Dico Tire, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 2000

330 N.L.R.B. 1252 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
Dico Tire, Inc. and United Steelworkers of America.
Cases 10–CA–28843, 10–CA–29109, and 10–RC–
14650
April 17, 2000
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
On June 4, 1997, Administrative Law Judge Lawrence
E. Cullen issued the attached decision. The Respondent
filed exceptions, a supporting brief, and an affidavit. The
General Counsel filed a motion to strike the Respon-
dent’s affidavit.1 The Respondent filed a response to the
General Counsel’s motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions4 as
modified below and to adopt the recommended Order.
1. The Respondent excepts to the judge’s finding that
the discharge of Charles Long violated Section 8(a)(3)
and (1) of the Act. The Respondent contends that Long
simply quit his job in a fit of rage and that Long never
sought to be rehired by the Respondent. Contrary to the
Respondent and for the following reasons, we agree with
the judge that Long was unlawfully discharged.

1 In light of our disposition of this case, we find it unnecessary to
pass on the General Counsel’s motion to strike the Respondent’s affi-
davit. We note, however, that the affidavit does not support the Re-
spondent's implication in its brief that any impropriety occurred during
the settlement conferences in this proceeding.
2 Contrary to the Respondent’s contentions, we find that the
amended complaint allegations are all closely related to the general
legal theory and substance of the original charges, and therefore are not
barred under Sec. 10(b) of the Act. See Fiber Producers, 314 NLRB
1169 (1994), enfd. sub nom. FPC Holdings Inc. v. NLRB, 64 F.3d 935,
938–942 (4th Cir. 1995); and Nickles Bakery of Indiana, 296 NLRB
927, 928 fn. 5 (1989).
3 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
4 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) by prohibiting employee Kyle Mitchell from
discussing his suspension and by requiring him to waive his statutory
right to Board access or to the judge’s dismissal of an 8(a)(3) allegation
regarding Mitchell’s suspension.
We also note that the judge’s finding that the Respondent violated
Sec. 8(a)(1) by prohibiting employees’ distribution of union literature
in its parking lots was based solely on the Sec. 7 rights of the Respon-
dent’s employees. The judge did not rely on any impact that this prohi-
bition may have had on union representatives who were also present.
We also agree with the judge’s overall finding that the Respondent
engaged in disparate treatment of Faye Rainey when she was directed
to remove her bag of union literature from the disconnect switch on her
machine and to put it in her locker. We rely on the fact that other em-
ployees were allowed to keep personal belongings on levers located on
the base of their machines, but Rainey was not offered this option.
The judge found that the General Counsel established
that the Respondent knew that Long was a union sup-
porter, that it harbored animus against the Union and its
supporters, and that these factors substantially motivated
the Respondent’s decision to terminate Long. The judge
further found that the Respondent failed to carry its
Wright Line5 burden of proving that it would have termi-
nated Long in the absence of his union activities.
Long’s undisputed testimony was that when he showed
up for work on September 28, 1995, he found out that his
supervisor, Ronnie Maples, had reassigned him from his
regular model 11 machine to a different, model 14, ma-
chine. Maples knew this other machine was lower than
Long’s regular machine and would cause him to work in
a stooped position and thus aggravate his back prob-
lems.6 This information was conveyed to Long by em-
ployee Scott Caldwell, another model 11 tire builder,
who, as the judge found, was opposed to the Union and
“who laughed and informed Long that Long was not go-
ing to like it as he had been assigned to Long’s machine
for the day.” Long testified that when he confronted Ma-
ples as to why it was necessary to switch employee
Caldwell to Long’s regular machine from another one of
identical type, Maples claimed it was for increased pro-
duction and made disparaging remarks about Long’s
productivity.7 The Respondent, however, failed to dem-
onstrate how, if increased productivity was its goal, the
reassignment could accomplish this goal. The record
further reflects, and the judge found, that the Respon-
dent’s reassignment so provoked Long that it made him
sick and led to his decision to leave work early. How-
ever, without waiting for any clarification as to Long’s
status, the Respondent declared that Long had quit and
continued to maintain this position even after Long ap-
peared for work at the beginning of his next scheduled
workday.8 The judge found that the Respondent seized
on this incident to discharge Long and rid itself of a un-
ion supporter.
The Board has long held that, “an employer cannot
provoke an employee by its unlawful conduct to a point
where he commits an indiscretion and then rely on it to
discipline the employee.” Paradise Post, 297 NLRB 876
(1990), and cases there cited. This is especially relevant
here where, as the judge found, Long had an unblem-
ished work record. Moreover, even if Long’s decision to
leave work early that day had not been provoked by the
5 251 NLRB 1083 (1980).
6 Long’s testimony regarding his back condition is supported by
Maples’ admission that he had seen Long wearing a back brace.
7 The judge noted that Long had never received any disciplinary ac-
tion for poor production since becoming a permanent employee in
1990.
8 The Respondent does not contend that it discharged Long as a mat-
ter of discipline for leaving work without permission, but only claims
that it was justified in treating him as an employee who had quit.
330 NLRB No. 177
DICO TIRE, INC. 1253
Respondent’s unlawful conduct, we would find that the
Respondent has failed to carry its Wright Line burden of
demonstrating that even in the absence of his union ac-
tivities it would have treated him as having quit. The
record shows that other employees, including employees
Farr and Douglas, left work without telling anyone and
were not treated as having quit their jobs,9 whereas Long
was discharged even though he did report that he was
leaving.10 We find that this evidence that Long was
treated disparately by the Respondent further supports
the judge’s conclusion that Long was terminated for dis-
criminatory reasons.
2. The Respondent also excepts to the judge’s finding
that Larry Pitts was a supervisor and, therefore, that it
violated Section 8(a)(1) when he threatened employee
Herschel Sanders and other maintenance employees by
telling them that they would be replaced by subcontrac-
tors because of their union sentiments. The Respondent
contends that during the period in question Pitts did not
exercise independent judgment in connection with his
duties and did not possess any of the indicia of supervi-
sory status specified in Section 2(11) of the Act. We find
merit in the Respondent’s exceptions. Contrary to the
judge, and for the reasons stated below, we find that the
General Counsel did not meet its burden of establishing
that Pitts was a supervisor within the meaning of Section
2(11).
Pitts did not testify at the hearing and the record does
not establish what specific job Pitts held, other than that
it was in the Respondent’s maintenance department. As
the party asserting supervisory status, the General Coun-
sel has the burden of establishing that at the time the al-
leged violations took place, Pitts possessed at least one of
the types of authority specified in Section 2(11), an indi-
cation of supervisory status, and that this authority was
exercised with independent judgment on behalf of man-
agement and not in a routine manner.11 The only evi-
dence put forward by the General Counsel in support of
his claim that Pitts was a supervisor consisted of two 1-
day vacation request forms approved by Pitts12 and lim-
ited testimony from two employees to the effect that Pitts
was the person to whom they complained about working
conditions and reported when they were going to be ab-
sent, and that Pitts scheduled overtime, vacations, and
absences. Contrary to the judge, we find that evidence to
be insufficient to establish that Pitts was a statutory su-
pervisor.
The mere fact that employees may have complained to
Pitts about working conditions is not an indicium of su-

9 Farr did not receive any discipline and Douglas was suspended for
2 days.
10 The judge noted that Long told Mike Hohlman, his leadman, that
he was leaving and that he reported for work 2 days later for his next
regularlyscheduled shift.
11 Bowne of Houston, 280 NLRB 1222, 1223 (1986).
12 G.C.Exhs. 17 and 18.
pervisory status, since there is no evidence that Pitts was
empowered to act on behalf of management in resolving
such complaints. Neither is it significant that employees
may have reported to Pitts when they were going to be
absent, since the receipt of such reports in and of itself is
no more than a clerical function. The scheduling of over-
time, vacations, and absences may be a supervisory func-
tion if it involves the use of independent judgment.
However, if such tasks are carried out within relatively
fixed parameters established by management, then their
performance is routine and does not indicate supervisory
status. Azusa Ranch Market, 321 NLRB 811 (1996);
Quadrex Environmental Co., 308 NLRB 101 (1992).
