Automotive Proving Grounds, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1962

139 N.L.R.B. 431 (N.L.R.B. 1962)

AUTOMOTIVE PROVING GROUNDS, INCORPORATED 431
All our employees are free to become, remain , or refrain from becoming mem-
'bers of International Leather Goods , Plastics & Novelty Workers' Union , AFL-CIO.
SAVOY LEATHER MFG. CORP,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office, 24 School Street,
Boston 8, Massachusetts , Telephone Number, Lafayette 3-8100, if they have any
question concerning this notice or compliance with its provisions
Automotive Proving Grounds, Incorporated and United Rubber,
Cork , Linoleum and Plastic Workers of America, AFL-CIO
Armstrong Tire and Rubber Company and Louie E. Wright and
Herman Lloyd
Automotive Proving Grounds, Incorporated and Armstrong Tire
and Rubber Company , Armstrong Tire Test Fleet and Louie
E. Wright, Paul B. Smith, and Fred W. Geissler. Cases Nos.
16-C A-1492, 16-CA-1551, and 16-CA-1552-N-3. October 24, 1962
DECISION AND ORDER
On June 6, 1962, Trial Examiner John C. Fischer issued his Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent Automotive Proving Grounds, Incorporated had engaged in cer-
tain unfair labor practices and recommending that they cease and
desist therefrom and take affirmative action, as set forth in the attached
Intermediate Report. He also found that the Respondents named
in Cases Nos. 16-CA-1551 and 16-CA-1552-2-3 had not engaged in
certain other unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the Respondents and
the General Counsel filed exceptions and supporting briefs.
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 Leedom and Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
I A maj or portion of this Intermediate Report consists of some 18 pages from Respond-
ents' briefs and a portion of the General Counsel's brief, which the Trial Examiner states
he "adopts as his own" because he is "unable to improve on this recitation " of the facts
while it does not appear that this practice has resulted in prejudice to any of the parties,
Chairman McCulloch and Member Fanning do not believe that an Intermediate Report,
reciting and adopting to this unusual extent the allegations of either of the adversaries
in this proceeding , is a desirable exercise of the Trial Examiner's function to provide the
Board with his own recitation of the facts and recommended findings.
139 NLRB No. 33.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these cases, and, except as noted herein adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order, with the following modifications: 3
1. Following the word "Respondent" in the third line of opening
paragraph, insert the following : "Automotive Proving Grounds,
Incorporated, Pecos, Texas."
2, Revise paragraph 1(b) to read: "Threatening employees with
discharge or other economic reprisal if they join, retain membership
in, or engage in activity on behalf of the Union, or any other labor
organization of its employees; engaging in surveillance of union
meetings; threatening employees; and interrogating employees as to
their union membership, activities or desires, or as to the activities
of other employees, in a manner constituting interference, restraint,
or coercion in violation of Section 8(a) (1) of the Act."'
3, Delete from paragraph 1(c) of the Recommended Order the
proviso "except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized
in Section 8(a) (3) of the Act" and delete corresponding language in
the notice 4
4. Add the following as the second paragraph of the notice :
NE WILL NOT engage in surveillance of our employees' union
meetings.
5, Add the following paragraph immediately below the signature
the notice :
Noce.-We will notify the above-named employee, if presently
serving in the Armed Forces of the United States, of his right to.
full reinstatement -upon application in accordance with the Selec-
tive Service Act after discharge from the Armed Forces.
2 We deem it unnecessary to decide whether Respondents Armstrong and Automotive are
in fact as completely separate entities as found by the Trial Examiner For, accepting,
as we do, the credibility resolutions of the Trial Examiner, we find insufficient evidence
of any discriminatory motivation in Armstrong's shutdown at San Antonio and Autorno-
tive's commencement of operations at Pecos, including its staffing of that operation
While crediting Bechlin's denial of the statement attributed to him that but for "this
damned union activity we wouldn't have to move," the Trial Examiner notes that even
such a statement would not have been "actionable in this context." As stated, we are
accepting the Trial Examiner's credibility findings in the case and, for that reason alone,
find that Bechlin did not make statements violative of the Act
a For the reasons given in Isis Plumbing & Heating Co., Inc., 138 NLRB 716, we also,
order that the Respondent's backpay obligation include the payment of 6 percent interest
on the backpay due Griffin. Member Leedom, however, for the reasons stated in the
dissent in the aforementioned case, would not grant such interest.
* Texas has a right-to-work law ; See Nebraska Bag Company, et at., d/b/a Nebraska
Bag Pm ocessing Company, 122 NLRB 654, 656
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 433
6. Change the penultimate sentence of the notice to read : "This
notice must remain posted 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by United Rubber , Cork, Linoleum and Plastic Workers
of America, AFL-CIO, and Louie E. Wright, Herman Lloyd , Paul B . Smith, and
Fred W. Geissler, individuals , the General Counsel of the National Labor Relations
Board, by the Regional Directors for the Sixteenth and Twenty-third Regions, issued
complaints against Automotive Proving Grounds, Incorporated , and Armstrong
Tire and Rubber Company, herein called Respondents , alleging that Respondents
had violated Section 8 ( a)(1) and (3) of the National Labor Relations Act, as
amended ( 61 Stat . 136, 73 Stat. 519), herein called the Act
Three complaints have been consolidated by the General Counsel as the basis
for this proceeding . The first of these complaints (Case No. 16-CA-1492) was
issued on July 5, 1961, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), upon a charge filed by the United Rubber , Cork, Linoleum and
Plastic Workers of America, AFL-CIO, on May 29, 1961 . The complaint named
Automotive Proving Grounds, Inc., as Respondent and alleged that Respondent
had engaged and was engaging in certain unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) of the Act. The second complaint
(Case No. 23-CA-1184 ) was issued by the Regional Director for the Twenty-third
Region (Houston , Texas) on July 19, 1961, upon charges filed by Louie E. Wright
and Herman Lloyd dated March 20, 1961 , and amended May 4, 1961 . Therein
Armstrong Tire Test Fleet, Armstrong Tire and Rubber Company was named as
Respondent and it was alleged that Respondent had engaged and was engaging
in certain unfair labor practices affecting commerce within the meaning of Section
8(a) (1) of the Act. Thereafter, according to the ruling of Trial Examiner William
F. Scharnikow dated January 5, 1962, said case was transferred by the General
Counsel from the Twenty-third to the Sixteenth Region and thereafter was designated
as Case No. 16-CA-1551. The third complaint (16-CA-1552-2---3) was issued on
November 20, 1961, by the Regional Director of the Sixteenth Region upon charges
filed by Louie E. Wright, dated August 22, 1961, Paul B . Smith, dated September 19,
1961, and Fred W. Geissler, dated September 27, 1961. Both Automotive Proving
Grounds, Inc, and Armstrong Tire and Rubber Company were named as Respond-
ents therein , and it was alleged that Respondents had engaged and were engaging
in certain unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and (3) of the Act. On the 20th day of November 1961 , the Regional
Director for the Sixteenth Region also issued an order consolidating cases and
notice scheduling hearing thereon wherein he consolidated the three foregoing
complaints and ordered that the complaints be heard in a single proceeding. The
Respondents filed timely answers in which they denied the conduct alleged in the
various complaints . Respondents , by way of answers, admit the filing and service
of the charges, the commerce allegations of the complaints , and the fact that
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is
a labor organization within the meaning of the Act.
At the hearing held before Trial Examiner John C. Fischer at San Antonio and
Pecos, Texas. and Washington, D.C., on January 16 through February 2, 1962, the
General Counsel, Respondents , and the Union were represented by counsel. All
parties were afforded full opportunity to be heard , examine and cross -examine wit-
nesses , and to file briefs . Since the close of the hearing, briefs were received from
the General Counsel and the Respondents which have been duly considered
Upon the entire record in the case, and my observation of the witnesses, I make
the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Automotive Proving Grounds, Incorporated , herein called Proving
Grounds, is and has been at all times material herein a corporation duly or-
ganized under and existing by virtue of the laws of the State of Texas. At all times
material herein , Respondent has maintained its principal office and place of busi-
ness in the city of Pecos, State of Texas , and is and has been at all times ma-
terial herein continuously engaged at said Proving Grounds in the business of pro-
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viding and performing tire testing services and related services. The Respondent's
Proving Grounds located at Pecos, Texas, is its only facility involved in this pro-
ceeding. During each of the months of April and May 1961, Respondent in the
course and conduct of its business operations performed services valued in excess
of $50,000 for B. F. Goodrich Company and Armstrong Rubber Company. During
the first year of Respondent 's business operations it will perform services pursuant
to a contract for B. F. Goodrich Company and Armstrong Rubber Company, which
services will be valued in excess of $500,000 . Both of said B . F. Goodrich Com-
pany and Armstrong Rubber Company, each with principal office in Akron, Ohio,
annually, individually , and separately sells goods and merchandise consisting prin-
cipally of rubber products, outside of the States of Ohio and Texas, which goods
are valued in excess of $50,000. Respondent Automotive Proving Grounds, Incor-
porated, is now and has been at all times material herein , an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
Armstrong Tire Test Fleet, Armstrong Tire and Rubber Company is a Delaware
corporation having its principal office and manufacturing plant in Natchez, Missis-
sippi, and has, at all times material herein, maintained a tire test fleet branch in
San Antonio, Texas, where it was engaged, until on or about May 1, 1961, in the
business of testing tires and other automotive equipment and products , manufactured
by it and other manufacturing firms outside the State of Texas. During the past
12 months, which is a representative period, the Respondent manufactured, sold
and caused to be delivered to points outside the State of manufacture , products
valued in excess of $1,000,000. During the same period, the Respondent, in the
course and conduct of its business operations at its tire test fleet branch in San
Antonio, Texas, performed services for persons, firms, and corporations, each of
which has an annual direct inflow and outflow of goods, wares , and merchandise, in
interstate commerce , of a value in excess of $ 50,000. Now and at all times ma-
terial to the issues herein, the Respondent is and has been an "employer" as defined
in Section 2(2) of the Act and is and has been engaged in "commerce " and in oper-
ations "affecting commerce " as defined in Section 2(6) and (7) of the Act,
respectively.
