Bandag, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 72 (N.L.R.B. 1976)

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bandag, Incorporated and Local 1016 , International
Union of Electrical , Radio and Machine Workers,
AFL-CIO. Cases 16-CA-5847, 16-CA-5932, and
16-RC-6809
June 24, 1976
DECISION , ORDER , AND CERTIFICATION
OF RESULTS
On August 29, 1975, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent and the
Charging Party filed exceptions and supporting
briefs. Respondent filed a motion to reopen the rec-
ord and the General Counsel filed an opposition
thereto.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge only
to the extent consistent herewith and to adopt his
recommended Order, as modified herein.' -
We agree with the Administrative Law Judge's
8(a)(1) and (3) findings. We find merit, however, in
Respondent's exception to the issuance of a bargain-
ing order as part of the remedy.
Having lost a representation election on January
23-24, 1975, Charging Party filed objections on Jan-
uary 31 which the Regional Director found to be
timely served on the parties.4 In the course of his
postelection investigation, the Regional Director dis-
covered additional evidence of preelection miscon-
duct-election day threats of discharge and promises
of benefits by various supervisors of Respondent-
not included in Charging Party's objections. On
March 13, 1975, Charging Party filed an 8(a)(1)
charge alleging postelection misconduct by Respon-
dent. Before the Regional Director issued his Report
on Objections, Charging Party, on March 19, 1975,
requested in writing that its objections be withdrawn.
On March 25, the Regional Director issued his Re-
' The Respondent has excepted to certain credibility findings made by the
Administra tive Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2
A typographical error appearing in the fourth sentence of In 29 of the
Administrative Law Judge ' s Decision is hereby corrected by deleting "Gis-
sel" and inserting "Steel-Fab "
3 Respondent 's motion to reopen the record is hereby denied since, in
view of our disposition of the case , the evidence sought to be admitted is
irrelevant
Charging Party filed its first set of objections on January 29 However,
having failed to serve Respondent , it withdrew the objections on January 31
and filed the present set of objections on the same day
port on Objections, in which he approved Charging
Party's withdrawal request and also directed a
hearing on the newly discovered evidence of
Respondent's preelection misconduct. Such evi-
dence, together with the allegations contained in
Charging Party's aforementioned 8(a)(1) charge,
formed the basis of a subsequently issued order con-
solidating cases, consolidated complaint, hearing on
objections, and notice of hearing on April 1.5 The
instant hearing followed. The Administrative Law
Judge found most of the allegations in the consoli-
dated complaint, including those derived from the
Regional Director's postelection investigation of ob-
jections, to be proven, and recommended the is-
suance of a remedial Gissel bargaining order 6
In Irving Air Chute Company, Inc., Marathon Divi-
sion, 149 NLRB 627 (1964), enfd. 350 F.2d 176 (C.A.
2, 1965), the Board concluded that a union which
loses an election may still seek bargaining relief un-
der Section 8(a)(5) or (1) if the employer's conduct
was such that the election must be set aside. It was
emphasized, however, that a bargaining order would
not be granted in such cases:
[u]nless the election be set aside upon meritori-
ous objections filed in the representation case.
Were the election not set aside on the basis of
objections in the present representation case, we
would not now direct a bargaining order even
though the unfair labor practice phrase of this pro-
ceeding itself established the employer's interfer-
ence with the election. [149 NLRB at 630.] [Em-
phasis supplied.]
In the absence of meritorious objections, an election
is deemed valid; and the union, having failed to dem-
onstrate its majority status, is obviously not entitled
to a Board order compelling the employer to bargain
with it.
In the case at bar, this crucial precondition to a
bargaining order-the existence of meritorious ob-
jections justifying a setting aside of the election-is
missing. While the Charging Party had originally
filed timely objections which, in turn, placed the va-
lidity of the election in issue and triggered a postelec-
tion representation investigation by the Regional Di-
rector, the subsequent withdrawal of the objections,
approved by the Regional Director, has effectively
removed any question as to the election's finality. As
the Charging Party has, by its actions, chosen not to
contest the election any longer, the election must
stand. Accordingly, we shall certify the results of the
election. Furthermore, we shall not issue a Gissel bar-
e An original complaint, alleging numerous other preelection violations of
Sec 8(a)(1) and (3) of the Act by Respondent, had issued on January 13,
1975
6 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969)
225 NLRB No. I l
BANDAG, INCORPORATED 73
gaining order to remedy Respondent's unfair labor
practices, since such an order would, in effect, force
Respondent to bargain with a union which has failed
to show its majority status.
As our dissenting colleagues aptly point out, all the
cases that they cite are ones in which the objections
to the election were overruled rather than withdrawn
as here. The key difference between these cases is
that in the former a party was still contesting the
outcome of the election despite the fact that its ob-
jections had been overruled, while, in the instant
case, the Charging Party at the time it withdrew its
objections had by all appearances renounced any in-
terest in disputing the election. The fact that the
Charging Party has continued to take an active role
in the litigation of this case does not negate this
point, nor is it relevant. The correct test for determin-
ing interest is whether there are objections on file, as
it is during this period that the Regional Director
must make the decision whether to institute a post-
election representation investigation or to continue
one already begun. For with no objections on file,
the Regional Director has no reason to assume that a
party is interested in challenging the election any
longer and, therefore, he has no reason for expending
the Board's valuable time and resources in order to
see if any conduct possibly interfered with the elec-
tion. Naturally any party which has lost an election
would be only too glad, after it has withdrawn its
objections, to make use of any conduct which the
Regional Director might have uncovered on his own.
That is not the point. The point is whether given the
withdrawal of objections the Board wants its Region-
al Directors to continue to use the Board's limited
resources in order to try to unearth all employer or
union misconduct.
Our dissenting colleagues argue that the essential
question is "whether the employees' ballots were cast
in an atmosphere of fear and coercion, not . . . the
technical status of specific objections." However, by
their logic, a Regional Director would be compelled
to investigate any election, absent any objections,
where he has reason to suspect that employee rights
may have been violated. There would be no need for
an objections procedure at all. Moreover, their view
is at odds with the Board's pronouncement in Irving
Air Chute, supra, that, even if the employer's interfer-
ence with the election was "established," a bargain-
ing order would not be issued in the absence of meri-
torious objections.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 6 and renumber the
subsequent paragraph accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
Bandag, Incorporated, Abilene, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except as
modified herein:
1. Delete paragraph 2(c) and renumber the subse-
quent paragraphs accordingly.
2. Delete the second sentence in the last unlettered
paragraph in the recommended Order.
3. Substitute the attached notice for that of the
Administrative Law Judge.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
votes have not been cast for Local 1016, Internation-
al Union of Electrical, Radio and Machine Workers,
AFL-CIO, and that the said labor organization is
not the exclusive representative of all the employees,
in the unit herein involved , within the meaning of
Section 9(a) of the National Labor Relations Act, as
amended.
CHAIRMAN MURPHY, concurring:
I agree with my colleagues' conclusion that a bar-
gaining order is not appropriate under the circum-
stances of this case. It may appear to be a "technical-
ity" to have the grant of a bargaining order depend
on the pendency of "objections" to the election-
even though the specific allegations have been found
to be without merit. However, the fact is that so long
as such objections are on file and have not been dis-
posed of the election results are not final. Therefore,
if the Employer's unfair labor practices demonstrate
that the cards are likely to be a more reliable indica-
tion of the employees' desires than a new election, it
is proper to rely on the cards. But, where the election
results are final and they show that a majority of the
employees have voted against representation by the
union, there is no way to overcome that lack of ma-
jority status.' I emphasize, again, that the objections
here were withdrawn by the Union.
In accordance with the above findings, we adopt
the Administrative Law Judge's Conclusions of Law,
with the following modification:
7 As the Supreme Court noted in G,ssel, there may be some situations in
which the employer's unfair labor practices are so severe that a bargaining
order may be appropriate notwithstanding the absence of a showing of
Continued
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBERS FANNING and JENKINS, dissenting in part:
According to the unfair labor practice findings of
our majority colleagues, with which we completely
agree, Respondent, in the critical period preceding
the election, interrogated employees regarding their
union sentiments, threatened employees with various
reprisals for engaging in union activities, promised
employees benefits for voting against union represen-
tation, and maintained in effect an unlawful no-dis-
tribution and no-solicitation rule. Also, shortly after
the election but while objections were pending, Re-
spondent discharged Charging Party's prime in-
house organizer because of his union activities. Yet,
our majority colleagues have declined to issue the
usual Gissel bargaining order to remedy such egre-
gious misconduct solely because Charging Party
withdrew its objections subsequent to the initiation
of the Regional Director's postelection investigation.
Unlike our majority colleagues, we feel a bargaining
order is clearly called for here. The denial of such a
remedy on the questionable grounds outlined in the
majority opinion compels us to dissent.
The lone authority cited by our majority col-
leagues for their refusal to issue a bargaining order is
Irving Air Chute Company, Inc., 149 NLRB 627
(1964), which holds that before a bargaining order
can issue the election must be set aside based on mer-
itorious objections. As we understand the majority
opinion, since Charging Party had earlier withdrawn
its objections, the requirement of Irving Air Chute,
pendency of meritorious objections, had not been
complied with, and no bargaining order could there-
fore be issued. However, Board cases issued subse-
quent to Irving Air Chute indicate that the issuance of
a bargaining order does not turn on the narrow ques-
tion of existence of "meritorious objections," but
rather on the broader question of whether the Board
is faced with the results of a valid election.' This con-
cept is illustrated most clearly in our recent decision
in Pure Chem Corporation, 192 NLRB 681 (1971). In
Pure Chem, as in the instant case, the petitioning
union filed objections to the election and the Region-
al Director conducted a postelection investigation
which uncovered other evidence of the employer's
preelection misconduct which, if substantiated,
would warrant setting aside the election and thus
form the basis of violations of Section 8(a)(1) of the
Act. After a consolidated representation and com-'
plaint hearing was held, the Board set the election
aside and issued a remedial bargaining order not, sig-
majority status This is not such a case, however, and the Board has not yet
found a bargaining order warranted in the absence of a majority
8 Morris Novelty Co, Inc, 157 NLRB 1471 (1966), Dawson Metal Prod-
ucts, Inc, 183 NLRB 191 (1970)
nificantly, on the basis of the petitioner's objections,
which were overruled, but on the basis of the evi-
dence uncovered in the Regional Director's investi-
gation, which also formed the basis of the unfair la-
bor practice findings. The majority opinion in that
case specifically noted that the Irving Air Chute re-
quirements for a bargaining order were met there,
stating that
. . . an election may be set aside and a bargain-
ing order issued where objections to the election
were found to be without merit but where the em-
ployer had engaged in various unfair labor practic-
es which were discovered during the postelection
investigation. In this case, the complaint con-
tained specific allegations of unlawful conduct
which occurred during the critical period. To al-
low Respondent to avoid the ramifications of
this conduct simply because the Petitioner failed
to frame the scope of such conduct within [its]
objections would frustrate the rights of employ-
ees which are of paramount importance.' [Em-
phasis supplied.]
