Associated Rubber Co.

National Labor Relations Board - Board Decisions

Dec 29, 2000

332 N.L.R.B. 1588 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1588
Associated Rubber Company and United Steelwork-
ers of America, AFL–CIO–CLC. Case 10–RC–
15051
December 29, 2000
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
The National Labor Relations Board has considered
objections to an election held July 23, 1999, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 53
for and 50 against with one challenged ballot against the
Petitioner, an insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief, and has adopted the hearing officer’s
findings1 and recommendations, and finds that a certifi-
cation of representative should be issued.
The hearing officer found no merit in the Employer’s
objections. We agree with the hearing officer. Specifi-
cally, we agree, as does our dissenting colleague, that
employee Leroy Brown was not an agent of the Union
and that an evaluation of whether his conduct was objec-
tionable must be in accordance with the standard that
applies to third party conduct. Accordingly, we must
determine whether Brown’s acceleration of the Banbury
machine’s2 cycle time was so egregious as to create an
atmosphere of fear and reprisal rendering a free election
impossible. Westwood Horizons Hotel, 270 NLRB 802
(1984). Applying this standard, the hearing officer con-
cluded that the incident “was not of a sustained or re-
peated nature and a prounion employee came to the vic-
tim’s rescue.”
Employee Tim Spears, who did not testify at the hear-
ing, asserted in his affidavit3 that Union officials were
handing out union literature outside the plant on July 12.
As Spears walked by, they tried to give him some litera-
ture, but he refused to take any. At that point, according
to Spears, employee Brown drove up in his car and told
Spears that “you had better take the paper or you’re go-
ing to pay for it tomorrow.” Spears, who was the mill
operator, asserted further that on the next day Brown ran
the Banbury machine at a faster rate in retaliation for
Spears refusal of the union literature the day before.

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless a clear preponderance of
all the relevant evidence convinces us they are incorrect. Stretch-Tex
Co., 118 NLRB 1361 (1957). We have carefully examined the record
and find no basis for reversing the findings.
2 The Banbury machine is a mixer used to custom-mix rubber com-
pounds. Once the Banbury operator has mixed the chemicals, they are
dropped out of the machine in a 450-pound batch onto the mill, 8–10
feet below. The mill operator runs the batch through two rollers until
the material is worked into a pliable sheet of rubber. The average cycle
time for the Banbury machine is 5–6 minutes.
3 Spears refused to testify at the hearing pursuant to the Employer’s
subpoena. The Hearing Officer relied on the facts contained in the
Spears affidavit only to the extent they are consistent with and corrobo-
rated by the testimony of other witnesses who testified at the hearing.
See Best Western. The Employer has excepted to some of the hearing
officer’s credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless a clear pre-
ponderance of all the relevant evidence convinces us they are incorrect.
Stretch-Tex Co., 118 NLRB 1361 (1957). We have carefully examined
the record and find no basis for reversing the findings.
Our dissenting colleague believes that this one incident
warrants a new election, inferring that the potential in-
jury to Spears was “severe” and that word of the incident
was disseminated among enough bargaining unit mem-
bers to have affected the results of the election. We dis-
agree. First, the Employer’s production records do not
corroborate Spears’ assertion. Spears claimed that
Brown told him on July 12 that he would “pay for it” the
next day because he would not accept union literature.
However, the record shows no acceleration of the Ban-
bury machine on July 13, the next day. Rather, the pro-
duction records for July 20, a week later than Spears as-
serts, indicate a shortened cycle time for a 2½-hour pe-
riod that morning. Further, the record is clear that Spears
sustained no injury from this incident. Nor does it con-
tain any evidence to support the inference that Spears’
risk of injury was “severe.” Also, Union supporter Tony
Gerald came to Spears’ aid to help him deal with the
accelerated production. As soon as Spears complained to
management about the accelerated cycle time, the Ban-
bury machine was slowed down to its normal cycle time
and the acceleration never recurred. Contrary to our dis-
senting colleague, we find that the Employer had failed
to show that Brown exposed Spears to such a severe de-
gree of danger by accelerating the machine’s cycle time
that we can conclude that his conduct was so egregious
as to render a free election impossible.

