Auburn Rubber Co., Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1965

156 N.L.R.B. 301 (N.L.R.B. 1965)

AUBURN RUBBER COMPANY, INC. 301
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named labor organization or any other labor
organization.
VERA LADIES BELT & NOVELTY CORP.,
Employer.
Dated------------------- By------------------------------------------
-Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 29, RETAIL, WHOLESALE & DEPARTMENT STORE
UNION, AFL-CIO, AND TO ALL EMPLOYEES OF VERA LADIES BELT & NOVELTY
CORP., NEW YORK, NEW YORK
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT act as the exclusive bargaining representative of any of the
employees of Vera Ladies Belt & Novelty Corp., New York, New York, unless
and until we shall have demonstrated our exclusive majority representative status
pursuant to a Board-conducted election among the employees of the said
company.
WE WILL NOT give effect to the collective-bargaining agreement dated June 9,
1964, between Vera Ladies Belt & Novelty Corp., and ourselves, or to any exten-
sion, renewal , or modification thereof.
WE WILL NOT in any like or related manner cause or attempt to cause Vera
Ladies Belt & Novelty Corp., its officers, agents, successors, and assigns to dis-
criminate against any employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT restrain the employees of Vera Ladies Belt & Novelty Corp., by
assaulting them, obstructing. or impeding employees from entering or leaving the
company's premises or by obstructing or impeding supervisors or officials of the
company from entering or leaving the company 's premises.
WE WILL NOT in any like or related manner restrain or coerce the employees
of Vera Ladies Belt & Novelty Corp., in the exercise of the rights guaranteed in
Section 7 of the Act.
LOCAL 29, RETAIL, WHOLESALE & DEPARTMENT
STORE UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500.
Auburn Rubber Company, Inc . and General Teamsters Industrial
Employees, Local Union No. 292 and United Rubber, Cork,
Linoleum and Plastic Workers of America , AFL-CIO. Cases
Nos. 28-CA-925 and 28-CA-927. December 33, 1965
DECISION AND ORDER
On July 22, 1965, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respondent
156 NLRB No. 30.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the consolidated amended complaint
and recommended dismissal of those allegations. Thereafter, the
Respondent and the General Counsel filed exceptions to the Decision,
accompanied by briefs.
-Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case and hereby adopts the Trial Examiner's findings,2 con-
clusions, and recommendations, as modified hereinafter.
1. While otherwise agreeing with the Trial Examiner's rationale
for the Board not deferring to the arbitrator's award with respect to
the unlawful discharge involved herein, we do not rely on that portion
of his reasoning which is bottomed on the fact that the Rubber
Workers, not a party to the existing collective-bargaining contract, had
not agreed to be bound by the arbitration proceeding. We agree with
the Trial Examiner that the arbitrator's decision, as it pertains to the
independent Section 8(a) (1.) and (2) issues here, should not be
honored for the reason that such issues were not submitted to the arbi-
trator for adjudication and for the additional reason that such issues
did not.involve any question of interpretation or application of the
collective-bargaining agreement.
2. In agreeing with the Trial Examiner that the Respondent ren-
dered unlawful assistance to the Deming Employees Association in
violation of Section 8 (a) (2), we rely principally on the fact that, at
the time Mrs. Randall played a leading role in the organization of the
assisted union, she exercised supervisory authority by hiring job
applicants.
3. In agreeing with the Trial Examiner that the Respondent dis-
charged the six employees involved here because of their adherence
1 We hereby overrule the Trial Examiner 's refusal to accept in evidence the Respond-
ent's Exhibits Nos. 1 through 4, being the collective -bargaining contract between the
Respondent and the Teamsters and certain pleadings in a court proceeding and related
documents referred to in the Trial Examiner 's Decision . They are hereby made part of
the record in this proceeding . We have considered these exhibits in reaching our decision.
. 2 In the absence of exceptions to the Trial Examiner 's findings , that the Respondent
did not ' engage in independent unfair labor practices encompassed by Section 8(a)(1)
other than those found , we adopt these findings pro forma.
AUBURN RUBBER COMPANY, INC. 303.
to the United Rubber Workers or activity on its behalf and thus
violated Section 8(a) (3), we rely additionally upon undenied testi-
mony by John Dietrich, which we credit, to the effect that, in the
middle of February 1963 he was told by the Respondent's vice presi-
dent, Myers, that he knew who was at'the meeting of the Rubber
Workers and that the "layoffs" were because of union trouble and the
coming election.-
[The Board adopted the Trial Examiner's Recommended Order.]
MEMBER BROWN, dissenting in part:
While I agree with the majority in all other respects, unlike my
colleagues I would give binding effect to the arbitrator's determina-
tion that the alleged discriminatees were discharged for cause.
It has been the policy of the Board to withhold its authority to deter-
mine unfair labor practices and accept arbitration awards covering
the same'subject matter "unless it clearly appears that the arbitration
proceedings were tainted by fraud, collusion, unfairness , or serious
procedural irregularities or that the award was clearly repugnant to
the purposes and policies of the Act." 3 In the instant case, the award
was issued by an impartial third party on grievances originating with
the dischargees, following a proceeding which conformed fully to the
foregoing standards of acceptability. Where, as here, an award and
the underlying procedure cannot be faulted under these standards, it
is my belief-with due regard for the role of arbitration in furthering
the national policy promoting industrial peace and stability through
the collective-bargaining process-that the Board should defer to the
judgment of the arbitrator and extend binding effect to the results
of such voluntary settlement procedures.
For these reasons, I would honor the instant award, as fully con-
forming with the standards that the Board has, heretofore, regarded
as determinative on that issue, and dismiss the Section 8 (a) (3) allega
tions of the complaint.
3International Union, United Automobile , Aircraft and Agricultural Implement Work-
er8 of America, AFL-CIO, Local 98 (International Harvester Company ), 138 NLRB 923,
927; and James B. Carey, Pres . of International Union of Electrical, Radio and Machine
Workers, AFL-CIO v. Westinghouse Electric Corporation , 375 U.S. 261 , 270-271.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended , herein referred to as the Act, was heard before Trial Examiner William J.