Here, there is no evidence in the record to indicate that
Pitts exercised independent judgment in performing any
of his allegedly supervisory functions. No evidence was
submitted regarding the circumstances under which Pitts
signed the vacation approvals. Thus, it has not been es-
tablished that Pitts possessed any discretion to refuse to
sign the forms if the requested vacation dates were
within established parameters. Neither is there evidence
that Pitts exercised independent judgment with regard to
the scheduling of other absences or overtime. We there-
fore find that the General Counsel has failed to meet his
burden of establishing that Pitts possessed or exercised
supervisory authority as defined in Section 2(11) of the
Act. Accordingly, we reverse the judge’s 8(a)(1) find-
ings regarding threats made by Pitts, and we dismiss this
allegation of the complaint.13
3. Finally, the judge found that the Respondent vio-
lated Section 8(a)(1) by threatening loss of jobs if the
Union were elected. In finding this violation, the judge
relied on the testimony of employee Dennis Snyder that
Tire Room Superintendent Terry Phillips had made such
a threat to him. The Respondent excepts, contending that
in finding that violation the judge improperly relied on
evidence that was introduced by the General Counsel
merely for background purposes and not to establish an
independent violation. The record shows, however, that
the testimony which the General Counsel characterized
as “background” was not Snyder’s testimony about Phil-
lips’ statement to him. Rather, when, during cross-
examination, the Respondent’s attorney asked Snyder,
“Did you distribute handbills and Union literature,” the
General Counsel objected, stating that the matter into
which the question inquired was beyond the scope of the
direct examination and had been “used as a background
animus.” After the General Counsel reiterated, in re-
sponse to a question from the judge that the matter had
been “used as background,” the judge overruled the ob-
jection on the basis that the General Counsel had “in-
13 Although we have dismissed the 8(a)(1) allegation regarding Pitt’s
alleged threat that the Respondent would subcontract out work, the
Order has not been modified because of our adoption of the judge’s
findings of similar violations committed by others whose Sec. 2(11)
status is not challenged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
quired into it” on direct examination. In fact, on direct
examination, Snyder had testified that he had been in-
volved in the union campaign by handing out literature
and talking to people and that his supervisors knew of his
involvement because they had seen and heard him while
he was engaging in these activities. It was following this
testimony that Snyder testified about Phillips’ statement
to him, which the judge subsequently found to constitute
an unlawful threat of job loss. Consequently, as it was
Snyder’s testimony about his union activities, rather than
his testimony about Phillips’ statement to him, that the
General Counsel characterized as “background,” we find
no merit in the Respondent’s contention that, in finding
Phillips’ statement unlawful, the judge relied on evidence
that had been introduced solely for background purposes.
Accordingly, we adopt the judge’s finding that Phillips’
statement violated Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Dico Tire, Inc., Clinton,
Tennessee, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED, that the election in Case 10–
RC–14650 shall be set aside and this case is remanded to
the Regional Director of Region 10 to conduct a new
election at a time and place determined by him.
[Direction of Second Election omitted from publica-
tion.]

MEMBER HURTGEN, dissenting and concurring in part.
Contrary to my colleagues and the judge, I would not
have permitted the General Counsel to amend the com-
plaint to add an allegation that the Respondent unlaw-
fully solicited grievances during the union campaign.
This new allegation was not closely related to any timely
allegation set forth in any charge.
In my dissent in Ross Stores, 329 NLRB 573 (1999), I
said that I would adhere to the factors set forth in Redd-I,
Inc., 290 NLRB 1115 (1988). Under Redd-I the Board
examines three factors to determine whether an otherwise
untimely allegation is closely related to a timely allega-
tion. The Board first looks to see if the untimely allega-
tion involves the same legal theory as a timely allegation.
Second, the Board will look at whether the timely and
untimely allegations arise from the same factual circum-
stances or sequences of events. Third, the Board will
look at whether a respondent would raise similar de-
fenses to the timely and untimely allegations.
As to the first factor, the theory of the allegation of so-
liciting grievances is substantially different from the the-
ory of the timely allegations of threats and interrogations.
The legal theory of an allegation concerning a solicita-
tion of grievances is that the employer is impliedly prom-
ising to remedy the grievances, i.e., offering a “carrot” to
employees if they will eschew the union. By contrast,
the legal theory of allegations of threats and interrogation
is that the employer will use a “stick” on employees who
adhere to the union, and will ask questions to find out
who these employees are.
As to the second element of Redd-I, the untimely alle-
gation did not arise from the same factual circumstances
as the timely allegation. The untimely allegation arose
out of an employee meeting conducted by CEO Mori
Taylor and CCO Michael R. Samide. These officials
were not alleged to have engaged in any of the conduct
set forth in the timely charges. Indeed, the complaint and
amended complaint did not even name them as supervi-
sors or agents who were involved in this case.
As to the third element of Redd-I, the defense concern-
ing the untimely allegation would differ from those of
the timely allegation. Since the two involve different
incidents and different alleged perpetrators, it is clear that
different “denial” witnesses would be called. Further,
the defense concerning the allegation of solicitation of
grievances would involve a showing that the Respon-
dent’s practice, even prior to the union campaign, was to
ascertain sources of employee dissatisfaction. With re-
spect to threats, the defenses would focus on the differ-
ence between threats and predictions.1 With respect to
interrogation, the defenses would involve the Board’s
test of “all the circumstances.”2
Finally, even if the charge were timely in a 10(b)
sense, I note that the General Counsel’s motion to amend
the complaint came at the very end of the trial. In order
to allow time for defense preparation, it is far preferable
for the General Counsel to amend the complaint before
trial or, at least, prior to the conclusion of his case-in-
chief.
I agree with my colleagues’ adoption of the judge’s
finding that the Respondent’s discharge of employee
Charles Long violated Section 8(a)(3) of the Act. In so
doing, I need not rely on Paradise Post, 297 NLRB 876
(1990). That is, I conclude that the Respondent dis-
charged Long for his union activity rather than for his
alleged misconduct. I therefore do not reach the issue of
whether a discharge for misconduct would have been
unlawful on the ground that the Respondent unlawfully
provoked the misconduct.

Kerstin I. Meyers, Esq., for the General Counsel.
Douglas G. Olson, Esq. (McGhee, Olson, Whitmire, Olson &
Pepping, LTD), of Silvis, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on April 17, 18, and 19,
1996, in Knoxville, Tennessee. Case 10–CA–28843 is based

1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
2 Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985).
DICO TIRE, INC. 1255
on an amended charge filed by the United Steelworkers of
America (the Charging Party, the Petitioner, or the Union) on
December 18, 1995. A complaint in that case was filed by the
Regional Director for Region 10 of the National Labor Rela-
tions Board (the Board) on January 25, 1996. On February 2,
1996, an order directing hearing on objections and consolidat-
ing cases and notice of hearing was issued by the Regional
Director and Case 10–CA–28843 was consolidated with objec-
tions filed in Case 10–RC–14650. Subsequently, a new charge
was filed by the Union in Case 10–CA–29109 and an amended
consolidated complaint and notice of hearing was issued by the
Regional Director on March 18, 1996. The complaint is joined
by the answer filed by Respondent on April 5, 1996, and subse-
quently amended. At the commencement of the hearing the
General Counsel moved to amend the complaint to allege that
the Respondent had discriminated against its employee Faye
Rainey on October 13, 1995, by refusing to allow her to keep
her personal belongings at her workplace on October 13, 1995,
and the General Counsel moved to amend the complaint to
change the name of the alleged discriminatee from Joyce Hood
to Faye Rainey, which motions were taken under consideration
by me following Respondent’s objections to doing so. The
complaint contains allegations that Respondent Dico Tire, Inc.
(the Respondent or the Company) violated Section 8(a)(1) and
(3) of the National Labor Relations Act. Objections were filed
by the Union to an election held among employees in a stipu-
lated unit of production and maintenance employees, on Octo-
ber 17 and 18, 1995. The objections allege that Respondent
engaged in certain conduct during the critical laboratory period
which interfered with the election.