The Banbury machine is a mixer used to custom-mix rubber com-
pounds. Once the Banbury operator has mixed the chemicals, they are
dropped out of the machine in a 450-pound batch onto the mill, 8–10
feet below. The mill operator runs the batch through two rollers until
the material is worked into a pliable sheet of rubber. The average cycle
time for the Banbury machine is 5–6 minutes.
Spears refused to testify at the hearing pursuant to the Employer’s
subpoena. The Hearing Officer relied on the facts contained in the
Spears affidavit only to the extent they are consistent with and corrobo-
rated by the testimony of other witnesses who testified at the hearing.
See Best Western, 325 NLRB 1186, 1193 (1998).
332 NLRB No. 165
ASSOCIATED RUBBER CO. 1589
Our dissenting colleague also finds dissemination of
this incident sufficient to have affected the results of the
election. We disagree. Even though the record indicates
that a limited number of employees laughed about Brown
“getting them if they don’t vote for the union,” there is
no evidence that they linked Spears’ experience with the
Banbury machine to retaliation because he had rejected
union literature a week before. We find that the Em-
ployer has failed to show that this incident involving
Spears tainted the laboratory conditions necessary for a
fair election. The Employer has not shown that this was
more than an isolated incident, or that it involved a se-
vere risk of injury. In addition it was quickly brought
under control with the help of a prounion employee. We,
therefore conclude that Brown’s conduct, even consid-
ered with the two other incidents of misconduct dis-
cussed by the hearing officer did not create an atmos-
phere of fear and reprisal rendering a fair election impos-
sible. Accordingly, we adopt the hearing officer’s rec-
ommendation that the objection be overruled and a certi-
fication of representative issue.
IT IS CERTIFIED that a majority of the valid ballots
have been cast for the United Steelworkers of America,
AFL–CIO–CLC, and that it is the exclusive collective-
bargaining representative of the employees in the unit
found appropriate:
All full-time and regular part-time production and
maintenance employees, truckdrivers, and mechanics
employed at the Employer’s Plant 1, Plant 2, and Plant
3 locations in Tallapoosa, Georgia, excluding all office
clericals, technical employees, lab technicians, chem-
ists, guards, and supervisors as defined in the Act.
MEMBER HURTGEN, dissenting in part.
I join my colleagues in affirming the hearing officer’s
report in all but one respect. This objection relates to
employee Ron Brown’s acceleration of the cycle time on
the Banbury machine. As the hearing officer correctly
found, Brown’s conduct was “more serious than a harm-
less prank.” Further, it was in retaliation for employee
Tim Spears’ refusal to accept union literature. It sub-
jected Spears to adverse working conditions and to hu-
miliation before his peers. I would sustain this objection.
Spears refused to accept union literature. Brown in-
formed Spears that “he needed to take what the Union
handed out.” Spears again refused the literature and
Brown replied that “he would pay for it the next day.”
The next morning, Brown ran the Banbury machine at a
faster than normal cycle. Spears told employee Howard
that he (Spears) knew that Brown had run the Banbury
machine too fast because he (Spears) would not vote for
the Union.
The record shows that the shortened cycle time in-
creased the risk of Spears’ injury. Based on the weight
of the compound being handled, it can be reasonably
inferred that there was a potential for injury resulting
from not being able to keep up with the cycle time.
Moreover, word of the Banbury machine incident was
disseminated among other members of the bargaining
unit. Howard testified that he had heard as many as five
or six employees, among them Brown, laughing at how
Brown had “gotten” Spears.
In view of the fact that the election was decided by
only three votes and the fact that the incident became a
joke within the unit, I find that there was sufficient dis-
semination to affect the results of the election. As such, I
find that the conduct warrants a setting aside of the elec-
tion. Westwood Horizons, 270 NLRB 802 (1984).
My colleagues assert that there was insufficient evi-
dence that Brown’s conduct was disseminated. In this
regard, they argue that employees did not know of the
link between Brown’s conduct and Spear’s opposition to
the Union. I disagree. Clearly, Spears himself was
aware of the link. Further, Spears told employee Howard
of the link. Finally, the five or six employees who were
laughing about the incident specifically linked the inci-
dent with opposition to the Union.1 Thus, there were at
least seven employees who were aware of the link be-
tween the incident and opposition to the Union. As
noted above, the election was decided by three votes.
My colleagues also contend that Brown’s conduct oc-
curred a full week after Brown’s threat. However, even
assuming arguendo that the incident occurred at that
time, the evidence recited above establishes the link be-
tween the incident and the threat.
Finally, my colleagues assert that Spears was not in-
jured. However, the fact that he was rescued from injury
surely does not diminish the coercive character of
Brown’s conduct.2

1 See the testimony of employee Howard.
2 The Employer has also excepted to the hearing officer’s ruling re-
fusing to admit portions of Spears’ affidavit at the hearing. Spears
refused to appear at the hearing pursuant to the Employer’s subpoena.
In my view, when a party requests that a Regional Director enforce a
subpoena against an employee witness, the Regional Director should
either enforce the subpoena or the witness’s pretrial affidavit should be
admitted at the hearing. In the instant case, the Employer specifically
requested that the hearing officer enforce the subpoena. The request
was denied. Therefore, I would reverse the hearing officer’s eviden-
tiary ruling and require that the Spears’ affidavit be admitted in its
entirety.