Brown at Deming , New Mexico, April 5 to 9, 1965. The original charge of unfair
labor practice had been filed in Case No. 28-CA-925 on March 7, 1963, by General
Teamsters Industrial Employees , Local Union No. 292, herein referred to as the
Teamsters ; the original charge in Case No. 28-CA-927 had been filed March 8,
1963, by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-
CIO, herein referred to as the Rubber Workers. Thereafter, under date of August 6,
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963, the General Counsel of the National Labor Relations Board, acting through
the Board's Regional Director for Region 28, issued the original consolidated com-
plaint herein. It alleged the commission of unfair labor practices defined in Section
8(a)(1), (2), and (3) of the Act, including the discriminatory discharge or layoff
of, some 55 employees, on the part of the above-indicated Respondent, herein
referred to as Auburn. Respondent's duly filed answer denied the commission of the
unfair labor practices alleged and set forth certain affirmative defenses. Respond-
ent separately moved for a stay of proceedings on the grounds that issues contained
in the complaint were pending before the United States District Court for the Dis-
trict of New Mexico. Under date of September 20, 1963, Trial Examiner Wallace
E. Royster denied Respondent's motion to stay proceedings.
Thereafter, the amended complaint and notice of hearing in these matters was
issued January 22, 1965. It alleged, in addition to jurisdictional matter and super-
visory status on the part of certain of Respondent's officers and employees, unfair
labor practices in the nature of interrogation of employees concerning union activi-
ties, promise of benefits in reward for refraining from union activities , threats of harm
in the event one of the unions was successful in organizational efforts, domination and
support of an organization known as Deming Employees Association , and the discrim-
inatory discharge or layoff of six named employees in the period between November
1962 and February 1963. Thereafter Auburn filed its answer containing inter alia the
affirmative defense that all issues had been adjudicated in an arbitration proceeding,
this affirmative defense also being set forth in a motion to dismiss.
At the hearing the parties 1 appeared and participated as noted above; they were
accorded full opportunity to present evidence and argument on the issue. Subse-
quent to the hearing the General Counsel, the Teamsters, and the Respondent filed
briefs which have been fully considered. Upon the entire record herein, and on the
basis of my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
I find, in accordance with the pleadings and evidence herein, that Auburn is a
corporation organized under the laws of the State of New Mexico with its principal
office, plant, and place of business in Deming, New Mexico, at which place it is
engaged in the manufacture, sale, and distribution of rubber and plastic toys and
related products. During the 12 months preceding issuance of the complaint, Auburn
purchased goods having a value in excess of $50,000, and transported to its Deming
plant directly from States other than New Mexico; during the same period Auburn
manufactured, sold, and distributed products valued in excess of $50,000 and shipped
from the Deming, New Mexico, plant directly to States other than New Mexico.
The pleadings and evidence indicate, and Respondent does not contest, that it is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The
volume of interstate commerce involved is necessary and sufficient to warrant asser-
tion of jurisdiction on the part of the Board.
H. THE LABOR ORGANIZATIONS INVOLVED
I find, in accordance with the pleadings and evidence herein, that the Teamsters
and the Rubber Workers are labor organizations within the purview of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Auburn was incorporated in 1959 to operate on behalf of the village of Deming
industrial properties which had theretofore been engaged in Auburn, Indiana, since
1910 in the manufacture and sale of various rubber and plastic products.2 The relo-
cation of the Indiana properties in Deming was the result of a program instituted
i No appearance was entered for the Rubber Workers ; Attorney Neumeyer appeared
without objection , as counsel for alleged diseriminatees , all of whom reside in the area
about Hatch , New Mexico , some 48 miles from Deming and about 36 miles from Las
Cruces, New Mexico.
2Auburn appears to have a minimal capitalization and to be in effect a management
company acting as operating agent for the village of Deming.
AUBURN RUBBER COMPANY, INC. 305
by and among various Deming businessmen as a means of diversifying the economic
potentialities of the area. Richard J. Hodson, who later became Auburn's president,
appears to have been one of the leaders in this program of industrial expansion and
to have played a prominent role in the enactment of enabling legislation and the
acquisition of capital contributions from a group of some 2 dozen Deming business-
men. Prior to the advent of Auburn to the Deming area there had been earlier like
industrial relocations to Deming, Tilton Rocket and Hydrotest Company. In con-
nection with the move of the Indiana properties to Deming the village of Deming
issued $15 million of its revenue bonds of which $3 million class A first mortgage
bonds were sold to the Central States Southeast and Southwest Pension Fund, a
joint employer-union fund, all the participating employers having agreements with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America.3
Shortly after the establishment of Auburn at Deming, the Rubber Workers com-
menced an organizational -campaign and filed a representation petition under the
Act. The Teamsters intervened, were eventually certified by the Board, and entered
into an agreement with Auburn on October 24, 1960, for term expiring December 31,
1962. During the pendency of that agreement, on May 14, 1962, the Teamsters
and Auburn entered into a new 2-year labor agreement for a term to expire May 14,
1964.
In the fall of 1962, the Rubber Workers organizational efforts increased and on
October 12, 1962, the Rubber Workers filed a representation petition. On Janu-
ary 28, 1963, the Board held the existing agreement with the Teamsters no bar
because it was a premature extension of the earlier agreement and directed an
election. Shortly prior to the direction of election an organization of Deming
employees known as Deming Employees Association 4 had come into being and had
secured, on February 11, 1963, recognition from Auburn as the exclusive collective-
bargaining agent for office and clerical employees. On February 13, 1963, the
Board denied the Deming Employees Association a place on the ballot in the pending
election which was held on February 27, 1963.5
The Teamsters filed objections to the conduct of the election on March 6, 1963,
and almost immediately thereafter filed the initial charge in the present case, a filing
which was followed immediately by the Rubber Workers' filing of the charge in
Case No. 28-CA-927.
Thereafter sometime in April 1963 the Teamsters filed a suit in the United States
District Court for the District of New Mexico seeking an order requiring Auburn
specifically to perform the 1962 agreement which had been held by the Board to be
no bar. Following Auburn's answer the Teamsters, on June 11, 1963; filed a motion
for summary judgement. On August 6, 1963, the original complaint in the instant
proceeding was issued and shortly thereafter, on August 12, 1963, the United States
district court entered an order requiring Auburn to perform the terms of its agree-
ment with the Teamsters. On August 20, 1963, Auburn and the Teamsters entered
into an agreement to arbitrate certain issues, including discharges of employees ter-
minated or laid off in the period between October 1962 and March 1963. From
September 10, 1963, until sometime in mid-October 1963, arbitration hearings here
held resulting in an award served on the parties on March"6, 1964.
On January 5, 1965, the Rubber Workers' representation petition was withdrawn
with approval of the Board and on January 22, 1965, the amended complaint in the
instant proceeding issued. The complaint alleges various acts of interference in the
period and a single instance of warning of shutdown of the plant if the Rubber
Workers won and a strike if the Teamsters won the impending election. It also
alleges the sponsorship, domination, and support of the D.E.A. through the agency
of various officials and agents of Respondent. Finally, it alleges the discriminatory
layoff. or termination of six employees in the period November 1962 and ending
February 21, 1963.