On due consideration of the testimony of the witnesses and
evidence received at the hearing and the positions of the parties
at the hearing and the briefs filed by the General Counsel and
by the Respondent, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, Respondent admits, and I find that at
all times material Respondent has been an employer within the
meaning of Section 2(6) and (7) of the Act engaged in the
manufacture of tires in Clinton, Tennessee. The Respondent is
a wholly owned subsidiary of Dyneer Corporation, which is a
wholly owned subsidiary of Titan Wheel International.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material the United Steelworkers of America has been
a labor organization within the meaning of Section 2(5) of the
Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES1
A. The Amendments to the Complaint
At the commencement of the hearing, the General Counsel
and the Union moved to amend the amended complaint by
amending paragraph 13 of the complaint to read “Since on or
about October 13, 1995, the Respondent has discriminated
against its employee Faye Rainey by refusing to allow her to
keep personal belongings at her work station.” Paragraph 13 of

1 The following includes a composite of the credited testimony of the
witnesses.
the amended complaint had previously read, “On or about Oc-
tober 13, 1995, Respondent refused to allow its employee Joyce
Hood to keep certain belongings at her work area while not
similarly restricting other employees.” The General Counsel
asserted at the hearing that this amendment was offered to cor-
rect a clerical error by substituting the name of Faye Rainey for
that of Joyce Hood and that she had alerted Respondent by a
facsimile letter a week prior to the hearing. Respondent ob-
jected to the amendment and asserted that Faye Rainey had
filed an initial charge in this case and had the charge withdrawn
and had not filed a subsequent charge as of the date of the hear-
ing and that the charge was time barred by Section 10(b) of the
Act, which provides a 6-month limitation on the filing of
charges and that the charge could not be refiled as the Union
and the General Counsel had not offered any basis that would
support an extension of the 6-month period.
At the close of the hearing the General Counsel moved to
amend the complaint “to include all issues that were litigated.”
When questioned by me as to what she was specifically moving
to amend into the complaint, the General Counsel reasserted the
substitution of Faye Rainey for Joyce Hood who is listed as the
alleged discriminatee in paragraph 13 of the complaint. She
went on to amend the complaint to add the “overly broad appli-
cation of the no solicitation and no distribution rule.” She also
moved to add an allegation to include alleged “unlawful threats
to sub-contract out work” by alleged Supervisor Pitts and al-
leged unlawful threats by Human Resources Manager Washing-
ton of reduction in pay if the employees selected the Union as
their collective-bargaining representative. She also moved to
add an alleged unlawful unspecified threat by Pitts in the third
week of September to employee Hershel Sanders that he had
better watch himself. The General Counsel also moved to
amend the complaint by adding allegations that Mori Taylor
and Michael Samide unlawfully solicited grievances and made
promises of benefits at meetings held by them with the unit
employees in August 1995. The Respondent objected to all the
proposed amendments as time barred. I took all of these mat-
ters under advisement and directed the parties to address them
in their briefs.
In her brief, the General Counsel contends that all the
amendments are: (1) of the same class as the violations alleged
in the complaint, (2) arise from the same or similar factual
situation or sequence of events as the allegations contained in
the pending complaint, and (3) are subject to the same or simi-
lar defenses, citing Redd-I, Inc., 290 NLRB 1115 (1988), and
contends further that the Board has recognized that where an
allegation has been fully litigated at the hearing the Board will
find a violation citing Meisner Electric, Inc., 316 NLRB 597
(1995). The General Counsel contends that all the newly as-
serted allegations are closely related to the complaint allega-
tions and have a factual and legal nexus to those in the com-
plaint and that Respondent presented witnesses and cross-
examined witnesses and did not request a continuance or exten-
sion of the hearing and that the issues were fully litigated, cit-
ing Fiber Products, 314 NLRB 1169 (1994). The General
Counsel notes that some of the allegations vary slightly with
those charged but asserts this is not fatal since Respondent was
apprised of the allegations, which were fully litigated, citing
Opelika Welding, 303 NLRB 1051 (1991). In his brief, Re-
spondent’s counsel has reasserted his objections to the amend-
ments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
After a review of the foregoing, I find that the amendments
were closely related to the complaint allegations that Respon-
dent was given sufficient opportunity to defend against these
amended allegations and ably did so, and that these allegations
were fully litigated at the hearing. I find the foregoing cases
cited by the General Counsel support the propositions for which
they have been offered and I grant each of the above amend-
ments.
B. The 8(a)(1) Violations
1. The allegations concerning solicitation and distribution of
literature on behalf of the Union
In January 1995, the Respondent promulgated a facially
valid rule prohibiting solicitation during working time and dis-
tribution of literature in working areas during working times.
Our Way, 268 NLRB 394 (1983). There was abundant evi-
dence presented in this case that the rule was ignored by Re-
spondent’s management and that members of management,
supervisors, and employees engaged in solicitation and distri-
bution in working areas and on working time (i.e., unrebutted
testimony of Kyle Mitchell regarding the sale of cookies and
candy on company property during worktime and the distribu-
tion of a “ball board,” a betting device used to bet on sporting
events, and which supervisors participated in—see also the
unrebutted testimony of employees Dennis Snyder and David
Courtney and General Counsel’s Exhibit 5a (the ball board).
Until the advent of the union campaign in August 1995, there
had been no enforcement of Respondent’s no-solicitation, no-
distribution rule. This changed, however, when employees
began to solicit on behalf of the Union and to distribute union
literature.
(a) Supervisor Maples’ instructions to employees Cox and Long
not to engage in union solicitation on company property
Employees Charles Cox and Charles Long testified that on
August 16, 1995, they were summoned to the office of Supervi-
sor Ronnie Maples who asked them whether they had been
discussing the Union and told them they should not discuss the
Union “on Company property.” Long told Maples that the
employees had a legal right to discuss the Union during breaks
and nonpaid time. Maple told them that this was not correct but
said he would “check on it.” Maples never revisited the subject
with these employees, leaving intact his pronouncement that the
employees could not discuss the Union “on Company prop-
erty,” thus effectively promulgating an overly broad invalid
rule against solicitation. Maples acknowledged having met
with Cox and Long in his office but placed the meeting in Sep-
tember rather than August and testified that he had given them
some “friendly advice” not to pass out literature during “com-
pany time.” He testified he was told to issue this advice by his
superintendent, Phil Harrison, who was not called as a witness.
Analysis
I credit Cox’s and Long’s testimony. I find that Maples’ in-
struction issued to Cox and Long that they could not solicit on
“company property” was a violation of Section 8(a)(1) of the
Act as it constituted the promulgation of an unlawfully broad
no-solicitation rule as it precluded solicitation during their own
time rather than restricting solicitation only during worktime.
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), rehear-
ing denied 325 U.S. 894 (1945). See Teksid Aluminum Foun-
dry, 311 NLRB 711, 714 (1993). Re: forbidding solicitation on
“company property.”
(b) Union literature distribution—Courtney
Employee David Courtney testified that on September 29,
1995, at approximately 5:30 p.m. he distributed union literature
in the main break area while he was on his break. As he left the
break area Supervisor Gary Walker approached and told him
that he could not pass out the literature in the plant. Courtney
told Walker that he had the legal right to pass out the literature
during breaks. Walker then told Courtney that he “had to tell
him that.” Walker then asked for and received a “high five”
from Courtney. Walker testified that he told Courtney who he
had observed passing out literature, “David you know better” in
which Courtney maintained he was on break and knew his
rights to which Walker replied, “Okay.” Walker testified at the
hearing that he could have removed the literature from the
breakroom, which was “company property.”
Analysis
I credit Courtney’s version, which is consistent and corrobo-
rated in part by Walker. I find that Walker’s restriction on the
passing out of union literature in the breakroom, a nonworking
area, during Courtney’s break was violative of Section 8(a)(1)
of the Act. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113
(1956).
(c) Personnel Manager Bright’s and Corporate Director of
Human Resources Washington’s orders to employees not to
distribute union literature in the parking lot
On October 10 and 11, 1995, several employees engaged in
handing out union literature in the parking lot near the guard
shack as employees entered or left the premises. On both days
they were ordered to leave Respondent’s property in order to
hand out the literature outside of the property. On October 10
Personnel Manager Mark Bright ordered them to leave Re-
spondent’s property and go across the railroad tracks outside
the Respondent’s property although there was a public ease-
ment between Respondent’s property and the railroad tracks.
On October 11 both Bright and Corporate Director of Human
Resources Henry Washington ordered them to leave the park-
ing lot in order to hand out the literature. The employees were
not given any reason for their ejection from the parking lot.