Pure Chem has been cited with approval by the
Board in a similarly consolidated representation and
complaint case, American Electro Finishing Company,
Inc., 212 NLRB 654 (1974), where again the Board
issued a remedial Gissel bargaining order predicated
solely upon preelection misconduct not alleged in the
petitioner's objections rather than upon the objec-
tions themselves which were found nonmeritorious.
Significantly, this emphasis on the general nature
and extent of an employer's preelection misconduct,
as opposed to the technical existence of meritorious
objections, in evaluating the validity of an election is
not limited to cases involving the issuance of a
remedial order, but rather is characteristic of all
cases where the Board is faced with the question of
whether or not to set aside an election. In Domino of
California, Inc., 205 NLRB 1083 (1973), for instance,
the Board set aside one election and directed another
on the strength of the preelection discharge of a
union adherent even though such action was not spe-
cifically alleged to be objectionable misconduct. The
Board took similar action in North Adams Inn Corpo-
ration, 223 NLRB 807 (1976), even though it found
all of the objections filed by the petitioner to be non-
meritorious. In so doing, the Board specifically re-
versed the Administrative Law Judge's recommend-
ed certification of election results, and ordered a
second election. Citing Pure Chem, the Board based
its decision solely on the existence of 8(a)(1) miscon-
duct within the "critical period." It is thus evident
9 192 NLRB at 681
BANDAG, INCORPORATED 75
that the Irving Air Chute "meritorious objections"
prerequisite for a bargaining order has never played
the key role now ascribed to it by our colleagues.
The only aspect in which this case differs from
Pure Chem and related cases is that here the objec-
tions to the election were withdrawn by the Charging
Party rather than overruled. It is upon this difference
that our majority colleagues have focused in finding
the instant election valid and refusing to issue a bar-
gaining order. As we understand the thrust of the
majority opinion, by withdrawing its objections,
Charging Party renounced any interest in contesting
the election; there being no outstanding objections,
the entire issue of the validity of the election results
was rendered "moot" and the election results should
have been certified. Why Charging Party chose to
withdraw its objections after the initiation of the Re-
gional Director's postelection investigation is not
known. Whatever the reason, however, actions subse-
quent to the withdrawal reveal anything but indiffer-
ence to the outcome of the representation case.
Charging Party was a party to the consolidated
representation and complaint case. Its counsel was
present throughout the hearing and examined and
cross-examined witnesses. It filed a brief to the Ad-
ministrative Law Judge and exceptions to the
Administrative Law Judge's Decision and a support-
ing brief to the Board. A large portion of both briefs
was devoted to arguing the invalidity of the election
and why a remedial bargaining order should issue in
its favor.
Even if, for the sake of argument, Charging Party
did not continue to take such an active role in the
litigation of this case, we would still question the
weight our majority colleagues have attached to
Charging Party's withdrawal of objections. Our col-
leagues take too mechanistic a view of the Board's
proper role in resolving representational disputes.
Once our postelection investigative machinery has
been set in motion through the filing of postelection
objections, as was done here, we have the statutory
responsibility to find employer misconduct where it
exists and take the appropriate remedial action, even
if it means going beyond the four corners of the orig-
inal objections.10 By denying the employees victim-
ized by such misconduct the relief ordinarily due
them on the basis of Charging Party's later withdraw-
al of objections, our majority colleagues have turned
their backs on the overriding policy considerations
expressed in the recent line of cases set forth above,
namely, that when determining the validity of elec-
tions we look at whether the employees' ballots were
cast in an atmosphere of fear and coercion, not at the
technical status of specific objections.
Respondent, throughout the critical period to the
election, and continuing thereafter committed many
unfair labor practices, including, but not limited to,
interrogations, threats of reprisal, promise of bene-
fits, and discharge of a union adherent. These num-
erous and flagrant unfair labor practices dissipated
Charging Party's majority status and destroyed the
laboratory conditions necessary for the holding of a
fair and proper election. Respondent's misconduct
has also rendered impossible the holding of a fair
and proper second election. A remedial bargaining
order is clearly called for and we would grant it.
10 International Shoe Company, i23 NLRB 682 (1959)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employ-
ees concerning their union activities or the union
activities of other employees.
WE WILL NOT threaten to discharge or to take
legal action against employees because of their
union activities.
WE WILL NOT threaten to withhold raises or
benefits or to reduce benefits in reprisal against
employees for voting for union representation,
and WE WILL NOT promise employees increases in
wages and benefits in exchange for voting
against union representation.
WE WILL NOT maintain or enforce our present
rule against soliciting for union purposes and
distributing union literature on company prem-
ises (rule 13 and its amendment), and WE WILL
NOT maintain or enforce any rule which prohib-
its union solicitation and distribution of union
literature but permits solicitations and distribu-
tions on company premises for nonwork -related
purposes.
WE WILL NOT threaten to close the plant or to
curtail plant operations in reprisal for union ac-
tivities on the part of employees.
WE WILL NOT, by any means or in any manner,
interfere with , restrain, or coerce employees in
the exercise of rights guaranteed to them by Sec-
tion 7 of the Act. These rights include the right
to form , join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing , and to engage in other con-
certed activities for their mutual aid and protec-
tion.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT, by discharge, suspension, or
other means, discriminate against employees in
order to discourage membership in Local 1016,
International Union of Electrical, Radio and
Machine Workers, AFL-CIO, or any other la-
bor organization. All of our members are free to
become or to remain members of that Union or
any other union.
WE WILL offer to Carlos Rodriguez full and
immediate reinstatement to his former or sub-
stantially equivalent position and WE WILL make
whole Carlos Rodriguez and Orville Scott Hayes
for any loss of pay which they have suffered by
reason of the discrimination practiced against
them, with interest thereon at 6 percent per year.
BANDAG, INCORPORATED
DECISION
FINDINGS OF FACT
Statement of the Case
WALTER H . MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me at Abilene, Texas,
upon a complaint ,' issued by the Regional Director for
Region 16 , and amended at the hearing, which alleges that
the Respondent , Bandag, Incorporated , violated Section
8(a)(1) and (3) of the Act. The complaint is consolidated
with objections to the conduct of an election which took
place at the Respondent 's Abilene, Texas, plant on January
23 and 24, 1975. The Petitioner and Charging Union herein
lost the election by a vote of 28 to 15. More particularly,
the consolidated complaint alleges that the Respondent has
i The principal docket entries in Cases 16-CA-5847 and 16-CA-5932 are
as follows
Charge in Case 16-CA-5847 filed by Local 1016, International Union of
Electrical, Radio, and Machine Workers, AFL-CIO (herein called Union),
on November 19, 1974, complaint issued therein on January 13, 1975,
Respondent's answer filed therein on January 14, 1975, charge in Case 16-
CA-5932 filed on January 11, 1975, and amended charge filed on March 13,
1975, order consolidating both complaint cases with Case 16-RC-6809 and
consolidated complaint issued April 1, 1975, Respondent's answer to con-
solidated complaint filed April 9, 1975, hearing held in consolidated cases
in Abilene, Texas, on May 27-30, 1975
The principal docket entries in Case 16-RC-6809 are as follows Stipula-
tion for Certification Upon Consent Election, approved by Regional Direc-
tor on December 18, 1975, election conducted at Abilene, Texas, on Janu-
ary 23 and 24, 1975, in a unit composed of all of Respondent's production
and maintenance employees at the Abilene plant , with certain stated exclu-
sions, objections to the election filed by the Union on January 31, 1975 1
find that the Respondent , at all times material hereto , is and has been an
Iowa corporation, which operates a plant at Abilene, Texas, where it is
engaged in the manufacture of rubber tread for automobile and truck tires
During the preceding year, it has manufactured and shipped from its Abi-
lene, Texas, plant directly to points and places outside the State of Texas
goods and merchandise valued in excess of $50,000 Accordingly , it is an
employer within the meaning of Sec 2 (2), (6), and (7) of the Act I also find
that Local 1016, International Union of Electrical, Radio, and Machine
Workers, AFL-CIO (herein called Union or IUE), is a labor organization
within the meaning of Sec 2(5) of the Act
2 National Labor Relations Act, as amended (29 U S C § 151, et seq)
maintained and enforced an illegal no-solicitation and no-
distribution rule; threatened an employee by suggesting he
get a lawyer to protect himself regarding his union activi-
ties; threatened to close the plant; threatened a reduction
in pay and fringe benefits; threatened retaliation for voting
for the Union; promised an increase in company benefits if
the Union should lose an election and threatened to with-
hold pay raises if the Union should continue its activity;
and promised an employee a better job and removal of a
reprimand in his personnel file if he voted against the
Union. The General Counsel also contends that the Re-
spondent discharged employee Carlos Rodriguez and sus-
pended employees Myrl Hill and Scott Hayes for union
activities. He seeks a Gissel remedy. The Respondent de-
mes the commission of any independent violations of Sec-
tion 8(a)(1) of the Act, asserts that Rodriguez was dis-
charged for insubordination, and requests that the election
results of January 23 and 24 be allowed to stand. It also
contends that Hill and Hayes were suspended for cause.
On January 31, 1975, the Union filed five objections to the
conduct of the election relating to the contents of preelec-
tion literature distributed by the Respondent. The Region-
al Office, in investigating these objections, uncovered addi-
tional information indicating that certain preelection
threats and promises were made by the Respondent to var-
ious employees in order to influence the outcome of the
election. It approved the Union's request to withdraw the
five objections aimed at the Respondent's preelection liter-
ature, and referred the additional objectionable conduct
which was brought to its attention during the investigation
to me for a determination. Such conduct was alleged by the
Regional Director in the consolidated complaint to be vio-
lations of Section 8(a)(1) of the Act. Upon these various
contentions, the issues herein were drawn.3
A The Unfair Labor Practices Alleged
Respondent produces tire tread for use on automobile
and truck tires. Its headquarters is in Muscatine, Iowa, and
it has plants at various locations throughout the United
States, Canada, and abroad. Involved in this case is its
Abilene, Texas, facility, where it employs approximately 50
production and maintenance employees. In 1972, the Rub-
ber Workers began an organizing drive at the Abilene
plant. One of the principal in-house organizers during this
campaign was discriminatee Carlos Rodriguez. His efforts
on behalf of the Rubber Workers were well known to
Respondent's management. This drive did not result in an
election or in the recognition of that union, and eventually
the Rubber Workers discontinued their drive.
In the fall of 1974, Rodriguez began again to organize
the Respondent's Abilene employees, this time on behalf of
the IUE. He contacted Tony Rodriguez (no relation), an
employee of the C. G. Conn Company, a musical instru-
ment plant in Abilene, and himself, the president of IUE
Local 1016. C. Rodriguez obtained from T. Rodriguez a
number of IUE cards to be distributed to Bandag employ-
ees. He also assisted International Representative Ray
Mendez, who works out of San Antonio, in organizing
7 Certain errors in the transcript are hereby noted and corrected
BANDAG, INCORPORATED 77
meetings of Bandag employees to discuss the pros and cons
of union organization. In October and November, he ob-
tained signatures from about nine Bandag employees on
IUE designation cards. Rodriguez was one of six members
of the Bandag IUE organizing committee, all of whom pro-
claimed their leadership in the organizing effort through-
out the campaign by wearing special organizing committee
buttons which were different in legend and design from
buttons worn by other union partisans.