Issues as to the supervisory status of certain individuals were considerably dissi-
pated by stipulations entered into at the hearing. We are concerned herein chiefly
with Auburn's manufacturing operations which come under the general direction of
Executive Vice President Max Myers,. a supervisor. In addition to Myers, the par-
ties agree that the following are supervisors: Joe Gallegos; Weldon May, John Simp-
8 This $3 million indebtedness had been reduced by October 1962 to $2,660,000.
4 Herein referred to as "D.E.A."
5 The results (inconclusive) as follows : Rubber Workers 93; Teamsters 67; neither
union 46; challenged ballots 51; approximate number of eligible voters 228.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son, Art Dyer, Charles Hornett, Dick Loy, and Don Heuer, all of whom except for
Personnel Manager Loy, worked at material times in Auburn's manufacturing
operations.
B. The arbitration proceedings as a defense
As noted above the Teamsters filed their suit in United States District Court for
the District of New Mexico sometime in April 1963. The complaint alleged the
certification of the Teamsters, the execution of the agreement of May 14, 1962, the
inconclusive results of the February 27, 1963, Board election, and a refusal of Auburn
to honor the agreement from and after March 1, all culminating in a request for a
mandatory injunction requiring Auburn to comply with the terms of the collective-
bargaining agreement.6 Auburn thereafter filed its answer and on June 11, 1963,
the Teamsters filed their motion for summary judgment.? On August 12, 1963, the
court signed an order to the effect that Auburn specifically perform the terms and
conditions of its agreement with the Teamsters and remit to the Teamsters moneys
held as membership dues under the checkoff provisions of the agreement. The court
ordered a further report of compliance at the expiration of 60 days from its August 12
entry.8
On August 20, 1963, Auburn and the Teamsters executed a written agreement to
arbitrate, reciting that it was entered into pursuant to the court order of August 12.
Designating Kenneth C. McGuinnes as arbitrator, the agreement stipulated that the
grievances submitted embraced 59 individual discharges, each case allegedly con-
trary to article XVI of the collective-bargaining agreement in reprisal for member-
ship in and activities on behalf of the Teamsters or Rubber Workers.
The arbitration agreement restricted arbitral matters to the 59 instances of dis-
charge or layoff of employees; it did not purport to confer on the arbitrator'juris-
diction to make an award concerning issues arising out of the organization or recog-
nition of the D.E.A. or of the numerous instances of alleged employer interference,
restraint, and coercion respecting employees' organization rights.
Shortly before the convention of the arbitration proceedings, the Teamsters, by
Attorney Guse, notified the Rubber Workers by letter dated August 28 of the forth-
coming arbitration proceedings and asserting that the Rubber Workers or their coun-
sel would be welcome as a participant in the proceedings. Under date of September 5,
attorneys for the Rubber Workers replied that they had instructed the employees
represented by them to fully cooperate in the arbitration proceedings but asserting
that the Rubber Workers would not have a representative at the arbitration in view
of the fact that they were not party to the court action.
When the issue of the arbitration proceedings was urged at the outset of the
hearing in the instant case as a bar to further consideration, I ruled, after full argu-
ment from all parties, the arbitration as no bar to adjudication of issues not
embraced within the scope of the agreement to arbitrate or any amendment thereof,
and likewise no bar to adjudication of the questions of discriminatory discharge of
employees who had, in effect, disaffiliated from the Teamsters 9 and had not partici-
pated in the arbitration proceedings.
The Respondent presented the testimony of Lawrence Parra, an occasional employee
of Auburn who acted as an organizer for the Rubber Workers in its 1962 campaign,
to the effect that he was given to understand by International Representative Rodriguez
of the Rubber Workers that the so-called Hatch group 10 should cooperate in the
arbitration. According to the testimony of Irene Serna, however, when Parra tele-
phoned her with instructions to see to it that the Hatch group cooperated in the
arbitration, she refused on the grounds that she would not cooperate in a Teamsters'
O The complaint , while alleging a refusal to process grievances, nowhere alludes to
arbitration.
7 The motion prayed generally for an order of specific performance and particularly for
payment of escrowed membership dues.
8 The record indicates that the court was advised of the arbitration after conclusison
of the hearing but before the award. Auburn did not appeal the order of summary
judgment.
0 Each alleged discriminatee had, at hiring, signed checkoff cards for the Teamsters
pursuant to the union-security provisions of the agreement with annual automatic re-
newal provisions. These would not preclude the processing of their unfair labor practice
cases.
10 See footnote 1, supra. Auburn's employees were initially recruited; in part, from
areas outside of Deming. In addition to Hatch and Garfield, employees resided in Lords-
burg (59 miles distant), Bayard, and Hurley (41 miles distant).
AUBURN RUBBER COMPANY, INC. 307
proceeding. Parra then informed her that Rodriguez had instructed him to secure
the cooperation of the girls. Serna further testified, however, and I credit her in
these matters, that when she called Rodriguez the following day he denied having
such a conversation with Parra. The reluctance and ultimate refusal of the Hatch
group to participate in the arbitration is also indicated by the testimony of Marion
Gonzalez, who, dubious of Parra's assertions that Rodriguez desired their coopera-
tion, questioned Serna in this regard and was told by Serna that Rodriguez had not
authorized Parra to solicit the cooperation of the Hatch group in the arbitration.
Consuela Pina and Erlinda Pina also testified that they refused to participate in
the arbitration proceeding because they did not want to be associated with the
Teamsters' arbitration and because they had at that time given their sworn state-
ments to the Board agent in the pending case.
It appears from the arbitrator's decision, Respondent's Exhibit No. 14, that the
arbitrator's refusal to find impropriety in the discharge or layoff of the six members
of the Hatch group here involved, was based, in part, on the absence of testimony
from them. The record leaves no doubt but that the six alleged discriminatees here
involved were Rubber Worker adherents at all material times. While one or two
of the Hatch groups made oral protest to a Teamsters' steward after their discharge,
they never filed a written grievance nor were the prearbitration steps of the agree-
ment observed as their discharges."
The General Counsel vigorously contends that the arbitration urged as a bar to
adjudication of the unfair labor practices in the instant case, fails to meet each and
every one of the three standards set forth in the landmark Spielberg Manufacturing
Company case, 112 NLRB 1080: (1) fairness and regularity on the face of the
proceedings, (2) unanimous agreement of all the parties to be bound, and (3) a
resultant award not clearly repugnant to the purposes and policies of the Act. I
appraise the evidence in the instant case as insufficient to warrant a finding respecting
fairness and regularity of the proceedings, or the compatibility of the award with
the statute. It is sufficient that the Rubber Workers had not agreed to be bound by
the award and had declined to participate in the proceedings. Although they may
have, unsuccessfully, urged the alleged discriminatees to participate, in fact the
alleged discriminatees steadfastly refused to participate on the grounds that they had,
by the time of the convention of the arbitration proceedings, placed their cases in the
hands of the General Counsel. I regard the arbitration and the resultant award as
no bar to adjudication of the issues in the present case. It would appear on its face
to be improper to withhold the Board's adjudicatory hand in a case where the ques-
tion of interference with Rubber Workers' sympathies was arbitrated between the
Company and the Teamsters. In this regard, it is quite clearly a gross exaggeration
to say that the district court ordered arbitration of the issues herein adjudicated.