Subsequently on October 13, 1995, while employee Joyce
Hood was waiting in her car for another employee Bright ap-
proached her and asked what she was doing and told her she
could not hand out union literature in the parking lot. Hood
told Bright she was waiting for another employee, and Bright
went back to the plant. Hood testified that both employees and
nonemployees routinely waited in their vehicles for employees.
Analysis
I find Respondent violated Section 8(a)(1) of the Act by pro-
hibiting the distribution of union literature in its parking lot as
this was a nonworking area, NLRB v. Babcock & Wilcox Co.,
supra; Spring City Knitting, 285 NLRB 426 fn. 4 (1987). As
the General Counsel contends, requiring the employees to leave
the parking lot in the absence of a bona fide business reason for
doing so also created a nonaccess rule in violation of Section
8(a)(1) of the Act. Tri-County Medical Center, 222 NLRB
1089 (1976).
DICO TIRE, INC. 1257
(d) Disparate enforcement of Respondent’s facially valid no-
solicitation/no-distribution rule
The record clearly establishes that solicitation of employees
to buy candy, cookies, bet on ball boards, and the distribution
and posting of fliers to sell items were regularly engaged in by
employees, supervisors, and members of management and that
Respondent’s facially valid no-solicitation, no-distribution rule
was ignored until the advent of the union campaign when a
harsher overboard and illegal rule against discussion or distri-
bution on behalf of the Union was disparately enforced by Re-
spondent in order to stem the union campaign. This disparate
enforcement of this rule only against union activities was viola-
tive of Section 8(a)(1) of the Act. Emergency One, Inc., 306
NLRB 800 (1992); Dayton Hudson Corp., 316 NLRB 477
(1995).
2. Allegations of interrogation and threats
(a) Interrogation of employees Winegardner and White and
threats issued to them by Tire Room Superintendent
Terry Phillips
Employee Mark Winegardner testified that approximately
September 28, 1995, he was training employee Chris White on
the model II tire building machine and they were approached
by Tire Room Superintendent Terry Phillips. Phillips initially
spoke to the two employees arguing against the Union. He then
asked them if they knew who was distributing the union au-
thorization cards and expressed the desire that those responsible
would reveal themselves so management would know their
identities. Both employees denied knowledge of who was be-
hind the Union’s efforts but White told Phillips he supported
the Union. Phillips testified that White had questioned him
concerning his sentiments toward the Union and that Phillips
told White, he did not have “feelings either way.” Prior to this,
neither Weingardner nor White had been open union support-
ers.
Analysis
I credit the testimony of Winegardner over that of Phillips
who testified that White had asked him his union sentiments,
which testimony of Phillips I find unlikely. I find that Phillips’
interrogation of Winegardner and White was clearly coercive
and intimidatory in violation of Section 8(a)(1) of the Act.
(b) Threats to subcontract and reduce wages
Winegardner testified further that in the September 28 inci-
dent involving Phillips that Phillips also told him and White
that if the employees chose union representation in the upcom-
ing election that wages would be negotiated from the bottom up
and would drop to between $6 and $7 an hour. In this same
conversation, Phillips also said that if the employees selected
the Union the maintenance work would be subcontracted out.
Analysis
I credit Weingardner and find that Phillips did threaten
White and Weingardner with a reduction in wages and the sub-
contracting out of maintenance work if the employees chose
union representation in the upcoming election and Respondent
thereby violated Section 8(a)(1) of the Act.
(c) Interrogation of employee Dennis Snyder and threats issued
to him by Tire Room Superintendent Phillips
Employee Dennis Snyder testified that approximately Sep-
tember 21, 1995, Phillips approached him at his machine and
asked why he supported the Union and Phillips then told him
that if the employees selected the union the employees would
lose jobs and benefits would be lost. Phillips admitted that this
conversation took place, but testified he had approached Snyder
after having seen union literature in his pocket and asked him
why he supported the Union and asked if Snyder was not afraid
he could lose something in negotiations and told Snyder to get a
guarantee in writing from the Union.
Analysis
I credit Snyder’s version of this conversation rather than the
version put forward by Phillips. The Respondent makes much
of Snyder’s change in his testimony from September 21 to 25,
1995, as the date of this conversation. I credit Snyder that the
correct date was September 25 and do not regard this difference
in the date as detrimental to the overall credibility of Snyder.
Moreover, Phillips did not deny this conversation took place,
but placed a different context on it by tying his prediction of
loss of benefits and pay to the negotiation process. I find that
Phillips’ threat issued to Snyder that the employees would lose
jobs and benefits if the Union were selected was coercive and
violative of Section 8(a)(1) of the Act.
(d) Threats of subcontracting and loss of jobs issued to employ-
ees Sanders and Sexton by Supervisor Larry Pitts
Employee Herschel Sanders, a maintenance employee, testi-
fied that approximately September 21, 1995, he was working in
the machine shop with employee Donny Sexton and that Main-
tenance Supervisor Larry Pitts approached and told Sanders
that if he “didn’t knock it off with the Union business” they
would “be replaced.” Pitts said further that the maintenance
employees would be replaced by Daniels employees, a mainte-
nance contractor named Fluor Daniels that had until 1990 per-
formed maintenance work at this facility. Pitts did not deny
making these statements.
Respondent contends Pitts was not a supervisor in September
1995. However, evidence presented at the hearing showed that
maintenance employees reported absences to Pitts, complained
about working conditions to him, and that he scheduled over-
time, vacations and absences. General Counsel’s Exhibits 17
and 18 are 1-day vacation requests approved by Pitts in Sep-
tember and October 1995. I find Pitts was a supervisor within
the meaning of Section 2(11) of the Act.
Analysis
I credit Sanders’ unrebutted testimony and find that Pitts did
threaten that the jobs of the maintenance employees would be
subcontracted out and they would lose their jobs if the employ-
ees chose union representation and that Respondent thereby
violated Section 8(a)(1) of the Act.
(e) Threat of reduction in wages and subcontracting issued to
mployee James Braden by Corporate Director of Human Re
lations Henry Washington
e -
I also credit the unrebutted testimony of employee James
Braden that in early October 1995 Corporate Director of Hu-
man Relations Washington answered in the affirmative an in-
quiry as to whether Warehouse employees wages would be
reduced if the Union were successful thus linking this loss to
the employees selection of the Union as their collective-
bargaining representative and that Respondent thereby also
violated Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
3. Solicitation of grievances
In August 1995 after the commencement of the union cam-
paign Titan Wheel International’s CEO Mori Taylor and CCO
Michael R. Samide arrived at the Clinton facility and spoke at
several meetings of employees called by the Respondent. Dico
Tire is a wholly owned subsidiary of Dyneer Corporation,
which in turn is a wholly owned subsidiary of Titan Wheel
International thus establishing their agency status on behalf of
Dico. At these meetings Taylor and Samide assured the em-
ployees that the decision was the employees’ as to whether they
wanted union representation and Respondent would not take
any action against them if they chose union representation.
However, they did ask the employees to air their complaints
and the employees did so and complained about a January 1995
reduction in vacation benefits for long-term employees, the
personal leave policy, and about certain supervisors and over-
time and profit sharing. Employee Joyce Hood testified that
prior to the advent of the union campaign no member of man-
agement had ever inquired of her complaints. Following these
meetings, the long-term employees’ vacation benefits were
reinstated, supervisors were discharged, an open-door policy
was initiated, and Respondent reviewed its overtime and profit-
sharing program. Samide sent the employees a letter answering
the complaints raised by the employees at the meetings.
Analysis
With respect to the merits of this allegation, I find the Gen-
eral Counsel has presented ample evidence demonstrating that
the concerns of employees had not been addressed by Respon-
dent prior to the advent of the union campaign and that the
solicitation of the employees’ grievances by Respondent’s offi-
cials contained the implicit promise that they would be reme-
died as borne out by the actions taken by Respondent shortly
thereafter to remedy these grievances. I thus find that Respon-
dent violated Section 8(a)(1) of the Act by soliciting employ-
ees’ grievances during the union campaign. Hertz Corp., 316
NLRB 672, 687 (1995).
C. 8(a)(3) Violations
1. Verbal warning issued to employee Weingardner
Weingardner testified that on September 29, 1995, he passed
out union literature in the breakrooms during his two breaks.
