Cooper Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 233 (N.L.R.B. 1970)

COOPER TIRE & RUBBER CO
Cooper Tire & Rubber Company and Dennis Smith
and James M. Oats. Case 26-CA-3509
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND BROWN
On May 20, 1970, Trial Examiner Sidney J. Barban
issued his Decision in the above-entitled case, finding
that the Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the Trial Examiner's Decision. The Trial Examiner
also found that the Respondent had not engaged
in certain other alleged unfair labor practices and
recommended dismissal of those allegations. There-
after, Respondent filed exceptions to the Trial Examin-
er's Decision and a supporting brief, the General
Counsel filed cross-exceptions and a supporting brief
and Respondent filed an answering brief to the General
Counsel's cross-exceptions.'
Pursuant to the provision of Section 3(b) of the
Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case
to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Cooper Tire & Rubber Company,
' Respondent has also requested oral argument before the Board
Since it appears that the record and the briefs adequately present the
positions of the parties , the request is hereby denied
' The Respondent 's exceptions are principally directed to the credibility
findings of the Trial Examiner It is the Board 's established policy not
to overrule a Trial Examiner 's resolutions with respect to credibility
unless the clear preponderance of all the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc,
91 NLRB 544 , enfd 188 F 2d 362 (C A 3) We find insufficient basis
for disturbing the Trial Examiner 's credibility findings in this case
233
Texarkana, Arkansas, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard at Texarkana, Arkansas, on February 24 and 25,
1970, upon allegations in the complaint issued December
4, 1969, as amended at the hearing (based upon a charge
filed on October 27, 1969), alleging that the above-named
Respondent engaged in conduct in violation of Section
8(a)(1) and (3) of the Act by the promulgation, maintenance,
and enforcement of a certain rule prohibiting the distribution
of handbills in Respondent's plant, by interrogating employ-
ees about signing a certain petition, and by suspending
Dennis Smith and James M. Oats from work for four
days for their activities in connection with that petition.
Respondent's answer, as amended, admits allegations of
the complaint sufficient to support the assertion of jurisdic-
tion under current standards of the Board, and to support
a finding that United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, Local No 752, herein
called the Union, is a labor organization within the meaning
of the Act. The answer denies the commission of any
unfair labor practices.
Upon the entire record' in this case, from observation
of the witnesses, and after due consideration of the briefs
filed by the General Counsel and the Respondent, the
Trial Examiner makes the following.
FINDINGS AND CONCLUSIONS2
1. THE ISSUES
James M. Oats and Dennis Smith were suspended from
employment on August 22, 1969, until August 28, 1969,
for their activities in connection with a petition reading:
' General Counsel's motion to correct the record in certain respects
to which no opposition has been filed, has been carefully considered,
and is hereby granted In a certain number of instances in which testimony
is quoted herein minor corrections have been made and punctuation
added
After the close of the hearing, Respondent filed a motion, later amended,
to admit as additional evidence certain timecards of employee James
Thurston McGuire, and information therefrom General Counsel filed
motions opposing the Respondent's requests Since there is no showing
of any reason why these matters (which are submitted, apparently, solely
on the issue of credibility of General Counsel's witnesses, and not as
substantive proof) could not have been adduced when McGuire was
a witness, Respondent's motion is denied, and the proffered evidence
is rejected. To preserve the documents for the record, however, they
have been marked and are received as follows Motion to Admit Additional
Evidence as TX Exh 1, General Counsel's Opposition to Respondent's
Motion as TX Exh 2, Amended Motion to Admit Additional Evidence
and Affidavit in Support as TX Exh 3, and Opposition to Amended
Motion as TX Exh 4
' Respondent submitted 18 proposed findings of fact in its brief
These are accepted only insofar as they are consistent with the findings
made herein Specific reference to certain of these proposed findings
is made hereinafter
185 NLRB No. 48
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"We the people of Local 752 Feel that The union officals
[sic] Are Not Doing There [sic] Job ." The General Counsel
contends that Oats and Smith were engaged in protected
concerted activities in preparing and securing signatures
to this petition . It is further contended that Respondent,
in suspending Oats and Smith , were acting , in part, in
enforcement of a work rule appearing in Respondent's
employee handbook , which rule General Counsel contends
is itself in violation of the Act. This work rule reads:
"The distribution of handbills within the plant is prohibit-
ed."
I he General Counsel further contends that certain interro-
gation of Oats, Smith , and other signers of the petition
by Thomas J. McConnell , manager of industrial relations,
and by Earl Whisenhunt , personnel manager , at Respond-
ent's Texarkana facility, also violated the Act.
Respondent contends that the work rule quoted above
does not violate the Act, and though maintained during
the period in issue, was not enforced , and, in any event,
was not a factor in the suspension of Oats and Smith.
