there calling us damn Communists and everything else for trying
to organize this union. I said you stop all that stuff and I will never open my
mouth to any of them company officials about that check ," and I says, "You
have got a big lay-off coming. You lay off according to seniority ," and he says,
"Well, I'll tell you what, we will make a deal, you just forget about that com-
pletely," and says, "you tear it up," and he says, "I'll lay off according to senior-
ity," but he says, `I know I can 't fire any of those guys unless I get some little
something on them ." I said, "There's no deal like that, if a man does nothing,
and you fire him . As far as running around trying to find something on a driver,
that's out. I won't live up to that."
I do not find from the foregoing that Haidet threatened , as alleged in the com-
plaint , that he would fire the employees who had joined and assisted the Union as
soon as he could get something on them to serve as a pretext for their discharge.
Even were his negative statement , "I know I can't fire any of those guys unless I
get some little something on them," construed as a threat to discharge employees,
in the context of the conversation , the threat was directed against employees who in
turn were threatening Haidet rather than against employees who joined and assisted
the Union.
The second incident occurred about June 10, 1954. According to Loyd, Haidet
said:
"I have found out that you guys are going to try to crucify me, anyhow," and
I [Loyd] said "what do you mean?" He said, "Well , I found a note about
one of your union meetings the other day," said, "I know everything that hap-
pened out there at your house ," and I said, "What day was that." He said,
"That was last Saturday ." And I thought a minute and I said, "What do you
mean last Saturday?" He says, "I had three men at that meeting." He said,
"Every word that went on out there," he says, "I knew it." I said, "Well,
Harvey, I know you got a damn stoolpigeon somewhere ." But on that particu-
lar Saturday , well, I was elected head committeeman to organize those drivers
out there , and I am the man that calls the union meetings , and we didn't have
no union meeting that Saturday . We hadn't had one for two months. But he
told me he had three men there.
The General Counsel does not contend that Respondent had engaged in any overt
act of surveillance during the times embraced by the charge and complaint herein,
but that creating or fostering the impression among the employees that it had en-
gaged in surveillance of union activities unlawfully inhibited the employees in the
exercise of their rights under the Act .9
8 The Advertiser Company , Inc., 97 NLRB 604, 620; Superior Company, Inc , 94 NLRB
586, 587-588.
9 See Nashua Manufacturing Corporation of Texas, 108 NLRB 837.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haidet denied that he made the statement attributed to him by Loyd . Neither
Haidet nor Loyd, who is the Charging Party herein , impressed me as individuals who
in giving their testimony were striving to achieve objectivity and accuracy. Their
testimony was partisan and colored to favor their respective positions . Haidet was
not asked to recount his version of the June 10 conversation . He merely denied
having made the statement attributed to him by Loyd that he had three men at the
union meeting at Loyd's house the previous Saturday . Certainly, in view of Loyd's
testimony that no such meeting had taken place , Haidet could not have had personal
informants at such meeting at Loyd's house. It seems improbable that Haidet would
tell such obviously fabricated story to the man most likely to know of its falsity.
Whether Haidet had made some statement which Loyd may have construed to mean
that Haidet had had three informants at a meeting that had not been held cannot
be determined in view of the absence of any effort by either counsel to obtain from
Haidet his version of the June 10 conversation with Loyd. In the circumstance, I
do not find that the General Counsel has proved by a preponderance of the evidence
that Haidet made the incriminating remark attributed to him by Loyd.
Upon the basis of the foregoing , I do not find that the Respondent has violated
Section 8 ( a) (1) of he Act as alleged in the complaint herein.
CONCLUSION OF LAW
The Respondent has not engaged in any .unfair labor practices within the meaning
of the Act during the times embraced by the charge and complaint herein.
[Recommendations omitted from publication.]
EAGLE SIGNAL CORPORATION and INTERNATIONAL UNION OF ELECTRI-
CAL, RADIO AND MACHINE WORKERS, CIO, PETITIONER
EAGLE SIGNAL CORPORATION and INTERNATIONAL ASSOCIATION OF TOOL
CRAFTSMEN, LOCAL No. 1, N. I. U. C., PETITIONER. Cases Nos. 18-
RC-2362 and 18-RC-2411. March 17,1955
Decision and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Clarence A. Meter, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reason :
The Employer and the UE contend that a collective-bargaining
agreement executed on October 24, 1952, retroactive to July 1, 1952,
i Local 822, United Electrical, Radio and Machine Workers of America UE !Ind, herein
called UE, was allowed to intervene on the basis of its contractual interest in the em-
ployees involved.
111 NLRB No. 168.