II. THE LABOR ORGANIZATIONS INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 657, herein referred to as the Unions, are and have been at all
times material herein, labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The Preliminary Legal Maneuvering
For purpose of exegesis , the reader 's attention is directed to certain conditions
which prevailed in the progress of this case. Among these conditions were: the
hearing was held over a 3 weeks' span in San Antonio and Pecos, Texas, and Wash-
ington, D C. Considerably over 1,000 pages of testimony was taken, substantial
documentary evidence was introduced, previously litigated cases involving Arm-
strong were injected as background and numerous precedent decisions were cited,
outstandingly able and competent counsel spiritedly represented the parties con-
cerned and involved, and comprehensive and exhaustive briefs were submitted by
counsel for the General Counsel, Whittaker; Automotive Counsel McGuiness; and
Armstrong Counsel Keenan Further, the consolidated complaints were promptly
attacked by Respondent Armstrong necessitating referral by the Regional Director
for the Sixteenth Region to the Chief Trial Examiner, and by him to Trial Examiner
Scharnikow for disposition. Trial Examiner Scharnikow forthwith issued his memo-
randum decision and order dismissing Respondent Armstrong's motions-thus set-
ting the stage for my advent to hear the case on its merits. Upon release, on Janu-
ary 9, 1962, his decision, in which I concur, became part of the "public domain "
Accordingly, I shall reap a profit is prendre from such public domain, and set it
forth in haec verba, as necessary to a complete understanding of the case, as follows:
On December 1, 1961, the Respondent Armstrong filed three motions bearing
the respective captions, Motion To Dismiss, Motion To Strike, and Motion To
Sever. By the joint effect of these motions, Respondent Armstrong attacks the
Regional Director 's consolidation of the three above -entitled cases for hearing and
disposition , and also asks for the dismissal of the complaint against it in Case No.
16-CA-1552-2-3. The General Counsel has filed his opposition to the motions. But
no statement of position has been submitted either by the Respondent Automotive
Proving Grounds, Incorporated , or by any of the Charging Parties. Pursuant to
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 435
Section 102.25 of the Board 's Rules and Regulations , the motions have been re-
ferred by the Regional Director for the Sixteenth Region to the Chief Trial
Examiner.
In its Motion To Dismiss , the Respondent Armstrong asserts that the complaint
in Case No. 16-CA-1552-2-3 concedes that the Respondent Armstrong and the
Respondent Automotive are separate legal entities , and that by further alleging
simply that the Respondent Automotive is the de facto alter ego or agent of Re-
spondent Armstrong , the complaint improperly pleads "mere conclusions of law"
without supporting them with necessary factual allegations . For this reason, ac-
cording to Respondent Armstrong , "The complaint does not state a cause of action
against Respondent Armstrong ," and the complaint against it in this case should
be dismissed . In reply, the General Counsel asserts that "as alleged in paragraphs 2
through 5 [of the complaint], Respondent Armstrong and Respondent Automotive
Proving Grounds, Incorporated . . . are one and the same and therefore their
separate corporate entities are but a ruse and a fiction ." The General Counsel fur-
ther asserts that "the Complaint speaks for itself and ... [ that its] allegations of
facts setting forth the times, places and the joint commission of unfair labor prac-
tices by Respondent Armstrong and Respondent Automotive are legally sufficient.
The Board 's Rules and Regulations do not require the pleading of evidence."
The allegations of paragraphs 2 through 5 and 7 through 10 of the complaint in
Case No. 16-CA-1552 support the General Counsel's position . In my opinion, they
set forth with sufficient particularity the putative factual basis for the General Coun-
sel's contentions that, in the commission of the alleged acts of unfair labor practices
and in spite of their separate corporate identities , the Respondents Armstrong and
Automotive acted either jointly as a single employer or as principal and agent. I
shall therefore deny the Respondent Armstrong 's Motion To Dismiss the complaint
in Case No 16-CA-1552.
In its Motion to Strike, the Respondent Armstrong asks that all reference to Case
No. 16-CA-- 1551 be struck from the order consolidating the three cases. As its
grounds for this motion , it asserts that the complaint in Case No. 16-CA-1551 was
originally issued, "while the case still bore the designation 23-CA-1184 "; that this
complaint was withdrawn on October 27, 1961, by order of the Regional Director
for the Twenty-third Region; and that no other complaint has since been issued in
the case. In reply to this motion , the General Counsel asserts that on October 6,
1961, the charge in this case was transferred by the General Counsel from the
Twenty-third to the Sixteenth Region; that Respondent Armstrong was so notified
on October 20, 1961; and that the complaint against the Respondent Armstrong is
still pending and effective , since, in view of the prior transfer of the case to the Six-
teenth Region , the order of the Regional Director for the Twenty -third Region pur-
porting to withdraw the complaint on October 27, 1961 , was "inoperative , ineffec-
tual, and of no legal force or consequence."
The General Counsel's summary is accurate . The order of the Regional Director
for the Twenty-third Region purporting to withdraw the complaint in Case No.
16-CA-1551 was issued on October 27, 1961, following both the General Counsel's
transfer of the case to the Sixteenth Region and notice to the Respondent Armstrong
of the transfer . The Regional Director 's order of October 27, 1961, was therefore
a nullity and the complaint originally issued by him on behalf of the General Counsel
is still effective . Accordingly , I shall also deny the Respondent Armstrong 's Motion
To Strike from the order consolidating the three cases, the reference to, and the in-
clusion therein, of Case No. 16-CA-1551.
Finally, in its Motion To Sever, the Respondent Armstrong asks for the severance
of proceedings in Cases Nos. 16-CA-1492 and 16 -CA-1551 and rescission of the
Regional Director 's order of consolidation . In support of this motion, it contends
that:
(1) The "Board" has recognized the separate status of the Respondents Auto-
motive and Armstrong by the issuance of separate complaints and by recitals in the
order of consolidation of separate joinders of issues.
(2) "The allegations [of the complaint against Respondent Armstrong ] in Case
No. 16-CA-1551. . relate to events in San Antonio , Texas, and it is not alleged
that [ Respondent ] Automotive participated in or was in any way responsible for the
activities therein related."
(3) The Respondent Armstrong has not been served with a copy of the charge,
complaint , or any other pleadings in Case No. 16-CA-1492.
(4) The Respondent , however, is informed "that the allegations [ of the complaint
aginst Respondent Automotive ] in Case No. 16-CA-1492 relate to events in Pecos,
Texas, and that it is not alleged that [Respondent ] Armstrong participated or was
responsible for the activities alleged."
672010-63-vol 139-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) "No good cause has been shown why Respondent Armstrong should be put
to the expense, inconvenience and prejudice involved in participating in the trial of
Case No. 16-CA-1492, there being no assertion that it is in any way concerned with
the matters alleged in the complaint therein, and no good cause has been shown why
any of the above-captioned cases should be tried together."
In reply to this Motion To Sever, the General Counsel asserts that "a copy of the
Charge and Complaint in Case No. 16-CA-1492 are being served upon the Re-
spondent Armstrong and upon other parties who have not previously been served.
As alleged in paragraph 2 through 5, Respondent Armstrong and Respondent Auto-
motive Proving Grounds, Incorporated ... are one and the same and therefore
their separate corporate entities are but a ruse and a fiction."
The Respondent Armstrong's Motion To Sever raises the general question of
whether the three cases should be tried together as a matter of reasonable convenience
or necessity, or whether they should be severed because their common trial would
prejudice or involve unreasonable inconvenience or expense to the Respondent Arm-
strong. To decide this question, I have considered the allegations of the complaints
in each of the three cases in the light of the General Counsel's and the Respondent
Armstrong's opposing arguments.
From the complaints and the answers of the Respondents, it appears that the Re-
spondent Armstrong's tires were tested at a proving ground in San Antonio, Texas
[since the 1930's] until approximately May 1, 1961, but that, since then, they have
been tested at a proving ground in Reeves County near Pecos, Texas. The Re-
spondent Armstrong admittedly operated the San Antonio proving ground and is
charged by the complaint in Case No. 16-CA-1551 with having threatened its em-
ployees that they would lose their jobs because of union activities, when testing
operations were moved to Pecos. The complaint against Respondent Armstrong and
Respondent Automotive in Case No. 16-CA-1552, alleges that the Pecos proving
ground has been operated either jointly by the Respondents Armstrong and Auto-
motive or by the Respondent Automotive as the agent of the Respondent Armstrong,
and that both Respondents have committed unfair labor practices by refusing to hire
Respondent Armstrong's former San Antonio employees. The earlier complaint
in Case No. 16-CA-1492, which was based on charges against Respondent Auto-
motive alone, names only Automotive as the Respondent-Employer at the Pecos
Proving Ground and charges it with unfair labor practices in discriminatorily dis-
charging one employee for union activities and in otherwise interfering with its em-
ployees' exercise of their organizational rights under the Act.
From this brief summary of the gist of the allegations of the complaints, it is evi-
dent that the complaints in Cases Nos. 16-CA-1551 and 1552 raise the question of
whether the Respondent Armstrong, in the course of transferring its testing opera-
tions, first threatened its San Antonio employees with the loss of their jobs because
of their union activities, and then, after the transfer, carried out its threat as joint or
principal employer at the Pecos Proving Grounds by refusing to hire its former em-
ployees. The possible continuity of such alleged acts by the Respondent Armstrong,
has a bearing upon the decision of each of the cases and logically requires their con-
solidation for trial and disposition.
The complaint in Case No 16-CA-1492 is not directed against the Respondent
Armstrong Nor was this complaint or the underlying charge, served upon it. It
would appear therefore that no finding of unfair labor practice could properly be
made against Armstrong in that case. But, in view of the allegations of the com-
plaint in Case No. 16-CA-1552 and the possible proof thereunder that the Re-
spondent Automotive was and is the Respondent Armstrong's agent, the acts of the
Respondent Automotive must also be regarded as material background to the com-
plaint against the Respondent Armstrong in Case No. 16-CA-1552. For this reason,
the consolidation of the trial of the case against Respondent Automotive in Case No.
16-CA-1492 with the trial of the cases against the Respondent Armstrong in Cases
Nos 1551 and 1552 was reasonable and proper
Upon the foregoing considerations, I hold that the consolidation of all three
cases for trial and disposition was proper, that the order consolidating the cases does
not prejudice the Respondent Armstrong nor subject it to unreasonable inconvenience
or expense, and that the Respondent Armstrong's Motion To Sever should be denied.
(With this, I am in accord.)
Background of Automotive and Armstrong
Likewise, the voluminous brief of Respondent Counsel McGuiness now falls into
the area of the "public domain " Because of the importance, complexity, and in-
terest of this case, and for the further reasons that possibly, if not probably, it will
end up in the courts, and because there is presently outstanding an enforced Board
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 437
cease-and-desist order handed down by the U.S. Court of Appeals, Fifth Circuit, the
Trial Examiner will incorporate in this report such portions of the briefs of various
counsel as he feels are necessary in the proper narration of the events and facts.