It is asserted that Oats circulated the petition set forth
above between 7 a.m. (official starting time for the shift)
and 10 : 30 a m . (beginning of a morning break or lunch
period) and secured the signatures of four employees (Smith,
McGuire, Jeter , and Parker) during that time, while those
employees were at their work stations , and also secured
the signatures of two employees (Coker and Blankenship)
while they were on "a paid break ," and one employee
(Laney) while he was on "paid relief," while that of another
employee, Harmon , was obtained during an unpaid lunch
period . (Proposed Findings of Fact 1 and 2 ) It is further
asserted that McConnell suspended Oats and Smith , pending
further investigation , "for violation of Article I, Section
B of the contract by circulating a petition derogatory to
the union leadership of company property and general
work rules by circulating a petition on paid time " (Proposed
Finding 9), which , it is stated , was affirmed to Smith
and Oats at the time of their suspension , and to the Union
in writing thereafter . (Proposed Finding 11.)
Article I, section b, of the collective-bargaining agreement
between the Union and Respondent , referred to above,
reads as follows:
Any employee of the Company who violates any provi-
sion of this Agreement or who acts in a manner
not in accord with the expressed purpose of this Con-
tract , which is to promote cooperation and harmony
with respect to the mutual well -being of both parties,
will be subject to disciplinary action The Company
will notify the Union in writing of any disciplinary
action taken against Bargaining Unit employees.
Respondent contends that it was justified in its action
and was not in violation of the Act in suspending Smith
and Oats in the circumstances ; that , in any event, the
Union and the Respondent negotiated a settlement of the
matter within the procedures of the contract , and the
Board should not assert jurisdiction , that it did not engage
in unlawful interrogation of its employees ; and that it
did not violate the Act by maintaining the work rule
set out above.
II. THE FACTS
A. Preliminary
The Union has represented the production and mainte-
nance employees at Respondent 's Texarkana , Arkansas,
plant since the latter part of 1964 , and the parties have
had collective-bargaining agreements covering that unit since
that time. There is no evidence of any antiunion animosity
on the part of Respondent.
According to the testimony of Robert McClendon , presi-
dent of the Union at the time of the suspension of Smith
and Oats, there had been two petitions circulated in the
bargaining unit prior to August 22, 1969 (all dates herein-
after are in 1969 , unless otherwise noted ), which attacked
the Union leadership . These occurred after Smith resigned
as secretary of the Union (in June or July). McClendon
obtained one of these from employee McGuire, who told
McClendon at the time that Smith was responsible for
it. However , no other evidence indicates that Smith was
responsible for that action . McClendon told Smith at the
time that if this occurred again he intended to take the
matter to Respondent . Smith denies responsibility for any
prior petition . No attempt was made to establish responsibili-
ty for the second petition . Respondent was apparently una-
ware of these matters at the time they occurred
B The August 22 Petition
Dennis Smith testified that on the evening prior to August
22, he prepared the petition involved in this matter (quoted
above in section I of this decision), and the following
morning gave it to James Oats before work in the parking
lot adjacent to the plant about 6:30 a . m. Smith states
that he signed the petition 'before he clocked in at 6.36
that morning . Oats testified that he took the petition from
Smith and carried it into the plant lunchroom, where
he signed it himself, and secured the signatures of McGuire,
Jeter , Parker , Coker , and Blankenship before working hours
that morning . This testimony was corroborated by Jeter,
Parker , and McGuire , the latter called as a witness by
Respondent Blankenship , who was also called as a witness
by Respondent , testified that he and Coker signed the
petition in the lunchroom during a paid morning break,
which began at 10:30 a.m.
Respondent argues that none of these witnesses , except
Blankenship , were telling the truth , but in fact signed
the petition for Oats during work at their work stations.
It is contended that this was possible because Oats has
considerable freedom of movement in the area in which
most of these employees work.
In support of its contention that the employees did not
testify truthfully , Respondent points to the following: (1)
Although Smith's testimony indicates that he was the first
to sign , his name is third on the list' (2) From the time
' The petition was written on a piece of yellow lined paper As
received in evidence it contains nine names , written one below the
other with a line drawn in ink between the seventh and eighth names
A 10th name is scratched out The order of the names from top to
bottom is James M Oats , James McGuire , D C Smith, R L Jeter,
B R Parker , Dennis Coker , M Blankenship, J L Laney , W L Harmon
COOPER TIRE & RUBBER CO 235
that McGuire and others clocked in that morning, Respond-
ent argues that it strains credibility that these employees
could have signed the petition in the order indicated before
7 a m. and still get to work on time. Critical to this
argument is the assumption that McGuire, who clocked
in that morning at 6.54 am, signed the petition after
he clocked in, and therefore Jeter, Parker, Coker, and
Blankenship, (and possibly Smith), whose names appear
under that of McGuire could not have signed and gotten
to work by 7 o'clock ° However, while the record shows
that most of the employees normally clock in before going
to the lunchroom in the morning before work, the practice
is clearly not universal or uniformly followed by the employ-
ees. In particular , there is no evidence to show that McGuire
followed such a practice, or in fact clocked in prior to
going to the lunchroom on August 22. There is the further
possibility that some of the employees who General Counsel
asserts signed the petition before work that morning might
not have been at their work stations at the stroke of
seven that morning.'