C. Interrogation, promises, and threat
The complaint alleges in paragraphs 9 through 12, inclusive, unfair labor practices
in the nature of interference with and restraint and coercion of employees in their
self-organizational rights under the Act allegedly engaged in by supervisory employ-
ees of Auburn on various dates in February 1963.12
1. Interrogation concerning union matters
Supervisors Joe Gallegos, John Simpson, Weldon May, Art Dyer, and Tommy
Hickerson, and Personnel Director Loy 13 are alleged to have interrogated employees
concerning their union membership, activities, and desires. The record is devoid of
evidence relating to interrogation on the part of Simpson or Hickerson.14 With
u The Teamsters ' brief refers to "grievances filed in their behalf."
15 While the complaint does not allege surveillance or the creation of an impression
of surveillance , General Counsel 's brief appears to charge Auburn with this type of unfair
labor practice, relying on the testimony of a nonemployee, John Dietrich, as to a con-
versation with Vice President Myers and on the transmission of a letter (General Coun-
sel's Exhibit 8) by Hodson to a business associate. These. create a suspicion but not
proof of interference with employees.
18 Allegations respecting Loy were added by amendment to the complaint at the outset
of the hearing.
14 The allegations respecting Hickerson were dismissed by me at the conclusion of the
General Counsel's case.
217-919-66-vol. 156-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to Gallegos, the General Counsel called' as a witness Auburn employee Con=
cepcion Terrazas, who worked under Joe Gallegos as her foreman but` who did not
remember whether or not he discussed with her the matter of her `vote in the then
scheduled election. Velma Whitehead, a factory employee, testified concerning a
conversation with Foreman Weldon May a few weeks before the election but the
conversation, according to her account, does not appear to embrace interrogation.15
She also credibly testified that in mid-February 1963, Personnel Director Loy asked
her what the people were saying and thinking as to the election.
With respect to alleged interrogation on the part of ` Art Dyer, the testimony of
General Counsel's witnesses Vega, Antonia Nunez, and Irene Serna suffice to make.
out instances of interrogation on the part of Art Dyer. Vega credibly' testified, in
fact his testimony was undenied since Dyer was not called as a witness, that shortly
before the election Dyer asked him how he would vote, and when Vega responded
that he would vote for "no union," Dyer expressed his approval thereof. In like
fashion Antonia Nunez testified as to a conversation at work-a few days before the
election in which Dyer asked what she thought about the Union, who she was for,
and whether Irene Serna was for the Teamsters. Antonia Nunez was a thoroughly
credible witness and her testimony was not denied by. Dyer. Serna independently
testified to a conversation with Art Dyer in the plant in, which Dyer asked her inten-
tions as to voting in the forthcoming election.
In accordance with the foregoing analysis of the evidence, I find that the allega-
tions of the complaint are sustained with respect to alleged interrogation on the
part of Dick Loy and Art Dyer; evidence is wanting to sustained alleged interrogation
through the agency of Joe Gallegos, John Simpson, Weldon May, and Tommy
Hickerson.
2. Promise of benefits to refrain from union activity
While paragraph 10 of the complaint sets forth four specific 'allegations of prom-
ises of benefits on the part of supervisory employees Dyer, Hickerson, May, and
company President, R. J. Hodson, on specific dates in February 1963, General Coun-
sel's brief refers to no testimony in support of the allegations other than that of
Antonia Nunez concerning the conversation with Dyer referred to above, and to
General Counsel's Exhibit No. 4. This latter is a letter sent to employees about 10
days before the election which assures them that they would not lose their benefits
even if a majority voted "no union" and that rates would be raised on April 1 in
accordance with the terms of the existing agreement. Particularly, in view of the
assurances elsewhere contained throughout the letter of a willingness to abide by
a majority choice, it cannot be concluded that this amounted to an unlawful promise
of benefits.
There remains for consideration the testimony of Antonia Nunez to the effect that
at the termination of his inquiries above-referred to, Dyer said that he would guaran-
tee her that everything would be perfect if she voted "no union." She-was a credible
witness and Dyer did not testify. There is no doubt that this assurance, while rather
vague and indefinite, was an improper attempt to influence her vote and hence an
instance of proscribed interference within the scope of Section 8(a) (1).
3. Warning employees of adverse consequences of union success in the election
Paragraph 12 of the complaint alleges that Art Dyer, on or about February 21,
approximately a week before the election, warned employees that if the Rubber
Workers won the forthcoming election the plant would be shut down, and if the
Teamsters won there would be a strike. The sole witness with respect to these
charges appears to be Antonia Nunez. She was a thoroughly credible witness and
testified that a few days before the election, while at work, Dyer told her that if the
CIO; i.e., the Rubber Workers, won the election the plant would be closed and if the
Teamsters won there would be a strike. Dyer did not testify. I credit Nunez' testi-
mony and find these allegations of the complaint sustained by it.
General Counsel's brief also points to testimony of Velma Whitehead concerning
utterances of Weldon May and that of Martin Vega concerning utterances of Charles
Hornett. May is alleged to have said: "We can get along without the big unions
. they can hurt you and me ...... ; Hornett is alleged to have said when notifying
Vega of his discharge, "They are going to close the plant, anyway." It would appear
difficult to construe Hornett's remark as a threat of shutdown as a reprisal for Rubber
Workers' support. With respect to May's statement to Velma Whitehead, the obser-
15 See paragraph 3, infra.
AUBURN RUBBER COMPANY, INC. 309
vation that the big unions could hurt is plainly an instance of interference which,
while not alleged in the complaint was litigated at the hearing, and it also constituted
an unfair labor practice within Section 8 (a) (1) of the Act.
D. Sponsorship of the Deming Employees Association
The constitution and by-laws of the Deming Employees Association appear to
have been drafted on January 5, 1963, and executed by the organizers on February 6,
1963. The organizers were Joe D. Olsen, identified in the testimony as a plant elec-
trician, Edgar Davalos, quondam steward for the Teamsters, and Fern Dull, who
appears to have been a production employee of Auburn at times material to the-
issues herein. -
It appears om stipulation of the parti +' 4at John Reeve was the principal
solicitor of inrmbers;zip in the D.E.A. The evidence indicates that up until Feb-
ruary 1, 1963, John Reeve had been a foreman in the production department and
on that date he was transferred to the job of expeditor in the methods and standards
operation. The evidence also indicates Reeve secured the assistance of Betty Randles,
Jean Grimm, and Alice Webb, office employees of Auburn, who secured the signa-
tures of some 29 out of the 30 office employees. Solicitation occurred on company
premises and, in fact, in the office of the personnel department. On February 11,
Auburn recognized the D.E.A. as the exclusive collective-bargaining agent for office
and clerical employees. As pointed out above the Board, on February 13, 1963,
denied the D.E.A. a place on the ballot in the election.