Counsel McGuiness, a former distinguished General Counsel of the National Labor
Relations Board, between pages 4 and 22 of his comprehensive brief, has narrated
certain facts with which the Trial Examiner is in accord, the record supports, and
about which there can be little or no disagreement. Being unable to improve on this
recitation, the Trial Examiner adopts it as his own, and makes it a part of this report
as follows:
For many years all major tire manufacturers have conducted extensive testing
programs. Two general types of tests are used-laboratory or indoor testing
and highway or road testing. Laboratory tests are performed in laboratories at tire
plants and consist of mechanical tests which are designed to simulate highway
testing. They are also used to evaluate fabrics, compounds, materials, extrusion
smoothness, strength, durability under heat, and adhesion of one material to another.
Though such tests are necessary and useful, they must be supplemented by actual
controlled highway testing on vehicles operating on roads.
Consequently, all major tire manufacturers have operated highway test fleets of var-
ious types to perform this important function. B. F. Goodrich Company (hereinafter
referred to as Goodrich) has operated such a fleet for the last 10 or 12 years, and
Armstrong began such tests during the 1930's.
During this period most road testing was done on regular highways. A typical test
fleet operation appears to have consisted of a central garage from which the test fleet
operated on highways in the adjacent area. Goodrich maintained such a fleet
at Kerrville, Texas, for a number of years, and Armstrong operated its fleet out of
San Antonio since the early 1940's. In recent years, both the necessity for highway
testing and the mechanical problems of such testing have become more critical
due to the higher speeds at which automobiles are operated and the fact that tires
break down much more rapidly at high speeds. The advent of nylon in the con-
struction of tires and the increasing number of different grades of competitive tires
have also contributed to this need. Automobile companies therefore began to run
high-speed tests requiring tires which would stand up under such conditions, in-
cluding, for example, the requirement that a tire go a certain distance at 90 m.p.h.
prior to failure. Normal highways were not available for such tests because of
speed limits and the only way that they could be carried out was to ask that
the police block off a byroad for a certain period. Obviously, this could be done
infrequently and only for limited times. In addition to these problems, highway
traffic was becoming increasingly heavy and both accident and insurance rates were
rising. Although these were the principal reasons for use of tracks, the companies
also believed there would be substantial savings in fuel costs as no tax is levied on
fuel purchases for use in vehicles which do not operate on highways.
As one means of solving these problems tire companies turned to test tracks where
there were no restrictions on speed, and operating companies had complete control
over all vehicles. By the late 1950's all major tire manufacturers except Goodrich
and Armstrong were doing track testing; and by 1957 officials of Goodrich had given
sufficient serious thought to building a high-speed test track that their real-estate
people undertook a survey of Texas, California, and Arizona searching for suitable
tracts of land. They looked at abandoned airfields, Army, and Air Force installa-
tions, and, finally, in August of 1959, took an option on the site near Pecos, Texas,
where Automotive's track is now located.
After the option was taken, J. W. Brandt, Goodrich manager of property, lease-
hold investments department of controller, treasury division, prepared a financial
study to evaluate the need for a test track, the estimated cost, and the best method
of acquiring and operating the facility. Upon completion of the analysis, Brandt
made an oral report to officers of Goodrich which included estimated costs and which
proposed to set up a separate operating company to operate the track on the
premise that a track of any size would be difficult to utilize efficiently by even a
large company such as Goodrich. By using a separate operating company Brandt
felt there would be a good possibility of selling services to others and thereby
minimizing testing costs for Goodrich. It was believed that no tire manufacturer
would be interested in using a test facility operated by another tiremaker, but that
such concerns would be satisfied to use a test track operated by an independent
company even though other manufacturers also purchased services from the in-
dependent operator. Goodrich officials gave a general approval to the plan outlined
by Brandt in August of 1959.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Background of Armstrong's Test Fleet
As stated above, Armstrong has operated a test fleet in San Antonio, Texas, since
the early 1940 's when it took over a fleet it was then running for its principal customer,
Sears, Roebuck and Co. Tires for both trucks and automobiles were tested on high-
ways in the San Antonio area . The test vehicles operated out of a building located
on San Pedro Avenue, which was on the outskirts of the city when built in 1948, but
which has since become a metropolitan area. In addition to testing its own tires
and those of competitors for comparison purposes , Armstrong did a substantial
amount of testing other automotive parts and accessories for manufacturers of
such products . The companies for whom such tests were run were called "partici-
pants," and, because their tests could be run in conjunction with those of Armstrong,
their participation served to reduce the Armstrong testing costs.
By the mid-1950 's Armstrong , like Goodrich, was under pressure to provide a
facility for high-speed testing . The development of turnpikes , freeways and through-
ways had increased the need for testing truck and bus tires at speeds in excess of
those possible on the highways in the San Antonio area. In addition , participants
whose products were being tested had begun to demand high-speed tests, and several
important companies , such as Phillips Petroleum , American Viscose, and Enjay
Division of Standard Oil, had taken their testing elsewhere because of this need.
Attempts were made to secure police approval of using higher speeds on highway
tests but they were not successful.
Beginning about 1956 Armstrong was continually on the lookout for a test-track
location. A number of sites were investigated, including land at Blanco, Lampasas,
and Fredericksburg, Texas, independent test facilities , an abandoned airfield, and
existing tracks once used by Packard and Ford. Either because of cost or in-
adequate size, none of these possibilities provided a workable solution and Armstrong
was still searching for an answer when a meeting with Goodrich in October 1959
took place.
Armstrong's Agreement With Goodrich
At the time the Goodrich directors approved the plan for a track at Pecos, Brandt,
who was responsible for the project , had had no discussion with any outside
company as to their participation in the track. Sometime during the fall of 1959
Mr. E. F. Tomlinson , divisional president of Goodrich, informed Brandt that
Armstrong was interested in acquiring time on a test track to do high-speed and
other testing. At Brandt's request Mr. Tomlinson arranged a meeting with Arm-
strong in October 1959 at the Armstrong home office in West Haven , Connecticut.
The meeting was attended by Armstrong's board chairman , president, treasurer,
and executive vice president . At the meeting Brandt outlined the Goodrich plan for
a test facility , including setting up an independent operating company to sell services
from the test facilities independently of Goodrich.
The proposal was well received and further meetings were held to work out de-
tails. One major problem was the manner in which costs were to be allocated, par-
ticularly an administrative and overhead charge to be made by the operating company
on all fixed charges and operating costs of that company. Armstrong management
felt if such an overhead charge was made on all expenses , including drivers' wages,
which were a very substantial cost item , Armstrong would be better off to get
away from the concept of a centrally controlled operation and furnish its own
drivers. Goodrich on the other hand felt very strongly that it was unworkable to
have several different companies controlling drivers on a single track because of
confusion which would inevitably result . Consequently Goodrich relinquished its
demand for the 10 -percent overhead charge on certain operating costs and it was
agreed that the operating company would be in full control of all test-track
personnel.
As finally worked out and set forth in Automotive 's testing agreement with Arm-
strong (General Counsel 's Exhibit No. 3), Automotive agrees to maintain the Pecos
test track , provide property where Armstrong will construct certain buildings and
service facilities , furnish minor maintenance to the Armstrong buildings , provide
drivers necessary for Armstrong's test purposes , and provide Armstrong with
necessary utilities . Armstrong is given the right to use up to 50 percent of the track
capacity and such additional capacity as is agreed upon by the parties, and has the
right to conduct and collect fees for testing done on the test track as required
by Armstrong contracts with certain named companies ; but provides that, if the
contracts are canceled or become inoperative for 9 months , future testing for the
listed companies shall be handled directly between that company and Automotive.
Armstrong further agrees to own and maintain its own trucks and vehicles required
for Armstrong testing, to provide other than minor maintenance for its own buildings,
AUTOMOTIVE PROVING GROUNDS , INCORPORATED 439
and to make its own test readings and test reports, reimbursing Automotive for the
cost of Automotive personnel used in making such tests . It also agreed to abide
by Automotive 's rules and regulations necessary for proper administration or
maintenance of the track and to perform custom -testing contracts assigned to it by
Automotive which do not interfere with Armstrong 's other testing . Armstrong
has the right to remove any structures or facilities which it has erected upon the
Automotive property within 120 days after termination of the agreement. Off-
track testing in the sense of tests conducted by placing tires on commercially op-
erated fleets of trucks and which do not use Automotive facilities in any way are not
covered by the contract . On the other hand, highway tests which do operate out of
the test track are covered.
The contract makes clear that Automotive hires, pays, and has final authority
over the retention of all drivers , mechanics , and other personnel necessary for the
testing to be conducted on the track , regardless of the company for whom the tests
are run. Armstrong agrees to pay one -half the operating expenses of the track
until the track is in operation, and thereafter a rather complicated formula is set
forth which amounts to splitting the total costs of operating the test facility between
Armstrong and Goodrich on the basis of the proportionate share of testing performed
for each company. Testing fees collected from customers other than Goodrich
and Armstrong are deducted from the total operating costs prior to the computa-
tion of the amount paid by each . The contract is irrevocable for a term of 5 years
with an option on the part of Armstrong to renew for an additional 10 years. The
contract also contains certain billing provisions , a right to reasonable audit of Auto-
motive's books and records by Armstrong , a typical force majeure clause , and a re-
striction on the right of either party to assign the agreement without prior written
consent of the other.
Formation of Automotive
While discussions with Armstrong were taking place Goodrich had steadily
progressed with planning and construction of the track itself. The many details
of design and engineering , the letting of bids, and other problems common to any
major construction project delayed actual commencement of construction , however,
until July 1960 . Goodrich built the entire facility except for certain garage and
fueling installations which were constructed by Armstrong . Part of the latter were
put in by the Goodrich contractor , but subsequently billed to Armstrong.
In order to carry out the concept of an independent operating company, steps
were taken by Goodrich in early fall, 1960 , to find someone capable of operating
the track . When Frank E . Harper , then director , employee relations, of Good-
rich was asked to suggest a candidate he expressed interest in the project himself,
and when he demonstrated substantial experience in testing work , as well as the
other necessary qualifications , he was selected.
On December 2, 1960 , Harper filed a charter to establish Automotive as a
Texas corporation through his Pecos counsel, Russell and Tomlin , with himself as
sole owner of the capital stock of 100 shares . Although the record does not disclose
the initial capital investment , that sum is now $75,000 , all of which Harper secured
through a loan from Goodrich by putting up his stock es collateral . The corpora-
tion has five directors . These are Harper, who is president and treasurer; W. W.
Scull, chairman of Automotive and vice president of manufacturing of Goodrich;
Jack Brandt, referred to above; William F. Billingsley , technical director of B. F.