In further support of the argument that the petition
must have been signed at the employees' work stations,
Respondent points to the evidence that Jeter, Coker, Blank-
enship , and Parker (but not McGuire), in apparent apprehen-
sion of retaliation by Respondent, agreed among themselves
that they would, and they did, tell Respondent that they
signed the petition on the parking lot before coming in
to work, when questioned about this after Smith and Oats
were suspended on August 22. It is indicated that those
asked even told the same story to Respondent's counsel
when questioned the day before the hearing began in this
matter
Finally, Respondent adverts to the testimony of Roger
Moore, present president of the Union who was then division
chairman of the Union, who testified that he was in the
plant lunchroom on the morning of August 22, from 6.30
to 6 57, and that he did not recall seeing either Oats
or Smith there at that time. Moore agreed, however, that
it would have been possible for Smith or Oats to have
been in the lunchroom, without his seeing them.
This evidence has been carefully considered, together
with the record as a whole, and I find it far from convincing
that the testimony of these employee witnesses was fabricat-
ed. None of them, except Moore, Smith and Oats heard
the testimony of others before testifying himself None
gave the impression of deliberate falsehood at the time
of testifying, and, in fact, the general impression was that
those who had told Respondent that the petition had been
' The record shows that Jeter clocked in at 6 33, Blankenship at
6 51, and Parker at 6 57 that morning It is not shown when Coker
clocked in Parker, who stated that he always went into the plant before
he clocked in, testified that he signed the petition "right at seven o'clock "
Parker states Oats and Smith were present Respondent asserts that
this raises a conflict with Smith who testified that he was not present
when McGuire signed the petition
' As to this, Respondent's brief asserts that "Respondent does not
intend to make the argument to the Trial Examiner that these men
engaged in union activity on company time by merely a few minutes
as their own testimony would indicate," but rather insists that the entire
testimony of all of them on this point was "fabricated" (Br pp 8-
9)
signed elsewhere than in the lunchroom had abandoned
that position at the hearing because of the necessity to
tell the truth under oath.
While there are some variances in the evidence (whether
Smith was in the lunchroom on August 22 as Parker
states or not as Smith indicates; whether Smith signed
the petition first but on the third line, or whether he
signed third; whether Blankenship and Coker signed before
work in the lunchroom or during a paid break in the
lunchroom), these do not mount to the status of proof
that the petition was signed at the employees' work stations,
a fact of which no witness asserts direct knowledge. It
is further considered unnecessary to resolve the credibility
issues involved in these variances since, in any event, they
establish that the employees involved signed the petition
in the lunchroom on nonwork time
There is no issue but that Laney signed the petition
in the lunchroom when he was on a paid lunch break,
during which he was not expected to perform work, or
that Harmon signed in the lunchroom during an unpaid
break. Though Blankenship testified otherwise it is indicated
that Oats, during the 10:30 morning break, was on an
unpaid lunch period.
While in the lunchroom, apparently about the time that
Harmon signed the petition, Shop Steward Barnes secured
it from Oats by asking to sign the paper, and took it
to Union President McClendon who was in the lunchroom
McClendon, after scratching Barnes' name off the paper
at the latter's request, took the document to Industrial
Relations Manager McConnell's office
C. The Suspension of Oats and Smith
According to McConnell, McClendon brought the petition
to him about 10:30 in the morning, and told him that
"James Oats was distributing it in the factory and that
he didn't think it was right ... he said previous petitions
had been in the factory and he was getting tired of them
always going around, but he did not specifically request
any action be taken." McConnell testified that McClendon
told him that he had obtained the petition in the lunchroom
from Barnes, who had signed it and had requested that
his name be scratched off McClendon, in his testimony,
stated merely that he took the petition to McConnell,
that the latter asked "who had it and who was carrying
it," to which McClendon replied "that John Barnes had
gotten it from Jimmy Oats," after which there was no
further discussion of the petition, that then McConnell
sent word to Oats not to go back to work, but to remain
in the lunchroom until McConnell sent for him.
Later that day, Oats attended a meeting in McConnell's
office, at which union representatives McClendon, Pierce,
Barnes, and Jeter (who was a shop steward) were present,
in addition to McConnell and Respondent representative
Allen. Oats, Jeter, McConnell, and McClendon testified
concerning this meeting The accounts are in conflict and
will be considered in material part below.
Oats testified that he was not called into the office
until shortly before 1 o'clock, at which time the following
occurred: "Mr. McConnell told me that I had violated
company work rules and he showed them both to me
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and read them to me and then he asked me was that
the petition that I had circulated in the plant. I told
him that I had the petition in the plant but I had not
circulated it at any work station, that I had it in the
lunchroom but I didn't circulate it through the plant.