The key figures in the rise to prominence of the Deming Employees Association
appear to have been Betty Randles and John Reeve. Betty Randles, Auburn's
employment manager, appears to be a key figure in the initial employment and ulti-
mate separation of Auburn employees, although the evidence is wanting to indicate
that she has any supervisory functions in other respects. Betty Randles was aided by
Jean Grimm, wife of Robert Grimm, a product development executive of Auburn,
and secretary to Max Myer, executive vice president of the Company. Reeve's status
appears to have been a key one in Auburn's operations of sufficient importance that
Max Myer, on February 1, posted a notice in the plant announcing his transfer from
production foreman to methods and standards as an expediter with the information
that his new duties would require his working all three shifts. Reeve appears to
have been the one to arrange for the preparation and distribution of authorization
cards and to have presided at the initial organizational meeting of the D.E.A. which
was held at Jean Grimm's home.
The evidence, in short, with respect to the rise to power of the Deming Employees
Association preponderates in favor of the conclusion that its success in securing an
overwhelming membership among the office force and ultimate recognition from
Auburn was attributable to the dominating influence of Reeve.
As a former supervisor and one intimately associated with management operations,
Reeve would inevitably carry into his D.E.A. organizational efforts the influence that
goes with his intimate association with top management. The same can be said for
Betty Randles who worked directly under the personnel officer, Loy, and would be
naturally regarded by the rank and file as closely associated with employment, pro-
motion, discharge, and discipline. In similar fashion the active participation of
Jean Grimm, whose husband Robert Grimm held a high position in the company's
methods and standards operations, could also be regarded as linked to Auburn's
top management. In this regard see International Association of Machinists, Tool
and Die Makers Lodge, No. 35 (Serrick Corp.) v. N.L.R.B., 311 U.S. 72.
I find that the participation of Reeve, Randles, and Grimm in the organizational
effrts of the D.E.A. could well be regarded by the rank and file as interference by
Auburn management in the D.E.A. Their activities plainly have constituted man-
agerrient support and assistance to the D.E.A. and I find that thereby Respondent
enraged in the unfair labor practice defined within the Section 8(a) (2) of the Act
and alleged in the complaint.
E. The discriminatory discharges
As summarized above, one of the principal issues in the instant case relates to
the discharge of six Auburn employees. Two of these, Marion and Benito Gonzales
were discharged about October 22, 1962, and the remaining four, Lillian Sanchez,
Erlinda and Consuelo Pina, and Irene Serna were discharged in February 1963, prior
to the election conducted on February 27.
The General Counsel contends that these employees were discharged because they
were among the Hatch group of employees which constituted the "hard core" of the
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rubber Workers' strength. The General Counsel also contends that consideration
of each individual instance of discharge will even more forcefully establish the dis-
criminatory character thereof. Respondent's contention is that each individual
named in the complaint was properly discharged for cause. In this regard a reso-
lution of the issues have been made somewhat difficult by some confusion of
Respondent's reasoning with respect to whether the discharges were, in fact, indi-
vidual discharges for individual shortcomings, or whether they were, as some evi-
dence might indicate, pursuant to a general reduction in force with consideration
.being given to individual shortcomings.
At the outset , I reject the General Counsel's analysis of the evidence as establish-
ing knowledge on the part of Auburn and its representatives that the Hatch group
constituted the hard core of the Rubber Workers' strength. General Counsel's reli-
ance upon General Counsel's Exhibit No. 3, a letter written by Hodson to a Deming
business man, which contains the expression of Hodson's understanding that the out-
of-town employees [i.e. those from Hatch, Bayard, and Hurley] constituted the hard
core of strength for the Rubber Workers since 1960, was, according to the credited
testimony of Hodson, based upon information given him by Rubber Workers' Rep-
resentative Rodriguez a day or two after the February 27 election. I do not find'
General Counsel's Exhibit No. 3 sufficient to establish knowledge on the part of
Auburn or its representatives, that the six discriminatees here considered were, as
part of the Hatch group, a part of the hard core of strength for the Rubber Workers
at the time material to their discharges.16
Turning to an analysis of each of the separations, they will be considered in chron-
ological order.
1. Marian Gonzalez: She was hired in January 1961 and lived in Garfield, a few
miles northwest of Hatch. She worked the second shift from 3 p.m. to 11 p.m.
throughout the term of her employment and worked as a molding machine operator
in department 35 under Foremen Weldon May and John Simpson. In October 1962
her department was fully manned with 30 molding machines and 1 operator assigned
to each machine. On October 10, after being solicited by Rubber Workers organizers
Parra and Perez and subsequently by Tony Rodriguez, she signed a card for the
Rubber Workers. Thereafter, according to her credited testimony, she attended
meetings of the Rubber Workers group at Irene Serna's house and an informal gather-
ing of the Rubber Workers group in the Hatch area met on one occasion at her
own house. Shortly after her signing with the Rubber Workers she talked to the
Teamsters' steward, Davalos, and registered a complaint about what she felt was
rough treatment from the supervisors. At that time Davalos said to her that maybe
the Company had found out about the cards that had been signed.
About 2 weeks before her discharge she was assigned as a relief operator with
the duty to relieve the regular machine operators on their lunch and break periods
and other absences.
Respondent's Exhibit No. 32 is a written "warning or reprimand" notice signed by
Marian Gonzalez, presumably on the date of the notice, January 2, 1962, referring
to her excessive absenteeism and the possibility of it costing her job if it continued.
In addition to this absenteeism reprimand there were several oral reprimands issued
to her during the period shortly before her discharge when she was assigned as a
relief operator . Her individual attendance record in evidence as Respondent's Exhibit
No. 43 shows 3-days absence in early June due to family sickness but no absences
thereafter up until the date of her separation.
On the day of her discharge, October 19, 1962, Marian Gonzalez was reassigned
from the relief operation assignment to the running of a regular machine. Shortly
before the quitting time of 11 p.m., she was approached at the machine by her fore-
man, Simpson , who told her to report to the office and get her check. In the ofrice
Tharp and Heuer were present. Simpson said, according to Marian Gonzalez, that
she was being let go because she had overstayed her break period. Marian Gor,Zalez
denied the charge and asserted that she had been particularly careful because of pre-
vious warnings on the subject.