Goodrich Tire Co.; and Harold J. Fast, secretary of Automotive and Counsel for
Goodrich. ( Mr. Fast's name was sometimes incorrectly spelled in the record as
"Bass" or "Vass .") Thus all are presently employed by Goodrich with the exception
of Harper.
At present Automotive leases the test facilities at Pecos from Goodrich (General
Counsel's Exhibit No. 2). Most of the details had been worked out by the time
the corporate charter was filed but the lease itself was not executed until March 18,
1961. Under its terms Goodrich leases the entire facilities which it has constructed
at Pecos, including the test track , buildings, and other installations , to Automotive
for a 5-year term at an amount computed from the annual depreciation of the track
and other facilities ( the depreciation schedules are set forth ), 5-percent interest
on the total net fixed capital investment and a 10-percent overhead charge on the
foregoing and certain of Automotive 's operating expenses . The lease also provides
that Automotive repair and maintain the test track and other facilities , and pay all
utilities , insurance , and taxes. Automotive may not assign the lease without the
written consent of Goodrich and it agrees to enter into a contract to test Goodrich
products.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Automotive Test Facilities at Pecos
Automotive is located 22 miles southeast of Pecos, Texas. The test center con-
tains approximately 6,000 acres of land including a circular track 9 miles in circum-
ference. The track is 24 feet wide and consists of two lanes. Adjacent to the track
is a U-shaped building which includes an office at the bottom of the U approximately
100 feet long, and one arm of which is 165 feet by 60 feet and the other 185 feet by
60 feet. In addition there are storage facilities for 91,000 gallons of fuel, a fuel
blending plant, and 15 fuel dispensing pumps.
In the center of the office portion of the building is a large drivers' room and ad-
jacent to that is the office of the foreman who supervises all of the drivers, a small
dispensary, storage and restroom facilities. At one end of the same building are
found the Automotive offices and the office of the single Goodrich employee stationed
at the test track on a permanent basis. At the opposite end of the office building
are the Armstrong offices where two of the four employees of Armstrong permanently
assigned to the track work. The arm of the U adjacent to the Automotive offices
contains shop facilities and storage areas where Goodrich equipment and tires are
maintained and stored. The other arm of the U has similar facilities for Armstrong.
Commencement of Operations at Automotive
In November 1959 Harper made his first trip to Pecos to conduct a general survey
of the area, including a study of wage rates and the availability of personnel. In
making the survey he interviewed every employer where he felt comparable work
was being done, obtaining wage rates, hours, and fringe benefits in order to determine
a wage scale which would be competitive in the area, but not so high that it would
"pirate" labor from others. However, he did not decide on the basic rate of $1.15
per hour which was finally used until very late in December, shortly before he left
Akron for Pecos permanently.
On December 7, 1960, Harper met with officials of Armstrong in West Haven,
Connecticut, for a general discussion of the manner in which Automotive would
operate and to pass along the information obtained from the survey. Armstrong
was particularly interested in whether or not secretarial help and tire technicians
could be hired. No questions were asked about other job categories as Harper had
stated that both mechanics and drivers were available. He estimated that wage rates
would be from $1.90 to $2 10 per hour for mechanics and $1 15 to $1.35 for other
personnel.
Harper moved to Pecos on January 3, 1961, prior to completion of the track, to
take care of the many details necessary in commencing operation of a new business.
He opened a temporary office in the Chamber of Commerce Building in Pecos and
one of his principal activities soon became that of interviewing applicants for em-
ployment. He left applications with the Texas Employment Service in Pecos, which
serves both Pecos and the nearby town of Monahans, and also informed the local
newspapers that the office in the Chamber of Commerce Building was open and ap-
plications were available. Also, prior to leaving Akron, he had received a request
from Forrest Pape, the Goodrich representative at its test operation in Kerrville,
advising him that some of the Kerrville drivers were interested in making applica-
tion. Harper responded by sending application forms to Pape.
The first employment interview was held about January 10, 1961. The usual pro-
cedure was to have a man fill out an application and be interviewed. Thereafter
the information on the application was checked and before being hired he was re-
quired to pass a physical examination. Prior to the openig of the track most of the
applicants were seen by Tommy Beauchamp or Harper. A few may have been inter-
viewed by Automotive's former track manager, Dave Evans.
In hiring employees Harper was looking for automotive mechanics with rounded
experience as they would be required to work on many different types of automo-
biles and both gasoline and diesel trucks. With respect to tire technicians, it was not
expected that any experienced technicians would be found in the area and therefore
the requirements were that the applicant write a legible hand and have sufficient in-
telligence to be taught the details of the job. Drivers constituted the principal
personnel requirement. Harper did not feel that test driving experience was a necessity
although he did feel it would he helpful and paid a premium of 10 cents an hour
($1.25 as compared with $1 15) for experienced test drivers. Drivers had to have
an active Texas drivers license, read and write English, pass a physical examination
and be 21 years of age. At first qualified applicants from any area were hired and
approximately 45-50 were employed from other than the Pecos, Monahans, and
Fort Stockton areas, the three towns closest to the track.
About the middle of January, Harvey Haidet, manager of the Armstrong test fleet
in San Antonio, came to Pecos and spent a couple of days. His assignment was
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 441
primarily to check the progress of the track, but he also discussed preliminary plans
as to movement of the Armstrong fleet to Pecos and asked some questions about the
possibility of Armstrong employees being hired by Automotive. Prior to this time
Harper had given no though to the question of hiring San Antonio drivers as he had
assumed none would be interested at the lower rates being paid in Pecos and because
of the distance from San Antonio. The point had not even been discussed in Harper's
meeting with Armstrong officials in West Haven. Haidet was informed by Harper
that he would be glad to interview the Armstrong people, but that Harper could not
conceive that they would make happy employees moving from a high wage level
area such as they had in San Antonio into jobs at the wage offered in Pecos. The
rate in San Antonio was $2.08 to $2.13 per hour as compared to $1.15 to $1.25 per
hour then contemplated by Harper for the Pecos operation.
Russ Beichlin, the Armstrong tireman, in San Antonio, and Sam Hartley, the
maintenance foreman at the same location, also came to Pecos prior to the opening
of the track. This was in early March 1961. Beichlin and Hartley were to be the
Armstrong manager and maintenance foreman respectively at Pecos when Auto-
motive began operations. The purpose of their visit was to find housing but Hartley
did ask some questions of Harper as to whether he was finding diesel mechanics.
There was also a discussion of the progress of track construction.
Beichlin, like Haidet earlier, stated that some of the San Antonio drivers had
asked about the possibility of employment. He was told by Harper that he would
be happy to interview them if they came to Pecos. There was some discussion of
wage rates, with Harper again expressing doubt that the Armstrong drivers would
be interested in moving from an area where they could earn better than $2 into
one such as Pecos, and in addition having to move their families a long distance.
Neither Haidet nor Beichlin requested any application forms to be carried back
to San Antonio, and Harper did not offer any because he could not bring himself to
feel that the San Antonio drivers would be interested
The track was opened on March 18, 1961, when some 36 drivers and part of the
mechanics were on hand for an orientation and training day. The first tests were be-
gun on Monday, March 20, when these drivers began operating for test mileage, and
approximately 30 drivers were added each week until a full complement was on hand.
The records contain no testimony as to the movement of the Goodrich vehicles
and equipment from its former operation at Kerrville, but Armstrong units were
brought from San Antonio in groups of five units each week for a period of about
6 weeks beginning Friday, March 17. The automobiles came over by commercial
auto livery and drivers were sent from Automotive to pick up the six or eight trucks
which were transferred. One week prior to movement of each unit of equipment the
Armstrong drivers affected were notified they would be laid off the following week.
Current Operations at Automotive
Within a few weeks after the test track at Pecos was opened, both Goodrich and
Armstrong closed down their operations at Kerrville and San Antonio respectively.
Although the proportion of business done with each company varies somewhat, the
billing for the month preceding the hearing was 54 percent to Goodrich and 45
percent to Armstrong. The remaining 1 percent covered tests run for Moog In-
dustries. Some tests have also been run for Heckthron, Inc.
Most tests are run on the track, but some have continued to be performed on
highways. To date less than 20 percent of the testing has been done on the highway.
The tests all consist of performance runs on automobiles or trucks, and no labora-
tory testing is done. The majority of the testing on the track is at speeds in excess
of highway limits. The week prior to Harper's testimony, for example, tests were
being run on the track at 50, 60, 65, 70, 75, 80, and 85 m.p.h. Tests have been
run at 90 m.p.h., and it is expected that tests will be run at least as high as 120 m.p.h.,
the speed required for qualification tests on highway patrol tires. This particular test
necessitates 80 sustained miles at 120 m.p.h., and 4,000 miles at 85 m.p.h.
A typical track test is set up when the company representative at the track, Mr.
Beichlin for Armstrong and Mr. Pape for Goodrich, receives written instructions
from the company which outlines the procedures to be followed for the test. These
include instructions as to the inflation of the tires, the speed at which the test is to be
run, whether it is to be run on the track or highway, the frequency of switching and
measuring the tires , and other details. The company representative then issues in-
structions to the tire technicians as to which vehicle will be used for the test and
the tires are mounted at the appropriate time. These preliminaries are similar
whether the item being tested is tires or whether it is some other kind of an automo-
tive part or accessory. In each instance the instructions come from the company
requiring the tests . Uniformly , the installations or the setting up of the tests are
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observed or supervised by that company whether it be Armstrong, Goodrich, or one
of the "participant" companies.
The tire technicians or other personnel setting up the tests are employees of Auto-
motive. Once the test vehicles are ready to operate Automotive then supplies the
drivers. The drivers make reports at the close of each shift which are turned in
to the Automotive supervisor, and a portion of the report is retained by by Automo-
tive for accounting purposes, and the balance is given to the company for whom the
tests were run These reports include gasoline records, information as to switches,
measures, or pressure checks if the test is of tires, any mechanical difficulty en-
countered during the shift, and other similar information.
The same procedure is followed for both track tests and road tests. The only
difference is that in the latter case the drivers leave the track at the beginning
of the shift and do their driving on prescribed highway routes in the adjacent area,
returning to the track at the end of the shift.
All personnel at the test track are employees of Automotive, except for Forrest
Pape, the Goodrich representative, and four Armstrong employees: its manager,
Russel Beichlin, office manager, William Lincecum, equipment and maintenance
foreman, Sam Hartley, and chief tire technician, Curtis Rucker. All Automotive
employees punch one timeclock while the Armstrong employees have a separate
clock of their own.