He was observed by Supervisor Robert Ridenour during the
first break but Ridenour made no comment. While he was
again passing out literature in the breakroom during his second
break Superintendent Phillips entered the breakroom, picked up
the literature, and sat with Supervisor Ridenour who was al-
ready in the breakroom. At the end of the break Weingardner
returned to his work station and was approached by both Phil-
lips and Ridenour shortly thereafter and Phillips said, “This is
your warning for passing out literature on company property.”
Weingardner questioned Phillips as to whether there was any-
thing in the employee handbook that prohibited the distribution
of literature on company property and Phillips replied in the
affirmative. Weingardner then agreed not to distribute litera-
ture on the premises and asked Phillips if literature could be
distributed in the parking lot. Phillips replied that he did not
know and left.
At the hearing Phillips testified that he had given Weingard-
ner an “unofficial warning” for leaving literature at his work
station. He also admitted warning Weingardner concerning
leaving literature in the break areas. Phillips also contended
that he had responded to Weingardner’s question regarding
distribution of literature on the parking lot by saying “its your
affair.” Ridenour did not address the break areas in his testi-
mony but testified he remembered Phillips telling Weingardner
not to leave union literature on his worktable and added that a
fan was used to “keep the builders cooled down during the
summer months,” thus, indicating the concern was to prevent
the literature from being blown over the work area. The Gen-
eral Counsel notes in her belief that this incident occurred in
late September as opposed to the summer months. In his brief
the Respondent’s counsel contends that Weingardner had
passed out the “union literature at the front of the break area”
which Respondent contends, “was not within the break area but
was outside of the front doors of the plant on plant property.”
Respondent also contends in its brief that the discipline was
rescinded.
Analysis
I find Weingardner was issued a verbal warning by Phillips
for passing out literature in the break areas which were non-
work areas during his nonworktime and that Respondent
thereby violated Section 8(a)(3) and (1) of the Act. This consti-
tuted discipline for violation of an unlawful no-solicitation, no-
distribution rule, which was being imposed only on union ac-
tivities and was discriminatory enforcement of Respondent’s
facially valid rule. I credit Weingardner’s version of these
events over that of Phillips and Ridenour which I found uncon-
vincing and geared toward changing the reason for the verbal
warning from the distribution of literature in the breakroom to
extend it to work areas outside the breakroom which I find to
be unwarranted by the evidence and to the alleged concern
about the volume of the literature in the breakroom and con-
cerns about the storing of literature at Weingardner’s work-
station which, I also find, were not the real reasons for the issu-
ance of the verbal warning. I also reject as unsupported by the
evidence the Respondent’s contention that the warning was
rescinded. It was Respondent’s burden to prove this contention
and I find it failed to do so. See Funk Mfg. Co., 301 NLRB
111, 111–112 (1992), with respect to oral warnings constituting
discipline. Wright Line, 251 NLRB 1083 (1980); Manno Elec-
tric, 321 NLRB 278 (1996).
2. Verbal reprimand issued to employee Don Brown2
Employee Don Brown testified that on October 10, 1995,
while he was on break, he distributed union literature in the
breakroom and was observed by Supervisor Willie Booker who
left and returned shortly thereafter with Plant Manager Ed
Engels. Engels then picked up some of the literature and put it
in his pocket while asking Brown if it was his. He then told
Brown, he would not have “any of this in . . . the breakroom” in
reference to the literature and told Brown this was a “verbal
reprimand.” This discipline has never been rescinded. Al-
though Engels was present at the hearing, he was not called to
testify. Wright Line, supra.
Analysis
I credit Brown’s testimony which stands unrebutted on the
record. I find Respondent violated Section 8(a)(3) and (1) of
the Act by Engels’ issuance of the verbal reprimand to Brown
which was the direct result of Respondent’s unlawful applica-
tion of an overbroad rule against distribution of literature on

2 Certain errors in the transcript are noted and corrected.
DICO TIRE, INC. 1259
behalf of the Union. As the General Counsel contends, “any
discipline resulting from an illegal no-soliciting/no-distribution
rule is, by definition, a violation of Section 8(a)(3) of the Act.”
Elston Electronics Corp., 292 NLRB 510, 511 (1989). More-
over, the discipline of Brown for engaging in protected union
activity establishes a prima facie case of discrimination in vio-
lation of Section 8(a)(3) and (1) of the Act as Respondent’s
knowledge of Brown’s union activities has been established as
has Respondent’s animus by the various other violations of
Section 8(a)(1) in this case and the prima facie case was not
rebutted by the Respondent as Engels did not testify Wright
Line, supra.
3. Disparate treatment of employee Faye Rainey
With respect to the merits of this allegation the incident oc-
curred on September 27, 1995, when tire-builder Faye Rainey a
20-year employee, was ordered to remove a white opaque plas-
tic grocery bag of union literature from her machine by Person-
nel Manager Mark Bright who was accompanied by her super-
visor, Ronnie Maples. Rainey, as did other employees, testified
she regularly hung her personal belongings from her machine
without incident. Bright and Maples testified to the contrary
and that the bag was hanging off of the disconnect power on/off
switch of her machine which constituted a fire hazard as the
box contained various circuit breakers which would arch but
were contained by a metal box. Maintenance mechanic Kyle
Mitchell acknowledged this but contended this did not consti-
tute a safety hazard. Coincidental in time with this incident the
Respondent elicited testimony from Superintendent Phillips,
that there had been a number of items of union literature posted
on a bulletin board near Rainey’s workstation that it was sus-
pected that Rainey had been involved in this which Rainey
denied at the hearing but Respondent presented no evidence
that she had in fact posted the union literature.
Bright’s order to Rainey was to remove it to her locker, a 2-
to 3-minute walk away, where Respondent contends she could
have retrieved it to take out during her break for handing out in
the breakroom or to store it in her automobile.
Analysis
The General Counsel asserts that Rainey was required to re-
move the bag from her workstation because it contained union
literature and that Respondent violated Section 8(a)(3) and (1)
of the Act by requiring her to remove the literature whereas
other employees were routinely permitted to maintain nonunion
personal belongings at their workstations, as this constituted a
discriminatory change in her terms and conditions of employ-
ment, thus, establishing a prima facie case of discrimination.
The General Counsel further asserts that the Respondent’s al-
leged safety concern was not the real reason for the removal of
the bag but that Respondent’s concern about the posting of
union literature was the real motivation for its action.
I find as contended by the General Counsel that Respondent
did violate Section 8(a)(3) and (1) of the Act by its discrimina-
tion against Rainey by requiring her to remove the bag contain-
ing union literature from her machine. I am convinced and
credit Rainey and others including Mitchell that employees
regularly hung personal belongings from their machines. While
this may not be the safest practice I do not believe that Respon-
dent was motivated by safety concerns here. Rather, I am con-
vinced Respondent’s supervisors were aware that Rainey had a
bag of union literature and that union literature had been posted
on a nearby bulletin board. This is what was brought to
Bright’s attention and why he initiated this incident with
Rainey. Thus the action taken against Rainey was motivated by
Respondent’s desire to stem the union campaign and prevent
the dissemination of union literature by removing it from the
workplace. I find Respondent’s asserted reason for ordering
Rainey to remove the literature from her machine to be pretex-
tual and that Respondent has failed to rebutt the prima facie
case of discrimination established by the General Counsel to
stem the union campaign and prevent the dissemination of un-
ion literature by removing it. Wright Line, supra.
4. The suspension of Kyle Mitchell
Kyle Mitchell was employed by Respondent as an electrical
mechanic. He was a 9-year employee and had no prior disci-
plinary record except a warning for solicitation on behalf of the
Union in August 1995, presumably issued for an alleged viola-
tion of Respondent’s written no-solicitation/no-distribution rule
which rule is facially valid but was disparately enforced during
the union campaign against union supporters while ignored
regarding solicitation and distribution carried on during work
times and in work areas in the plant by both unit employees and
supervisors (i.e., the sale of Girl Scout cookies and the wager-
ing on sports events through the use of a “ball board” circulated
among employees and participated in by supervisors). This
prior warning was not the subject of a charge and complaint
allegation in this case.