Rodriguez himself is illiterate. His native language is
Tex-Mex, a Spanish dialect spoken in the Southwest. Ro-
driguez both speaks and understands English, but not very
well. It was apparent to me from listening to Rodriguez'
testimony, given at the hearing through an interpreter, that
he also has difficulty in understanding Spanish. He began
his employment at Bandag in the fall of 1971 and occupied
the semiskilled job of banbury operator until his discharge
on February 4, 1975. Rodriguez, as well as all of the other
employees at the plant who testified, had an informal and
open relationship with Plant Manager Ron McGlothin and
all other supervisors.4 Early in October 1974, McGlothin
was confined to the hospital with a painful leg ailment.
Rodriguez visited him at the hospital and told McGlothin
that he was going to bring in a Union again. McGlothin
said that the Company did not need the Union before and
did not need it now, and asked Rodriguez if he really knew
what he was doing. He told Rodriguez that he would have
to oppose this effort. He also told Rodriguez that this time,
things were going to be different than they were during the
Rubber Workers' campaign and this time Rodriguez was
going to get into trouble. Rodriguez told McGlothin that
he placed a job application with C. G. Conn, to which
McGlothin replied that he knew he had done so, adding
that he would tell Conn that Rodriguez was a troublemak-
er and that Rodriguez would not be able to get a job any-
where in Abilene.b'McGlothm's wife arrived at the hospital
room and Rodriguez was promptly asked to leave.
During his confinement, McGlothin was also visited by
employees Myrl Hill and Orville Scott Hayes. Hill and
Hayes complained to McGlothin about alleged favoritism
at the plant. They also discussed the forthcoming union
drive and Rodriguez' role in it. McGlothin tried to discour-
age Hayes and Hill from participating in the effort, telling
them that the IUE was mostly Mexican and suggesting that
they would not want to be members of it on that account.
Later, in October, after McGlothin had returned to duty,
he summoned Rodriguez into his office and had a lengthy
conversation with him in the presence of Bill Wright, the
office manager. McGlothin complained to Rodriguez that
the latter was spreading a false rumor throughout the plant
to the effect that McGlothin really did not care whether
4 Rodriguez was on a first name basis with McGlothm, visited McGlothin
at his home several times, and, as noted in the text, visited him when he was
confined to the hospital
5 McGlothm admits making a statement to Rodriguez that "this time
things were going to be different" but believes that he made the statement at
a later meeting with Rodriguez in his office He was under sedation at the
time and admits that his recollection of the hospital visit is unclear I credit
Rodriguez
6 McGlothm denies making this statement, but I credit Rodriguez' testi-
mony on this point
the Union did or did not come into the plant and was
merely making a show of opposition in order to impress the
home office in Muscatine. McGlothin stated flatly these
remarks were untrue, that he was personally opposed to the
unionization of the Abilene plant, and that, if Rodriguez
did not stop spreading false rumors, Rodriguez would need
a lawyer. The implication of this remark was that Rodri-
guez' alleged remarks to employees were libellous. Rodri-
guez said that he did not think that he needed a lawyer. As
McGlothin put it, "I was really trying to scare him."
Rodriguez questioned McGlothin and tried to get him to
admit that he favored unionization of the plant. McGloth-
in replied that he had worked previously in a unionized
plant 7 and could do so again, but he much preferred not to
do so. He also confronted Rodriguez with a rumor attribut-
ed to him to the effect that Office Manager Wright had
offered him $2,000 to quit the plant. Wright asked Rodri-
guez where he thought he could get that kind of money.
Rodriguez referred to the Rubber Workers' campaign in
1972 and said that he was repeatedly asked by fellow em-
ployees to start up another campaign He told Wright and
McGlothin that, at first he declined, but after employee
pressure on him began to mount, he decided that he would
do so and that this time he would take it "all the way."
McGlothin mentioned that he had a lawyer and that this
time things would be handled differently.
The vast bulk of the designation cards collected by the
IUE were signed in late October or early November. They
obtained a total of 27 cards in a unit of 48 employees.8
During this period of time, and indeed up to and beyond
the time of the election, rumors both favorable and inimi-
cal to the unionization effort ran rampant throughout the
plant. During an evening meal or rest break on November
14, several employees were discussing the organizing drive
then in progress. Employee Myrl Hill, a member of the
organizing committee, recalls some employees saying that
they would get union benefits but would pay no union
dues, and admits saying in response to this remark that he
had heard people who did not pay union dues but received
union benefits would have poor running cars. The refer-
ence was to putting sugar in gas tanks. Ramon "Butch"
Roach , an in-law of Plant Manager McGlothin, stated that
he did not want to join a union because he had been in one
before and did not care for it. To the "poor running cars"
remark he replied that, if any employee sugared his car, he
would "whip their ass and sugar up their car " Hayes asked
Roach if he knew what a scab was and whether he would
belong to the scab membership at the plant if it went
union. Roach replied in the affirmative to both questions.
Employee John Lomax chimed in to say that he wished
someone would do something to his car so he could collect
insurance on it.
Douglas Gray, another participant in the breaktime con-
versation, had occasion later in the evening to speak with
7 Dayton Tire and Rubber Company
B The Respondent does not seriously contest the fact that the Union had
a card majority at one point in the campaign The General Counsel prof-
fered a total of 28 cards in making the above-noted finding, I do not count
the card of George Saucedo since his name does not appear on the Excelsior
list which was introduced into evidence to show the identity of unit employ-
ees on January 23 and 24
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott Hayes, an organizing committee member. As Hayes
was getting off a forklift in Hayes' working area near the
festoon or wigwag machine, Hayes asked Gray to sign a
union card and Gray declined, saying that he wanted to
find out both sides of the question before committing him-
self. At this point, Hayes asked Gray if he knew what a
scab was. When Gray said that he did not, Hayes asked
him if he would like to know When Gray professed indif-
ference, Hayes then defined a scab to him as a "low-life,
-, s.o.b." On the same evening, Gray, Roach, and a third
employee, Fred Williams, reported to Supervisor Virgil
Thomas that Hill had threatened to sweeten the gas tanks
of employees who did not sign union cards, and Gray also
reported the conversation he had with Hayes. Thomas
phoned McGlothin and in turn reported these conversa-
tions, or versions thereof, to McGlothin. McGlothin told
Thomas to watch the parking lot to see that no vandalism
took place to employees cars and, later on in the evening,
came to the plant himself. By that time, Hayes and Hill,
who were day-shift employees, had left. He talked to
Roach, Gray, and Williams in the conference room. Roach
reported that Hill had threatened damage to cars of per-
sons who did not sign union cards. Two employees asked
McGlothin if the Company had insurance which would
compensate employees for damage of this kind. McGlothin
replied that he did not know but he would try to prevent
such damage and would try to pay for such damage if in
fact it occurred. Gray then reported his conversation with
Hayes, and, according to McGlothin, added that Hayes
had not only defined "skag" (this was Gray's under-
standing of Hayes' term), as noted above, but had applied
the term to him. McGlothin also met with employees John
Lomax, Gary Tyler, and Leslie Lipham to obtain their ver-
sions of the lunchroom incident. Various employees report-
ed various versions of Hill 's remark about rough running
cars and had differing reactions to the remark, ranging
from anger to fear to indifference 9
The next morning, McGlothin met with Hill, Hayes, and
several supervisors in his office . He asked Hill what he had
said at the break , and Hill replied that he said in the course
of a discussion of the union drive that he had heard that
those who received union benefits without paying dues
would have poor running cars because of sugar in the gas
tank. He denied saying that he had threatened to take any
such action himself . McGlothin admonished him for this
remark, saying that he could not understand how Hill, who
was an adept auto mechanic , would make such a remark
since some people took him seriously . He further told Hill
that he had gotten himself in real trouble by his remark
because everyone in the plant had heard about it and, as
plant manager , McGlothin could not have that kind of
thing happening . He asked Hill if he was proud of himself
for having made the remark , and Hill said no.
9 Various versions of Hill's breaktime remark place different nuances on
what he said One witness indicated that Hill threatened to sugar gas tanks
of those who did not sign cards and another said that Hill had "heard" that
such might take place A third said that the conversation was a normal
breaktime conversation and that no threats were uttered A fourth said that
remarks concerning sweetening of gas tanks and other vandalism to cars
took place in the context of a conversation about what had transpired at
other plants
McGlothin then began to reprimand Hayes. He told
Hayes that he was in trouble for talking to employees
about the Union on company time . He asked Hayes if he
had called Gray a scab and inquired how he had defined
the term. Hayes denied calling Gray a scab, but told Mc-
Glothin that he had defined the term to Gray as a "low-
life, -, s.o.b." McGlothin asked him if he liked to hear
that kind of language. Hayes replied that he did not but
that it was nothing unusual. McGlothin asked Hayes if he
was proud of himself for using such language , and Hayes
said that he was not but that he heard it everywhere and
repeated that it was not unusual . McGlothin told Hayes
that his definition was not a true definition of a scab as far
as McGlothin was concerned , and went on to redefine the
term to Hayes as a person who has the courage of his
convictions to cross a picket line and earn money for his
family.
At the conclusion of these remarks, McGlothin asked
both Hill and Hayes to leave the room for a few minutes.
When they returned, he informed them that they were
being suspended for 3 days without pay. He told Hill he
was being suspended for making a threat to employees
about damaging their cars and that Hayes was being sus-
pended for badgering Gray about the Union, calling him a
scab, talking to employees on company time, and defining
scab in the manner in which he did.
At this time , the Respondent maintained a no-solicita-
tion rule in its employee handbook which , in rule 13, de-
fined as a breach of company regulations:
Circulating petitions, distributing any written or print-
ed matter, or posting same such matter of any descrip-
tion on Company premises , including parking lots,
without prior approval of Plant Manager.
In the course of the evening of November 14, while trying
to sort out the facts of the incidents involving Hill and
Hayes, McGlothin phoned Company Attorney Parker to
discuss both these events and other matters relating to the
attempted unionization of the plant . Among other things,
they discussed the above -quoted rule Parker told Mc-
Glothin it was unduly broad and advised him to amend it.
The following day, after the suspension of Hayes and Hill,
McGlothin caused to be posted on the bulletin board a
revised rule 13, which read as follows:
Below is a clarification of rule # 13 in the employees
handbook . Please read it carefully , if you do not un-
derstand it, ask your supervisor.
Circulating petitions , distributing any written or print-
ed matter , soliciting , or posting same such matter of
any description during working time in plant without
prior approval of Plant Manager.