Preliminary to making a work assignment, representatives of Goodrich or Arm-
strong inform Automotive management of the number of vehicles and types of
vehicles which they wish to run. Automotive then determines the number of
drivers required and assigns the individual drivers. This is done by the Automotive
foreman in charge of the track for the particular shift. The foreman does not check
with either Armstrong or Goodrich before he makes the assignments, and while
ordinarily the same driver will drive steadily for one company in order that he may
become familiar with the test and the vehicle, changes in assignment are made
whenever appropriate. Since the track has been in operation there has been con-
siderable interchange. Three drivers are assigned to each vehicle in order that it
may be operated 24 hours a day, 6 days a week. There is but one driver-foreman
on each shift and he supervises all drivers whether they are operating Armstrong or
Goodrich equipment. In addition, on the 4 o'clock to midnight and midnight to 8
o'clock shift, the foreman is in charge of all personnel at the track.
Actual driving assignments are made at the beginning of each shift when the
shift foreman assembles the drivers in the coffeeroom and hands them their car
daily report (General Counsel's Exhibit No. 16), or truck daily report (General
Counsel's Exhibit No. 17), which gives the driver full information about his par-
ticular vehicle and the manner in which he is to operate it during the shift.
Other personnel, mechanics, tire technicians, and clericals are assigned on a more
permanent basis. Thus Armstrong and Goodrich both indicated to Harper, prior
to the opening of the track, the number of mechanics who would be required to main-
tain their equipment. Harper hired the required number and assigned them to either
Armstrong or Goodrich, according to his judgment of their qualifications. Neither
Armstrong nor Goodrich interviewed the mechanics prior to their assignment. At
present Armstrong has three mechanics on the day shift, one on the 4 to 12 o'clock
shift and none on the 12 to 8 o'clock. Hartley, the Armstrong shopman, works on
the day shift and directs the work of the Automotive mechanics assigned to Arm-
strong while he is present at the track. The work of the night shift mechanic assigned
to the Armstrong side is directed by the Automotive track foreman. Tire tech-
nicians and clericals were assigned in the same manner. Armstrong and Goodrich
gave Harper their requirements for such job classifications prior to the opening of the
track and applicants were interviewed and hired by Harper and assigned to Good-
rich or Armstrong work without prior consultation with Pape or Beichlin,
respectively.
As the operation at Automotive has "shaken down" the line of authority over
employees has proven to be as intended by Goodrich. All employees have been
hired by Automotive without prior consultation with Armstrong personnel regard-
less of their assignments after commencing employment.
The Alter Ego and Agency Theories
The de facto alter ego and agency theories advanced by the General Counsel are
unsupported by the evidence of record and therefore untenable. However, having
been first inveighed, they will first be disposed of. The allegations and arguments
advanced that Respondent Armstrong and Respondent Automotive Proving Grounds
are one and the same and therefore their corporate entities are but a ruse and a
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 443
fiction are erroneous . As heretofore outlined Armstrong and Automotive are separate
legal entities . General Counsel submitted some 22 former Armstrong employees
as witnesses purportedly to establish that former Armstrong employees were dis-
criminatorily refused employment or blacklisted by Automotive and that Armstrong
was equally responsible with Automotive for such alleged discrimination . A study
of this welter of testimony demonstrates that local San Antonio supervisors knew no
more than the drivers themselves of top management 's prior economic decision to
move the testing operation to Pecos. In fact, the drivers themselves learned of the
proposed move before Haidet and his assistants were alerted by Akron and Westerley
officials. Haidet, Beichlin, and Hartley were caught by surprise and were as much
discomfited by it as were the drivers. Their replies to employees when the move
was in the rumor stage, and later when they were officially informed , are the
basis of the alleged 8(a)(1) violations, including the "blacklisting." They will be
treated in more detail hereinafter . Neither can Armstrong be held responsible
for any unfair labor practices which Automotive may have committed.
As herembefore described, Automotive was purposely created by Goodrich as an
independent corporation to road-test its own tires . Armstrong was importuned and
invited by Goodrich, at its own expense, to share the track facilities for its testing
under a contract with an independent company, Automotive. All three companies
are independent entities and all three were separate employers . Automotive is in
no sense the successor of Armstrong. The only relationship between them is that
established by the testing agreement, a copy of which is attached hereto as an
Appendix. The successorship rationale in my Alamo White case (122 NLRB 1174)
which holding was affirmed by the Fifth Circuit in a decision written by Judge
Wisdom is applicable and controlling here although the facts are different. 273 F.
2d 238 (C.A. 5). Language in the Local 19, International Brotherhood of Long-
shoremen, AFL-CIO (Chicago Stevedoring Co., Inc.), 125 NLRB 61, applies:
"The record shows that neither corporation has any financial interest in the other;
no officer, stockholder, or director is the same; there is no interchange of em-
ployees; different skills are exercised by the employees of each company; and the
only relationship between the companies is that established by the written lease
agreement."
Automotive and Armstrong do not, jointly, constitute a single employer. Lan-
guage in Dearborn Oil and Gas Corporation, et al., doing business as Diamond
Operating Service, et al, 125 NLRB 645, is applicable in the resolution of this
question. "Generally speaking, in those unfair labor practice cases in which the
Board and the courts have held that a legal entity may be held for the acts of another,
because both constituted a single employer, it appeared that both were not only
subject to common control , but also that a controlling ownership interest in both
companies was held by the same individual or group of individuals . We believe
that it is proper to require that both elements-common ownership and common
control-coexist before we assess joint responsibility."
Armstrong Counsel Keenan aptly states the reasons and assigns 10 examples
supported by the record , as follows:
In the case before the Trial Examiner both of the criteria necessary for de-
termining Automotive and Armstrong to be a single employer, and thus mu-
tually responsible for the unfair labor practices of either , are lacking. There
is neither common ownership nor common control . Armstrong , as stated above,
owns no part of Automotive directly or indirectly . It has no representation
on the Board of Directors. None of its employees or former employees are
employees of Automotive . In the most important aspect of control, that of
control of labor relations , the testing agreement makes it perfectly clear that
Armstrong has no control over the wages, hours , hiring or firing , or of any
other conditions of employment of Automotive employees. .
Actual practices are in conformity with the contractual provisions . Beichlin
and other Armstrong employees at the track do not control in any way the
labor relations of Automotive . Automotive has set the rates and has made
such changes in rates and benefits as it, Automotive , thought proper. Arm-
strong was not consulted . No Armstrong employee has ever recommended a
wage raise. Automotive has done all of the interviewing of applicants for
hiring, and the hiring . Automotive 's employees , new or old, are assigned to
Armstrong 's vehicles or office or technical force upon requisition by Arm-
strong. Armstrong does not have and does not exercise the right of rejection.
Armstrong is not accorded the opportunity to interview the employees so
assigned prior to assignment . Automotive can and has transferred employees
assigned to Armstrong 's vehicles without consultation with Armstrong .
Beichlin of Armstrong has registered complaints with Automotive as to the
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performance of employees assigned to Armstrong's vehicles. In this connec-
tion he has recommended that employees be reprimanded. At times Harper
of Automotive has followed Beichlin's recommendations. At times he has not.
In all cases there has been an independent investigation by Automotive of the
complaint before any action is taken.
Armstrong has no right to discharge Automotive's employees. On three,
and on only three, occasions, Armstrong through Beichlin, recommended that
drivers be removed from assignment to their vehicles. No recommendation was
made as to the termination of these employees. On two occasions Automotive's
drivers were found to have driven Armstrong's vehicles while intoxicated.
Beichlin told Harper that he didn't want them driving Armstrong's vehicles
any longer. He made no recommendation as to discharge. However, Harper
did discharge these individuals.
Armstrong's employees at Pecos were Beichlin, superintendent; Hartley, shop
foreman; Lincecum, offce manager; and Rucker, tire technician. The extensive
testimony adduced by General Counsel of incidents and statements of employees
purporting to show that Automotive has been controlled, directed and guided in its
managerial capacity, and its labor relations by Respondent Armstrong falls far
short of proving that Armstrong controlled or participated in any important aspect
of Automotive's labor relations and operations. In the words of Counsel Keenan,
"No one reading the record can doubt but that Harper and Harper alone, controlled
all important aspects of labor relations at the Pecos track." And from his appear-
ance during the 3 weeks of the trial at the counsel table and in the courtroom, and
the way he handled himself on the witness stand under direct and cross-examination,
and from his background and experience, there could be no question in the mind
of an objective onlooker but that he was the final authority on all matters involving
Automotive. Certainly he gave no indication of being the alter ego of Armstrong.
Neither was he one likely to cross the lines of authority of another, nor one to
assume another's responsibilities.
Neither did Armstrong cause Automotive to refuse to hire former Armstrong
employees, nor was Automotive made the agent of Armstrong. General Counsel
contends that Armstrong caused Automotive to refuse to hire former Armstrong
employees. On the contrary, it will be recalled that during the contract negotiations
between Goodrich and Armstrong and prior to the incorporation of Automotive,
that Armstrong proposed to utilize its own drivers for testing purposes but Goodrich
rejected Armstrong's proposal and forewent a percentage overriding charge in order
for Automotive to retain employment control over drivers and track personnel.
Thus Automotive would be free to take advantage of Pecos area's lower wage scale,
i.e., $1.15 to $1.25 against San Antonio's $2.10 scale. In their first conference at
Pecos, Harper agreed with Haidet to interview any Armstrong applicants, but
frankly stated that such applicants, accustomed to San Antonio wage scales, would
not be able to get along on his proposed rates and would not make happy employees.
This reasoning is borne out by the fact that only one Armstrong driver was willing
to accept Harper's terms and move to Pecos.
General Counsel's Contentions
There are two phases to Counsel Whittaker's case (a) San Antonio activities,
and (b) Pecos activities. His consolidated complaints are predicated on the
theory that Respondent Automotive is the alter ego, and agent of Respondent
Armstrong, and as such the two Respondents prevented, frustrated, and refused to
permit Armstrong drivers to be placed on the payroll of Automotive at Pecos, where
Armstrong's tire-testing operation had been transferred from San Antonio on or
about March 18, 1962. The thrust of his contention is that whereas Goodrich, in
October 1959, had a legitimate objective of reducing costs by inviting Armstrong
and other participants to share its proposed testing facilities at Pecos, Armstrong
also had an objective, an illegal one, to avoid collective-bargaining processes with
its driver personnel at San Antonio. General Counsel contended that Armstrong
was accommodated in the scheme by having Automotive handle all labor and
personnel problems as part of the testing agreement. The argument was that this
mechanism was intended to shield Armstrong from the operations of the National
Labor Relations Board, and the motivation was in part due to the Fifth Circuit Court
of Appeals having two outstanding decrees against it for previous unfair labor
practices. A further assumed reason was because of the consistent recurrent organi-
zational programs put on either by Teamsters Local No. 657 or by the Rubber
Workers.