Mitchell was the undisputed leading advocate on behalf of
the Union in the election campaign. In his position as an elec-
trical mechanic he had free access throughout the plant as he
was required to perform work on the machines utilized in the
production of tires. According to the testimony of three em-
ployees employed as tire builders, Mitchell regularly ap-
proached them on most days they worked (Respondent operates
on 12-hour shifts and some employees may only work two or
three 12-hour shifts per week). Mitchell is a large man, 6 foot 3
inches in height and of a stocky build. The three tire builders
were all small in physical stature and build. They testified and
gave substantially the same account of Mitchell’s almost daily
approach to each of them reminding them of an upcoming un-
ion meeting and subsequent inquiry of them as to why they had
not attended a recent meeting in an intimidating manner inter-
fering with their production by putting himself between them
and their machines, going from one employee to another al-
though he had not been called to work on their machines. Tire
builder Wilson Marsh Jr. testified that in August 1995, Mitchell
solicited him to sign a union card while Marsh was working
and Marsh refused and reported this to his supervisor, which
was apparently the reason for the issuance of the August 1995
warning to Mitchell. Tire builder James Huddleston testified
that during August or September 1995, Mitchell came to his
machine each day he worked (Huddleston worked only 2 to 3
days a week as he is a minister and attends to church matters on
the weekends). Huddleston reported this to his supervisor, Julia
Freels and told her he “was having a problem with Kyle
(Mitchell) coming to my machine constantly, harassing me
about the union meetings . . . you could set your clock by him. .
. . You always had to come up with an excuse why you wasn’t
there. . . . I just got tired of doing that, day after day. I just got
tired of it. Sick of it.” Mitchell would come up to only a foot
away from him as he was questioning him regarding his nonat-
tendance of the union meetings.
Tire builder Marshall Nelson testified that during September
1995 Mitchell approached him virtually every day while he was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
working and inquired if he was going to the upcoming union
meetings and the day after asking why he had not attended.
Mitchell made a circuit of going by each tire builder one by
one. He would get within 9 inches of Nelson’s face. “When he
come up to you, he would just get right on to you to where you
couldn’t work, or anything.” He put himself between Nelson
and his machine interfering with his work. He testified that
Mitchell “has got a big belly,” and used it to “just nudging you
out of the way.”
Tire builder Mike Kitts testified that in the fall of 1995,
Mitchell approached him every day while Kitts was working at
his machine and solicited him to sign a union authorization card
until he did so and thereafter Mitchell pestered him to attend
union meetings and “it would hold up my production to the
manner where I couldn’t build. I couldn’t work. He would be
so close. At times, I would have to just, you know, push him
away” “I just got real aggravated with him . . . I smarted off one
time to him to get out of my face, and from then on when I
would see him coming, I would always like go to the bathroom,
or go behind my machine.” Kitts testified that on these occa-
sions he had not paged maintenance.
Huddleston, Nelson, and Kitts reported Mitchell’s conduct to
their supervisor, Julia Freels, who reported it to Tire Room
Superintendent Terry Phillips and Human Relations Manager
Mark Bright. Phillips, Freels, and Bright met with the three
employees who signed statements concerning these incidents.
Bright telephoned Corporate Director of Human Resources
Hank Washington and apprised him of these incidents. Bright
and Maintenance Department Superintendent Jack Ready met
with Mitchell and advised him of these complaints and that he
was intimidating other employees. Mitchell denied this and
asked to meet his accusers. Bright declined this request and
placed Mitchell on immediate suspension pending the outcome
of Respondent’s investigation and ordered Mitchell not to dis-
cuss the matter with anyone. One of Respondent’s parent Ti-
tan’s corporate attorneys Cheri Holley met with employees
Nelson and Kitts and subsequently with Mitchell who admitted
having been at the employees’ machines while they were work-
ing and contended he had a right to do so. Holley asked
Mitchell whether he should have been performing electrical
work on these occasions and he responded that he often did not
have any work to perform. Holley then told Mitchell that since
he did not deny the “harassment” that he was going to be sus-
pended for the 2-week period of time he was already off and he
was returning to work at his next scheduled shift. Holley did
not inform Mitchell of who had accused him of the harassment
and required him to read a memorandum she had prepared
which again admonished Mitchell not to discuss these matters
as a condition of resolving the matter by the issuance of the
suspension.
The General Counsel argues that the employees’ typed
statements did not refer to any misconduct other than mere
solicitation. I note that each statement states that Mitchell has
harassed them either to sign a union card or to attend a union
meeting. The General Counsel notes in her brief that the disci-
plinary suspension notice states that Mitchell “engaged in har-
assment and interference with coworkers . . . in an attempt to
solicit during working time . . . in violation of the no-
solicitation provision of the company’s work rule,” and had
“unwelcome contacts.”
Huddleston’s written statement given to Respondent states,
“Kyle Mitchell constantly comes to my machine to ask why I
did not attend a recent Union meeting. In the beginning I was
harassed on a regular basis to sign a Union card.”
Analysis
I find the General Counsel has established a prima facie case
of discrimination against Mitchell in violation of Section
8(a)(3) and (1) of the Act by reason of Respondent’s suspen-
sion of Mitchell. Thus it is undisputed that Mitchell was the
leading union advocate among the employees at the plant and
that Respondent had knowledge of this. Respondent’s animus
toward the Union and its efforts to unlawfully stem the union
campaign are well documented as established by the other vio-
lations found in this decision. The suspension of Mitchell for
harassment of Respondent’s employees is inextricably inter-
twined with its disparate enforcement of its facially valid no-
solicitation rule against union activities and advocates. Re-
spondent’s refusal to permit Mitchell to confront his accusers is
evidence giving rise to an inference that Respondent was moti-
vated by an unlawful purpose in suspending Mitchell. Fur-
thermore, its admonishment to Mitchell that he not disclose or
discuss either the pending investigation of the matter by Re-
spondent while Mitchell was suspended or the ultimate suspen-
sion of Mitchell by Respondent with others was violative of
Section 8(a)(1) of the Act as it effectively precluded Mitchell
from exercising his Section 7 rights to engage in concerted
activities with his fellow employees concerning his wages,
hours, and other terms and conditions of employment, and also
precluded him from having access to the Board concerning
possible violations of the Act.
However, a review of the testimony presented by Respon-
dent concerning the manner in which Mitchell solicited his
fellow employees while they were working convinces me that
he engaged in harassment and intimidation of these three em-
ployees which routinely and substantially interfered with their
production during their work time at their machines in the
process of building tires. The General Counsel characterized
Mitchell as a large jovial man who was merely friendly and
reminding them of union meetings. However, I was convinced
by the sincerity and concern of the three tire builders who testi-
fied concerning Mitchell’s regular daily visits to them and their
fellow employees in the tire production department, that he was
engaging in intimidation of these employees in his efforts on
behalf of the Union and did harass them whether intentionally
or unwittingly and interfered with their production. I am thus
convinced that Respondent would have suspended him even in
the absence of any unlawful motivation. While it is undisputed
that Respondent’s facially valid no-solicitation rule was rou-
tinely ignored by Respondent and its supervisors as there was
ongoing sale of merchandise (i.e., Girl Scout cookies) and bet-
ting on sports events occurring (i.e., the ball board), I am con-
vinced that if any of these activities had been conducted in the
same manner as Mitchell operated in this case, discipline would
have been taken against the employee engaging in such activi-
ties. I will thus recommend the dismissal of this allegation.
Wright Line, supra; Manno Electric, supra; see also MTD Prod-
ucts, 310 NLRB 733 (1993), in which the Board held that
although the Respondent relied on an invalid rule against solici-
tation and distribution, as one reason for a discharge in that
case, “this finding does not affect our decision to affirm the
judge’s conclusion that Respondent did not violate Section
8(a)(3) of the Act. . . . The Respondent has met its burden of
proving that it would have discharged [the employee] even in
the absence of the unlawful rule and of her union activities.”