Then he asked if I drew it up and had it all to myself
and I said not, that Mr. Dennis Smith had drawed it
up and I was circulating it."
On cross-examination, Oats asserted that he told McCon-
nell that he had no help in circulating the petition, and
that though he had the petition on his person in the
factory, he did not distribute it in the factory, but only
in the lunchroom and before work.
Oats - further stated that he told McConnell that all
of the signatures but the last two had been obtained before
working hours, and that the last two (and the one that
had been scratched off) had been signed in the lunchroom.
According to Oats, McConnell drew the line on the paper
which separates the first seven names from the last two.
Oats specifically asserted that McConnell, during this meet-
ing showed him the handbook and pointed out the rule
on page 15 prohibiting the distribution of handbills in
the plant as the work rule which Oats had violated.
Upon prodding by McConnell, Oats agreed at this meeting
that his dissatisfaction with the Union stemmed in part,
at least, from the unsuccessful handling of one of his
grievances, but that other employees also felt that they
weren't being represented fairly, or properly, and "wanted
to try to get some better representation "
McConnell testified first with respect to these matters
as an adverse witness for General Counsel and again, later,
as a witness for Respondent. A synthesis of all his testimony
shows the following. McConnell states that when Oats
came to his office on this occasion, he "advised Mr. Oats
that I had this petition in my possession and it has been
stated to me that he was circulating it out in the factory;
he advised me yes [he] was." McConnell questioned Oats
closely as to his purpose and motivation, to which, McCon-
nell asserted, Oats replied that he had some problems,
including a desire to secure "piecework jobs," and wanted
to "get some help," that he didn't think he was "getting
the representation I think I should." McConnell stated
that he advised Oats that assignment of this work was
a management function, and not a matter for the Union,
and it appears suggested to Oats that Oats' problem was
his failure to win a grievance which the Union had not
taken to arbitration, and indicated that Oats did not accept
this "final decision," to which Oats said that this was
the start of his problems, that he could abide by grievance
decisions which he thought dust, but as to those he thought
unjust would "go as far as I can."
McConnell testified, in his original testimony, that he
then said, "well, we feel you have taken this petition in
the factory on our time, it is not correct and you are
in violation of Article I, Paragraph b which I read to
him at that time and since you are reported to us doing
it on [company] time and being paid for it, we think
you are violating a general work rule also . . . if you
do things like this, to be safe, the best thing to do it
[on] public property, on your own time. Then I asked
him, `Did you have any help in preparing this petition?'
and he said that Dennis Smith wrote it; so I told him
that until I complete our investigation, I was suspending
[him]."
Under specific examination by the General Counsel,
McConnell denied that he ever mentioned the "handbill"
rule quoted above to Oats, Smith, or the Union in respect
to this matter, or that Oats, in response to a question
from McConnell, told the latter that the first seven signatures
were obtained before working hours McConnell also denied
drawing the line on the paper between the seventh and
eighth names.
During the course of his testimony for Respondent, upon
being specifically asked whether anything else was said
with regard to the petition later in the meeting, McConnell
recalled that Union representative Barnes had made a "state-
ment to Mr. Oats that "Oats, you know you were doing
it in the factory, so why don't you admit it?," and that
thereafter, union representative Pierce had said, "Jimmy,
you know that you were doing it and it is a clear cut
violation of the agreement, so why don't you admit it?"
When McConnell testified that he didn't believe that Oats
answered Pierce, and `my memory is not clear as to exactly
what he said to [Barnes]," counsel then suggested to McCon-
nell that Oats "said to you, `Would I turn around again
and pull a petition inside the factory again; no sir, I
do not.' " McConnell agreed.'
McClendon, who attended the meeting as president of
the Union, testified that Oats admitted that he had been
circulating the petition, but did not say where. After his
memory was refreshed, from a document prepared by
Respondent, McClendon recalled that Barnes had accused
Oats of circulating the petition "in the plant at the work
stations," which he asked Oats to admit According to
McClendon, Oats did not admit this, agreeing only that
he had circulated the petition. McClendon also recalled
that McConnell told Oats that he was being suspended
for violation of the collective bargaining agreement , asserting
that McConnell "could have" told Oats that he had violated
the "handbill" rule in the employees' handbook, but,
McClendon stated, "I don't remember "
Jeter testified that McConnell told Oats that he was
being suspended for violating the current contract and
the rule prohibiting distribution of handbills within the
plant.