Marian Gonzalez struck me not only as a credible witness but as a reliable person.
She testified that she had not overstayed her break on the day in question and had
been particularly careful about it. No one was called to refute her testimony.lT
19I also reject General Counsel's view that Auburn sought systematically to eradicate
the Hatch group by discharging these members thereof who owned or operated their
means of transportation. On the evidence it appears to be no more than conjecture.
19Neither Simpson , Tharp, or Heuer nor any fellow employees testified in refutation of
her testimony that she was told her discharge was due to overstaying her break.
AUBURN RUBBER COMPANY, INC. 311
The evidence to me preponderates in favor of the view that the assigned reason for her
discharge was not in fact, the real reason. The activities of the Rubber Workers in
the Hatch area were by no means covert. Davalos, who' appears to have played the
role of a double agent on more than one occasion throughout the events we are con-
cerned with here, and who would undoubtedly have an interest in dissipating Rubber
Workers strength, could have been the one who advised management of Marian
Gonzalez' interest in the Rubber Workers. In any event I find on the record that
she appears to have been a superior employee who was summarily discharged for a
reason shown by the evidence not to be genuine. I find and conclude that the only
logical explanation on the record is that she was, in fact, discharged because of her
substantial activity for the Rubber Workers.
2. Benito Gonzalez: Benito Gonzalez was hired in July 1961 and worked the
second shift as a machine operator in the injection department. His foremen at all
times were May and Simpson. He signed a card for the Rubber Workers on Octo-
ber 11, 1962, and, as is referred to in the-testimony of Marian Gonzalez, his wife,
there were some meetings of the Rubber Workers organizing group at his home.
According to Benito Gonzalez' testimony his production capacity was satisfactory as
is illustrated by the fact that when he was on incentive operation he always earned
the incentive. He was discharged on October 24, 1962, at the end of his shift when
his foreman, May, told him he could not use him anymore and directed him to go to
the office. There, in addition to May, Foremen Simpson and Tharp were present.
The management group told him that his production was poor and he pointed out
that for the week preceding that date he had been on a defective machine. His ter-
mination report, in evidence as Respondent's Exhibit No. 40, states that he was dis-
charged because he was not making standard production on the machine, and when
so notified, stated that he was not concerned about the matter. Simpson, May, nor
Tharp testified: I credit Benito Gonzalez', testimony, that he was assigned to a defec-
tive machine from which management should not have expected full production; . .
The situation with respect-to Benito Gonzalez is.that of an employee who, on the
testimony before me, is shown to have been a satisfactory employee whose rate of
earnings increased substantially during the period of his employment, who was rela-
tively active in organizational efforts on behalf of the Rubber Workers, to which
undoubtedly, on the record herein Auburn was hostile, and whose discharge occurred
under circumstances indicating that the assigned reason was not the true. reason; I
therefore find and conclude that he was, in fact, discharged because of his activities
on behalf of the Rubber Workers.
3. Lillian Sanchez: Lillian Sanchez, one of the employees resident in the Hatch area,
commenced work for Auburn in May 1961 and in February 1963 was working in
Auburn's department 45 under Foreman Dyer. She worked the second shift at all
times throughout her employment. On October 10, 1962 , she signed a card for the
Rubber Workers and attended meetings at homes-of the Hatch employee group. She
was laid off by Foreman Dyer at the end of her shift on February 13, 1963. Dyer
told her this was a temporary layoff, an understanding which Personnel Director Loy
confirmed about 2 days later when she went.back to the office to get her check.
The layoff of Lillian Sanchez appears to have been one of a relatively large number
of layoffs in early February 1963. President Hodson's testimony, which I credit, is to
the effect that a combination of the natural cyclical operations of '.the plastic toy
manufacturing industry together with individual financing difficulties at Auburn,
necessitated a substantial reduction in force in February. 1963. The depth of the
cut is shown by Hodson's testimony that of 340 employees in the production and
maintenance unit on October 1, 1962, only about 160 were still employed on Febru-
ary -27, 1963. Hodson's testimony also supports the conclusion that cutting across
the normal considerations of employee selection for layoff were undoubted.com-
mitments to the town of Deming to give preference if possible -to its citizens in employ-
ment inasmuch as the town had furnished not only the organizational spark but also
the bulk of the financing. In addition to the matter of preference for local, that
is Deming, employees, consideration was given to the absenteeism record of employ-
ees and it would naturally be expected, as appears, to be the case that there were
greater absenteeism problems among the Hatch group, because of the distance of
Hatch from Deming and because of the interdependence of several upon a single
motor vehicle. -
In determining the selection of employees to be reduced in connection with the gen-
eral reduction in force, Hodson gave general instructions tb Max Myers, vice presi-
dent in charge of manufacturing, as to the- number of employees that should be
reduced. There appears also to have been a major reorganization of the manufac-
turing operations with a discontinuation, of some departments and a consolidation
312 DECISIONS OF NATIONAL `LABOR RELATIONS BOARD
of'others. According to Hodson's testimony, which I credit, there were reductions in
force in the ' office staff and in the supervisors . Lillian Sanchez ' absentee record
is set forth in Respondent's Exhibits Nos. 29A-E and 34, the latter covering the year
1962. It seems to be substantial but- not startling, and there is not solid basis for
comparison with that of other employees
Shortly after her: layoff, Personnel Director Loy told her she was the first one on
the seniority list and she would be called back; as noted above, at the time of her
layoff, Dyer, her foreman, had given her similar assurances. The General Counsel
points to inconsistency between two company termination reports both, bearing-,
of February 13 and relating to the appraisal of Lillian Sanchez. One report in evi-
dence as General Counsel's Exhibit No. 20 signed by Foreman Dyer and approved
by the factory superintendent rates her as good in all the characteristics of conduct,
attitude, ability, and work and: states his willingness to have the employee return. The
second termination report bearing the same date and in evidence as Respondent's
Exhibit ,No. 35, is also signed by Dyer, lists her as only fair as to conduct, attitude,
and work but poor in ability; it states that Dyer would not desire her return and that
she was not suited for factory work.
The inconsistency in the two termination. reports of Foreman Dyer concerning
Lillian Sanchez , to say the least , raises a suspicion ; this suspicion does not appear to
,be entirely allayed by testimony' of Hodson concerning a change in instructions to
-foremen as to application of criteria for reemployability. On the record as a whole,
-I find' solid evidence 'that Auburn was motivated by hostility to the Rubber Workers
in her selection for layoff or and in the failure to recall her. While there is no doubt
but what there 'was a general economic layoff substantial enough in size to include
her;-the evidence of inconsistency in the termination reports, in my appraisal of it,
shows-that Auburn knew that"Lillian Sanchez was an adherent of the Rubber Workers
arid'discriminated against her for that reason . I base this conclusion ' on the demon-
strated` falsely 'of.the reasons assigned for-her layoff and failure to recall.