On November 21, 1974, at 3 p.m. McGlothin spoke to an
assembly of employees in the breakroom . He told them
that the fact that the plant might go union would not auto-
matically mean that employees would get raises and stated
that employees could lose wages and benefits in that event.
He noted that , in negotiating with a union , the Company
was not obligated to go half way or agree with every union
proposal and stated that it might take I or 2 years for a
union to get a contract . Meanwhile, all wages and benefits
BANDAG, INCORPORATED
would be frozen. In recounting his version of the speech,
McGlothin said he told employees that bargaining would
start from scratch. By way of illustration, he read to the
employees an excerpt from the LRRM report of Midwest-
ern Instruments, which found in heavy print at 48 LRRM
1795 [133 NLRB 1132], to the effect that an employer who
was not going to eliminate breaks could refuse to incorpo-
rate existing rest breaks in a proposed union contract and
the Board would uphold him.10 He went on to say that
employees did not need outside protection, claiming that
the Company's track record indicated that many people
had been given second, third, and fourth chances without
being fired and that others who no longer work there were
trying to get their jobs back. He also referred to the recent-
ly posted revision of rule 13, read the text of it aloud, and
asserted that the rule was for the benefit of employees as
well as the Company. He told them that "the main reason
for it is I'm not going to tolerate people circumventing
rules and situations just to gain favor for something they
want when it's not something the company wants. We're
just not going to tolerate it" He went on to say that the
rule did not mean that employees could not talk on the job
As long as employees kept up their pace and the quality
level of their fob and were working safely and not disrupt-
ing anything, it would be permissible for them to talk with
each other, but he would not tolerate employees interrupt-
ing the work of others. Any employee who wanted to sell
something could ask permission from McGlothin to post
an ad on the bulletin board and permission to do so would
be granted
About this same time, McGlothin also spoke to an over-
lapping meeting of the night and day shifts which took
place early in the morning About 15 employees were pres-
ent at that speech. McGlothin told them that the Company
should be hiring men at present to go into full production
but this plan was up in the air because the Union had
messed it up. He described the process of collective bar-
gaining to the assembled employees, saying that pay and
benefits could be reduced before negotiations and that em-
ployees might lose their two 5-minute breaks McGlothin
further stated that, in an earlier campaign, no one had been
fired but that this time some people had gone too far. He
said that Hayes had been suspended because he had been
seen talking to five people about the Union and three of
the five did not want to hear about it. He also said that Hill
had been suspended for telling employees that their cars
would run poorly.
Both before and after the promulgation of revised rule
13, the Company permitted solicitations of employees dur-
ing working time for various purposes. Weekly football
pools were commonplace. One employee sold oranges to
other employees for the benefit of a worthy cause and
placed the oranges at the front office to be picked up at the
10 The excerpt reads as follows
Employer did not violate LMRA by telling union during contract nego-
tiations that he did not think matter of rest periods should be included
in contract, which was merely statement of position and not refusal to
discuss issue Employer is not obliged to continue all existing practices
and benefits that union considers beneficial, since terms and conditions
of employment are subject to negotiation
79
end of the shift. On one occasion employees were solicited
for money to buy a Christmas gift for a supervisor. A solic-
itation for the United Fund was regularly made. Any em-
ployee who did not care to contribute to the United Fund
was required to report personally to McGlothin's office to
explain to the plant manager his reason for declining to
participate
During the course of the organizational drive, company
foremen and employees had frequent occasion to discuss
the organizational drive in individual conversations. About
November 1, Shipping and Receiving Department Fore-
man Ovid C. "Jerry" Ward was driving from the Bandag
factory to its warehouse on a company errand with Scott
Hayes. He told Hayes that he did not think Hayes knew
what he was getting into with Carlos and Tony Rodriguez
He suggested that Hayes read the union contract at C. G.
Conn, an organized shop, and Hayes said he would. Ward
told Hayes he did not think he would like to pay union
dues since he did not like to contribute to the United Fund,
and said that he did not think that the Union would help
Bandag in any way. Late in February, after the election
and at or about the time that a hearing in this case was
originally scheduled, Ward, who by then had become pro-
duction supervisor, discussed the matter of going to court
with Hayes, telling Hayes that employees would not get a
raise in wages or any increase in benefits until this union
activity was over. Without specifically mentioning the late
February conversation with Hayes, Ward confirmed that
the remark was of the kind and character which he had
made to Hayes on several occasions. On another occasion,
early in December, Ward saw Hill in the shipping and re-
ceiving area. Hill had adorned his shirt with about 20
union buttons, and Ward ventured the remark that the but-
tons "looked like shit" and that his little boy used to wear
buttons in this fashion. Hill replied that his shirt was just as
clean then as when he first put the buttons on. Ward did
not deny this latter statement.
On the morning of the day on which the second session
of the representation election was held, Production Super-
visor Jerry White saw maintenance mechanic J. H. Chap-
man near the timeclock as Chapman was getting ready to
punch out. White told Chapman that if the Union lost the
election the mill operators would get immediate raises and
that the Company would be negotiating with the home of-
fices for more money for the finish line and the press. He
said that McGlothin would be in a better bargaining posi-
tion with the home office in Muscatine if the Union got
voted out. Chapman repeated these remarks to employee
Hollis Wimberly. White testified that he discussed with
Chapman and other employees the question of raises be-
fore election day but did not do so on election day. He
admitted to employees that he had heard rumors that mill
operators and press helpers would get raises, but claims he
declined comment on the truth or falsity of the rumors. He
admitted hearing commentary by other employees of the
nature indicated by Chapman but denies making such re-
marks himself. He denies the specific comments attributed
to him by Chapman on January 24. He told employees he
thought Ron McGlothin could do better for them than the
Union I credit Chapman.
Dewayne Dodson testified credibly that, in the course of
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a conversation in early November with Delano "Sonny"
Campbell, a production supervisor on the late night shift
(the so-called A Shift), Campbell told him that if the com-
pany went union, they might close the Abilene shop and
send the tire moulds back to the home office in Muscatine.
Campbell admits making this statement , but insists that he
was only voicing his personal opinion. In the course of the
same conversation which took place in the breakroom,
Campbell reportedly asked Dodson how many union cards
Dodson had obtained. Dodson replied that he could not
answer that question. Campbell denies this aspect of
Dodson's testimony. I credit Dodson. Just before Dodson
left the employ of Bandag in mid-February," Campbell,
who apparently felt badly that a number of immediate sub-
ordinates had supported the Union, asked Dodson how he
could improve his supervision in the future. About this
same time , when the original complaint in this proceeding
issued had named Campbell as one of the supervisors who
had committed a violation of Section 8(a)(1), Campbell
also asked Dodson if he was the one who made the allega-
tion against him . Dodson admitted that he was.
On the second day of the two-part election, Foreman
Gene Sumner reportedly met Rodriguez in the plant short-
ly before the resumption of voting and asked him if he was
going to vote "no." Rodriguez replied that he was going to
vote "yes," whereupon Sumner asked him if he knew that
the Company had enough money to fire him. Sumner ad-
mits that on various occasions Rodriguez told him that he
was going to vote for the Union and that he (Sumner) had
made an effort to change his mind. He denies making the
statement attributed to him by Rodriguez that the Compa-
ny had enough money to fire him. I credit Rodriguez.i2
As noted before, Carlos Rodriguez was employed as a
helper or loader on the banbury machine. A banbury ma-
chine transforms raw rubber , which is purchased in large
blocks, into a lengthy ribbon of a processed rubber suitable
for fabrication into tire treads. Under normal operations, it
is manned by four men-the banbury helper (or loader),
the banbury operator, the mill operator, and the festoon
(or wigwag) operator. It is not contested, and I find, that
the job of banbury helper is the most arduous and physi-
cally taxing of the four positions The helper obtains from
a storage area rectangular blocks of rubber, each weighing
about 85-90 pounds which are loaded on skids. The skids
are transported by a forklift to the banbury. These blocks
are stored about 50 to 100 yards from the conveyor. The
loader cuts the blocks to conform to the specifications of
the formula used in processing as they are placed on the
11 Dodson resigned voluntarily in mid-February 1975, and is no longer an
employee of Bandag
1 Respondent argues that , in determining the credibility of conflicting
witnesses , the trier of fact should assess the probabilities involved in varying
statements From that premise , he argues that Sumner should be credited
over Rodriguez in this factual collision because it is improbable that Sum-
ner, who knew Rodriguez to be a union leader , would have asked him
whether he was going to vote "no " If the statement attributed to Sumner is
treated solely as an interrogatory designed to elicit information, this argu-
ment carries weight If the statement is considered as a needle and a threat
couched in the form of question , this contention loses impact The adden-
dum to the question-that the Company had enough money to fire Rodri-
guez-negates any suggestion that Sumner was merely looking for informa-
tion from Rodriguez
conveyor. Each batch that is processed contains about 450
pounds; the banbury itself can handle five batches at a
time. During the course of the day, the helper is called on
to lift in excess of 40,000 pounds of rubber. After preparing
a batch on the conveyor, the helper climbs an 8-foot ladder
and goes along a catwalk to 10 different hoppers which
hold the various chemicals which are mixed with the rub-
ber. In addition to keeping the conveyor loaded with rub-
ber blocks cut to prescribed weights, the banbury helper is
responsible for seeing to it that the bins remain loaded with
steric acid, Chement zinc, Santocure, Dowgard, and vari-
ous other chemicals used in the process, and that the area
around the bins is swept clean. 13 The banbury operator
pushes various buttons which cause the rubber and the
chemicals to be dumped into the banbury machine in prop-
er proportions. It takes about 3 minutes to mix a batch of
rubber in the banbury machine. When the batch is com-
pleted, it is dropped onto a mill and run through the mill
under the direction of the mill operator. At this point, the
rubber is being processed in a long ribbon which is about 2
feet wide. It is processed through a dip tank where the
rubber is cooled. Then it moves to a bar-type conveyor
where the ribbon of rubber hangs in loops. This location,
referred to as the batch-off conveyor, is where the rubber
continues to cool. When the mill is empty, the mill operator
stops the batch-off conveyor until another batch is ready.
The ribbon of rubber is then processed to a point about 16
feet above the level of the plant floor on roller bars where
the fourth crewmember, the festoon (or wigwag) machine
operator, stands on a platform above the plant floor, pulls
the ribbon off of bars, and sticks it on a belt conveyor
where the ribbon goes under a tension roller. The ribbon
normally emerges from the wigwag at the rate of about 20
feet per minute. The ribbon drops to the plant floor and
goes through a flapping apparatus which makes the ribbon
of rubber easier to fold when it reaches the skids. The wig-
wag operator goes downstairs to watch the rubber and to
fold it onto the skids It is folded on the skids in 5 or 6-foot
folds and then is taken to a storage area. The entire ban-
bury process takes between 13 and 17 minutes for five
batches to be processed. The distance from the conveyor,
where blocks are initially loaded, to the end point of the
process is about 50 yards.