DICO TIRE, INC. 1261
5. The discharge of Charles Long
Charles Long, a known union supporter and a 6-year em-
ployee of Respondent who worked as a tire builder was dis-
charged by Respondent on October 2, 1995. Long testified that
he was normally assigned to a model 11 tire building machine
which he had chosen through a polling selection process as the
size of the machine was compatible with his height of 6 feet 1
inch. He testified that he did not like to work on model 14 tire
machines as they were lower and required him to stoop down
causing him back problems. Several witnesses were questioned
regarding the differences between the two machines and testi-
fied that they were frequently rotated from one machine to
another when their supply of material or backlog of tires built
necessitated an increase in production of one type of tire as well
as for repairs to their machines or for training purposes. Most
of the witnesses indicated that they had no problem working on
either type of machine. However, Mark Winegardner corrobo-
rated Long’s testimony that the model 11 machines, such as the
one regularly assigned to Long, were more compatible for a tall
person than were the model 14’s. Long testified he had previ-
ously told Maples that the model 14 tire machine caused him
back problems and that he had asked Maples not to assign him
to this machine. Maples denied this but admitted that he had
observed Long wearing a back brace. Long had previously
been instructed not to solicit on behalf of the Union on com-
pany property. At the start of his shift on September 28, 1995,
Long was met by Scott Caldwell another model 11 tire builder
who opposed the Union in the campaign and who laughed and
informed Long that Long was not going to like it as he had
been assigned to Long’s machine for the day. On learning this
Long went to the office of his supervisor, Ronnie Maples, who
was meeting with some other employees and inquired as to why
he had been moved from his model 11 machine and was told by
Maples that he needed more production on that machine, thus
insinuating that Long’s production was substandard. At the
hearing the Respondent presented production records indicating
that Long’s production was 70 percent of standard whereas
Caldwell’s production was 90 percent of standard. However,
these records do not indicate the type of tires being made by the
employees or quality of the tires. It is acknowledged that pro-
duction rates will vary depending on what type of tire is being
made. It is also undisputed that Long had never received any
discipline for poor production following his becoming a per-
manent employee in 1990. On hearing Maple’s response dis-
paraging his production, Long stated, “so that’s the game” and
exited the office. Long testified he then went to the model 14
machine and felt nauseous. He saw Leadman Mike Hohlman
and told him he was sick and was going home. Hohlman told
him he had better check with Maples, Long’s supervisor. It is
undisputed that leadmen do not have the authority to permit
employees to leave early. Long left and reported to work at his
next regularly scheduled shift 2 days later. On his return to
work he observed that his timecard was missing and paged
Maples. He was then met by Terry Phillips who was a friend of
his and who directed him to a meeting held in the personnel
office with Bright, Maples, and Phillips, where he was pre-
sented with a document designating him as an “early quit.”
Long disagreed that he had quit and told them that he would
contact his attorney. Respondent has since treated him as an
“early quit” and has refused to reinstate him. He was walked
out of the plant by Phillips who testified Long had told him at
that time that he had not told Maples he was leaving because he
was afraid there would be a confrontation. Long denied having
said this.
The General Counsel contends that the animus of the Re-
spondent toward the Union and its supporters has been estab-
lished as has Respondent’s knowledge of Long’s union activi-
ties as evidenced by the discussion of Maples with Long and
Cox that they could not solicit on behalf of the Union on com-
pany property, and that the action taken against Long by termi-
nating him establishes a case of unlawful discrimination in
violation of Section 8(a)(3) and (1) of the Act. The General
Counsel further contends that the Respondent has failed to re-
butt its case by the preponderance of the evidence and points to
other instances wherein employees left early and were not ter-
minated.
The Respondent contends that the termination of Long was
consistent with its policy of treating employees who leave the
job as “early quits” and refusing to reinstate them. It points
particularly to the termination of Scott Carlos Johnson who was
terminated and not reinstated for leaving during a shift without
telling anyone. It distinguishes the case of another employee
who was not terminated for leaving while working overtime
without permission as he had completed his regular shift and
the case of another employee who was on light duty and left
early without permission.
Analysis
I find that the General Counsel has established that the Re-
spondent’s knowledge of Long as a union supporter and its
animus against the Union and its supporters was a substantial
motivating factor in Maples’ reassignment of Long to another
machine and his disparagement of Long’s productivity and in
the Respondent’s decision to terminate Long. I further find that
Respondent has failed to rebutt this case by the preponderance
of the evidence. I find Respondent has failed to demonstrate
any valid reason for switching Caldwell from his model 11
machine to Long’s model 11 machine and for switching Long
to a model 14 machine. Obviously if increased production had
been the real reason, the tires in question could have been built
on Caldwell’s model 11 machine instead of Long’s machine. I
find that Maple’s reassignment of Long to another machine and
his disparaging remark to Long regarding his productivity were
subtle actions calculated to harass Long because of his union
support. While Long’s actions in leaving without telling Ma-
ples directly may not have been in his best self-interest, I find
the Respondent seized on this incident to discharge Long and
rid itself of a union supporter. I credit Long’s assertion that he
was sick as the result of his treatment by Maples. Obviously he
was upset and angered by this treatment and I find no basis for
discrediting his testimony in this regard. Although admittedly
his leadman did not have the authority to grant him permission
to leave, he did not leave without telling anyone as had Scott
Carlos Johnson and Long did report for work on his next
scheduled shift. The other cases cited by the parties are only of
arguable persuasion and not identical to the instant case. I find
that Respondent seized on this incident in this case to rid itself
of a union supporter who previously had an unblemished record
as an employee of Respondent. I thus find that Respondent
violated Section 8(a)(1) and (3) of the Act by its discharge of
Charles Long. Wright Line, supra; Manno Electric Inc., supra
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by its inter-
rogation of employees Charles Long and Charles Cox engaged
in by Supervisor Ronnie Maples concerning whether they had
been discussing the Union and by Maple’s unlawful restriction
of the employees from discussing the Union on company prop-
erty which constituted the application of an unlawfully broad
no-solicitation rule.
4. Respondent violated section 8(a)(1) of the Act by its re-
striction imposed by its supervisor, Gary Walker, on its em-
ployee David Courtney from passing out union literature in the
main break area, a nonwork area while Courtney was on lunch,
a nonwork time.
5. Respondent violated Section 8(a)(1) of the Act by the re-
strictions imposed by its Personnel Manager Mark Bright and
its Corporate Director of Human Resources Henry Washington
by prohibiting employees from distributing union literature in
its parking lot, a nonwork area while the employees were on
nonwork time and by denying access to an easement immedi-
ately adjacent to its property for the distribution of the litera-
ture.
6. Respondent violated Section 8(a)(1) of the Act by dispar-
ately enforcing its facially valid no-solicitation, no-distribution
rule by enforcing the rule only against union solicitation and
distribution while permitting other solicitation and distribution
activities during worktime and in work areas.
7. Respondent violated Section 8(a)(1) of the Act by interro-
gation of its employees Mark Winegardner and Chris White by
Tire Room Superintendent Terry Phillips concerning whether
they knew the identity of employees who were soliciting union
authorization cards and by coercively stating that he wished
they (Respondent’s management) knew who was “pushing the
Union,” which constituted an unlawful implied threat of retalia-
tion and by unlawfully threatening Winegardner and White that
Respondent would reduce wages and subcontract existing unit
jobs if the Union were successful in its organizational drive.
8. Respondent violated Section 8(a)(1) of the Act by Super-
intendent Terry Phillips’ threat issued to employee Dennis
Snyder that if the Union won the election, the employees would
lose jobs and benefits.
9. Respondent violated Section 8(a)(1) of the Act by the
threat issued by its maintenance supervisor, Larry Pitts, to em-
ployees Hershel Sanders and Donny Sexton that if the Union
won the election the maintenance work would be contracted
out.
10. Respondent violated Section 8(a)(1) of the Act by the so-
licitation of grievances from unit employees engaged in by
CEO Mori Taylor and CCO Michael R. Samide from unit em-
ployees with the implicit promise to remedy the grievances in
order to defeat the union organizational campaign.
11. Respondent violated Section 8(a)(3) and (1) of the Act by
the warning issued to employee Mark Winegardner by Superin-
tendent Terry Phillips for distributing union literature in the
breakroom, a nonwork area during his nonworktime.
12. Respondent violated Section 8(a)(3) and (1) of the Act by
the verbal warning issued to employee Don Brown by Plant
Manager Ed Engels for distributing union literature in the
breakroom a nonwork area during his nonworktime which was
precipitated by Respondent’s unlawful enforcement of its over
broad no-solicitation, no-distribution rules.
13. Respondent violated Section 8(a)(3) and (1) of the Act by
its disparate treatment of employee Faye Rainey by refusing to
permit her to maintain union literature at her workstation while
permitting other employees to keep personal items at their
workstations.
14. Respondent did not violate the Act by its suspension of
employee Kyle Mitchell.