• The evidence; 'in niy. appraisal, pro'nderates in favor of the conclusion that she
was' discriminated against. because of -her Rubber Workers' support in selection for
layoff • and'in faildre'to recall her.' • '
4. Erlinda Pina : Erlinda Pina appears to'have been one of the earliest hires of
Auburn , commencing work ' in May 1960 . She worked continuously in the 'packing
department under various foreman including Gallegos, but some 2 weeks before her
separation-bn February 18 , 1963 , she had been assigned to the wheeling department
under Art Dyer . It appears that this transfer from packing to the wheel line occurred
in'-connection with the major reshuffling of all Auburn 's operations in the spring of
1963 and at the time she was given an option of staying in'the packing department
on the ' first shift. or working the second shift on the wheel line, the latter apparently
being her choice ' because - of her transportation arrangements . 'She signed a card
`for the Rubber Workers in early October 1962 but does not appear to have been
particularly.active in that union 's campaign.
On- February 11, 1963, Erlinda Pina, visited her physician in Hatch who advised
her that ' she should remain away from work for at least 5 days. She 'arranged for
the physician to sign a certificate ofillness with the prediction that she would prob-
ably be able to return to work about February 18. Erlinda Pina then called Auburn's
personnel 'office and talked 'to Betty Randles, explaining the situation and stating that
she would send' her' physician's certificate in With a fellow employee. According to
her testimony, 'which .I find' creditable, she did send.the slip in by fellow employee
Antonia Nunez. When she returned to her physician.for a checkup on'February 18
she,was informed that a telegram had'been"sent to her from Auburn Rubber advising
-her that she had been . released for. excessive absenteeism and failure to report.
There-appears to. have been no'question but that she was a satisfactory employee from
the' point,of view of work performance and that she received-many compliments on
her work. '
'With respect to any contention that excessive absenteeism was the real reason for
'her discharge,, it does appear from Respondent's Exhibit 41, the 1962 attendance
:record for Erlinda Pina, that she had a substantial number of absences although, here
again, there is no solid -basis for' 'comparison with other employees . In any event,
she testified , and her testimony is credited'and undenied , that Plant Superintendent
Huer' and.Supervisor Bob .Grimm informed the packing department -in early 1963
that 'they started, with a new-slate •'with respect to, absenteeism with the beginning of
1963. With*'respect to the failure to report, the record indicates that the action could
only have been taken upon the basis of the February' l 1- illness. I find her testimony
credible, however, to the effect that she did report and, indeed, her' account was not
denied by Betty Randles , who testified as to other aspects of her termination.
AUBURN RUBBER COMPANY, INC. 313
. In the case of Erlinda Pina the record , to me, indicates that the assigned reason for
her release could not, on the basis of the evidence herein, reasonably be accepted as
in fact the true reason. I conclude that hostility to the Rubber Workers is the only
logical explanation on the record herein for her discharge in view of her undenied
and credited testimony that she had even been praised as a good worker and the pre-
cipitate nature of and implausible reason for her release.
5. Consuelo Pina: She was one of the early hires at Auburn starting work in May
1960. She worked in department 40, the wheel line, under Foreman Art Dyer. I
credit her testimony that prior to her discharge on February 21, 1963, there had been
no previous complaints about her work and in fact, she had received compliments
from an earlier foreman, Gallegos; she had also been praised by Foreman Reeve. She
signed a Rubber Workers' card on October 10, 1962, and attended Rubber Workers'
meetings on two occasions at Irene Serna's house. As noted above, her testimony
is that she was discharged on February 21, 1963. While this was at or about the time
of the layoff in large numbers of other employees, her testimony would establish, in
fact, that she was discharged not as a part of a reduction in force but assertedly
because she was not making company standards. Her termination report in evidence,
signed by her foreman, Arthur Dyer, and approved by his superiors, rates her as fair
on conduct and ability but as poor on attitude and unsatisfactory as to work. Dyer's
signature on the report contains the certification that he did not want her to return
because of her poor attitude toward her assigned work. Dyer did not testify, nor did
Gallegos or Reeve.
In the situation of Consuelo Pina, the evidence to my mind preponderates in favor
of the conclusion that she was not, in fact, discharged because of any deficiency in her
production . In fact, she appears to have been a superior producer on the basis of
earlier estimates from her foreman ; she also was of such seniority that she would be
entitled to retention and service were it not for some undisclosed motivation. In view
of praise from earlier foremen it is not reasonable to my mind to accept the statements
on her termination report that she was released because of a poor attitude toward her
work. In view of Auburn's hostility to the Rubber Workers, which I find on the
record herein, and the demonstrated falsely of the assigned reason for her discharge,
I conclude that the evidence preponderates in favor of the view that she was , in fact,
discharged because of her membership in the Rubber Workers.
6. Irene Serna : She commenced work for Auburn in November 1961, and after
working for a period in the packing department , under Foreman Gallegos , she was
transferred to the wheel line where she worked under Foreman Dyer. Prior to her
separation , under circumstances herein after set forth, Irene Serna , according to her
testimony , which I credit, had never been warned about any deficiencies in her work-
manship and in fact had received compliments on her work and her advice had been
solicited by Supervisors Tharp and Reeve on the reason why other operators were not
producing the standard expectation . On another occasion Foreman Reeve, about a
month before her separation from the Company , assigned her to a particularly diffi-
cult operation on the basis of her ability and experience.
Irene Serna signed a card for the Rubber Workers on October 11, 1962, and
appears to have been one of the foremost employee workers for the Rubber Workers
in the organizational effort. She attended almost all the Rubber Workers' meetings
in her neighborhood, some of which were held at her home. She campaigned actively
-for the Rubber Workers in the plant cafeteria. She appears to have been suspected
by management of Rubber Workers' activity, as appears from Antonia Nunez' testi-
mony, that Dyer specifically asked as to the union sympathies of Irene Serna.
According to Serna's testimony, which I credit, she was called into the office about
2 minutes before quitting time by Dyer. Simpson was there also. Dyer said that he
was discharging her for not making company standards . I credit her undenied
'testimony however , that on the machine she was then operating there were no
specified production standards. Whereupon Irene Serna somewhat forcefully
expressed her view that Dyer was engaged in some relatively dirty work. She
threatened Dyer that he would be sorry and went out banging the door.
Although Respondent identified and introduced into evidence several absentee
reports for the year 1962, it appears that the last of these was in November, and it
does not appear to be contended that she was discharged on the basis of absenteeism.