As noted previously, it requires a four-man crew to oper-
ate this process without interruption. Because the Respon-
dent experiences a great deal of absenteeism, it has become
necessary on occasion to operate this process with two or
three employees. In such instances, the machine cannot be
operated on an uninterrupted basis but must be stopped
periodically in process so that the reduced crew can per-
form the functions of the missing man and then resume
their normal duties. The effect on overall production need
not be elaborated.
On the morning of February 4, 1975, Respondent was
short handed on the banbury machine during the day shift.
u For a long period of time, Rodriguez was permitted to come to work I
hour in advance of the beginning of his shift in order to get raw materials in
the bins and also to arrange blocks in position to feed to the conveyor when
the shift began In the fall of 1974, this practice was discontinued when
Rodriguez was found talking to other employees during this preshift period,
presumably about unionization
BANDAG, INCORPORATED 81
Rodriguez was present to fill the block loader (or helper)
position but others were missing, so his foreman , Sumner,
got help from O. T. Reeves and Don Foy to operate the
machine. Sumner desired to have three men work the wig-
wag machine during this operation and told Rodriguez to
help them at this position in addition to his regular loading
job. At the time, Rodriguez was sweeping the platform
near the chemical bins. Rodriguez told Sumner that the
wigwag was not his job, that he had work to do loading
and keeping the chemical bins full, and that he could not
keep up with his regular job and assist on the wigwag as
well. He suggested to Sumner that he be left to do this
work so that he would not fall behind loading, while the
others finished the processing of the rubber at that end of
the procedure. Sumner told Rodriguez that, if he was refus-
ing to do what he was assigned to do, he would have to go
to the office and talk with McGlothin. Rodriguez protested
that he was not refusing to do an assignment but was mere-
ly trying to suggest an alternative procedure which would
work out better to everyone's benefit. 14 At this point, they
both went into McGlothin's office. Rodriguez waited out-
side while Sumner spoke to McGlothin. When Rodriguez
entered the office, McGlothin told him to do what Sumner
ordered him to do. Rodriguez replied by asking which job
on the banbury McGlothin wanted him to do, the loading
or the wigwag. At this point, McGlothin told Rodriguez
that if he was not going to do what his supervisor told him,
he would have to resign. Rodriguez protested that he was
not refusing to do what his supervisor told him, refused to
resign , and claimed that McGlothin was trying to fire him
because of his union activities. McGlothin denied this
charge. McGlothin was writing down the dialogue between
Rodriguez and himself as the discussion progressed. (He
later had it transcribed.) McGlothin then said he had no
alternative but to fire him for three things-refusing a di-
rect order, saying he would do it again, and refusing to
resign when given the choice . Rodriguez left, and ultimate-
ly went to work for C. G. Conn.
B. Analysis and Conclusions
1. Independent evidence of union animus
The record contains a multitude of examples of union
animus on the part of this Respondent and its supervisors
which are not alleged as independent violations of Section
8(a)(1) of the Act, but which are relevant in assessing the
Respondent's words and conduct which are the subject of
this litigation . The Respondent conducted a "hard-sell" an-
tiunion campaign in the weeks and months which preceded
14 Sumner testified that Rodriguez told him , "No, Gene , I'm not going to
help you ," and repeated that sentiment to him and later to McGlothin in the
manner of a flat confrontation I discredit his testimony and the testimony
of McGlothin on this point , all of which appears to be from a contrived
script Rodriguez denies telling McGlothin in McGlothin's office that, if
Sumner again told him to work the wigwag , he would again refuse . I credit
this denial In this connection I note the statement of Rodriguez' previous
foreman , Jerry White , to the effect that , in the 2 years Rodriguez worked for
him, he never refused an order I am also mindful of McGlothm's and
Wright 's statements to the effect that Rodriguez frequently had problems
expressing himself in English
the January 23 and 24 election . One of its campaign tactics
was the distribution of coupon books to drive home its
argument that union promises could not be believed but
company promises could . In its coupon book, the Compa-
ny guaranteed that, without a union , it would continue to
give pay raises in the future as it did in the past without the
necessity of employees paying union dues and initiation
fees, and that a "no" vote at the election meant that em-
ployees would never have to strike so they could continue
to pay their bills. In the coupon book, Respondent also
promised that if there was a strike it would keep the plant
open , even if it meant replacing strikers , and noted that
union bosses would continue to receive full pay even if
strikers did not . In another coupon book , Respondent
challenged the Union to guarantee in writing that the
Union would be able to obtain specified pay increases
within specified time periods , that it would be able to in-
crease the sales and profits of Bandag so that employees
would not have to be laid off, that union members would
never have to pay dues, assessments , and initiation fees,
and that the Union would continue to pay strikers their
paychecks if called out on strike . Another of Respondent's
leaflets portrayed a disconcerted individual standing be-
side an empty grocery cart and urged the employees to
protect their security by voting "no," since union promises
would not fill their grocery basket while union strikes,
picket lines, dues, fees, and assessments would surely keep
it empty.
In a letter, dated January 17, 1975, Respondent's presi-
dent, G. E. Edwards, urged all employees to vote "no."
Among the reasons stated in support of this request was a
description of collective bargaining in which Edwards ar-
gued:
As you have been told collective bargaining is a two-
way street . The company has just as much right under
the law to make demands on the Union as the Union
has to make demands on the company . For this rea-
son, it sometimes takes a year or longer-if ever-for
the parties to reach a contract. In the meantime, all
wages and benefits are frozen .15 The only way in
which a union can try to force any company to agree
to its demands is to take the employees out on strike.
During an economic strike, a company has the right
under the law to operate the business with replace-
ment employees or to simply stay closed . Either way,
you would be the loser . You would be out of work and
your earnings would be discontinued . You cannot
even draw unemployment compensation in Texas
. . . . Aside from your economic welfare, I feel that,
should you elect a union to represent your interests,
you have even more to lose. I am referring to your
freedom and individuality. Unions have virtually un-
limited control over the personal interest of the indi-
viduals in a bargaining unit. Once employees have
voted to be represented by a union, they will have
given up practically all of their rights to be treated as
individuals.
15 The Respondent had a practice of reviewing all employees for purposes
of a pay raise each July New employees were apparently reviewed for this
purpose more frequently during the initial stages of their employment
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another piece of preelection literature was handed out
to employees by their individual supervisors and personally
signed by those supervisors prior to distribution. It dispar-
aged the leadership of Union Representative Ray Mendez
at another organized plant located in Kyle, Texas, implied
that union leaders sold out their members during negotia-
tions, detailed the financial difficulties of the IUE Interna-
tional, argued that employees could not trust a union
which could not keep its own house in order, talked about
strikes and the replacement of strikers, argued that union-
ization meant additional bosses over employees who would
attempt to control employees' actions off the job, and
urged those and other reasons as a basis for voting "no."
Another preelection letter from McGlothin reminded em-
ployees that they could revoke their union designation card
if they had signed one, and provided in the letter a form by
which an employee could request Mendez to return his
card. Another letter from McGlothin informed employees
that the Company opposed unionization of the plant be-
cause "we know they can wreck a company and reduce the
number of jobs."
2. The no-solicitation rule
Prior to November 15, 1974, Respondent maintained a
no-solicitation and no-distribution rule, printed as rule 13
in its employee handbook, which the Respondent concedes
is invalid on its face. Rule 13 forbade the circulation, distri-
bution, or posting of any printed matter on company prem-
ises without prior permission of the plant manager and
drew no distinction between working time and company
time. On November 15, 1974, immediately following the
Hill and Hayes incidents, the Respondent, upon advice of
counsel, amended this rule by inserting into its language
the phrase "during working time," and by inserting the
words "in plant" in place of "on company premises, in-
cluding parking lots " Respondent contends that these al-
terations immunize it from the finding of a violation.
The complaint alleges violation of this score beginning
May 19, 1974, makes specific reference to the employees
handbook (which is dated July 1, 1974), and impliedly
charges that the violation continues to date. It has long
been held that an overly broad no-solicitation rule is an
unlawful interference with employee rights guaranteed un-
der Section 7 of the Act.16 It is also well-established that
the discontinuance of an unfair labor practice is normally
not a defense to a Board order, especially where other un-
fair labor practices clearly indicate that the coercive effect
of discontinued conduct has not been dissipated.'7 Such is
certainly the case here. Accordingly, I find that the provi-
sions of rule 13, as stated in the employee handbook, vio-
late Section 8(a)(1) of the Act, and will recommend an
order designed to suppress the violation.
By inserting the phrase "during working time" into the
16 Republic Aviation Corporation v N L R B, 324 U S 793 (1945),
N L R B v The Babcock & Wilcox Company, 351 U S 105 (1956), N L R B
v United Steelworkers of America [NuTone], 357 U S 357 (1958)
17 N L R B v Mexia Textile Mills, 339 U S 563 (1950), Ferro Manufactur-
ing Corporation, 166 NLRB 878 (1967), Kinter Brothers, Inc, 167 NLRB 57
(1967), N L R B v United States Rubber Company, 384 F 2d 660 (C A 5,
1967), NLRB v P R Mallory & Co, Inc, 389 F 2d 704 (C A 7, 1967)
body of the illegal rule, the Respondent herein hopes to
reverse the presumption of invalidity which attaches to
such a rule and to bring it into conformity with a line of
Board cases which hold that limitations on such activity
during working time are presumptively valid.'s In explain-
ing the newly amended rule to company employees in
speeches delivered a few days after it was posted, Plant
Manager McGlothin stated that they could still continue to
talk to each other on the job provided their work was
caught up and they were not creating a safety hazard. He
offered them the use of the bulletin board to sell personal
automobiles or other items provided that they got advance
permission. Respondent's management has not only toler-
ated but actively participated in on-the-job interruptions
for nonwork matters, such as solicitations for football
pools, selling of oranges for the benefit of the Future
Farmers of America, soliciting money for Christmas pres-
ents for a supervisor, and collections for the United
Fund.19 Such activities continued after the promulgation of
the November 15 amendment to rule 13. McGlothin said
that the key to conformity with the amended rule was ob-
taining advance permission from management to engage in
such activities. He also stated that the purpose of the rule
was to "prevent people circumventing rules and situations
just to gain favor for something they want when its not
something the company wants. We're just not going to to-
lerate it."
The timing of the change in the rule, taken together with
the above-recited union animus, the honoring of the rule in
the breach rather than in the observance for a whole host
of solicitations not related to work, and McGlothin's state-
ment above in which he says in effect that the new rule is
designed to prevent union solicitation while permitting
other forms of work interruptions to continue, make it
abundantly clear that the amendment to the rule did not
change its legal character and that it is still designed to
thwart Section 7 activity. His statements to employees at
the November 21 speeches make it clear that, while gaining
advance approval from management to solicit is the key to
conformity with the new rule, advance approval to solicit
for union purposes would be denied.20 Accordingly, any
presumption of regularity attaching to such rules, when
viewed in the abstract, is overcome in this case by the facts
surrounding its promulgation. Accordingly, I conclude that
the amended rule also violates Section 8(a)(1) of the Act.