From the above, and on the basis of the record in
this case, it is clear that prior to suspending Oats, McConnell
had no evidence that Oats had distributed the petition
in areas of the plant other than the lunchroom, and, as
discussed hereinafter, did not secure any such evidence
thereafter. Nor did Oats admit any such activity. To the
extent that the testimony of McConnell and McClendon
is inconsistent with these findings, it is not credited. Indeed,
in spite of the contrary inference Respondent would draw
from McConnell's account of the meeting, his testimony
Oats, though vigorously denying that he had at this meeting admitted
securing signatures at work stations or in the factory, agreed, on cross-
examination, at one point that he "possibly could have" made a somewhat
similar answer to Barnes Immediately prior, Oats agreed that he "probably
said," in connection with being returned to work, that "if [he] did
it over again, [he] would not do it in the same manner "
COOPER TIRE & RUBBER CO 237
as a whole makes plain that the suspension of Oats was
based on his activities in the lunchroom, and the fact
that some of the employees were on a paid break at the
time. Thus, McConnell felt it sufficient that Oats had
distributed the petition "in the factory," and made, no
attempt during the meeting to ascertain from Oats whether
such activity occurred in work areas. McConnell testified
that it was his position that it was a "violation of the
company rules" for an employee to circulate a petition
"anywhere within the physical plant of [Respondent], wheth-
er it be in a lunchroom or . . in a work area," at
a time "he is receiving pay from the company." McConnell
agreed "that is what [he] was referring to" when he spoke
of activity occurring "out in the factory." He further agreed
that he did not "ever receive any evidence that the petition
was signed in work areas."'
As set forth above, the testimony is also in conflict
as to whether, in this meeting, McConnell told Oats that
his activity was in violation of the rule against distribution
of handbills in the plant. McConnell's testimony that he
did not specifically mention this rule, but rather relied
upon unspecified "general work rules," was not persuasive,
particularly his contention, when pressed on cross-examina-
tion, that though unpublished, such "general work rules"
could be gleaned from job descriptions maintained by
Respondent. McConnell was further notably evasive when
asked specifically whether the suspension of Oats and Smith
was not , in fact, based on the handbill prohibition rule.
Further, McConnell testified that when a Board investigator
asked him, in connection with the "general work rules"
assertedly violated by Oats and Smith, what rules McConnell
considered "may apply," McConnell himself advised the
investigator that "We have one on handbills and we have
one on getting prior notice to post notices on our plant
bulletin board." It is thus found that whether or not specific
reference to the rule was made in the meeting with Oats
(and I am persuaded that it was), McConnell relied in
substantial part upon this rule in suspending Oats.'
After Oats was suspended, Smith was called into McCon-
nell's office, and upon Smith's admission that he had pre-
pared the petition, McConnell advised Smith that he was
as much responsible for the petition as Oats and suspended
him also. McConnell made no effort to ascertain where
or when Smith had prepared or signed the petition.
D. Respondent 's Investigation of the Petition
After the suspension of Oats and Smith, McConnell
ascertained from employees Laney and Harmon that they
had signed the petition in the lunchroom, the former on
a paid lunchbreak, the latter on an unpaid break.
McConnell requested Whisenhunt, the plant personnel
manager, to ascertain where and when the other employees
had signed the petition. Whisenhunt interviewed employees
Jeter, Parker, Coker, and Blankenship. There is a dispute
as to whether this occurred on Friday, August 22, as
claimed by witnesses for the General Counsel, or the follow-
ing Monday or Tuesday, as claimed by McConnell and
Whisenhunt. However, the exact date is not material. It
is not disputed that Whisenhunt told these employees that
he was "investigating the situation to determine what the
real facts were in regard to Mr Smith and Mr. Oats,
that this was not a situation where they would be in
jeopardy in their jobs . . . disciplinary action was not
contemplated; it was dust an investigative inquiry " Jeter,
Parker and Blankenship told Whisenhunt that they signed
on the parking lot before work; Coker apparently told
Whisenhunt that he had signed the petition off Respondents'
property. According to McConnell, Whisenhunt reported
that the employees whose names appear above the line
on the paper (which admittedly had then been drawn)
had signed on the parking lot or on breaktime, before
lunch. It is found that Whisenhunt reported to McConnell
the details of his investigation as set forth above.
On August 25, 1969, Respondent advised the Union
by letter that Smith and Oats had been suspended "for
an infraction of general work rules and violation of Article
I, paragraph b of the . Agreement."
' McConnell testified that Oats was suspended for distributing the
petition "on time we were paying him for," and even "if he was doing
it on break time, he was doing it on time we were paying him for"
McConnell was of the opinion, manifestly, that Oats had no right to
engage in such activity on paid break time, as he testified he later
told a Board investigator
' This conclusion has been reached independently of McConnell's
affidavit given to the investigator for the Board, which also strongly
supports this finding McConnell testified that the statements in the
affidavit were true, though it did not contain his complete conversation
with the investigator in the affidavit McConnell indicated, indeed, in
connection with the bulletin notice posting rule, that he considered
that the circulation of "any type of petition" on Respondent's property
"during a work shift," either "before they started to work or on break
time," to be prohibited unless prior approval was secured from Respondent
McConnell testified that this statement had no reference to Oat's action,
but this does not seem consistent with his testimony referred to in
the text above
At the hearing, Respondent indicated that this affidavit was given
in course of settlement of the issues The record is clear, however,
that the statement was given in the course of investigation of the charge
against Respondent and before complaint was issued Nor is it material
that Respondent's counsel was not present when the affidavit was taken
See Crown Imports Co, Inc 163 NLRB 24, Cf Singer Company, 176
NLRB No 149
E. Reinstatement of Smith and Oats; Processing of their
Grievance
Smith and Oats were reinstated on August 28 and filed
a grievance on that date asserting that they had been
"unjustly suspended August 23, 25, 26, 27, 1969," and
requested reinstatement and pay for time lost. The grievance
was processed through the third step in the grievance
procedure, during which time Respondent offered to pay
Smith and Oats for two days of their suspension. This
was rejected by Oats and Smith.