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 445
Examiner's Ruling and Reasons
The Trial Examiner has hitherto disposed of the alter ego and agency theories,
and finds, after a careful study of the entire record, that these arguments are fal-
lacious. My reasoning is that Armstrong had good, valid, and subsisting reasons
for moving, that it had been nationally organized by the Rubber Workers Union
for years, with collective-bargaining agreements covering its operations overall-
except for this handful of drivers, and for 10 years its San Antonio employees had
voted down any unionization. My final reason is that I simply did not believe Gen-
eral Counsel's witnesses during the San Antonio phase of the hearing when their
testimonies conflicted with that of Respondents' witnesses, together with the fact
that Respondents' supervisors were as much in the dark about the prospective
move as were the drivers and these were merely personal opinions or speculations
not violative of the Act. On the other hand, the majority of General Counsel's
witnesses impressed the Trial Examiner as being as angry as a swarm of hornets-
they were going to sting somebody. In some instances their testimonies were
"patterned," embellished, and distorted. It is only fair to add that some of Arm-
strong's supervisors were nettled at the rumor of and the belated verification of
the move.
All counsel delineated in detail the testimonies of the 24 various witnesses in their
excellent briefs, together with their legal arguments, explanations, justifications,
credibility factors, including the weight of or lack of preponderance of the evidence.
Suffice to say all three of their versions cannot be incorporated in this report.
With reference to the 8(a)(1) allegations arising out of the San Antonio phase of
the case, the Trial Examiner concludes that the General Counsel did not sustain his
burden of proof of the allegations of the complaints by a preponderance of the
evidence. It would be futile to attempt to answer them all in detail, and unfair to
partially cover them in a report as necessarily limited as this needs be. The
credibility resolution has been drawn, and the briefs are available, and, in this narrow
area of interference and "blacklisting" are made a part of this report by reference
by the Trial Examiner. General Counsel's witness Rogers attributed to Haidet:
"that the union had hounded the test fleet until it just had to go." Haidet denied this
and the Trial Examiner credit his denial. Driver Clarence Calhoun attributed to
Beichlin the statement that none of the drivers were going to Pecos (no doubt
true) and assigned the reason that they did not want to be bothered with the union
out there. Beichlin's denial is credited. John Condrin quoted Beichlin as express-
ing his opinion that but for "this damn union activity we wouldn't have to move."
If true, this is not actionable in this context. Ralph Siler quoted Beichlin as saying
to Harper that he would not hire anybody from Armstrong on account of the trouble
out there. Beichlin's denial is credited. Silas Smith quoted Haidet as saying a cou-
ple of weeks before the move: "You know what is causing this, the move out here?"
to which Smith replied, "them union activities caused it." Held denied and not
actionable. Herman Lloyd, an official of Teamsters Union, after leaving Armstrong
quoted Haidet's reason for the move as "the company is tired of employees trying
to tell them how to run their business." He also quoted road supervisor Stallneck's
reason for the move as being the court costs involved in "these labor board cases."
This is found, in context, not to be actionable.
The following is a portion of the compelling argument of Automotive Counsel
McGuiness adopted by the Trial Examiner:
Obviously there was a great deal of talk among the San Antonio employees
about the move, and it would be perfectly natural that many questions would be
asked of Haidet or Beichlin. It also seems obvious that some differences as to
detail would arise when the recollection of a large number of witnesses as
to conversations occurring months earlier is tested. Nevertheless, the sub-
stance of what was said appears when the testimony is considered as a whole,
and it confirms the testimony of both Haidet and Beichlin. Thus, until the
actual move commenced, Haidet was under instructions to keep it quiet.
Therefore, when approached by the men with questions he would tell them,
"Well, I just don't know. It's rumored so, but I just don't know."
Later after the move started Haidet answered the questions by telling the
men Armstrong was not taking any men; another company was going to operate
the track; and if they wanted a job in Pecos they would have "to go up there and
see." He also told some questioners that Harper did not think they would
be satisfied with the wage rate to be paid.
Prior to commencing the move Beichlin answered questions by telling the
drivers that most of the information he got was from them. Thereafter he told
them Armstrong was going to contract the work out; the drivers would not be
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taken along; and they would have to see Harper about jobs. He discussed
wages with some, told them what the rate would be and said that if they were
not satisfied with what they were getting in San Antonio, he was afraid they
wouldn't be satisfied with wage scale in Pecos.
Accordingly, it will be recommended that those counts in the consolidated complaints
be dismissed.
The Armstrong 8(a)(3)'s
There are three treatments of the alleged failure to hire Armstrong drivers Louie
E. Wright, Silas B. Smith, Fred W. Geissler, and any former employees of Arm-
strong, in the briefs of respective counsel-Whittaker, Keenan, and McGuiness. Of
these skillful treatments , the one by Respondent Counsel McQuiness appeals to the
Trial Examiner as most completely my requirement. This is in no sense a disparage-
ment of the efforts of other counsel. After more than 40 years of experience in
the practice, and having sat on every bench from justice of the peace to chief justice,
I know that "every lawyer is the prisoner if not the gaoler of his witness." Because
of the aptness of his recitation of the facts as found by the Trial Examiner in this
particular phase of the case, such recitation is adopted as my language as follows:
The Failure To Hire Louie E. Wright
In support of his allegation that the Respondent refused and failed to hire Louie
E. Wright, the General Counsel relies entirely on the testimony of Wright, one
of the Charging Parties. Wright testified that he went to Pecos about May 1, 1961,
to apply for employment. The first person he saw was Hartley, 'and he then talked to
Beichlm who introduced him to Harper. Harper gave him an application, which
he filled out, and, subsequently, there was some discussion about the wage rate
which Wright wanted. Wright's own testimony shows that he was interested in at
least $1.75, or the rate for journeymen truckdrivers in the area, which was between
$1.70 and $1.90 per hour as compared with the $1.15 to $1.25 then being paid by
Automotive. Wright asked to be notified of Harper's decision as to his application.
About 30 days later Harper wrote him that his application had been investigated
and if his services were required, he would be notified. Neither party thereafter
communicated with the other.
There is no testimony whatsoever in the record which shows that Wright's status
as a former Armstrong driver from San Antonio had anything to do with his failure
to secure a job at Automotive. Instead his own testimony demonstrates that the
wage rate he was seeking immediately caused Harper to express doubt about his
interest in working at Pecos. Wright, though questioned as to what he would take,
chose to be coy about the matter and said he ". . . might come to work for less
than you think I would." However, Wright refused to commit himself and left
without offering to work at the wage scale being paid.
By the time Wright was interviewed, about May 1, Harper had begun to be very
skeptical about hiring applicants who had held higher paying jobs, both because
of his previous experience and that which occurred at Automotive. This skepticism
was demonstrated in his immediate questioning of Wright on the subject, and
Wright's failure to express willingness to work at the going rate undoubtedly added
to Harper's doubts. Where the General Counsel has failed to produce any testimony
showing a discriminatory motive, and , in addition , there is direct testimony as to
sound economic considerations for the conduct in question , the General Counsel
has failed to prove his allegation.
The Failure To Hire Silas B. Smith
In support of his allegation that Respondents refused and failed to hire Silas B.
Smith, the General Counsel again relies solely on the testimony of the alleged
discriminatee. Smith called Harper in late April 1961, and asked about going to
work in Pecos. Harper told Smith it was his understanding the San Antonio men
would not come to work at the wages being paid, but, when Smith indicated his
willingness to come, Harper said that if he would come up he ". . was satisfied
we can work out something." About May 12, Smith went to Pecos; Beichlin intro-
duced him to Harper; and, after some discussion about the job, Smith was given an
application to fill out and return by mail. Smith claims he was given two applica-
tions but Harper distinctly recalls giving Smith but one application on which he
noted the Pecos address of Automotive. Smith also claims both applications were
returned, one by Smith and one by his son, in the same envelope. However, Harper,
whose testimony was corroborated by Beauchamp , was certain that only a single ap-
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 447
plication-the one he had given to Smith with the address written in the corner-
was returned and that was filled out by Smith's son.
Subsequently, Smith or his son called Harper twice to check on whether work was
available, and on both occasions Harper stated that no application had been received
from Silas Smith. Though Smith admitted he was told no application had been
received from him, he never requested or submitted another application and, at the
time of the hearing, none had ever been received from him. Smith admitted that
he was treated nicely by Harper and that he was encouraged to apply for a job. His
testimony is devoid of any indication that Harper was unwilling to hire San Antonio
drivers who were sincerely interested in working in Pecos. The simple and un-
contradicted fact of the matter is that Smith either never applied for a job or, if he
did mail in an application, took no steps to mail another when informed none had
been received. Thus, the General Counsel's position becomes that of claiming that
a San Antonio driver who was encouraged to apply for a lob and failed to do so
was discriminatorily treated. Again the General Counsel has failed to sustain his.
burden of proof.
The Failure To Hire Fred W. Geissler
The third specific allegation of an individual whom Respondents refused and failed
to hire is Fred Geissler. Little need be said about Geissler. In addition to being
a most unconvincing witness whose demeanor was such that he could not be credited,
he admitted that he never applied for a job at Automotive and in fact never even
asked for an application.
Geissler's testimony is loaded with inconsistencies . For example he claimed that
Harper knew him from having seen him at the Armstrong Test Center in San Antonio
in March 1961, yet Harper has never been at the Test Center; he testified that he
talked to Smith at the Proving Grounds while there on May 13, yet Hartley testified
they were not there the same day; and he testified to a conversation with Haidet in
which Haidet spoke about the $1.15 per hour rate to be paid in Pecos, which took
place before the rate was ever established.
The testimony of a witness who failed to apply for a job because he ".. . knew it
wasn't no use," falls far short of the burden of proof required of the General
Counsel, particularly where there is no showing whatsoever of a discriminatory
motive on the part of Harper.
The Failure To Hire Any Former Employees of Armstrong
In addition to the three individuals specifically alleged to have been refused em-
ployment, the General Counsel includes a general allegation of a refusal and failure
to hire any former Armstrong employees. Other than Wright, Smith, and Geissler,
only one Armstrong employee ever came to Automotive to discuss employment. This
was Robert Storms who made a trip to the Proving Grounds in September 1961 and
talked to Harper. He was offered an application but, after looking over the area and
living conditions, Storms decided he was not interested and never filled out the
application.
Thus, out of over 100 employees in San Antonio, only 1 (Wright) ever actually
filed an application at Automotive and he never offered to come to work at the wage
rate then in effect. The contrast with the hiring of former Goodrich employees from
Kerrville is significant. Between 20 and 25 made application and approximately 20
were hired. In effect, the General Counsel is attempting to show a general refusal
to hire Armstrong employees through the experience of a single individual who filed
an equivocal application. This is indeed a new concept of an employer's duty . .