Her termination report, signed by Dyer and approved by the supervisors above him,
rates her as fair or poor on employee rating criteria . It further states that she was
called into the office merely for a warning respecting company standards , whereupon
she called Dyer various derogatory epithets and threatened that he would be sorry,
whereupon he at once released her. Dyer did not testify nor did any of the other
supervisors who approved the report, or Simpson who was present in the room at
the time of the interview . I credit her account of the discharge discussion.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of her substantial activity on behalf of the Rubber Workers, including her
campaigning in the plant and Respondent 's efforts to learn her sympathies, and in
view of the fact that Respondent's account of her separation does not hold water, I
find that she was, in fact, discharged because of her activity on behalf of the Rubber
Workers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent employer set forth in section III, above, and
therein found to constitute unfair labor practices defined in the Act, occurring in
connection with the operations of the Respondent employer outlined 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 burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
In view of the findings herein that Respondent has engaged in certain of the unfair
labor practices alleged in the complaint, I shall recommend that Respondent be
required to cease and desist therefrom, and take certain affirmative action as appears
necessary and appropriate to effectuate the purposes and policies of the Act. In view
of the above finding that Respondent had discriminated with respect to tenure of
employment with respect to employees because of their activities on behalf of the
Rubber Workers, I shall recommend that Respondent be required to offer them rein-
statement to their former or to substantially equivalent positions, and make them
whole for loss of earnings in accordance with the remedial policies outlined in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent employer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Rubber Workers and the Teamsters are labor organizations within the
meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their membership in or sympathies for
the Rubber Workers or the Teamsters, by promising benefits in the event the fore-
going unions were unsuccessful in a Board election, and by threatening adverse conse-
quences in the event of the aforesaid labor organizations were successful in the
election , Respondent has engaged in unfair labor practices defined in Section 8 (a) (1)
of the Act.
4. By the participation of management representatives in the organization and
operations of Deming Employees Association , Respondent has engaged in unfair
labor practices within the scope of Section 8(a) (2) of the Act.
5. By discharging or laying off employees Marion Gonzalez , Benito Gonzalez,
Lillian Sanchez, Erlinda Pina, Consuelo Pina, and Irene Serna and refusing thereafter
to reinstate them because of their activity on behalf of or sympathy for the Rubber
Workers, Respondent has engaged in unfair labor practices defined in Section 8(a) (3)
and (1 ) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Except as specifically found herein , Respondent has not engaged in unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this proceeding, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that Respondent, Auburn Rubber
Company, Inc., Deming, New Mexico, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees concerning membership in or activities on behalf of
the Rubber Workers or the Teamsters, promising benefits in the event either of said
labor organizations fails in efforts to secure representation rights, or threatening
employees with reprisals in the event either of said labor organizations succeeds in
securing representation rights.
AUBURN RUBBER COMPANY, INC. 31 5
(b) Discouraging membership in or activities on behalf of the Rubber Workers,
or any other labor organization of its employees , by discharging or in any other
manner discriminating against employees with respect to hire, tenure or terms or
conditions of employment , except as may be in accordance with the terms of an
agreement lawfully entered into pursuant to the provisions of Section 8(a)(3) of
the Act.
(c) Sponsoring, promoting , assisting , or contributing support to the Deming
Employees Association or any other labor organization by participation of super-
visors, or other management agents in the organization or operation of such a labor
organization.
(d) In any other manner interfering with, restraining , or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Benito Gonzalez , Marion Gonzalez, Consuelo Pina , Erlinda Pina,
Lillian Sanchez , and Irene Serna immediate reinstatement to their former or sub-
stantially equivalent positions , without prejudice to their seniority or other rights
or privileges , and make them whole for any loss of pay suffered by reason of
Respondent 's discrimination against them in the manner and to the extent set forth
in the section of this Decision entitled "The Remedy."
(b) Notify any of the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended , after discharge from the Armed Forces.
(c) Withdraw recognition of D.E.A. as representation of any of its employees
and all employees of such withdrawal.
(d) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze and
give effect to the backpay due under the terms of this Recommended Order.
(e) Post at its plant in Deming , New Mexico, copies of the attached notice marked
"Appendix ." 18 Copies of said notice to be furnished by the Regional Director for
Region 28, shall , after being duly signed by the authorized representative of Respond-
ent, be posted immediately upon receipt thereof, and be maintained for a period of
60 consecutive days thereafter , in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 28, in writing , within 20 days from
the receipt of this Decision , what steps have been taken to comply with the provisions
hereof 10
is If this Recommended Order is adopted by the Board , the words , "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in such notice . If this Order is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by substituting for the words "a Decision and Order"
the words , " a Decree of the United States Court of Appeals , Enforcing an Order."
zs If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director , in writing, within 10 days from the date of
this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against employees because
of their membership in or activities on behalf of United Rubber , Cork, Linoleum
and Plastic Workers of America , AFL-CIO, or any other labor organization.
WE WILL offer reinstatement with backpay to Benito Gonzalez, Marion Gon-
zalez, Lillian Sanchez, Erlinda Pina, Consuelo Pina , and Irene Serna.
WE WILL NOT interfere with or support the Deming Employees Association,
and WE WILL withdraw recognition of it as representative of office employees.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any way interfere with , restrain , or coerce employees in the
exercise of the rights guaranteed under the National Labor Relations Act, as
amended.
AUBURN RUBBER COMPANY , INC:,
Employer.
Dated------------------- By-----------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 1015
Tijeras Street NW ., Albuquerque , New Mexico , Telephone No. 247-.031.1 , Extension
2520.
The Babcock & Wilcox Company and Local 901, International
Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers and Helpers, AFL-CIO, Petitioner . Case No. 10-UC=3.
December 23,1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (b) of the National Labor
Relations Act, as amended, a hearing was held before a Hearing Officer
of the National Labor Relations Board. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. Thereafter, the Employer filed .a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act and it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. This proceeding involves the Brunswick, Georgia, plant of the
Employer, where it is engaged in the manufacture of boilers and
related products. Since March 17, 1958, the Petitioner has been the
certified bargaining representative of the following unit :
All production and maintenance employees at the Employer's
Brunswick, Georgia, plant, including storeroom employees and tool
attendants, and excluding office clerical employees, guards, leadmen,
and supervisors as defined in the Act.
On June 22, 1965, the Petitioner filed a petition seeking clarification
of the above unit to include the "planning and sequence men." The
Employer's title for this job is "estimator planner." The Petitioner
contends that the work performed by the estimator planners is the
same as that done by layout men who are included in the unit.
Prior to January 1964, the work of the layout men, who are included
in the bargaining unit, consisted of receiving and sorting billing mate-
156 NLRB No. 21.