3. Threats by McGlothin to Rodriguez and others
I credit McGlothin's version of a conversation with Ro-
driguez to the effect that, in McGlothm's office, he accused
18 Essex International, Inc, 211 NLRB 749 (1974), John H Swisher & Son,
Inc, 211 NLRB 777 (1974), Pepsi-Cola Bottling Co of Los Angeles, 211
NLRB 870 (1974), Groendyke Transport, Inc, 211 NLRB 921 (1974), Litho
Press of San Antonio, 211 NLRB 1014 (1974), Leon Ferenback, Inc, 213
NLRB 373, Alberts, Inc, 213 NLRB 686 (1974), Florida Steel Corporation,
215 NLRB 704 (1974), Keller Columbus, Inc, 215 NLRB 723 (1974), Robo-
iron Corporation, 216 NLRB 396 (1974), Gould, Inc, 216 NLRB 1031 (1975)
19 See Imco Container Company, 208 NLRB 874 (1974), Empire Corpora-
tion, 212 NLRB 623 (1974)
20 In this respect, the validity of the amended rule herein differs from the
one involved in Gooch Packing, Inc, 187 NLRB 351 (1970), on which the
Respondent relies
BANDAG, INCORPORATED
Rodriguez of spreading a false rumor about him in the
plant to the effect that he secretly approved of the organiz-
ing drive. McGlothin regarded such a remark as libelous, a
fact which in and of itself displays a certain amount of
animus, informed Rodriguez that there were laws against
spreading such rumors, and threatened legal action against
Rodriguez by telling him he should get himself a lawyer.
As McGlothin explained it, he was only trying to scare
Rodriguez. I find that trying to scare Rodriguez under
these circumstances violates Section 8(a)(1) of the Act
McGlothin's statements to assembled employees in his
November 21 speeches contain various statements which
could be construed to be threats. Some views expressed at
that time were later echoed by Company President Ed-
wards when he wrote employees a preelection letter on
January 17. While McGlothin touched upon various sub-
jects during these speeches, he summarized his remarks on
the subject of collective bargaining by saying that, if the
Union came in, bargaining would start from scratch. The
legality of such a statement depends on the context in
which it is uttered In some instances, it has been regarded
as an illegal threat; in other contexts, it has been construed
to be merely a description of management's bargaining
strategy. Wagner Industrial Products, Inc., 170 NLRB 1413
(1968).1 The animus noted above from other statements of
the Respondent, as well as other violations of Section
8(a)(1) of the Act found herein, taken together with other
aspects of this speech, make it clear that McGlothin's ad-
mitted statement-that bargaining would start from
scratch-was not merely the description of a strategy but a
threat to reduce benefits in the event of unionization.
Other witnesses to this speech whom I credit testified that
McGlothin informed them that negotiations could drag on
for a year or more, during which time no improvements in
wages or fringes would take place This clearly meant that
the Company would not perform its annual salary review if
the Union won the election. McGlothin also stated that a
union victory could result in a discontinuance of breaks.
The fact that he read from a Board decision in imparting
this information does not save him from a violation, since
the message conveyed was that a union victory meant a
loss of an important fringe benefit. Any quibble about
what McGlothin might have meant is removed by an ex-
amination of similar and forcefully stated opinions in Ed-
wards' letter. McGlothin also said that the advent of the
Union drive brought on a change of policy at the Abilene
plant. Bandag had planned to expand the work force, but
with a Union organizing effort underway, everything was
"up in the air." Like the "bargaining starts from scratch"
statement, these remarks have an intimidating effect and
2i For cases holding a violation, see Famco, Inc, 158 NLRB 111 (1966),
Federal Envelope Company, 147 NLRB 1030 (1964), Marsh Supermarkets,
Inc, 140 NLRB 899 (1963), Astronautics Corporation of America, 164 NLRB
623 (1967); Ashland Oil Company, 199 NLRB 231, 235 (1972), Aerovox Cor-
poration of Myrtle Beach, South Carolina, 172 NLRB 1011 (1968), enfd 435
F 2d 1208 (C A 4, 1970), Surprenant Mfg Co, 144 NLRB 507 at 517 (1963),
enfd 341 F 2d 756 (C A 6, 1965), Little Rock Downtowner, Inc, 143 NLRB
887 (1963 ), enfd in part 341 F 2d 1020 (C A 8, 1965) For cases holding no
violation or unobjectionable conduct, see Nutrena Mills, Division of Cargill,
Inc, 172 NLRB 183 (1968 ), Host International, Inc, 195 NLRB 348 (1972),
TRW Inc, 173 NLRB 1425 (1969), Trent Tube Co, 147 NLRB 538 (1964)
83
constitute an illegal interference with the Section 7 rights of
employees. As such, they violate Section 8(a)(1) of the
Ac t.22
During Rodriguez' visit to McGlothin in the hospital,
McGlothin stated that no one was fired during the Rubber
Workers drive in 1972, but this time he would get into
trouble. He also announced in his November 21 speech a
comparison with the Rubber Workers campaign and the
fact that this time the employees had "gone too far." These
remarks constitute threats in violation of Section 8(a)(1) of
the Act, and provide illumination in determining the mo-
tive behind the later discharge of the employee to whom
they were made. McGlothin's threat on that occasion that
Rodriguez would not be able to find other employment in
the Abilene area was a threat to blacklist and is a violation
of Section 8(a)(1) of the Act.
4 Interrogations and threats
Foreman Delano "Sonny" Campbell admits saying that,
if the Union came in, he thought that the plant would close
and the Company would transfer its tire moulds back to
the home office in Muscatine. Transferring tire moulds in
the other direction during the strike at the Muscatine plant
was exactly what took place shortly after Campbell's re-
mark. Campbell's excuse for these remarks was that he was
just expressing his opinion and that he felt that his opinion
ought to be worth something. It was worth a good deal.
The fact that such a statement was Campbell's genuinely
held opinion does not prevent the expression from being a
violation of Section 8(a)(1) of the Act. Shortly after making
this statement, Campbell asked employee Dodson how
many cards Dodson had collected. The context of this
question illustrates that it was not isolated and that the
question was not a casual inquiry. Campbell was inquiring
into how an effort was going which, in his previously ex-
pressed opinion, meant the end of his own job and those of
his subordinates, including the man he was talking to. Ac-
cordingly, the interrogation violates Section 8(a)(1) of the
Act.
Gene Sumner's statement to Rodriguez on election day
about whether he was going to vote "no" took the form of
an interrogatory but was actually a veiled threat which was
coupled with the further statement that the Company had
sufficient funds to discharge Rodriguez. The statement also
bears remembering in evaluating the discharge of Rodri-
guez, which took place less than 2 weeks thereafter. Ac-
cordingly, I conclude that Sumner's statement constitutes a
threat in violation of Section 8(a)(1) of the Act.
Foreman Jerry White's statement that certain classes of
employees would receive pay increases if the Union lost is
a standard violation of Section 8(a)(1) of the Act. N L.R B.
v. Exchange Parts, Inc, 375 U.S. 405 (1964). I so find and
conclude. Foreman Jerry Ward's postelection statement to
the effect that there would be no raises as long as union
activity continued mirrored the company president's earli-
22 For reasons which are apparent from the record, the testimony of J D
Jones concerning promises of a promotion and removal of adverse materials
from his personnel file in exchange for a "no" vote was stricken According-
ly, so much of the consolidated amended complaint which alleges a viola-
tion based on these remarks is dismissed
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er printed remarks about the adverse effect of collective
bargaining . It constitutes a violation of Section 8(a)(1).
Ludlum Industries, Inc., 213 NLRB 189 (1974).
5. The suspensions of Myrl Hill and Scott Hayes
The record contains several different versions of what
Myrl Hill, a member of the IUE organizing committee,
said to various employees during an evening break on No-
vember 14 . Some say that he threatened to sugar the gas
tanks of antiunion employees. Others say that he only said
that he heard that such might take place. Hill admits saying
to employees in the course of breaktime conversation that
he heard that those who accepted union benefits but failed
to pay union dues would have "poor running cars," the
clear implication being that there would be sugar in their
gas tanks. He admitted to McGlothin on the following
morning that he had made this statement the night before.
Taking Hill's remarks as he related them, rather than any
elaborations which may have been made by others, they
constitute an implied threat of harm to the property of
persons who were opposed to the organizing drive. The fact
that an implication of harm is conveyed in the context of
what Hill heard had happened in other locations does not
remove the notion of impending harm which might occur
at Bandag. As such , the utterance of such remarks consti-
tutes unprotected activity and is, in my judgment, the rea-
son why McGlothin imposed upon him a 3-day suspension
on November 15. The suspension was not a discrimination
in hire or tenure because of union membership , nor was it
an interference with protected activities. Rather, it was an
imposition of discipline in order to stem the flow of intimi-
dating and unprotected remarks Accordingly, I will rec-
ommend the dismissal of so much of the complaint which
alleges a violation relative to the 3-day suspension of Hill.
While McGlothin told Hayes that he was in deeper trou-
ble than Hill because of Hayes' X-rated definition of the
word "scab," the legal consequences of such a remark are
by no means the same. The use of the word "scab" in the
context of a labor dispute is protected activity.23 Indeed, it
is not the term "scab" per se that provoked McGlothin's
reaction . Gray, to whom the remark was made, reported it
to McGlothin as "skag," indicating his own unfamiliarity
with the term and the consequent fact that the word missed
its mark in having any pejorative effect in his mind. It was
Hayes' definition which aroused McGlothm's ire. Hayes
told McGlothin that the use of the language he employed
in defining "scab" was commonplace at Bandag , and from
that premise he argued that no disciplinary action against
him was warranted. The record is devoid of any suggestion
that such language was not used at the plant, a fact which
makes disciplinary action for obscene speech subject to
particular scrutiny.24 Board cases vary on the question of
23 See Old Dominion Branch, No 496, National Association of Letter Car-
riers v Austin, 418 U S 264 (1974), and cases cited therein For a more
literary definition of "scab ," reference is made to Jack London's description
reprinted in the Board report of The Maryland Drydock Company, 88 NLRB
1305, 1311, 1312 (1950) See also N L R B v B D Holt Company, 516 F 2d
505 (C A 5, 1975)
24 The Supreme Court has recently granted constitutional protection to
the use of language every bit as opprobrious as that used by Hayes See
the use of foul language as a basis for discharge or other
disciplinary action . 15 Normally , an element of insubordina-
tion accompanies the use of profane or obscene language
when the Board finds it to be the basis for discipline, at
least in those circumstances where the discipline is meted
out in the context of a labor relations dispute and it ap-
pears that obscene language is used or tolerated in the dai-
ly life of a plant. Though Hayes' remarks to Gray were
enlarged upon as they were passed on, Gray in his testimo-
ny did not say that Hayes had applied to him the epithets
in question. Gray's testimony of the incident itself corrobo-
rates Hayes' own version and makes of this exchange noth-
ing more pretentious than another remark passed between
two employees during an evening's work. On the other
hand, McGlothin seized on this occasion to lecture Hayes,
not only about the use of obscene language in the plant,
but to redefine to him the term "scab" and not in a manner
conforming to the Respondent ' s own views on labor rela-
tions. It appears clearly that McGlothin was not, in the
case of Hayes, moving to eliminate the use of obscene, or
profane or provocative language among his employees but
rather to counter Hayes ' "hard-sell" approach to union or-
ganization , which was implicit in the use of the terms in
question . Any suggestion that the discipline was justified
because the conversation took place on company time
would run squarely into uncontradicted evidence, noted
above, that employees frequently spoke to each other on
nonwork related matters during working hours. According-
ly, the 3-day suspension of Hayes constituted a violation of
Section 8(a)(1) and (3) of the Act. I so find and conclude.