In any event, Respondent Automotive vigorously contends that it has not refused
to hire former Armstrong employees. Based on his long experience in personnel
work, Harper did not feel that employees from higher paid jobs would be interested
in or satisfied with the rates at Automotive. Experience after the test track opened
confirmed this view and, in addition, emphasized that employees who came from
long distances were unlikely to stay. Even Kerrville drivers, who were hired at a
rate in excess of that they were receiving in Kerrville but who had to move a long
distance, did not stay. Of approximately 20 hired, only 10 stayed. Thus, from the
time he first began thinking of employment problems, Harper had no reason to seek
out the Armstrong employees, and when none of them even appeared at the track
until well after it opened, his belief that they were not seriously interested was con-
firmed. He had no duty to seek them out and he did not do so; but, when asked,
as by Haidet and Beichlin, he advised that he would be glad to interview any who,
were interested.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's Concept
The Trial Examiner has heretofore, in writing this report, incorporated germane
and cogent portions of briefs of the three eminently qualified counsel. He has done
this for three reasons: First, they succinctly stated what I found to be the facts in
the particular situation from a careful analysis and study of the whole record and
which I could not have stated better . (In no instance have they usurped my fact-
finding function.) The second reason is that they have cited cogent testimony which
I had credited and which I would have written down in haec verba. This method
was endorsed, advocated, and urged in resolution of the Administrative Law Section,
written by its chairman, the late Clarence Miller, Esq., at the Blue and Gray Con-
vention of the American Bar Association held in Richmond, Virginia, spring of
1953. The background of this action by the delegates was the contention of A.B.A.
lawyers that N.L.R.B. Trial Examiners paraphrased the testimony in narration to
such an extent and in such a manner that legitimate defenses and answer to Trial
Examiners' version was difficult or impossible. The A.B.A. consensus was that the
cogent evidence relied on by the Trial Examiner should be quoted "insofar as prac-
ticable"-the qualification of the application of the rules of evidence in unfair labor
trials. (This Trial Examiner has followed such practice since.) My third reason
is that counsel in this case have met my qualifications in this respect, and such quota-
tions help me shorten the report and should help the parties and any reviewing
authorities. Further, I specifically requested all counsel to write briefs with findings
and conclusions adaptable to this report. This they did.
Union Activity at Automotive and Discharge of Billy Ray Griffin
The treatment of union activity at Automotive and the discharge of Billy Ray
Griffin is taken from the comprehensive brief of counsel for the General Counsel,
Whittaker. My study of the record testimony, evidentiary exhibits, and observation
of the witnesses on direct and cross-examination led me to the inescapable conclusion
that the facts were as recited, in this phase of the case, by Counsel Whittaker. The
simple principle is that herein, the truth lay with the General Counsel's witnesses, all
of whom I credited. Respondent Counsel McGuiness' version, rejected by me, ap-
pears in his brief, pages 23 to 25, 68 to 81.
Adopted and incorporated as the Trial Examiner's language: Along the first week
in May, Billy Ray Griffin, a mechanic, working under Deb Snyder in the Goodrich
shop, telephoned the Chamber of Commerce at Fort Stockton to inquire if the Rubber
Workers is located in that area. Although there was no union there, the Chamber
of Commerce took his name. Griffin then tried unsuccessfully by long-distance
telephone to San Antonio to reach the Rubber Workers. After this, Griffin went to
his next door neighbor, Mr. Brown, who was a member of the Communications
Workers, and through him got in contact with Steinke. In the early hours of May
18 a meeting was held at Griffin's home with Willis, Brown, and Steinke present.
Two other meetings were held that day at the Travel Lodge Motel one at 1:30 p.m.
and the other at 7:30 p in. At this time, Griffin was working a 4 p.m. to 12 midnight
shift . Between this date and May 25, Griffin signed up some 26 cards which he de-
livered to Steinke at that time. His best estimate is that he signed a total of 35
out of the overall total of 85 to 100 cards. Griffin was open in his solicitation and
the Respondents were aware of it.
On Wednesday, May 24, Griffin reported as usual to work at 4 p.m. He had just
started to put away some of the equipment stripped from one of the automobiles
when Deb Snyder in an apologetic way told him they were going to have to lay him
off and fire him. He stated "Mr. Harper had kind of requested him to do that."
Snyder expressed his regrets at having to see Griffin go. Griffin requested the reason
but received no answer.
Respondent Automotive was insistent that Griffin leave immediately . He gath-
ered his tools. Deb Snyder and C. D. Evans drove him into town. At first the car
windows were down and nothing could be heard by way of conversations . Reach-
ing the main highway Snyder asked:
"What's this I hear about the union?" and I told him, I said, "Well, I've heard
some kind of rumors about the union," but that I did not know whether there
was anything to them or not.
He asked me what I thought about the union, and I told him that anything
that would better my salary and get me some benefits out of the job that I had,
I was 100 percent for it.
Well, when the word "union" first came up, Mr. Snyder rolled up his window,
and Mr. Evans rolled up his window, and we could hear each other real good.
Mr. Evans said, well, that he didn't want the union out there; that he didn"t
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 449
think they had any business out there, that when you get a union in a place
like that, that the union will run it according to their rules and regulations, and
not the company's. He said that that place out there, well, they wanted it run
according to them and not "according to some union."
When we was talking about the union , and Mr. Evans first said something
about it, that they wanted to run their place according to them, I told him that
I thought there was room for quite a bit of improvement out there as far as I
was concerned.
Both Snyder and Evans were quite polite to Griffin. Evans said, "Is there any-
thing I can help you with-well, he said that if I'd holler, that he'd try, he'd do his
best." Snyder asked him when he delivered him to his home if he had another job
lined up and Griffin told him he felt sure he could go back to work for Caterpillar,
the Company he had worked with before coming with Respondent Automotive. "I
shook his hand, and he said that if there was anything he could help me with, well,
he would be glad to do it."
Not being satisfied with the reasons he had been given, that evening Griffin called
Tommy Beauchamp, the office manager, and asked him as to the reasons for his
layoff. Beauchamp told him it was something about a Mack truck. After this
Griffin telephoned Harper and asked him the reason for his layoff. "About the first
thing he said, `didn't Deb tell you?' And I said, `No, Sir. He didn't.' And he said,
`Well, he'd like to have someone with a little more experience."' This came as a
surprise to Griffin who at the age of 20 had done nothing all his life but mechanic
work having started in his father's shop.
The next evening, May 25, a meeting was held at Griffin's home again and was
attended by Steinke, Haegel, and Bob Griffin among others. Griffin had sent his
wife out for the evening and she went over to the home of a girl friend to invite
her to dinner. It just so happened that the girl friend was the daughter of Shift
Foreman Brown and he became extremely interested in Mrs. Griffin's explanation
about her husband having a union meeting or something. He inquired thoroughly
into the matter including her address and how he could find her street. After this
Brown was observed by Billy Griffin, Bob Griffin, Haegel, and Steinke driving slowly
back and forth in front of Billy Griffin's home in his car which was the only one
of its kind in Pecos. Brown was positively identified in the testimony.
In addition to Foreman Brown having stamped the discharge of Billy Griffin for
his union activities and leadership, there were others. A day or so afterward,
M. W. Miller heard Deb Snyder announce in the garage that he understood that
the reason Billy Griffin had been let go was because he was the leader of the Union
or trying to organize one. Tommy Beauchamp told Robert Reillly, "You see where
it got Billy Griffin, that's where it's going to get all those boys if they don't smarten
up. They're all going to lose their jobs " Beauchamp had long predicted to Reilly
that supporting the Union would cost an employee his job. Reilly who took
Billy Griffin's place on the night shift for handing out authorization cards was
discharged within a week and Beauchamp meeting him several weeks later in town
at the Safeway Store told him "'I told you that the union would get you.' " "'Well,
I tried to warn you a dozen times. I told you that that union would get you.' And
I said, `Well, I figured it was that.' And he said, `Well, I am sorry,' and walked off."
Harold C. Wilson, Jr., had the following conversation with Shift Foreman Brown
around the 25th or 26th of May about 1 a.m. in the morning, "Well, Mr. Brown
said, `Do you know anyone that's having anything to do with the union, as far as
you know?' They were getting signatures at the time, and I said, I don't know of
anyone except Bill Griffin and I think that they fired him.' . . . Mr. Brown says, `Yes:
He says, `And I understand I have about ten men on my shift doing the same thing,
and, if they find out who they are they'll fire them, too."'
Inquiries about union activities were not only being made by Beauchamp of
Reilly. Shift Foreman J. T. Marsh was also asking Reilly about union activities
of the employees and warning him that he should stay away from the Union if he
wanted to keep his job. Because of his disappointment in Reilly, Marsh later dis-
charged him over a trumped up charge. Track Manager C. D. Evans questioned
George Washington Riggs about a conversation he had with Bob Griffin, and
"wanted to know who among the boys was trying to organize the union." This was
shortly after Billy Griffin's discharge. About the same time Pape, Goodrich's man,
asked Haegel and a friend of his who was interested in the Union to get him any
information they could about it. C. D. Evans also asked Bobby Joe Jones on or
about May 26 if Billy Griffin had ever talked to him about the Union. Harper asked
Charlie Lee if he had ever heard Vince Evans mention anything about the Union.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, Respondent advanced additional reasons for the discharge of
Billy Ray Griffin. One of these was improper repair of a drive shaft of an F85
Oldsmobile. At the time of Billy Ray Griffin's discharge, this incident was not
known about. In any event, this automobile had been worked on twice before
by one of the top mechanics, Buck Ellis, and it did not work properly after he
finished with it. Yet, the Respondent did not fire Buck Ellis. The other reason
advanced was that Griffin did not turn in enough work. The Respondent admitted
that it destroyed the cards by which a record was kept of all the work Billy Griffin
and other mechanics had done. Griffin testified credibly that he had done all the
work he was capable of doing during his hours and that he had received no com-
plaints or reprimands about not completing enough work or not having properly
performed it. To raise this defense at the time of the hearing, long after the dis-
charge and after Respondents had destroyed any evidence to disprove their con-
tention, is not done in good faith.
There is a conflict in the testimony as to who was responsible for the arm of the
fuel pump being broken. Griffin testified credibly that he removed the arm from
the old fuel pump and placed it on the new fuel pump before making the installation.
But whether Griffin broke the arm or Nace broke the arm, it was a minor breakage.
Many other things happened of much greater significance. Harper's claim that
Billy Ray Griffin lacked sufficient experience is disproved by two things. First of
all, Griffin's credible testimony is to the length of experience he had had as a
mechanic which extended through his entire life. And second, the failure of Re-
spondent to show in the record that they replaced Griffin with anyone even of
comparable experience.