In accordance with contract requirements, Respondent
notified the Union at the third step of the grievance proce-
dure, in writing, of its position with respect to the grievance,
as follows:
As per the company's letter of August 25, 1969, Mr.
Oats and Mr. Smith were suspended August 22, 1969,
for an infraction of general work rules and a violation
of Article I, paragraph b. of the current Company-
Union Agreement.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically, they were actively distributing a petition
on company property derogatory to the current Local
Union Officials. This action was investigated by the
company upon advice from Local Union Officials that
this action was being done on company property
Upon investigation, Mr Oats and Mr. Smith admitted
to being engaged in this activity.
It is the opinion of this company that any employee
engaging in such activity is contributing to the disrup-
tion of the contractual procedures set forth to solve
problems by casting doubt on the ability of the elected
Union Officials with whom the company must work
for the well being of both parties. This action hampers
the contractual responsibilities
Their action was not in accord with the expressed
purpose of our contract in that it was not designed
to promote cooperation between the parties.
The discipline was just and reasonable.
Thereafter, at a meeting of the union membership, it
was voted not to take this grievance to arbitration It
is undisputed that Roger Moore, then president of the
Union, approached Smith and Oats offering to continue
to seek a settlement from Respondent. Moore states that
Smith said he would appreciate anything Moore could
do for him. Smith asserts he doesn't remember. On the
other hand, Oats states that he told Moore he would
not take less than full restitution. Moore did not testify
to Oats' response.
Moore secured a written agreement from McConnell
to pay the two days' pay previously offered. According
to Moore, when he presented the agreement to Smith
and Oats, they refused to sign, Oats stating that their
"labor man" had told them not to Smith and Oats deny
that the agreement was presented to them by Moore. It
appears that the agreement was not carried out.
III ANALYSIS AND CONCLUSIONS
It has been long settled that employees on nonwork
time (though paid) may solicit others to engage in or
refrain from union activity, or other activities protected
under Section 7 of the Act, though such solicitation occurs
on company property. It is further clear that the distribution
of literature relating to such purposes on plant premises,
but in nonwork areas and on nonwork time is a protected
activity. A no-solicitation, no-distribution rule broad enough
to restrain employees in the exercise of these rights, even
if originally promulgated for another purpose, violates the
Act, in the absence of special circumstances justifying such
a rule. See Stoddard-Quirk Manufacturing Co., 138 NLRB
615; see also, Jas. H. Matthews & Co. v. N.L.R.B., 354
F.2d 432 (C.A. 8), and cases cited; N.L.R.B. v American
Coach Company, 379 F.2d 699 (C.A. 10)' It follows that
' Respondent cites N.L.R B v Shawnee Industries, Inc., 333 F 2d
432 (C A 10) in support of its argument that the promulgation of
an over-broad no-solicitation, no-distnbution rule, apart from its applica-
tion, does not constitute a restraint upon the exercise of employee rights
under the Act This is rejected for the reasons set forth in Jas H
Matthews & Co v NL R B, supra, see also NL R B v Mid-States
Metal Products, Inc., 403 F 2d 702 (C A 5)
Respondent's rule prohibiting the distribution of handbills
on Respondent's property, without distinction as to time
or place, with no special justification for such rule shown,
and particularly in light of Respondent's interpretation
and application of such rule, constitutes interference,
restraint, and coercion of employees in the exercise of
their rights under the Act, and Respondent, by promulgating
and maintaining such rule has engaged and is engaging
in conduct in violation of Section 8(a)(l) of the Act.
It is also quite clear that, in the absence of special
circumstances, an employer may not prohibit or restrain
employees from engaging in activities on nonwork time
(and in nonwork area, if distribution of literature is involved)
designed to effect a change in the representation of the
employees. N.L.R.B. v. Glenn Berry Manufacturers, Inc.,
422 F.2d 748 (C.A. 10); N.L.R.B. v. E. W. Buschman
Co., 380 F.2d 255 (C.A. 6). The Respondent argues, howev-
er, in respect to the suspension of Smith and Oats for
such activity, that it was merely acting in enforcement
of the provision of the contract between the Union and
Respondent stating that "Any employee who violates any
provision of this Agreement or who acts in a manner
not in accord with the expressed purpose of this Contract,
which is to promote cooperation and harmony with respect
to the mutual well being of both parties will be subject
to disciplinary action " Respondent contends that any right
of the employees to engage in antiunion activities on
Respondent's property was thereby waived by the Union,
which is their representative." Respondent asserts that to
permit the circulation "in the factory itself on working
time of a petition derogatory to the current union leadership
would have undermined the confidence of the Union in
Respondent's good faith; and . . . would inevitably have
led to a deterioration of the collective bargaining process
between Respondent and the Union." (Br. p. 15) There
are a number of difficulties with this contention, not the
least of which, as has been noted, is the fact that the
activity involved, although occurring on paid time as to
some employees, was engaged in almost entirely, if not
altogether, on nonwork time, and completely in nonwork
areas. To the extent that Oats' activity before work may
have infringed on working time, this was minimal, see
N.L.R.B. v. Glenn Berry, supra, and is not asserted herein
by Respondent as justifying Respondent's action. Indeed,
so far as the record shows, McConnell suspended Smith
10 There has been considerable litigation as to whether a union can
contract with an employer to prohibit employee activities on company
designed to change the employees' representation, even though carried
on at nonwork time and at proper places The Board has held that
such prohibition violates the Act The Courts have split, the Fifth and
Tenth Circuit Courts of Appeal enforcing the Board's orders, while the
Sixth and Seventh Courts of Appeal have denied enforcement See NL.R B
v Mid-States Metal Products, Inc, supra, NL R B v Glenn Berry Mfrs,
Inc, supra. Armco Steel Corp v NLR B, 344 F 2d 621 (C A 6), General
Motors Corp v N.LR.B, 345 F 2d 516 (C A 6), NLRB v Gale
Products, 337 F 2d 390 (C A 7) In each of these cases, however,
(except the Glenn Berry case) the no-solicitation clause involved was
definite and precise Respondent concedes that the contract provision
in the present matter "is substantively different in purpose and effect "
(Br p 15) On the other hand, there is language in the bargaining
agreement in the Glenn Berry case very similar to that in the instant
matter
COOPER TIRE & RUBBER CO 239
without any evidence that he had engaged in any activity
on Respondent's property.
Moreover, it is far from certain that the contract provision
relied upon may properly be read as a proper prior restraint
on the right of employees to criticize their union leadership
and petition for its change while the employees are on
Respondent's property. Even if such immunization of the
Union from criticism were permissible, a clearer and more
precise prohibition would be required to negate so fundamen-
tal a right of employees As the Board and the courts
have frequently held, a waiver of statutory rights will
not be lightly inferred, "there must be a clear and unmistaka-
ble showing that the waiver occurred " See, e.g., J. C.
Penny Company, 161 NLRB 69, and case cited.
We are not here concerned with whether Oats and Smith
were right or wrong in their attack on the union leadership.
While employees in a bargaining unit, like members of
any democratic institution, may be required to accept the
representation selected by the majority even against their
will, fundamental to the rights of any such minority in
a democratic society (including dissidents in a union) is
the right to work for a change in their representation,
in an orderly manner and at times and places reasonable
for such activities. Without such right representative democ-
racy can hardly survive. The activities of Smith and Oats
were carried on in an orderly manner and at times and
places permissible for such conduct. There is no showing
that their activities interfered with Respondent's operations.
On the basis of the above, and the record as a whole,
it is found that Smith and Oats, in preparing and soliciting
signatures to a petition seeking changes in the union leader-
ship representing the employees, were engaged in activities
protected by the Act, and that Respondent, without justifica-
tion, suspended Smith and Oats solely because of their
protected activities, thereby engaging in conduct in violation
of Section 8(a)(1) of the Act Since Respondent's discrimina-
tion against them was based upon their union activity,
Respondent also thereby violated Section 8(a)(3) of the
Act. See N.L.R.B. v Glenn Berry, supra."
In finding that Respondent violated the Act by suspending
Smith and Oats, I have carefully considered Respondent's
contention that the Board should decline jurisdiction over
this matter, on the ground that "the dispute herein was
settled in accordance with the grievance procedure estab-
lished by the collective bargaining agreement," and have
concluded, upon the entire record, that there is no proper
basis for deference by the Board in this case to the operation
of the grievance procedure. Quite apart from very substantial
questions as to whether the conduct of Smith and Oats
actually violated the Agreement, it is manifest that the
Union and the Respondent at no time, in the processing
of the grievance, ever came to grips with the issue here
" Respondent's discrimination against Smith and Oats clearly tended
to encourage employees to "join, retain membership, or stay in good
standing" in the Union in violation of Sec 8(a)(3) of the Act Radio
Officers' Union v NLR B, 347 U S 17, 39-42 While the complaint
alleges only that Respondent's action "discouraged" membership, it is
not considered necessary to discuss the distinction here, since Respondent's
actions' against Smith and Oats and its defense of those actions were
fully litigated, and may properly be decided here Cf NL R B v Thompson
Transport Company, Inc., 421 F 2d 154 (C A 10)
presented : the statutory right of the two employees to
engage in the activities for which they were disciplined
Nor do I think deference is warranted by the Union's
acquiescence in Respondent 's offer of settlement, which
Smith and Oats had previously rejected and continued
to reject , and which was never effectuated.
General Counsel , however, makes no convincing case
that Respondent violated the Act by its interrogation of
employees concerning the activities of Smith and Oats in
the circumstances presented here. Respondent was clearly
within its rights in investigating the complaint made by
the Union , with proper safeguards to assure the employees
that there would be no reprisals . These safeguards appear
to have been carefully followed . There is no claim that
the employees were denied proper representation at these
interviews or that the circumstances were otherwise improp-
er. It will be recommended that the allegations that Respond-
ent violated the Act by interrogation of employees, on
or about August 22, be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act, which at all times material
has been and continues to be the exclusive representative
of Respondent's employees in an appropriate unit within
the meaning of Sections 9(a) and (b) of the Act.
3. By the acts and conduct found herein to be unfair
labor practices in violation of the Act, Respondent has
engaged and is engaging in violations of Section 8(a)(1)
and (3) of the Act.
4. Respondent did not engage in a violation of the
Act by interrogation of employees on or about August
22, 1969, as alleged in the complaint.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Section 8(a) (1)
and (3) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It will be recommended that Respondent make whole
Dennis Smith and James Oats for any loss of pay and
restore to them any other rights or benefits they may
have suffered by reason of their suspension from work
from August 22, 1969, to August 28, 1969, with interest
thereon at the rate of six percent per annum, and that
any record of discipline or suspension of these employees
for circulation and solicitation of signatures for a petition
in respect to the Union on August 22, 1969, be removed
from Respondent's records.
It will also be recommended that Respondent rescind
or modify its rule prohibiting distribution of handbills on
company property to make clear the right of employees
to engage in union activities on nonwork time and to
distribute union literature on nonwork time in nonwork
areas.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in this case,
it is recommended that Respondent, Cooper Tire and Rubber
Company, Texarkana, Arkansas, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Suspending or otherwise discriminating against
employees for engaging in activities involving their right
to self-organization , to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, or because they engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or because they refrain from
any or all such activities, except to the extent that any
such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act.
(b) Promulgating, maintaining , or enforcing rules prohibit-
ing solicitation of employees on its plant premises on non-
work time, or distribution of literature on its plant premises
on nonwork time and in nonwork areas, by employees
for the purposes protected by Section 7 of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2 Take the following affirmative action which it is found
will effectuate the purposes of the Act:
(a) Make whole Dennis Smith and James Oats for any
loss of pay suffered and restore to them any other rights
or benefits they may have lost by reason of their suspension
from work from August 22 to 28, 1969, with interest
thereon at the rate of six percent per annum.
(b) Remove from Respondent's records any records of
the discipline or suspension of Dennis Smith and James
Oats for circulation of and solicitation of signatures for
a petition in respect to the Union on August 22, 1969.
(c) Rescind or modify its rule prohibiting distribution
of handbills on company property as set forth in section
V of this Decision.
(d) Preserve and make available to the Board or its
agents, upon request, the records necessary to determine
the effectuation of this order.
(e) Post at its plant in Texarkana, Arkansas copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's repre-
sentative , shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
" In the event no exceptions be filed as provided by Sec 102 46
of the Rules and Regulations of the Board, the findings, conclusions,
recommendations, 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 In the event that the Board's
Order be enforced by a judgment of a United States Court of Appeals,
the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall be changed to read "Posted pursuant to
a Judgment of the United States Court of Appeals enforcing an Order
of the National Labor Relations Board "
thereafter, in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material
(f) Notify said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that allegations of unfair
labor practices in the complaint except for the unfair labor
practices found herein be dismissed
" In the event that this Recommended Order he adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director in writing within 10 days from the date of this Order what
steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend you from work or otherwise
discriminate against you because you engage in union
activities or other concerted activities relating to your
working conditions on company property on nonwork
time, or distribute written material for those purposes
on company property on nonwork time and in nonwork
areas.
WE WILL NOT make or enforce any rule which
will forbid you from engaging in this kind of activity,
and we will rescind any rules presently in effect which
forbid these activities.
WE WILL NOT engage in any conduct of a like
or similar character which interferes with, restrains
or coerces you in the exercise of rights guaranteed
you in Section 7 of the National Labor Relations
Act.
WE WILL make Dennis Smith and James Oats whole
for any loss of pay and restore to them any rights
or benefits which they lost as a result of their suspension
from work from August 22 to 28, 1969
COOPER TIRE & RUBBER
COMPANY
(Employer)
Dated By
(Representative)
(Title)
and must not be defaced byThis is an official notice
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 3507
Federal Building, 700 West Capital Avenue, Little Rock,
Arkansas 72201, Telephone 501-372-5512.