6. The discharge of Carlos Rodriguez
Carlos Rodriguez was discharged on February 4, 1975,
for insubordination. He was the leader of two organizing
drives at the Abilene plant. The Respondent was well
aware of his activity and his leadership on both occasions.
Rodriguez was active in the abortive Rubber Workers cam-
paign in 1972 and initiated the IUE campaign in 1974.
During the early stages of the IUE campaign, he told Mc-
Glothin that he was going to bring the Union to the plant.
Respondent's witness Wright testified that Rodriguez told
both McGlothin and himself that this time he was going to
go "all the way ." Rodriguez was a member of the organiz-
ing committee , wore an organizing committee button to
work, and signed up about nine Bandag employees on IUE
designation cards. Company knowledge of his leadership
role is acknowledged by the Respondent.
His discharge took place against a background of strong
union animus which is detailed above. Some animus was
Cohen v California, 403 U S 15 (1971), Papish v University of Missouri
Board of Curators, 410 U S 667 (1973)
25 Cases upholding a discharge for use of foul language Martin Theatres
of Georgia, Inc, 169 NLRB 108 (1968), Steve Aloi Ford, Inc, 179 NLRB 229
at 237-238 (1969), Calmos Combining Co, 184 NLRB 914 (1970), Hunter
Division , Robbins and Myers, Inc, 173 NLRB 710 (1968 ), Southwestern Bell
Telephone Company, 190 N LRB 427 (1971), American Beef Packers, Inc, 196
NLRB 875 (1972), Packer Sales Corporation, 199 NLRB 912 (1972) Cases
disallowing a discharge for use of foul language Hugh H Wilson Corpora-
tion, 171 NLRB 1040, 1047 (1968), William L Bonnell Co, Inc 170 NLRB
204 at 216 (1968), C W F Corporation, 188 NLRB 554 (1971), Coronet Casu-
als, Inc, 190 NLRB 685, Garner Tool and Die Manufacturing Corporation,
198 NLRB 640 (1972), Rowe Furniture Corporation of Missouri, Inc, 200
NLRB 155 (1972)
BANDAG, INCORPORATED 85
expressed in statements which are permissible under Sec-
tion 8(c) of the Act; other statements lapsed over into vio-
lations of Section 8(a)(1). Rodriguez was warned about his
activities as the campaign progressed. McGlothin told him
no one was fired during the Rubber Workers campaign but
this time things would be different. Sumner told Rodriguez
on the day of the election, and less than 2 weeks before the
discharge, that the Company had plenty of money to dis-
charge him. The timing of the discharge suggests antiunion
motivation as well. The discharge of a leading union adher-
ent-one who had promised this time to go "all the
way"-while union objections to a lost election were pend-
ing bears careful scrutiny and itself suggests antiunion mo-
tivation behind the discharge. Shorewood Manor Nursing
Home, 217 NLRB 331 (1975).
In the face of these circumstances, the Respondent con-
tends that an incident which occurred on February 4 be-
tween Rodriguez and his foreman Sumner, involving the
asserted disobedience of an order, was the true and only
precipitating cause for Rodriguez' removal. Rodriguez had
worked for the Respondent about 4 years. McGlothin de-
scribed him as a friendly fellow with a big grin. They were
personally acquainted to the extent that Rodriguez visited
McGlothin both in the hospital and at his home. Rodri-
guez' former supervisor, White, testified that during the 2
years he worked for White, Rodriguez always did what he
was told to do. Rodriguez had two reprimands from Sum-
ner, one for leaving his job on September 5 without permis-
sion and another which took place late in December. On
that occasion, Rodriguez was summoned from his home at
3 a.m on a Saturday morning to fill in on the banbury
machine for an employee who was missing from the night
shift. Rodriquez wanted to leave at noon after completing
8 hours of work but was told by Sumner that he had to stay
on until the completion of the day shift at 3:30 p.m. Rodri-
guez left anyway and was given a written reprimand. Ro-
driguez frequently accommodated the Respondent by
coming in before his shift, either to help the night shift or
to get blocks and chemicals loaded for his own shift. How-
ever, in this instance, the Respondent did not see fit to
reciprocate Rodriguez' accommodation by acceding to Ro-
driguez' desires.
On February 4, Respondent was again short handed in
the operation of the banbury machine on the day shift
Contrary to the suggestion in the Respondent's brief, Ro-
driguez was not assigned to assist on the wigwag machine
in place of his regular duties but was given the assignment
in addition to his regular duties, which were the most ardu-
ous in the operation of the banbury process. In the opera-
tion of the machine with a three-man crew, Sumner saw fit
to assign all three men to the wigwag machine to perform
what, in normal processing with a full crew, is a one-man
job The obvious effect of giving Rodriguez extra work was
to cause him to fall behind in his regular duties which were
performed some distance from the wigwag operation. Ro-
driguez brought this fact to Sumner's attention and argued
that it would be preferable in getting the work done to
permit him to continue performing the duties he was cur-
rently engaged in and to leave the wigwag operation at the
end of the processing cycle to the two other available em-
ployees who were closer at hand.
It is clear not only from listening to Rodriguez at the
hearing but from the testimony of Respondent' s witnesses
that Rodriguez does not communicate well in English. Mc-
Glothin testified that he once told Rodriguez to be careful
in what he said because he (Rodriguez) did not speak Eng-
lish in the same way McGlothin did. As an example, Mc-
Glothin recalled one mistake which Rodriguez made in
pronunciation in which Rodriguez, in discussing the orga-
nizational drive, insisted that he too had "eagle" rights,
meaning legal rights. In light of these factors, it appears
that Sumner took the poorly expressed suggestions of an
illiterate and semiarticulate workman as insubordination
and was glad enough to do so. He reported the matter to
McGlothin as insubordination. McGlothin, in going over
the matter with Rodriquez, was equally eager to impress
the argument between Sumner and Rodriguez over doing
double duty with the same stamp in order to justify the
discharge. It is indeed most peculiar that a plant manager,
in discussing a minor argument with an employee with
whom he was long acquainted over the most expeditious
manner to operate a machine when the plant was short
handed, should have taken a running written account of
the terminal interview, if his aim was merely to straighten
out an on-the-job misunderstanding rather than to prepare
a case for future litigation. I credit Rodriguez in saying that
he did not refuse to work the wigwag but that he wanted to
know which position in the banbury process he was as-
signed to fill, since he could not cover both of them and
keep the operation going. Such a statement is not insubor-
dination but an objection to being placed by his supervisor
in an impossible working arrangement, and one which he
was unable to fulfill. That such a request by a longtime
employee should be treated as insubordination indicates
that the Respondent, who had given ample warning of its
feeling towards union organization, was simply looking for
an excuse to remove its most effective and energetic labor
relations adversary. In light of these circumstances, I con-
cede that the discharge of Carlos Rodriguez fulfilled Mc-
Glothin's earlier promise and was accomplished under pre-
textual reasons because of Rodriguez' union activities. As
such, it violated Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following-
CONCLUSIONS OF LAW
1. Respondent Bandag, Incorporated, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 1016, International Union of Electrical, Radio,
and Machine Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Carlos Rodriguez and suspending Or-
ville Scott Hayes because of their membership in or activi-
ties on behalf of Local 1016, International Union of Elec-
trical, Radio, and Machine Workers, AFL-CIO, the
Respondent herein violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in Conclusion
of Law 3, by threatening to blacklist employees because of
their union activities; by promising wage increases for vot-
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ing against union representation ; by threatening to reduce
wages and benefits and to withhold increases in wages and
fringe benefits in reprisal for voting for union representa-
tion ; by threatening to discharge employees for engaging
in union activities ; by threatening to close the plant if em-
ployees voted for union representation; by threatening le-
gal action against employees for engaging in union activi-
ties; by threatening to curtail plant expansion and the
hiring of new employees because of the union activities of
plant employees; by coercively interrogating employees
concerning their union activities ; and by publishing and
maintaining an illegal rule against union solicitation and
distribution of union literature , the Respondent herein vio-
lated Section 8(a)(1) of the Act.
5. All production and maintenance employees at the
Respondent's Abilene, Texas, plant, excluding laboratory
and quality control employees, office clerical employees,
over-the-road truckdrivers, guards, supervisors as defined
in the Act, and all other employees, constitute a unit ap-
propriate for collective bargaining within the meaning of
Section 9(b) of the Act.
6. Since on or about December 19, 1974, Local 1016,
International Union of Electrical , Radio and Machine
Workers, AFL-CIO, has been the exclusive bargaining
representative of all employees of the Respondent in the
unit found appropriate herein in Conclusion of Law 5,
within the meaning of Section 9(a) of the Act.
7. The unfair labor practices recited above in Conclu-
sions of Law 3 and 4 have a close , intimate , and substantial
effect on the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take other
actions designed to effectuate the purposes and policies of
the Act. With respect to the violations of Section 8(a)(1)
which have been alleged and proved in this case , it clearly
appears that they have been repeated and pervasive More-
over , the violation of Section 8(a)(3) goes to the very heart
of the Act. Accordingly, I will recommend a so-called
broad cease-and-desist order, designed to suppress any and
all violations of Section 8(a)(1). J. C. Penney Co., Inc, 172
NLRB 1279, fn. 1 (1968); Adam & Eve Cosmetics, Inc, 218
NLRB 1317 (1975). With regard to the violations of Sec-
tion 8(a)(3), I will recommend that Carlos Rodriguez be
reinstated and that both he and Scott Hayes be made
whole for any loss of pay which they have suffered by
reason of the discrimination practices against them, to be
computed in accordance with the Woolworth formula, and
with interest thereon at 6 percent per annum.26
The principal issue in this case is whether or not the
Board should order a Gissel remedy,27 by the terms of
which the Respondent would be obligated to recognize and
bargain with the Charging Party as the collective-bargain-
Ing representative of its Abilene employees , notwithstand-
ing the fact that Local 1016 lost a representation election
on January 23 and 24, 1975, by a vote of 28 to 15. At one
time not long before the election, the Charging Party was
in possession of designation cards signed by a majority of
the members of the bargaining unit , and no significant at-
tack has been leveled upon the validity of these cards, so a
necessary predicate for a Gissel remedy exists in this case.