This case is a classic example of a contrived pretext for a discriminatory dis-
charge-and I so find. On the evidence above set forth, Respondent Automotive
violated Section 8(a) (1) and (3) of the Act.
In Conclusion
As this Trial Examiner said in his Intermediate Report in Roadway Express, Inc.,
119 NLRB 104 affirmed by the Board with modification, and sustained by the Fourth
Circuit: It is obvious that a finding cannot rest merely upon guess, suspicion, or specu-
lation predicated upon inferences arising from widely separated and unconnected
incidents. Particularly is this so when inferences are utilized to overcome direct
and positive testimony. See Indiana Metal Products Corporation v. N.L.R.B., 202
F. 2d 613 (C.A. 7); A. E. Staley Manufacturing Company v. N.L R B., 117 F. 2d
868 (CA. 7), and Martel Mills Corporation v. N.L R.B., 114 F. 2d 624 (C.A. 4).
In the last cited case the court refused enforcement of the Board's order against the
Company for an alleged discriminatory discharge of an employee. The motivating
cause was in issue as it is here. The Board had found an improper motive based
upon circumstantial proof. In rejecting the finding as not substantially supported,
the court stated, quite appropriate to the instant situation, as follows: "We do
not lose sight of the fact that our inquiry is centered upon the motivating cause
of the employer's action. The task is a difficult one. It involves an inquiry into the
state of mind of the employer. Such inquiry is laden with uncertainties and false
paths. Obviously our chief guide is the words of the witness under oath who under-
took to disclose the workings of his mind. If his explanation is a reasonable one,
the onus is upon the Board to establish the falsity of this explanation and the truth
of its own interpretation." Although Mr Harper denies knowledge of union
activity prior to his discharge of Griffin, and lack of antiunion motivation, I do not
accept his denial Three of the sincerest and most likely credible witnesses who have
ever testified before me were Mrs. Griffin who quoted Foreman Brown's reason for
Billy's discharge; witness Reilly, who was discharged for his union adherence as a
Yankee union troublemaker; and Billy Griffin himself. Foreman Brown's explana-
tion was a pure fabrication. The Board and courts, also, have held in cases too
numerous to mention that supervisors' knowledge of union activities is management
knowledge. Certainly it would be true in this case with a superintendent like Mr.
Harper The applicable principle of law that must guide decision here was expressed
by the First Circuit Court of Appeals in N.L.R.B. v. Whitin Machine Works, 204
F. 2d 883, 885, as follows:
In order to supply a basis for inferring discrimination, it is necessary to
show that one reason for the discharge is that the employee was engaging in
protected activity. It need not be the only reason, but it is sufficient if it
is a substantial or motivating reason, despite the fact that other reasons may
exist. [Citing cases.] Although the discharge of an inefficient or insubordi-
nate union member or organizer is lawful, it may become discriminatory if
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 451
other circumstances reasonably indicate that the union activity weighed more
heavily in the decision to fire him than did dissatisfaction with his performance.
[Emphasis supplied.]
The allegations of interrogation, threats, and of surveillance are sustained in the
instances herein cited by the evidence of record. However, as to all other allega,
tions in the consolidated complaints, I find that the General Counsel has not sus-
tained his burden of proof by a preponderance of the evidence of record, and it will
be recommended that they be dismissed.
On all the record, I am convinced, and I find, that Billy Ray Griffin's activities
constituted a substantial and motivating reason for his discharge, and that, but for
such union activities, the Respondent would not have discharged him when it did.
I conclude that the General Counsel has sustained the complaint's 8 (a) (3) and (1)
allegations of unlawful discrimination by a fair preponderance of the credible
evidence.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Automotive set forth in section III, above, oc-
curring in connection with the operations of the Respondents described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Automotive has engaged in certain unfair
labor practices, it will be recommended that the Respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent Automotive unlawfully discriminated with
regard to the hire and tenure of employment of Billy Ray Griffin. It will there-
fore be recommended that the Respondent offer him immediate and full reinstate-
ment to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him whole for any loss of pay he
may have suffered by reason of such discrimination, by payment to him of a sum of
money equal to that which he normally would have earned as wages from the date
of his discharge to the date of the Respondent's offer of reinstatement, less his
net earnings during that period, such sum to be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289-294.
As the unfair labor practices found above evince a studied intent to thwart the
rights of employees in freely selecting their collective-bargaining representative, a
broad 8 (a)( 1 ) cease-and-desist order will be recommended.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1 The Unions are labor organizations within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Billy
Ray Griffin, thereby discouraging membership in the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it
is recommended that the Respondent, its officers, agents, successors, and assigns,
shall:
1 Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization
of its employees, by discharging its employees or by discriminating in any other
672010-63-vol. 13 9-3 0
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner in regard to their hire or tenure of employment, or any term or condition
of employment.
(b) Threatening employees with discharge or other economic reprisal if they
join, retain membership in, or engage in activity on behalf of the Union, or any
other labor organization of its employees ; and/or interrogating and threatening em-
ployees as to their union membership , activities or desires , or as to the union
membership and activities of other employees , or engaging in surveillance of union
meetings in a manner constituting interference , restraint , or coercion in violation of
Section 8 (a) (1) of the Act.
(c) In any other manner interfering with , restraining, or coercing its employees
in their right to self-organization , to form labor organizations , to join or assist the
Union , or any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Billy Ray Griffin immediate and full reinstatement to the position he held
at the time he was discharged , or an equivalent position , without prejudice to his
seniority and other rights and privileges , and make him whole for any loss of pay
he may have suffered as a result of the discrimination against him in the manner set
forth above in the section entitled "The Remedy."
(b) Upon request make available to the Board or its agents , for examination and
copying, all payroll records, social security payment records, timecards , personnel
records, and reports, and all other records necessary to analyze the amount of back-
pay due under the terms of this Recommended Order.
(c) Post at its track and garage at Pecos, Texas, copies of the attached notice
marked "Appendix A." 1 Copies of said notice , to be furnished by the Regional
Director for the Sixteenth Region , Fort Worth, Texas , shall, after being duly signed
by a representative of the Respondent , be posted by the Respondent immediately
upon receipt thereof, and be maintained by it 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 to insure that such notices
are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region , in writing , within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith?
(e) It is recommended that the consolidated cases, except the complaint in Case
No. 16-CA-1492 , be dismissed in their entirety.
'In the event that these Recommendations be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and
Order."
a In the event that these Recommendations be 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 A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Rubber , Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or any other labor organization of our
employees , by discharging or otherwise discriminating against any employee in
regard to his hire, tenure of employment , or any term or condition of
employment.
WE WILL NOT threaten our employees with discharge or other economic re-
prisal if they join, retain membership in, or engage in activity on behalf of the
Union, or any other labor organization of our employees.
AUTOMOTIVE PROVING GROUNDS, INCORPORATED 453
WE WILL NOT interrogate or threaten our employees as to their union member-
ship, activities or desires, or as to the union membership and activities of other
employees, in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to joint or assist the above-named union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as
authorized by the National Labor Relations Act.
WE WILL offer Billy Ray Griffin immediate and full reinstatement to the posi-
tion he formerly held, or its equivalent, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him.
AUTOMOTIVE PROVING GROUNDS, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Center, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edison 5-5341,
Extension 284, if they have questions concerning this notice or compliance with its
provisions.
APPENDIX B
ARTICLE 1
* * * * * * *
1.4 Automotive will provide such drivers as are necessary for Armstrong's test
purposes.
ARTICLE 2
*
2.1 Armstrong shall have access to and use of the track for its own testing pur-
poses on a 24-hour seven-day per week basis for its trucks and passenger cars
subject to reasonable rules and regulations within the limits of 2.2.
* * * * * * *
ARTICLE 3
*
4.3 Armstrong will make their own tire test readings and their own test reports.
Armstrong will reimburse Automotive for the cost of Automotive's personnel used
in making of such tests.
4.4 Armstrong agrees to abide by all general rules and regulations promulgated
by Automotive relating to track scheduling, track usage, safety, vehicle safety,
insurance protection, and any and all rules and regulations promulgated for the
proper administration or maintenance of the track.
* * * * * *
ARTICLE 5
* * * * * * *
5.1 Automotive will promulgate rules and regulations regarding track adminis-
tration and maintenance including but not limited to the following:
* * * * * * *
(B) General rules regarding scheduling , including notification by various testing
parties to Automotive of requirements and provisions for the timely promulgation of
track schedules
(C) Regulations relating to the number of vehicles and the speed and safety
standards for such vehicles as well as all driver qualifications.
* * * *
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5.2 Automotive shall promulgate the above rules and regulations and charges
thereto in writing and supply all parties with copies thereof.
5.3 Automotive shall hire , pay, account for and supply all drivers and mechanics
and other personnel necessary for the testing to be conducted on the track. Auto-
motive shall be the final authority on the retention of any such employee. [ Emphasis
supplied.]
Reichart Furniture Co. and International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America,
General Teamsters , Chauffeurs, Warehousemen and Helpers,.
Local Union No. 697 . Case No. 6-CA-2465. October 24, 1962
DECISION AND ORDER
On July 11, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 Inter-
mediate Report. He also found that Respondent had not engaged
in cerain other unfair labor practices as alleged in the complaint and
recommended dismissal of those allegations.' Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermediate
Report, together with supporting briefs.
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 [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions, the briefs, and
the entire record in this case, and adopts the findings, conclusions, and
the recommendations of the Trial Examiner as modified herein.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order with the following modifications : 2
'As found by the Trial Examiner, the strikers who returned to work at the end of
October 1961 did so pursuant to an understanding between them , the Union , and the
Respondent that they would be treated the same , with respect to seniority, as the strikers
who returned to work on October 9. These strikers did not receive the written Statement
of Policy which was given the earlier returning strikers because , as appears in the Inter-
mediate Report, the assurances of job security which were contained in the Statement
of Policy were not necessary in their cases because they , unlike the strikers who returned
on October 9, returned with union approval . In view of these facts , we agree with the
apparent conclusion of the Trial Examiner that the Respondent did not establish one
seniority system for the strikers who returned to work on October 30 and 31 and another
policy, more favorable , for those who returned on October 9.
2 For the reasons given in Isis Plumbing & Heating Co ., 138 NLRB 716 , we also order
that the Respondent 's backpay obligation include the payment of 6-percent interest on the
backpay due Stillwell and Kovalsky . Member Leedom , however, for the reasons stated
in the dissent in the aforementioned case, would not grant such interest.
139 NLRB No. 38.