15. Respondent violated Section 8(a)(1) of the Act by pro-
hibiting Mitchell from discussing his suspension which was an
unlawful prohibition to Mitchell of discussing his terms and
conditions of employment in violation of his rights under Sec-
tion 7 of the Act and by requiring him to waive his statutory
right to Board access.
16. Respondent violated Section 8(a)(3) and (1) of the Act by
its discharge of employee Charles Long.
17. Respondent violated Section 8(a)(1) of the Act by apply-
ing its no-solicitation, no-distribution rule in an overbroad and
discriminatory manner.
18. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in violations
of the Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative actions designed
to effectuate the purposes and policies of the Act and post the
appropriate notice.
It is recommended that Respondent rescind the unlawful
warnings issued to employees Mark Weingardner and Don
Brown and the unlawful discharge of employee Charles Long
and offer Long immediate reinstatement to his former position
or to a substantially equivalent position, if his former position
no longer exists, and that Respondent make Long whole for all
loss of backpay and benefits sustained as a result of the dis-
crimination against him by Respondent in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), and interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).3
The Election
The petition in Case 10–RC–14650 was filed on September
6, 1995. Thereafter, pursuant to a Stipulated Election Agree-
ment, an election by secret ballot was conducted on October 17
and 18, 1995, among the employees in the stipulated appropri-
ate unit to determine the question concerning representation.
The appropriate unit is:

All production and maintenance employees employed by the
Employer at its Clinton, Tennessee facility, but excluding all
office clerical employees, guards, and supervisors as defined
in the Act.

There were approximately 461 eligible voters of whom 172
cast valid votes for and 241 cast valid votes against the Peti-
tioner, United Steelworkers of America. There were 29 chal-
lenged ballots and one void ballot. The challenged ballots were
insufficient to affect the results of the election. On October 24,
1995, the Petitioner, timely filed objections to the election.
Pursuant to the Order of the Regional Director for Region 10 of

3 Interest shall be computed at the “short term Federal rate” for the
underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. §
6621.
DICO TIRE, INC. 1263
the National Labor Relations Board dated February 2, 1996,
Case 10–RC–14650 was consolidated with Case 10–CA–28843
for hearing before an administrative law judge. Seven objec-
tions were filed by the Petitioner and on December 15, 1995,
the Petitioner requested the Regional Director to withdraw
Objections 1, 2, 4, and 6, and which request was approved,
leaving Objections 3 and 5 for hearing, ruling and decision by
an administrative law judge.
Objection 3: This objection alleges that employee Donald
Brown was told he could not distribute union campaign litera-
ture in the break area on nonworking time and was given a
verbal warning for doing so. This objection is coextensive with
paragraph 12 of the complaint in which the Employer was al-
leged to have violated Section 8(a)(3) and (1) of the Act by
issuing a verbal warning to Don Brown and which violation I
have found as alleged above in this Decision and I accordingly
conclude that the Respondent did in fact issue employee Don
Brown a verbal warning and deterred him from distributing
union campaign literature in the break area during nonworking
time. This violation occurred during the critical period prior to
the election, and I find had the tendency to and did thereby
interfere with the election and I sustain the objection.
Objection 5: This objection alleges that maintenance em-
ployees were told that if the Union was selected by the employ-
ees, that an outside contractor would do the maintenance work.
This objection is coextensive with paragraph 9 of the complaint
and with other incidents developed at the hearing wherein I
found that the Employer’s supervisors made these threats dur-
ing the critical period and I find that these threats were inher-
ently coercive and interfered with the election and I sustain
Objection 5 to the election also.
It is recommended that the election held on October 17 and
18, 1995, be set aside and Case 10–RC–14650 be referred to
the Regional Director for the setting of a new election at such
time and place as he determines once the unfair labor practices
have been remedied.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Dico Tire, Inc., Clinton, Tennessee, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union activities
and sympathies and the union activities and sympathies of their
fellow employees.
(b) Threatening employees with subcontracting of unit work,
loss of jobs, reduction in pay and loss of benefits, if they select
the Union as their collective bargaining representative.
(c) Disparately enforcing a facially valid no-solicitation, no-
distribution rule against solicitation or distribution on behalf of
the Union.
(d) Promulgating an overbroad rule against solicitation and
distribution in nonwork areas during nonwork time.
(e) Denying employees access to its property by prohibiting
them from distributing union literature on its property in non-
work areas and on a public easement adjacent to its property.

d.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(f) Issuing warnings to its employees for engagement in law-
ful solicitation on behalf of the Union and distribution of union
literature in nonwork areas of its premises during nonwork time
of the employees.
(g) Prohibiting its employees from discussing discipline im-
posed on them with others, thus restraining them from discuss-
ing their terms and conditions of employment with their fellow
employees and others in violation of their rights under Section
7 of the Act and thus also denying the employees their statutory
right to Board access.
(h) Discharging its employees for engaging in union activi-
ties.
(i) Soliciting grievances from unit employees with an im-
plicit promise to remedy them in order to defeat a union organ-
izational campaign.
(j) Disparately prohibiting its employees from maintaining
personal items, including union campaign literature, at their
workstation.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the
unlawfully promulgated overbroad no-distribution, no-solici-
tation rule and inform the employees in writing that this has
been done.
(b) Within 14 days from the date of this Order, rescind the
unlawful warnings issued to Mark Weingardner and Don
Brown, the unlawful restriction on employee Faye Rainey’s
maintenance of personal items at her work station and the
unlawful prohibition issued to employee Kyle Mitchell not to
discuss his suspension with others, and rescind the unlawful
discharge of employee Charles Long and offer reinstatement to
Long to his former position, or if that job no longer exists, to a
substantially equivalent position without prejudice to his
seniority or any other rights or privileges previously enjoye
(c) Make Long whole for all loss of earnings and other bene-
fits suffered as a result of the discrimination against him in the
manner set forth in the remedy section.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the foregoing unlawful discrimination
against its employees and within 3 days thereafter notify the
employees in writing that this has been done and that the
unlawful discrimination will not be used against them in any
way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its fa-
cility in Clinton, Tennessee, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be posted by
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August
1995.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
With respect to the alleged unlawful suspension of employee
Kyle Mitchell, the complaint is dismissed.
IT IS FURTHER ORDERED that the election in Case 10–RC–
14650 be set aside and this case be transferred to the Regional
Director for Region 10 for the setting of a new election at a
time and place to be determined by him.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT interrogate employees concerning their union
activities and sympathies and the union activities and sympa-
thies of their fellow employees.
WE WILL NOT threaten employees with subcontracting of
work, loss of jobs, reduction in pay, and loss of benefits if they
select the United Steelworkers as their collective-bargaining
representative.
WE WILL NOT issue warnings to our employees for engaging
in solicitation on behalf of the Union and distributing union
literature during nonworktime in nonwork areas of our prem-
ises.
WE WILL NOT disparately enforce our no-solicitation, no-
distribution rule against union activities or deny employees
access to our property or public easements adjacent thereto
distribute union literature on behalf of a union.
WE WILL NOT promulgate an overbroad no-solicitation, no-
distribution rule prohibiting solicitation and distribution of
union literature in nonwork areas during nonworktime.
WE WILL NOT issue warnings to our employees or suspend
and discharge employees because of their engagement in union
activities.
WE WILL NOT disparately prohibit employees from maintain-
ing personal items including union literature at their work sta-
tions while permitting other employees to maintain personal
items at their work stations.
WE WILL NOT prohibit our employees from discussing disci-
plinary actions with others.
WE WILL NOT solicit grievances with the implicit promise of
remedying them in order to stem a union campaign.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, rescind
the warnings issued to employees Mark Weingardner and Don
Brown; and the prohibition against employee Kyle Mitchell of
discussing his suspension; the discharge of employee Charles
Long; and the prohibition issued to employee Faye Rainey
against maintaining personal items at her work station.
WE WILL, within 14 days from the date of this Order, offer re-
instatement to Charles Long to his former position or, if that
job no longer exists, to a substantially equivalent position with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Charles Long whole for any loss of earnings
and other benefits resulting from the discrimination against
him, less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the unlawful discipline issued to em-
ployees Mark Weingardner, Don Brown, and Charles Long,
and WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the unlawful discrimi-
nation will not be used against them in any manner.

DICO TIRE, INC.