Respondent resists the imposition of a Gissel remedy,
inter alia, on the ground that the Union failed to file and
serve on it timely objections to the conduct of the January
23-24 election , and, since in its view there is no basis under
the Board's Rules and Regulations for setting aside that
election , the results thereof and the consequences of those
results should govern the disposition of this case . Section
102.69 of the Board 's Rules and Regulations provides that,
within 5 days after the tally of ballots has been furnished,
any party may file with the Regional Director an original
and three copies of objections to the conduct of the elec-
tion or conduct affecting the results of the election, togeth-
er with a short statement of the reasons therefor . Copies of
the objections "shall immediately be served on the other
parties." The election at Bandag concluded on Friday, Jan-
uary 24, and presumably the count of ballots and tally
were prepared and served immediately after the close of
the balloting Hence, the Charging Party had until the close
of business on Friday, January 31, to file and serve objec-
tions thereto , as it had 5 business days, and not 5 calendar
days, in which to exercise this right. Rio de Oro Uranium
Mines, 119 NLRB 153, 154.28 There appears to be no dis-
pute that certain objections to the conduct of this election
were filed with Region 16 on January 31, thus indicating
that these objections were timely filed. The report on ob-
jections states that the Union presented , and the Regional
Office files contain , a certificate of service showing service
of the January 31 objections upon the Respondent and
upon its attorney, and that receipts for certified mail, dated
January 31, and addressed to the Respondent's plant man-
ager and to its attorney, respectively, have been filed. The
validity of the receipts for certified mail was not ques-
tioned . Section 102 . 113 (a) provides that "the date of ser-
vice shall be the day when the matter served is deposited in
the United States mail . .." Accordingly, it appears from
the Board's records and the record herein that the January
31 objections were deposited in the mail, and hence served,
on that day and that, by so doing, the Charging Party com-
plied with the time limit established for service by the
Board ' s Rules.
28 With respect to the computation of time under the Board's Rules, Sec
102 114 provides , in pertinent part
(a) In computing any period of time prescribed or allowed by these
rules , the day of the act, event , or default after which the designated
period of time begins to run is not to be included The last day of the
period so computed is to be included , unless it is a Sunday or a legal
holiday, in which event the period runs until the end of the next day,
which is neither a Sunday nor a legal holiday When the period of time
prescribed or allowed is less than 7 days , intermediate Sundays and
holidays shall be excluded in the computation For the purpose of this
section a Saturday on which the Board 's offices are not open for busi-
ness shall be considered as a holiday
26 F W Woolworth Company, 90 NLRB 289 ( 1950), Isis Plumbing & I take administrative notice that the office of the Board 's Region 16 is
Heating Co, 138 NLRB 716 (1962) officially open for the transaction of business Monday through Friday, 9 15
27 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) a in to 5 45 p in , and is not open on Saturdays
BANDAG, INCORPORATED
The Charging Party filed but did not serve certain other
objections to the conduct of the election 2 days before the
filing of the January 31 objections. The Regional Director
permitted the Union to withdraw these earlier objections
when it filed its January 31 objections. The Respondent
complains that the Regional Director had no authority to
permit the withdrawal of the January 29 objections, that
these earlier objections should not have been withdrawn
but that they should not be recognized because they were
not served, and that the January 31 objections should be
treated as amendments to the earlier invalid objections and
thus be invalidated in and of themselves. There is no war-
rant in the Board's Rules and Regulations for requiring
later timely objections to be treated as amendments to ear-
lier timely but unserved objections, and there is no reason
in logic or ordinary fairness for doing so. The filing of
timely new or additional objections is not contingent on
the validity of other objections which are on file. As the
objections which the Respondent, in the representation
proceeding, was called on to face were timely filed and
timely served, it is immaterial what was filed or served (or
not served) before this event took place. The Respondent
can hardly claim prejudice because it is not called on to
answer objections which are no longer lodged, and it can-
not claim foul because the Union herein took the maxi-
mum, but no more than the maximum, time allowed by the
Rules to perfect its original filing. In the investigation of
the timely filed objections, the Regional Office uncovered
additional objectionable conduct on the part of the Re-
spondent affecting the results of the election which went
beyond the specific conduct alleged in the January 31 ob-
jections. The Regional Office is entitled to enlarge its in-
quiry beyond the scope of objections which have been
filed, since the investigation of objections is an administra-
tive and not a litigated proceeding. International Shoe Com-
pany, 123 NLRB 682 (1959). It did so in this case and
referred to me a hearing upon all questionable elements of
the Respondent's preelection conduct which it uncovered.
As to each of these matters, the Respondent had in this
hearing notice and opportunity to present evidence and
argument in its defense, and was thereby afforded full re-
quirements of due process. The preelection misconduct of
the Respondent which was alleged, proved, and found
herein is more than ample to justify the setting aside of the
election and the direction of a second election, even if such
matters were not consolidated with an unfair labor practice
complaint. The nub of the issue is whether the Board
should, in the light of the Respondent's conduct during the
election campaign, refrain from directing a second election
in the representation proceeding and instead direct the Re-
spondent to bargain with the Union on the basis of the
designation cards submitted in evidence.
The Gissel decision calls on the Board to look both retro-
spectively at the Respondent's conduct which has de-
stroyed laboratory conditions necessary to conduct a prop-
er representation election, and prospectively at the
likelihood of undoing the damage so that a rerun election
can take place in the foreseeable future under circum-
stances which would guarantee the electoral process to be a
true gauge of employee sentiment. In making this assess-
ment, the Board looks at both preelection and postelection
87
misconduct. Steel-Fab, Inc., 212 NLRB 363 (1974) 29 In the
present case, an inspection of the entire scope of the
Respondent's activities reveals a threat to close the factory,
coercive interrogation, threats to discharge the leader of
the Union's organizing drive, a discriminatory suspension
of a member of the organizing committee for using strong
language, threats to reduce or withhold benefits if the
Union won an election, a promise to grant a wage increase
if it lost, a threat to blacklist the Union's principal organiz-
er, a threat to curtail plant expansion because of union
activities, maintenance of a discriminatory no-solicitation
and no-distribution rule, and, most important, the dis-
charge of the Union's principal in-house organizer within 2
weeks after the date of the representation election Such
conduct by the Respondent makes it highly unlikely that a
rerun election can be utilized in the foreseeable future as
an accurate indicator of employee sentiment. By this con-
duct the Respondent has forfeited a right which it might
otherwise have to insist that the question concerning repre-
sentation herein be resolved by use of ballots rather than
designation cards. Linden Lumber Division, Sumner & Co
v. N.L.R B., 419 U.S. 301 (1974). Accordingly, to remedy
this situation, I will recommend to the Board a Gissel reme-
dy which will require the Respondent to bargain collec-
tively with the Union as the representative of its Abilene
production and maintenance employees.30
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended-
ORDER 31
The Respondent, Bandag, Incorporated, Abilene, Texas,
and its officers , agents, successors , and assigns , shall:
29 In its recent Trading Port, Inc, decision (219 NLRB 298 (1975)), the
Board reversed one aspect of the earlier Steel-Fab decision, relating to the
point in time when a refusal to bargain occurs which violates Sec 8(a)(5)
No demand or refusal was alleged or proved in this case Moreover, the
complaint in this case was issued at a time when the doctrine in Steel-Fab
was controlling Board policy, so no violation of Sec 8(a)(5) was alleged by
the General Counsel Hence, this case must proceed, as did Gissel, on the
issue of whether a bargaining order is an appropriate remedy for an 8(a)(I)
and (3) violation In reversing part of Steel-Fab, Trading Port did not trench
on a policy which the Board announced in the earlier case of examining
both preelection and postelection conduct in making a judgment on the
propriety of a rerun election as opposed to a bargaining order On this
point, all Board members who participated in the Steel-Fab decision ap-
peared to be in agreement
30 See Howard Creations, inc, 212 NLRB 179 (1974), Ruby Concrete, Inc,
213 NLRB 762 (1974), Vada of Oklahoma, Inc, 216 NLRB 750 (1975), see
also N L R B v White Knight Manufacturing Company, 474 F 2d 1064 (C A
5, 1973), N L R B v Kaiser Aluminum & Chemical Corporation, 473 F 2d
374 (C A 5, 1973), N L R B v Berlin Coat Manufacturing Company, 396
F 2d 131 (C A 5, 1968), NLRB v J P Stevens & Co, 441 F 2d 514 (C A
5, 1971), cert denied 404 U S 830, N L R B v A W Thompson, Inc, 449
F 2d 1333 (C A 5, 1971), cert denied 405 U S 1065
31 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sentiments and activities and the union sentiments
and activities of other employees.
(b) Threatening to close the plant in reprisal for union
activities.
(c) Threatening to discharge employees for engaging in
union activities.
(d) Threatening to curtail plant expansion and the hir-
ing of new employees in reprisal for union activities.
(e) Threatening to take legal action against employees
for engaging in union activities.
(f) Maintaining, giving effect to, or enforcing Rule 13 in
its employee handbook and the amendment thereto pro-
mulgated on or about November 15, 1974, and any other
rule which limits or forbids employees from distributing
union literature and discussing unionization on company
premises, while permitting solicitations and distributions to
be conducted on company premises for nonwork related
purposes.
(g) Promising employees increases in wages and benefits
for voting against union representation.
(h) Promising to eliminate wage increases or to reduce
or,discontinue benefits in reprisal for voting for union rep-
resentation.
(i) Discouraging membership in, or activities on behalf
of, Local 1016, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, or any other labor orga-
nization, by discharging or suspending employees or other-
wise discriminating against them in regard to their hire or
tenure of employment or any term or condition of employ-
ment.
(I) By any means or in any manner interfering with,
coercing, or restraining employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Carlos Rodriguez full and immediate rein-
statement to his former position or, in the event that his
former position no longer exists, to substantially equivalent
employment, without prejudice to his seniority or to other
rights which he formerly enjoyed
(b) Make whole Carlos Rodriguez and Orville Scott
Hayes for any loss of pay suffered by them by reason of
the discrimination found herein, in the manner described
in the section entitled "The Remedy."
(c) Recognize and, upon request, bargain collectively
with Local 1016, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, as the exclusive collec-
tive-bargaining representative of its production and main-
tenance employees at its Abilene, Texas, plant, excluding
all other employees, laboratory employees and quality con-
trol employees, office clerical employees, over-the-road
truckdrivers, guards and supervisors as defined in the Act.
(d) Post at its Abilene, Texas, plant, copies of the at-
tached notice, in English and Spanish, marked "Appen-
dix." 32 Copies of said notice on forms provided by the
Regional Director for Region 16, after being duly signed
by a representative of the Respondent, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that such notices are not altered, defaced,
or covered by any other material.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this recommended Order.
(f) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Decision, what
steps it has taken to comply herewith.
IT IS HEREBY FURTHER RECOMMENDED that, insofar as the
consolidated complaint alleges matters not found herein to
be violations of the Act, the complaint is hereby dismissed.
The objections to the conduct of the election conducted in
Case 16-RC-6809 are sustained, the election therein is
hereby set aside, and the proceedings therein are hereby
vacated
32 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "