Electric Hose & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 966 (N.L.R.B. 1977)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric Hose & Rubber Company and United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO-CLC. Cases 17-CA-6777 and 17-CA-
6940
March 22, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On November 16, 1976, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, Charging Party filed a brief in
support of the Administrative Law Judge' s Decision,
General Counsel filed a motion for modification and
clarification of the Administrative Law Judge's
Decision , and Respondent filed an opposition to the
General Counsel's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
We agree with the Administrative Law Judge's
finding that Respondent terminated employees Leon-
ard O'Dea and Steven Goldsberry because of their
activities on behalf of the Union in violation of
Section 8(a)(3) and (1) of the Act. We do not adopt,
however, his finding that O'Dea's discharge was also
violative of Section 8(aX4). His Decision contains no
analysis of evidence which would lead to such a
finding and we fmd nothing in the record to support
the finding of such a violation. We therefore dismiss
the complaint insofar as it alleges a violation of this
section of the Act.
The complaint also alleged that Respondent creat-
ed the impression of surveillance of, and economic
reprisal for, employees' participation in activities on
behalf of the Union, and that it threatened employees
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings . We also find
totally without merit the Respondent's allegations of bias and prejudice on
the part of the Administrative Law Judge . Upon our full consideration of the
record and the Decision of the Adnumstrative Law Judge , we perceive no
evidence that he prejudged the case , made prejudicial rulings , or demon-
strated a bias against the Respondent in his analysis or discussion of the
evidence
with economic reprisal in the event the Union won
the then-pending election.
Based on the credited testimony of employee
Dorwart, the Administrative Law Judge found that
Respondent had violated Section 8(a)(1), substantial-
ly as alleged in the complaint, and we agree that the
record supports such findings. However, in his
Conclusions of Law and recommended Order, the
Administrative Law Judge erroneously states that
Respondent unlawfully questioned employees about
their union activities and orders it to cease and desist
from such activities. At the same time, he failed to
mention that Respondent had created the impression
of surveillance, nor does he order it to cease such
activity. We will therefore correct this apparent
inadvertence and correct the Conclusions of Law and
the recommended Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 2
and 4.
"2. By creating the impression that Respondent
was engaging in surveillance of employees' union
activities and by making threats to employees con-
cerning their activities on behalf of the Union, the
Respondent violated Section 8(a)(1) of the Act.
"4. By discharging Leonard O'Dea, the Respon-
dent violated Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Electric Hose & Rubber Company, McCook,
Nebraska, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order as modified herein.
1. Substitute the following for paragraph 1(a):
"(a) Unlawfully creating the impression that em-
ployees' activities on behalf of the Union are being
kept under surveillance or threatening them with
reprisal for engaging in union or protected concerted
activities."
In the second paragraph of sec . II, A and in the first paragraph of sec. C of
his Decision, the Administrative Law Judge attributes to Foreman Gavers
the remark pertaining to the Union's losing the upcoming election-having
to wait a year before it could campaign again-and that there would be no
union supporters left working at Respondent's plant by that time . In other
sections of his Decision , he attributes this remark to Plant Manager
Bergeron . The record is clear that the remark should be attributed to
Bergeron.
It appears that the Administrative Law Judge was in error when, in the
22nd paragraph of sec. B of his Decision , he attributed to the testimony of
Goldsberry the statement that Bergeron was in the lunchroom when
Goldsbeny was soliciting on behalf of the Union.
228 NLRB No. 109
ELECTRIC HOSE & RUBBER COMPANY
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT create the impression that we are
engaging in surveillance of employees' union
activities or threaten employees with reprisals
because of their union activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for joining or assisting
a labor organization or engaging in other activity
protected by the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of any right
guaranteed under Section 7 of the Act, including
the right to refrain from engaging in any or all of
the activities guaranteed thereunder, except to the
extent that such right may be affected by an
agreement requiring membership in a labor orga-
nization as a condition of employment, as autho-
rized in Section 8(a)(3) of the Act.
WE WILL offer immediate reinstatement to and
make whole Steven H. Goldsberry and Leonard
O'Dea for any loss of earnings each may have
suffered by reason of our discrimination against
him.
ELECTRIC HOSE &
RUBBER COMPANY
DECISION
STATEMENT OF THE CASE
IvAR H . PETERSON, Administrative Law Judge: The
hearing in this consolidated proceeding was held on 5 days
in McCook , Nebraska , commencing on May 20 and
concluding on June 11 , 1976, based on charges filed by
United Rubber, Cork , Linoleum and Plastic Workers of
America, AFL-CIO-CLC, herein called the Union, on
October 6, 1975, in Case 17-CA-6777, and a further charge
filed by the Union on January 28, 1976 , in Case 17-CA-
6940 . On March 5, the Regional Director for Region 17
issued a complaint in Case 17-CA-6777 and, under date of
March 11, the Respondent, Electric Hose & Rubber
Company, filed its answer . The complaint in Case 17-CA-
6940 was issued by the Regional Director on March 19.
Under date of March 25 , the Respondent filed its answer.
On March 26 the Regional Director issued an order
consolidating the cases and rescheduling the hearing.
i The unopposed motion of counsel for the Respondent to correct the
record is hereby granted.
2 In the Respondent's brief, reference is made to a Charles Gavers,
967
Briefly stated, the complaint in Case 17-CA-6777 alleged
that the Respondent, on or about September 29, 1975,
discharged Steven H. Goldsberry, an employee, and, at all
times thereafter, failed and refused to reinstate him. By
these acts, the complaint alleged that the Respondent had
discriminated with respect to the hire and tenure of
employment of Goldsberry and thereby violated Section
8(axl) and (3) and Section 2(6) and (7) of the Act. In Case
17-CA-6940 the complaint alleged that the Respondent
had engaged in further violations of Section 8(a)(1) and
had, by terminating Leonard O'Dea, violated Section
8(a)(3), (4), and (1) of the Act. The Respondent, in its
answer dated March 25, denied these allegations.
Upon the entire record in the case, and my observation of
the demeanor of the witnesses as they testified, and after
consideration of the briefs filed with me by counsel for the
Union and the Respondent on July 30 and August 2,
respectively, I make the following: I
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the
manufacture of rubber hose and related products at its
plant in McCook, Nebraska. Admittedly, the Respondent,
in the conduct of its operations at its Nebraska plant,
annually sells in excess of $50,000 worth of products
directly to customers located at points outside the State of
Nebraska and annually purchases in excess of $50,000
worth of supplies from concerns outside the State of
Nebraska. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union is now
and has at all material times been a labor organization
within the meaning of Section 2(5) of the Act. It is also
admitted, and I find, that the following persons at all
material times were agents and/or supervisors of the
Respondent within the meaning of Section 2(13) and (11) of
the Act: Tom Bergeron, plant manager; Steve Peres,
foreman; and Rex Poore, foreman. However, the Respon-
dent denies that Charles Graves 2 occupied the position of
foreman.
The complaint alleged that the following individuals, on
the dates indicated, created the impression of surveillance
of, and economic reprisal for, employees' participation in
activities on behalf of the Union: Charles Gavers, January
30, 1976 and Rex Poore, February 11, 1976 . It is also
alleged that Bergeron, on February 10, threatened employ-
ees with economic reprisal in the event the Union won a
then-impending election in Case 17-RC-7907, and that, on
or about January 23, the Respondent discharged Leonard
O'Dea and thereafter failed and refused to reinstate him. By
the foregoing conduct, it is alleged that the Respondent
violated Sections 8(axl) and (3) and 2(6) and (7) of the Act
and, in addition, it is alleged that the Respondent discrimi-
nated against an employee for giving testimony under the
Act, thereby violating Section 8(a)(4).
shipping and warehouse foreman . It thus appears that these refer to the same
person , and that the correct name is Gavers.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES had told him that the Respondent "didn't have a leg to
stand on in the matter of the discharge of Leonard O'Dea,"
and that Poore remarked that , in his own view, if O'Dea
"don't get back to work then the N.L.R.B. is on the take,"
and further stated that Dorwart should watch his step and,
in his words, said "that they were keeping track of me and
trying to find something out on me so that they could fire
me," because of his union activities , and that the Respon-
dent "didn't want me around by next year, they figured that
I would be an organizer again."
On or about April 15, 1976, Dorwart received a letter
from the Respondent warning him about absenteeism. In a
conversation concerning that letter with Supervisor Poore
in the warehouse office , Poore inquired whether he had
received a letter. Poore asked Dorwart why he had been
absent 5 days during the preceding 3 months, to which
Dorwart replied that he had taken 2 days off for the funeral
of his father-in-law, which Gavers stated was an excused
absence ; on another occasion, he had had chest pains and
was sent home, which Gavers stated was an excused
absence. Dorwart stated that the following day he had to go
to the doctor and did not come in that night to work, but
that he did call in, and Gavers commented that that also
was an excused absence . He then stated that on a previous
evening he had had the flu and called in sick and, on
another occasion, he ran out of gas and had to go home. On
this occasion, so he testified , he had stopped at a farmhouse
but no one was home so he could not call his residence and
had to walk home and , when he reached his residence, he
called the plant and was advised that that was another
excused absence . On the matter of being tardy, Dorwart
stated that he had never been tardy since he had been on
the night shift and that Poore responded to this that he
could not figure out the matter and gave him a sheet to fill
out. Dorwart asked Poore whether that was a warning, and
Poore responded by saying, "Well, who knows, I see a lot of
people have gotten them, got letters pinned on their
timecards." To this, Dorwart said that he would like to
know whether it was a warning, because he was not late.
Dorwart further related a conversation he had with
Supervisor Gavers, during the early part of May 1976, in
which Gavers mentioned that, if the Union had gotten in,
the Respondent would have closed the plant in McCook
and moved to some other area, and, so Dorwart testified,
Gavers stated, in Dorwart's words, "that they had been
wanting to get rid of me but they could never find anything
wrong on me and so, but they said they would keep on until
they did."
In his brief, counsel for the Union considers the alleged
violations of Section 8(a)(1) that have been summarized
above. Concerning the December 1 meeting in Supervisor
Poore's office , he notes that Poore was asked whether he
ever told Dorwart that the Respondent was trying to get rid
of him and that, in response, Poore stated, "Boy, I don't
believe it was just point blank, Yule, they are trying to get
you gone." Union counsel states that, while this testimony
"may fall short of an admission , it is far from a denial and,
in fact , implied that a similar statement was made." He
further points out that Poore , at a later point in the hearing,
admitted that Dorwart was an excellent worker and that
Bergeron "offered to replace him with two men." In
A. Interference, Restraint, and Coercion
Yule Dorwart, who first went to work for the Respondent
on November 29, 1971 , when the McCook plant opened,
and who at the time he testified was still employed by the
Respondent as a warehouseman , testified to a number of
conversations and incidents involving supervisors of the
Respondent , which counsel for the General Counsel and
counsel for the Union contend were violative of Section
8(axl) of the Act. Dorwart was a member of the in-plant
organizing committee and the Union furnished the Respon-
dent with the names of the membership of that committee.
Dorwart also related that he was active in the organization-
al campaign and served as the Union 's observer during the
election held on May 3 , 1976. It is clear, therefore, that the
Respondent was well aware of Dorwart's union activities.
On December 1, Dorwart met with Supervisor Poore in the
warehouse office, during which they had a conversation
concerning the Union. According to Dorwart, Poore told
him "that I would have to watch my step , that Mr. Bergeron
had told the foremen at the foremen meeting , had told
Charles Stowers to try to get something on me to fire me,
that if he did he would give him two men to replace me."
Dorwart related that Poore stated this meeting of supervi-
sors had occurred in November, and Dorwart related that,
when he inquired why the Respondent desired that he be
terminated , he was told that it was because of his union
activities . On or about June 30, Dorwart had a conversation
with his then foreman, Charles Gavers, during which they
were outlined what the employees were to do that night.
Dorwart testified that he spoke to Gavers about the
warehouse opening that had been posted on the bulletin
board and on which he bid and, shortly thereafter, the
Respondent postponed the bidding. Dorwart testified that
he told Gavers he had seniority in the warehouse and
inquired why he did not get the job, to which Gavers
replied , "the reasons you did not get that job is because
you're a union agitator."
On February 10, Dorwart attended a meeting conducted
by Bergeron with some other employees, who came from
various portions of the plant . Dorwart related that Berger-
on "was talking about the Union, about the election that
was coming up" and stated that the McCook facility was "a
real crucial plant operation" and that it could be moved at
any time without notice . Some employee , so Dorwart
testified, asked whether, if the Union came into McCook,
another Electric Hose plant in Nebraska would go union.
The response was that it would . Dorwart further related
that Foreman Gavers discussed the termination of Golds-
berry and O'Dea, stated that the talk about Goldsberry
returning to work was a be, and that Goldsberry and O'Dea
would never again work at the Respondent 's plant . Gavers
also stated that the Union would lose the up -coming
election and a year would have to elapse before the Union
could campaign again and, by the end of the year, no union
supporters would be left working at the McCook plant.
About the same time , approximately February 10,
Dorwart had a conversation with Supervisor Poore regard-
ing the termination of O'Dea. Dorwart testified Poore
stated that William Sitzman , a quality control supervisor,
ELECTRIC HOSE & RUBBER COMPANY 969
counsel's view, the significance of this testimony is twofold:
first inasmuch as it was "communicated to an employer by
a supervisor it constitutes a threat and at least created the
impression of surveillance." Further, he asserts that, "it
contradicts Respondent's extensive testimony that Mr.
Bergeron had instructed the foremen to remain fair and
impartial during the campaign" and, in addition, "renders
the credibility of the Respondent's witnesses questionable,
especially when it is noted that Poore is the only company
witness not still employed by Respondent." With respect to
the meeting Bergeron held with employees on or about
February 11, in which he told the employees that the
McCook plant was critical in the Respondent's operations
and could be moved at any time without notice, counsel
asserts that, when viewed in context, "this comment can be
interpreted only as a threat to close the plant should the
Union win the impending election," and that "the impact of
this statement on employees cannot be overemphasized,
since the plant manager returned to the plant on the
midnight shift solely to meet with employees concerning the
Union." With respect to the statement attributed to
Bergeron that the Union would lose the election and would,
in consequence, have to wait a full year before another
election could be held and that, in the meantime, no union
supporters would be working in the plant, counsel contends
that this observation, coming "on the heels of the discussion
of the discharged" employees, Goldsberry and O'Dea, "was
obviously intended to coerce employees into abandoning
support for the Union out of fear for their jobs," and that
these statements "again put in issue the credibility of
company witnesses who testified that Mr. Bergeron in-
structed all supervisors to be impartial" and, in addition,
constituted violations of Section 8(a)(1) of the Act.
Concerning Dorwart's testimony about the conversation
he had with Poore on or about February 10, which has been
related above, counsel contends that this "clearly indicates
union animus by Respondent," and that in view of the fact
it was "communicated to the employee by his supervisor, it
undoubtedly created the impression of surveillance" and,
consequently, is violative of the Act; and, moreover, "if
credited, this testimony renders the testimony of Respon-
dent's witness suspect since it is again in clear conflict with
testimony that Mr. Bergeron was instructing the supervisors
to remain impartial and treat everyone equally."
With respect to the testimony given by Dorwart concern-
ing his conversation with Foreman Gavers on or about
January 30, as to the possible change of shift for him, it is
the contention of counsel for the Union that the foreman
admitted that Dorwart was denied the position because of
his activity in behalf of the Union. He points out that,
inasmuch as the Respondent did not call Gavers as a
witness , this circumstance "raises an inference that his
testimony would have been adverse to Respondent," and
that, in consequence, "it must be found that Respondent
violated Section 8(a)(1) of the Act by both denying Yule
Dorwart a change of shifts and by communicating to him
such statements which can only be interpreted as threats to
deny other economic benefits to him in the future should he
persist in his actions.", Moreover, counsel asserts that the
foregoing testimony relates to the credibility of Bergeron
and other witnesses for the Respondent because it not only
"contradicts their testimony that Mr. Bergeron instructed
all supervisors to remain impartial, but also because the
record indicates that Mr. Bergeron makes the job assign-
ments . . . and, accordingly, his knowledge and coopera-
tion would be needed to deny Dorwart his transfer" and
that, accordingly, "Bergeron's testimony that he was
continually insisting on total impartiality during the cam-
paign is impossible to credit" and that, as a result, "either
the uncontested testimony of Yule Dorwart or the self-
serving statements of Tom Bergeron must be discounted."
With respect to Dorwart's testimony concerning the
conversation he had with Foreman Gavers on May 11,
which was not disputed by Gavers, it is the contention of
counsel for the Union that the effect of this "is many
faceted." He states that, "If an employee is informed the
company would have moved the plant at a prior date to
avoid unionization, there is an implied threat that this will
happen in the future should the employees organize," and
that such threats are obviously violations of Section 8(a)(1).
In addition, he notes that Gavers told Dorwart that the
Respondent was attempting to get him and would continue
to do so, which, he asserts, "creates the impression of
surveillance and is also a veiled threat," and, therefore,
violative of Section 8(aXl) of the Act.
Finally, _ counsel for the Union adverts to Dorwart's
testimony concerning his receipt of a warning letter on
April 15, and the ensuing conversation he had with
Supervisors Poore and Gavers. Concerning that conversa-
tion, in which Dorwart testified that all his absences had
been excused, with which Poore agreed, Poore stated that
the Respondent's motive might be revealed as, in his words,
the Respondent "could just be camouflaging your letter in
giving out a bunch of them and retaining yours on file and
when they want to get rid of you, all they have to do is give
you two more letters." Poore further stated, according to
Dorwart, that the latter would "have to watch your step all
the way. They're out to get you." Counsel for the Union
contends that the foregoing "not only illustrates another
example of the Respondent creating the impression of
surveillance," but "also illustrates the impression of Super-
visor Poore that Respondent was capable of deception to
achieve its goals . Coming from an individual such as Mr.
Poore who was privy to all the high level supervisor
meetings, such an observation is most persuasive."
Counsel for the Respondent, in his brief, argues that there
is no substantial evidence disclosed by the record to
establish that the Respondent engaged in a pattern of
conduct violative of Section 8(a)(1) of the Act, and that
counsel for the General Counsel offered the testimony of
only one witness, Dorwart, in support of such allegations.
He asserts that it is particularly significant that counsel for
the General Counsel "was not able to come up with even
one additional witness to corroborate with support Dor-
wart's testimony concerning 8(a)(l) statements by foremen
or supervisors, even though the Union's preelection cam-
paign lasted approximately five or six months in a plant of
nearly 300 employees" and "even though there was an in-
plant committee of employees actively engaged in organiza-
tional activities almost all of this time."
Counsel for the Respondent argues that the testimony of
Dorwart is uncorroborated and, further, that it is denied
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and contradicted by other witnesses and, in addition, it is
"inherently unbelievable." In support of this assertion,
counsel states that Dorwart testified that about December 1
he had a conversation with Foreman Poore in which Poore
told Dorwart that he should watch his step, that Bergeron
had told Foreman Stowers to try to get something on
Dorwart as a basis for terminating him, and that Bergeron
would give Stowers two men to replace Dorwart. In
addition, Dorwart testified that in another conversation
with Poore, about February 10, Poore told Dorwart that he
should watch his step as "they" were keeping track of him
and trying to find something on him in order to terminate
him.
Poore, under subpena, testified on behalf of the Respon-
dent.3 He said he never had told Dorwart at any time to
watch his step; indeed, he testified that he had spoken to all
the warehouse employees on various occasions about their
work performance and had told them that not only they,
but he himself, ought to watch their steps or they would be
"going down the line." According to counsel for the
Respondent, the "context of these admonitions, in Mr.
Poore's own words was `the warehouse is a variety of jobs
that you have to stay on top of to keep it halfway cleaned
up, to keep it appearing where you can get flow of
equipment to and from, loading trucks, unloading, and I
can honestly say that was the feeling I had ... let's put out
a little extra.' " According to counsel, "Clearly, such
statements were not intended to, nor did they, relate to the
union activities of Dorwart or any other employees. By
using the phrase `watch your step' Poore meant'do a good
job.' " In addition, he points out that Poore testified that he
was not either for or against the Union but that he "wanted
the job done. I've told these people that and that's how I
feel about it."
It is the contention of counsel for the Respondent that
Dorwart, in his testimony, "twisted and misrepresented for
his own reasons what actually were nothing more than the
normal day-to-day exhortations of a foreman to his
employees such as occur in every industrial environment
with or without a union campaign in progress." " In addition,
he points to the further testimony of Poore that, while the
latter did in fact attend a meeting of supervisors in which
the replacement of Dorwart was discussed, Bergeron, so he
testified, never gave Foreman Stowers a "direct order" to
discharge Dorwart nor did Bergeron tell Stowers to find a
way to terminate Dorwart. Counsel acknowledges that
Poore did say that Bergeron made the offer to replace
Dorwart with two men, but asserts that this comment, "far
from indicating a desire to discharge Dorwart," was made
in the context of considering Dorwart for promotion to a
supervisory post. He argues that Bergeron , as the latter
testified , was looking for someone to become a foreman
and asked for comments from other supervisors , and that
Dorwart's name was put forward and Foreman Stowers
said that Dorwart was a good worker and that he hated to
make hun a foreman because it would probably take two
people to replace him. Bergeron agreed to give Stowers two
men to replace Dorwart if he did become a foreman and
then told the department manager, McGee, to offer the
3 Poore , who had been foreman in the warehouse and shipping depart-
ment poor to the time he voluntarily left the Respondent's employ on April
foreman's position to Dorwart which in fact occurred. After
thinking it over, Dorwart refused the promotion.
It is the position of counsel for the Respondent that the
testimony of Poore and Bergeron to the effect that no
orders were ever given to discharge Dorwart but, to the
contrary, that he was considered for an offer of promotion,
is supported by the objective facts and the testimony of
other witnesses. In support, counsel points out that Dor-
wart conceded that he had been offered and declined a
position of foreman; moreover, he refers to the testimony of
other witnesses, including Production Manager Bauer and
Quality and Waste Control Manager Sitzman, as well as the
testimony of Foreman Peres, to the effect that they
attended the meeting of the supervisors and that no
statement was made by Bergeron concerning the discharge
of Dorwart.
With respect to the testimony of Dorwart that he, on
April 15, had a conversation with Poore regarding the letter
concerning his absenteeism record and that Poore observed
that the Respondent had given other employees similar
letters, counsel for the Respondent states that such "testi-
mony is utterly incredible." In support of this , counsel
points out that April 15 was Poore's last day at work and
that all he said to Dorwart was "good-bye." Moreover, he
states that, as Bergeron testified , Dorwart was "only one of
approximately 40 employees who received identical form
letters the same day . . . due to the fact that the overall
plant percentage of absenteeism had become excessive."
Moreover, he states that Dorwart testified, incredibly, that
although the letter was paper-clipped to the timecard, he
did not notice that letters were also clipped to the timecards
of other employees. Accordingly, he submits that "Dor-
wart's testimony with respect to this alleged conversation is
unreliable and should be rejected."
Alluding to the testimony of Dorwart that he attended a
meeting of employees conducted by Bergeron on February
10, in which Bergeron made statements to the effect that the
mixing facility at the McCook plant was a crucial opera-
tion, that it could be moved at any time, that another plant
depended on it, and that, if the Union came into the
McCook facility and went on strike, with the result that the
other concern would be subjected to difficulties , counsel
asserts that , even if made , these statements by Bergeron
were nothing more than "noncoercive observations and
predictions of some possible economic consequences which
could flow from a union strike at McCook , containing no
threats of reprisal," and that they were legitimate observa-
tions protected by Section 8(c) of the Act. Indeed, counsel
asserts that this statement by Dorwart was "an utter
fabrication" and suggests that, in view of Dorwart's
testimony that there were some 19 employees at the
meeting, if Bergeron had actually made the statement
attributed to him by Dorwart, "then the General Counsel
had a selection of 19 potential witnesses any of whom could
have been called to substantiate the truthfulness of Dor-
wart's testimony," and he observes that "not a one of these
numerous employees was called to corroborate Dorwart's
story," and comments that this failure to call corroborative
witnesses "creates a compelling inference that no such
15 in order to return to his prior occupation as a salesman , had been
acquainted with Dorwart since they were youngsters.
ELECTRIC HOSE & RUBBER COMPANY 971
statement was ever made." However, it may at this point be
observed that counsel for the Respondent could have called
these persons as witnesses who, so far as appears, were
equally available to him.
Counsel for the Respondent further asserts that "the
largely uncontested testimony of the circumstances sur-
rounding the alleged conversations indicate that Dorwart's
testimony is inherently improbable." In support, he notes
that Dorwart was active in the union campaign, served as
the Union's observer in the election, solicited employees to
sign union cards, and made calls at the homes of employ-
ees. On this basis, counsel suggests that Dorwart's testimo-
ny "was unquestionably slanted and biased in support of
the Union's cause." With respect to Poore, on the other
hand, counsel points out that he was no longer employed by
the Respondent when he testified, and thus "had no reason
to be other than candid in his testimony."
Respondent's counsel also argues that, even if Dorwart is
credited, the comments he attributed to Poore were not
violative of the Act, under the circumstances. He suggests
that the statements of Poore were made in a casual
conversation between two lifelong friends and "can be only
characterized as plant gossip. "
Concerning the uncontradicted testimony of Dorwart
involving Shipping and Warehouse Foreman Gavers,
counsel urges that, even accepting Dorwart's testimony,
"these statements are so minor and isolated as to contain no
coercive impact," and further points out that Gavers was a
department foreman, "the lowest level of supervision."
Regarding the statement attributed to Poore in a conver-
sation Dorwart had with Poore on or about February 10 to
the effect that Sitzman, the quality and waste control
manager, had told Poore that the Respondent did not have
a leg to stand on in regard to the discharge of O'Dea, and
that if O'Dea did not get his job back the N.L.R.B. was on
the take, counsel states that this "is utter hearsay and has no
probative value whatever since it was not attributed to a
management representative having the authority to formu-
late labor policy or even having the responsibilities of day-
to-day supervision over production employees such as
O'Dea."4 In addition, counsel calls attention to the fact
that Stizman testified that he never made such a statement
to Poore or anyone else, and Poore testified that he did not
tell Dorwart that Sitzman had made such a statement.
B. The Termination of O'Dea and Goldsberry
O'Dea was first employed by the Respondent on May 15,
1975, having been hired by Bergeron , the plant manager.
O'Dea, who stated that he was 49 years of age at the time he
testified , was hired on the second shift , which was from 3
p.m. until 11 p.m. O'Dea went to work as an air charger, the
main duties of which were to help the cover operator in
putting the cover on the hose and also to supply the hose in
the work area , inflate it according to specifications both as
to inside and outside diameter, and then to tie the pans of
hose together so that there would be a continuous flow of
hose to the cover machine . O'Dea related that he worked on
various types of hose and that, when he first went to work,
his foreman, Bob Petit, took him to another operator, one
Don Mackey, who would show him how to perform the job
to which he was assigned. According to O'Dea, Mackey
worked with him for 3 days, after which he was told that he
was fairly proficient as an air charger. Following that, he
was an inspector-bailor for approximately 2 weeks and then
became a cover operator, pursuant to bidding for the job, at
approximately the first part of September. Upon obtaining
that job, he received a raise in pay to $3.60 per hour. Until
the time he became a cover operator, he had received no
reprimands nor had he been informed by any supervisor
that his work was unsatisfactory.
Sometime in September, or, as O'Dea testified, about
August, he contacted a representative of the Union to set
up an organizational meeting and, in consequence, rented a
meeting room for Saturday, September 27. His initial
contact was with the Retail Clerks, but he was later
informed that he should get in touch with a representative
of the Union, for the reason that the Union had conducted
a campaign among the Respondent's employees in 1973.
About 2 weeks prior to September 28, O'Dea attended a
meeting conducted by Bergeron at the plant. At that time
Peres was O'Dea's foreman and Peres stated to one Bill
Kahler, who was training O'Dea, that they probably would
have to make a changeover about quitting time and that
O'Dea would have to do it himself because Kahler was
going to a meeting. At that time, Peres told Kahler that
O'Dea would have to finish the changeover. O'Dea accom-
panied Peres to a meeting in the plant conference room in
which Bergeron conducted a session concerning the Equal
Employment Opportunity Act and, after concluding his
talk on that subject, stated, according to O'Dea, "there is a
rumor going around the plant that there is union activities
starting up again," and further said that, in his view,
"Unions are no good for anyone, they don't do anything
except collect dues and they bring the gangsters, the crooks,
and the Jimmy Hoffas into town and we have a nice clean
little town in McCook and we would like to keep it that
way." Thereafter, Bergeron asked if any of the employees
had any complaints or suggestions of how the plant or
working conditions could be improved.
On September 28, an organizational meeting of the
Union was held at the lunchroom of the Royale Hotel.
Union Representative Zanoni conducted the meeting and
some 10 employees from the hose plant were present.
According to O'Dea, Zanoni informed them of facts
concerning the conduct of union activities and, in conse-
quence, the employees voted that they would have an open
organizing committee and several of them signed up to be
members thereof. During the course of that meeting, so
O'Dea testified, Zanoni told the employees that if they
engaged in any union activity they could do it outside the
plant, in the lunchroom on coffeebreaks, or on any
occasion where they were not assigned to work, and he gave
them organizational or committeeman buttons and stated
that probably 2 days or so would elapse before the
Respondent received the Union's letter naming the mem-
bers of the organizational committee . On September 30,
Zanoni directed a letter to Bergeron listing the names of the
4 In support of his statement that the Board has "rejected such indirect
and remote attempts by the General Counsel to establish questionable
admissions," counsel cites Ben Hur Produce, 211 NLRB 70 (1974), and
Orenduff& Kappell, Inc., 118 NLRB 859 (1957).
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the organizing committee, including the name
of O'Dea.
On September 25, O'Dea met with Goldsberry, who came
to his home and told O'Dea that he had a problem with
alcohol . O'Dea, so he testified , told Goldsberry that he was
aware of this and Goldsberry said that he would like to
have some assistance in connection with this problem.
O'Dea said that, if Goldsberry really desired help, it would
be available through Alcoholics Anonymous . O'Dea and
Goldsberry then arranged to go down to the plant to speak
to Bergeron.
O'Dea testifed that when he and Goldsberry met with
Bergeron the latter stated , in response to Goldsberry's
remark that he had a problem with alcohol , that he was
aware of that fact . Goldsberry said that he needed a job and
he wished to get his drinking problem straightened out.
Bergeron stated that Goldsberry was a good worker but
that he was not dependable , and his absences affected
everyone on the production line. He asked O'Dea how he
felt about Goldsberry's problem and O'Dea expressed the
view that Goldsberry should go into a treatment center.
Bergeron told Goldsberry that if he would straighten up his
life he would have his old job back and that , since the
dismissal papers had not been sent to the main office in
Wilmington, New Jersey, he would take them from the file
and there would not be "anything in your file as to this
dismissal , you will go right back to work on your same job
with your same seniority." He told Goldsberry that if he
decided to go to a treatment center he would be given a 30-
day leave of absence. Goldsberry then said that he would
like to have the evening off and he would call Bergeron the
following morning and tell him what he had decided to do.
The following day Goldsberry came to O'Dea's home and
telephoned Bergeron and told him that he would be in to
work that day and that he had decided not to go through a
treatment center but was going to help himself through
Alcoholics Anonymous.
O'Dea testified that Goldsberry had no problems at work
on September 26, a Friday. He and Goldsberry attended
the union meeting on Sunday , September 28. The following
day, September 29, O'Dea and Goldsberry went to the
plant together and before worktime sat in the lunchroom
with several other employees , some of whom asked O'Dea if
he had been at the Union 's organizational meeting the
previous day. O'Dea replied that he had. O'Dea and
Goldsberry were both wearing union committee pins.
O'Dea, whose work station is approximately 15 feet from
Goldsberry's, testified that that day at work Goldsberry
had one Walter Warburton as his air charger and Carl
Hanger as his water charger . According to O'Dea, Foreman
Peres stood by a post some 20 feet from Goldsberry "all
evening ," observing Goldsberry . O'Dea further related that
he observed Peres assisting Goldsberry. At 7 p.m., the
normal lunch break, O'Dea started to shut his machine
down and at that time Goldsberry called to him and said
that he was not going to lunch because he had to finish a
run of hose first . At that time Peres was air charging and
Hanger was water charging for Goldsberry. When O'Dea
returned from lunch Goldsberry called his attention to the
fact that Foremen Peres was air charging for him while
another worker , Ed Curtis, "is sitting back on his butt
drinking coffee on overtime " in plain view of Peres. After
Goldsberry and Hanger returned from lunch, O'Dea
observed them make several trips on a jack truck to the
stock supply area, bringing braid hose to the cover
machine . He also observed Goldsberry assisting Hanger in
air charging hose. O'Dea related that about 10 p.m.
Goldsberry told him that he had just been discharged.
O'Dea was terminated on January 23, for the stated
reason of poor workmanship . With respect to his own
employment, O'Dea testified that early in September, the
first day that he ran some hose by himself, Foreman Peres
spoke to him the next day or so , stating that he had run
something like 1,000 feet of hose that was offcenter, but that
his reference to this matter was not a warning or a
reprimand and that, according to O'Dea , Peres said, "this
isn't really bad for a new operator" but that he wished to
call the matter to O'Dea 's attention . On December 2,
O'Dea received a note from Peres which reads as follows:
This is a written warning referring to your excessive
change over, due to lack of initiative, and failure to
contact your foreman for assistance to resolve proce-
dural problems.
If these problems continue and can't be corrected
through self discipline, I will have no alternative but to
use stricter measures leading up to and including
possible dismissal.
O'Dea related that the circumstances which prompted
the note occurred on December 1. He stated that he was
making a changeover from one type of hose to another and,
after making the changeover and starting the machine,
Foreman Peres came into his work area and asked for
O'Dea's work notes and the breakdown on the changeover.
O'Dea, when he finished writing up the notes, spoke to
Peres, who stated he would have to write up O'Dea because
it had taken him too long to make the changeover. O'Dea
asked Peres , "Have you or anybody else in this plant ever
seen me screwing off on a job?" Peres replied , so O'Dea
testified, "No, not until tonight." O'Dea asked Peres how
long it should take to make a changeover and Peres replied
that it depended on what the operator was changing from
and changing to . O'Dea inquired how long it should have
taken him to make the particular changeover, and Peres
replied, "I don't know but you took too long."
The following day, December 2, O'Dea related that, as he
came into the plant and was going to his machine, Peres
was there and handed him the above-quoted letter and
asked him to read it. On December 3, Peres wrote a note to
O'Dea stating that on the preceding day he ran 3,654 feet of
large outer diameter hose and that in addition "there was
also 634 feet of offcenter and 3,314 feet of destripe." He
further stated that this constituted "the second warning in
one week in which I have asked [sic] you to follow the
correct procedural operations when running a cover extrud-
er. This is the last warning," and that "other problems in
the future will lead to immediate dismissal ." O'Dea testified
that on the evening in question Foreman Peres came to his
work area and had with him another employee, Rod
Coetter, who was another cover operator. O'Dea testified
that Peres told him to allow Coetter to take over the
ELECTRIC HOSE & RUBBER COMPANY 973
machine and he should accompany Peres . They went to the
vulcanizing area where Peres pointed out some hose that
had just come out of the vulcanizer . Peres told O'Dea that
he had "ruined all of my hose" and asked what he should
do with it. O'Dea asked , so he testified, what was wrong
with the hose and Peres stated that all of it was too large.
O'Dea stated that the hose was not in that condition when
he was laying it on the pans . Thereupon Peres laughed and
O'Dea went back to the machine and ran it until his shift
ended at 11 o'clock . In leaving , he saw the third-shift
quality control man, one Craig Francis , and asked him
what the dimensions of the hose was supposed to be after it
came out of the "cooker." Francis responded that he did
not know, whereupon O'Dea asked him what the specifica-
tion sheet called for, stating that he did not know what the
specifications called for on the finished product but did
know what it called for when he was running it. The
following day he came to work and all that evening ran
hose until aproximately 9 o'clock when Maxine Wickhiser,
another cover machine operator , came to his area and told
him that she was supposed to take over his machine and
that Peres wanted to see O'Dea in the office . Thereupon,
O'Dea went to the office and Peres told him , so O'Dea
testified, "I called you up here because I don't want another
scene on the floor," and said he was going to give O'Dea
another letter because of the hose he ran the previous
evening . According to O'Dea , Peres said, "I tried to talk
Mr. Bergeron out of it . I said you had gotten a letter the day
before and two letters in 2 days was too much ." Peres
further stated that if the assistant plant manager, Bauer,
Bergeron, and Sitzman got together they might be able to
work something out. O 'Dea testified that he was in
Foreman Peres ' office for about an hour that evening and
Peres "kept repeating himself that him and I and Mr.
Sitzman , Mr. Bergeron, should get together and work
something out to see about lifting those reprimands from
my record"; and further stated that O'Dea "had been a
good operator and they thought that they had things pretty
well lined out on the second shift with operators."
The following day, O 'Dea went to the plant somewhat
early for the purpose of speaking to Bergeron , inasmuch as
he felt that the letters of reprimand were not justified. When
he saw Bergeron, he told him that he had "gotten two letters
in the last 2 days and I don 't feel they were warranted or I
don't feel that they were justified ." He quoted Bergeron as
saying, "Well, my notice was pat." O'Dea further related
that he had been endeavoring to think of anything he could
have done that would have made the hose too large, but
that he had been unable to do so . O'Dea related that he told
Bergeron that he "did have a little trouble making that
changeover because of the fact that one of the operators the
day before had something happen to the machine and the
pressure from the compound had forced the torpedo
backwards out of the head of the machine and sheared off
the shear pins . They had put a different torpedo and new
hold key pins in the machine. I didn't have any water pump
pliers. I told the foreman ever since I have been there I need
a pair of water pump pliers but he never did get them for
me. I did have trouble with lock pins on the torpedoes that
night . They kept turning with the handle so I couldn't get
the slot lined up with the slot in the torpedo to lock it in
place." To this , Bergeron replied , "Well he would see to it
that I got proper tools that I needed to do my work out
there." Bergeron later did so and , concerning the hose, he
stated, so O'Dea testified, "Well, perhaps the cover ma-
chine is too much for you? Perhaps you can't handle the
cover machine." He also said that is was the most critical
job in the plant, which accounted for the fact that it was one
of the higher paid jobs. O'Dea further related that Bergeron
said that in the past he had had employees that could not
operate the cover machine and had placed them in different
jobs and perhaps he could do the same for O'Dea. O'Dea
replied that he realized that he was not "the fastest man in
the world" and did not claim to be. He further told
Bergeron that, in connection with making the changeover,
he had not wasted any time . Peres then turned to Bauer and
asked him what he thought and Bauer replied that he saw
no reason to take O'Dea off the cover machine at that time
and that they should wait and see what happened . This was
at approximately 3 o'clock and O'Dea then went to his
machine and worked the balance of the shift without
incident.
After O'Dea left Bergeron's office on December 4, he
went back to his machine and continued working; a quality
control man, one Jeff Gorley, came in and checked his hose
and, according to O'Dea stated that the hose "looks good."
O'Dea related that he asked Gorley "how bad an operator
am I really?" Gorley replied that "there was some of that
hose was pretty bad the other night" and the fact that the
hose was too large was caused by too much rubber. O'Dea
inquired what , aside from the hose that he ran the previous
evening, Gorley's assessment of him as an operator. O'Dea
testified that Gorely said , "Well, Leonard , you was a good
operator up until a week or two ago and something seems to
have happened ." O'Dea responded by saying that he had
been thinking that he was a good air charger and had been
considering bidding back onto that job, and that Gorley
replied, "Oh, no, don't do that . There is no need for that."
O'Dea further related that during the course of the
conversation Bergeron several times voiced the view that
his work had been good but something apparently had
happened in the last 2 weeks.
Shortly after going to work on January 23, Foreman
Peres came to him and stated that Bergeron wished to see
him. O'Dea went into the office and Bergeron stated that on
the previous evening O'Dea had run a considerable amount
of offcenter hose and asked if there was any reason for that.
O'Dea replied that there was a reason, that he knew when
the hose went offcenter, but that it had been running
properly theretofore and that the quality control man had
been in and checked his samples and said that they were all
good. As the quality control man left , O'Dea cut another
sample from another pan of hose that he was then finishing
and noticed that it was offcenter . Thereupon he started to
adjust his center by moving dies and then it occurred to him
that he was running a compound which , so he testified,
"had a tendency to thin down on us after it ran a while. So I
started backing off the torpedo and thickening up my
extrudi." O'Dea started to change to specification sheets
with his pen but Gorley, the quality control man, told him
not to do that because any such changes had to be made by
the office. Bergeron then inquired of Sitzman what he
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought about the matter and Sitzman, according to O'Dea,
replied , "Our spec sheets aren 't all just exactly right ... .
they are more or less just a guide sheet to go by to set up."
Bergeron then stated that he had no alternative but to
dismiss O'Dea for making offcenter hose , and reminded
O'Dea that in the last warning letter he had stated that the
next letter would be final . O'Dea inquired if he had made
other bad hose and Bergeron replied in the affirmative.
O'Dea retorted, "Yes, but I have proved since that that was
not my fault . That was caused by water pressure in the
hose." Bergeron said , "No, that was the hose that you and
Bruce [the prior operator ] made." O'Dea replied that if
Bergeron would look at his worksheet of December 5 he
would see that he had written at the bottom that the water
pressure was expanding the hose before it went into the
vulcanizer . Bergeron replied that that was beside the point,
that they were discussing the hose he had made the previous
day which, according to Bergeron, was over 30 percent bad
and, consequently , he had no alternative but to discharge
O'Dea. According to O'Dea, Bergeron added that his
action had nothing to do with O'Dea's union activities.
O'Dea inquired if there was another job in the plant that he
could handle and Bergeron replied , "No. Not now, not
under the circumstances."
O'Dea related that on January 12 he was running number
3764 hose and the previous operator , Bruce Watts , stayed
overtime and water charged for him. O'Dea testified that
the hose seemed to be running well. After lunch break,
Gorley, the quality control man, shut down O'Dea's
machine. O'Dea inquired what the trouble was and Gorley
stated that the first batch that had come out of the
vulcanizer was no good, and that that batch had been
produced by Watts. The batch produced by O'Dea was still
in the vulcanizer and Gorley stated that they would not run
anymore until that batch came out of the vulcanizer and
they could ascertain its condition. The following day,
O'Dea found that the hose he and Watts had run, some
48,000 feet , was not number one hose . The next day the
hose produced by O'Dea was satisfactory and he and
Gorley concluded that the problem had been caused by
water pressure. Subsequently, water pressure valves were
installed which apparently corrected the problem.
O'Dea related that the last warning he received was
concerning 21021 hose , which was the first time he ever ran
that type. That hose was one-eighth of an inch in diameter,
and O'Dea testified that the smaller the diameter "the
harder it is to hold center ." He ran 15,484 feet of the 21021
type hose, of which 4,971 feet were seconds, 10,332 feet
were first quality, and 89 feet were scrap . The finished
goods inspection report for January 23-25 shows that the
operator following O'Dea ran a total of 11,025 feet of
number 21021 hose of which 3,826 feet were seconds, and
scrap amounted to 6,759 feet. That operator was Watts.
O'Dea testified that he asked Watts if he,had gotten a letter
for producing defective hose, and Watts replied that he had
not, stating that the hose had collapsed in the vulcanizer
and the Respondent did not know what had caused that to
happen.
Goldsberry began working for the Respondent in June
1975, having been hired by Bergeron as an air charger. In
August, he was successful in bidding for the job of cover
operator, which increased his salary by approximately 80
cents an hour, to the rate of $3.50. He testified that he had
no formal training for the job of cover operator. In that
capacity, he worked on the same shift as O'Dea, under the
supervision of Peres. Goldsberry testified that in the latter
part of August or early September he informed the
production manager, William Bauer, that he was slow on
the cover machine because, in his view, he had not been
properly trained to operate it, and that he was aware that he
took too long in running orders but that, as far as he knew,
his work on the machine was good. According to Goldsber-
ry, Bauer replied that Bergeron and Peres understood the
matter . Goldsberry further related that an employee, Bill
Kahler, did stay over, or come in early, and assisted him for
some time.
Goldsberry testified that during his period of employ-
ment he had not been warned or reprimanded, either
verbally or in writing, for poor workmanship. He admitted
that during the period of his employment he had a
substantial number of absences and that in consequence
the Respondent gave him a letter, dated August 3, concern-
ing this matter. However, he testified that, after a conversa-
tion with his foreman, one Kotschwar, this letter was to
have been taken off his record and, according to Goldsber-
ry, this statement was made to him on the night he received
the letter, approximately August 4. Goldsberry related that
he received another letter for chronic absenteeism on
September 8 and that he failed to appear for work on
September 22 and 23. Goldsberry testified that on Septem-
ber 4 he had not been informed that he was going to be
discharged but that he believed he had been terminated at
that time because he had, as he testified, "been on about a
three-day drunk and I hadn't been to work in these days
and I am not sure, I couldn't swear to it, but I think I did
call in the first day but I hadn't since. I am not even sure
about the first day."
Goldsberry met with O'Dea concerning his problem and
testified that it was O'Dea's suggestion that they contact
Bergeron. When they did contact Bergeron outside the
plant, Goldsberry told Bergeron that he had "a severe
drinking problem" and added that he "may have even told
him that I was an alcoholic, which I believe I am." He
further testified that he told Bergeron that he had heard
that he had been discharged, but that he did need a job and
asked Bergeron for another chance. According to Golds-
berry, Bergeron replied that he had been terminated but
that the papers pertaining thereto had not been sent in.
Bergeron further stated, so Goldsberry testified, "that if I
was willing to try to help myself that he would be willing to
give me another chance and take me back to work."
According to Goldsberry, Bergeron further stated that
Goldsberry was a good worker, although he did miss too
much work, and observed that he needed someone who
would be punctual. Goldsberry further related that Berger-
on had spoken to O'Dea and solicited his advice, and that
O'Dea advised that if he were Goldsberry he would "go to a
hospital or institution of some kind for a period and get
dried out ...."
According to Goldsberry, Bergeron stated that he would
give him a 30-day leave of absence if he wished to embark
upon a program of rehabilitation and attend meetings of
ELECTRIC HOSE & RUBBER COMPANY 975
Alcoholics Anonymous . Goldsberry testified that , follow-
ing this conversation , he was to call Bergeron to advise him
of his decision . Goldsberry testified that during the course
of his meeting with Bergeron it was mutually recognized by
both that he was ill and "shaking," and they agreed that he
would take the evening off and advise Bergeron Friday
morning what he had decided to do . Goldsberry did
telephone Bergeron on Friday morning and, as he testified,
"told him that I had decided to try to take care of my
problem through AA and with the help of Mr . O'Dea and
other alcoholics , and that I would be in to work that
evening . This was agreeable with him . I went to work that
afternoon ." He worked his shift without incident and
further testified that , at that time he was aware of a union
organizational campaign in progress, but had not thereto-
fore attended any union meetings . However, he related that
on Sunday , September 28, he did attend a union meeting
and volunteered to become a member of the union
committee . He further testified that in a letter sent to the
Respondent , under date of September 30, his name was
included as a member of the Union's organizing committee.
On September 28, Goldsberry received a union button
and, during the morning of September 29, he and O'Dea
"got together," before going to work , and called on Union
Representative Zanoni , concerning a program for launch-
ing and implementing the Union's organizational cam-
paign . Goldsberry testified that he and O'Dea did make
some seven house calls that day . On the afternoon of
September 29, Goldsberry arrived at the plant for work
about 2 :40, in company with O 'Dea. He testified that on
that occasion he was wearing the union button on his shirt,
and that he and O 'Dea went to the lunchroom and sat
down with some other employees to have a cup of coffee.
Goldsberry testified that he "started talking to the employ-
ees of the meeting we had had Sunday and offered cards to
the employees" if they were interested in signing , and also
stated that if any were interested in talking to Zanoni "that
they could meet him at the hotel room that Monday night
after work ." Goldsberry further related that Bergeron was
sitting at another table in the lunchroom.
On that day, so Goldsberry testified , he went to his
machine at approximately 2:55 in order to relieve the other
operator, and that, when he arrived at his machine, it was
"shut completely down," that the compound in the ma-
chine was cold , and that during the ensuing 4 hours he had
"considerable trouble," inasmuch as he had no one to assist
him in air charging. He further related that Peres "finally
got me an air charger," one Warburton . According to
Goldsberry , Warburton left shortly thereafter, with the
result that Goldsberry was left alone and experienced more
trouble during the first 4 hours with the machine , particu-
larly with the vacuum , and that he obtained some assis-
tance in that regard from maintenance employees . He also
related that Peres "was standing around my machine
making me very nervous and which was a very uncommon
thing for him to do." Goldsberry stated that he did make
out a worksheet for that day and that, after Peres "got the
air charger and water charger over there to me , he stood
right directly back of my machine watching me the whole
shift ." He further testified that Peres did not say that the
trouble he was experiencing with his machine was his fault,
but that it was due to mechanical difficulties.
Goldsberry's normal lunch break was 7 o'clock, but on
that day he did not take it because Peres told him not to
shut down for lunch but to keep the machine running until
he finished the order, which would involve some additional
40 minutes of running time . He testified that normally, if an
operator had "very little to go he would finish the order,"
but if he had 30 minutes or more running time the normal
procedure was that the operator would shut down the
machine and go to lunch . Goldsberry testified that,
pursuant to the instructions given him, he kept running the
machine and at 7 o'clock Warburton went home because he
had worked the previous shift and had accumulated 4 hours
of overtime . Thereupon , so Goldsberry testified , Foreman
Peres began air charging for him.
Goldsberry testified that, while Peres was air charging,
one Carl Hanger was water charging , and that he believed
that that was Hanger's first day on the job. At or about
7:40, Goldsberry and Peres finished the run and he and
Hanger then took their lunch break . While in the lunch-
room, with a number of employees also present, Goldsberry
discussed with them the meeting he had attended and asked
if any of them would be willing to sign union representation
cards, and further stated that , if any were interested in
meeting after work, they could do so at Zanoni's motel
room . He told them the location . At or about that point,
one of the employees told him to "watch it because this
other guy was the foreman, which I didn't know at the time,
which really didn't make no difference to me." Goldsberry
stated that he was told that the foreman was one Don
Verbas, from the mill, and that Verbas was approximately 5
feet away from him as Hanger and Goldsberry were talking
to other employees in a normal tone of voice . Goldsberry
then was wearing his union button.
At approximately 8 o'clock , before he went back to work,
Goldsberry called Zanoni and told him , as he related, that
he thought he was in trouble because Peres had been
watching him all evening and Verbas had been in the
lunchroom while he was speaking to the employees. When
he returned to work, he had to make a changeover,
inasmuch as he had finished the prior order on which he
had been working . On his way back to work he passed
Bergeron who, according to Goldsberry , "was observing
my union button," which he was wearing on his belt.
Goldsberry stated that when he came to his machine at
approximately 8 o'clock it was necessary for him to run the
compound out of his machine and start to make his
changeover. Hanger , who was working with him, did not
know anything about the job and asked Peres what he was
supposed to get in the way of stock. Peres told him the
number of the stock and thereupon Hanger asked Golds-
berry about the matter and Goldsberry stated he would go
over to the stockroom and help Hanger bring it . Goldsberry
then went with Hanger and with the lift truck helped him to
bring several loads of material. Goldsberry related that he
had a "considerable amount of trouble getting my head
cleaned out on the machine because of the compound I was
using, which was colored compound and it was one of the
stickier colored compounds," and that the compound had
"cooked on the head of the machine during this lunch
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period" and that it was sticky and it was necessary for him
to clean the compound with a scraper which, so he related,
"takes quite a bit of time" Having been shown has
worksheet for that day, Goldsberry related that, after
cleaning out the machine and the heads and dies, he put the
dies back in at approximately 8:15 and began running the
new compound. In the process, he had some difficulty
looking for tools and his foreman went to get the dies for
him and said a quality control man did in fact get the dies
while Peres was watching him. It is Goldsberry's testimony
that, by reason of Peres "standing there watching me," he
became nervous because he was wearing a union button
and further related that he "had a feeling that the man was
out to get me for my union activities , for wearing this union
button ." Upon completing the changeover, neither Hanger
nor Warburton was assisting him, and he further related
that he told Peres Hanger did not know what he was doing
and did need someone to help him. However, Peres did not
offer to help Hanger but Goldsberry did. Upon completing
his changeover Goldsberry, referring to his worksheet for
that evening, stated that it appeared that he had completed
his changeover by approximately 9:15, which he stated
would have involved an hour and 15 or 20 minutes. He
further stated that he assisted Hanger and that Peres was
still standing in back of his machine and could observe
what he was doing and that, if he had been doing something
incorrectly, Peres would have told him. He then went back
and helped Hanger and explained to him how to air up the
hose. He related that he attempted to show Hanger how to
check the outer dimension measurement and the inner
dimension measurement and in other respects endeavored
to assist him in the production process. He testified that
shortly he was called by Peres who stated that it had taken
him too long to make the changeover. To this, Goldsberry
testified he replied, "Under the circumstances, I don't think
it did take me too long to make the changeover," and that
he was assisting the air charger during that period . Peres,
according to Goldsberry, replied, "Well, it still took you too
long to make the changeover." Goldsberry responded that
he was then ready to run his machine, and thereupon he
walked over to his machine and started to activate it. Then
Peres said, according to Goldsberry , "Don't start that
machine," and when Goldsberry inquired the reason for
that, Peres responded, "Punch your card and get out of
here." Goldsberry inquired if he was fired and Peres
answered that he was. When Goldsberry asked for the
reason, Peres replied, "Well, it took you too long to make
this changeover." Thereupon Goldsberry punched out his
timecard and left.
In general , witnesses for the Respondent denied or gave
different versions of the statements and actions attributed
to them by witnesses for the General Counsel.
Poore, who had been a foreman until he resigned on
April 15, testified that, with respect to the statement
attributed to him by Dorwart that the latter had better
watch his step and that the Respondent was trying to get rid
of him , he did make a statement to the effect "that we all
better be damn careful or we're going down the line" and
that he was referring to production, work habits, and
"everything." As to whether that conversation had any
connection with union activities, he replied, "Well, union
activities were involved at that time, you know." Poore
testified that he did not recall making a statement to
Dorwart to the effect that the reason he didn't get a job that
had been posted was because he was a union agitator. He
also said that he did not recall making a statement to
Dorwart to the effect that if O'Dea did not get his job back
the Board must be on the take.
Production Manager Bauer testified that the Respondent,
prior to September 19, 1975, had had problems with
offcenter hose. On May 13, 1975, he issued a memorandum
to production foremen, in which he made the following
statement:
FURTHER I AM OF THE OPINION THAT OUR AMOUNT OF OFF
CENTER HOSE AT COVER IS COMPLETELY UNACCEPTABLE. I
EXPECT EACH OF YOU TO TAKE WHATEVER ACTION IS
NECESSARY TO BRING THIS PROBLEM UNDER CONTROL. IF
IT IS NECESSARY TO REMOVE OR TERMINATE AN OPERATOR,
I FULLY EXPECT THIS TO BE THE ACTION TAKEN.
Concerning the December 4 meeting with O'Dea, which
was also attended by Bergeron, Bauer made the following
summary for the file:
O'DEA CAME TO US CONCERNING THE TWO RECENT
REPRIMANDS THAT HE HAD RECEIVED . O'DEA'S GENERAL
COMMENTS INDICATED THAT HE WAS UNDESERVING OF
THE CITATIONS AND FELT THAT HIS PERFORMANCE WAS
NOT SUBSTANDARD . BERGERON REVIEWED O'DEA'S
PERFORMANCE FROM 12-1-75 AND FOUND THAT HIS
PERFORMANCE WAS DETERIORATING RAPIDLY DURING
THAT TIME AND PREVIOUSLY O'DEA HAD BEEN A GOOD
OPERATOR. IN REVIEWING THE RECORDS WE FOUND THAT
O'DEA WAS RUNNING APPROXIMATELY 20% OR BETTER
DEFECTIVE HOSE . AT THIS POINT O'DEA GAVE THE
IMPRESSION THAT PERHAPS HE SHOULD BE REMOVED
FROM THE COVER MACHINE . BERGERON THEN STATED
THAT SINCE O'DEA HAD BEEN PERFORMING
SATISFACTORILY IN THE PAST THAT IT WOULD HAVE TO BE
O'DEA'S DECISION. AT THIS POINT IT WAS DECIDED BY ALL
CONCERNED THAT O'DEA WOULD CONTINUE ON THE
MACHINE AND IF PROBLEMS DEVELOPED HE WOULD
CONTACT HIS FOREMAN AND/OR QUALITY INSPECTOR
AFTER HE HAS RUN TWO PANS only OF DISCREPANT HOSE
AND CANNOT STRAIGHTEN THE MACHINE OUT. O'DEA
INDICATED THAT HE NEEDED WATER PUMP PLIERS WHICH
HE HAD NOT BEEN ISSUED , BAUER WILL SEE THAT HE GETS
THEM IMMEDIATELY.
Bauer testified that, when he received the finished goods
inspection report for the night of January 22, he noticed
"that someone had run an excessive amount of offcenter
and large ID hoses on one of the machines and in this case
it was 21021 and I wanted to know who and why." Bauer
related that he consulted with the waste and quality control
manager, who stated that as far as he knew there was no
quality control report showing mechanical deficiency or
anything else. Bauer expressed the view that the offcenter
hoses, if not attributable to "some overbearing mechanical
reason," could only have been caused by "direct operator
deficiency." He then contacted Foreman Peres and asked
him to investigate. Thereupon followed the meeting of
ELECTRIC HOSE & RUBBER COMPANY 977
January 23, in Bergeron 's office. According to Bauer,
O'Dea, when questioned as to why he had such a large
amount of offcenter hoses , stated that he had had no
problems . Bauer testified that the matter was discussed and
stated that , inasmuch as O'Dea "had received two previous
warnings and that this was his third one and under the
circumstances there was no alternative but to dismiss him."
Bergeron thereupon told O'Dea that he was terminated.
Concerning Goldsberry, Foreman Peres wrote him a
memorandum on July 21, 1975, stating that his absence on
July 18 was unexcused and that if "further problems such as
this happened again , stricter action will be taken to control
the problems ." Goldsberry was also charged with an
unexcused absence on August 3. On September 8, Foreman
Peres wrote a memorandum to Goldsberry stating that he
had "been previously warned about chronic absenteeism,
as well as not informing your foreman about being absent";
he advised Goldsberry that he was being placed on
probation for 30 days and that the terms thereof provided
"that if you are late or miss any working days for 30 days
you will be immediately terminated." Goldsberry was given
a separation notice on September 23, but this was rescinded
by Production Manager Bauer, who testified that Bergeron
called him and told him that he had talked to O'Dea and
Goldsberry and he was going to give Goldsberry a second
chance and allow him to come back to work, but that his
attendance and work would have to be satisfactory. On
September 29, Bauer issued a memorandum to Goldsberry,
advising that he had previously been warned "about
excessive changeover time ," and that on September 29 he
"had a two (2) hour plus changeover." The memorandum
further recited that Goldsberry had been notified on July 21
of the unexcused absence on July 18 and again on
September 8 concerning "a similar absenteeism problem,"
and had then been placed on probation for 30 days. The
memorandum further stated that, during the week of
September 22, he violated his probation by being absent for
3 days without a medical excuse . Bauer concluded by
stating that because of Goldsberry's "excessive changeover
time, your absenteeism , your general poor work perfor-
mance, and your complete disregard for company policy
including previous warnings you had received, you are
hereby terminated."
Peres related that, on the night of September 29,
Goldsberry was serving as a cover operator and had been
assigned a new air charger, Carl Hanger , to assist him, and
had asked Walter Warburton, another air charger, to stay
over and help Hanger . Goldsberry, so Peres testified, was
running a compound for some 4 hours and 20 minutes. At 7
o'clock, the usual shutting down time for lunch , Goldsberry
wanted to shut down but Peres , so he testified , "informed
Steve that he was to run the three pans ofhose that was left
on the floor that had already been aired up by 7, and he
stated to me that it would take probably another 30 or 40
minutes to run it, and I informed Steve that it would save us
time rather than starting back up again" after shutting
down . According to Peres, Goldsberry "completed the run,
and he did not clean out or anything. He just walked off
and went to the lunchroom , whereas it was probably 22
after when he finished the run ." Goldsberry returned from
lunch at 7:45 or 7 :50, so Peres testified , and started his
changeover. Goldsberry began cleaning out his machine
and Peres got the dies for him, at approximately 8 p.m.
according to Peres; he noticed that Goldsberry's machine
was still down at approximately 9:15, and he asked if there
was anything wrong ; Goldsberry replied in the negative.
Peres denied that during this entire shift he was standing
within a few feet of Goldsberry and stated that he was
throughout the production area during that period. At or
about 9 : 30, so Peres testified, he noticed Goldsberry talking
to Hanger and told him to discontinue that and "to
continue his changeover and he better hurry up." At or
about that time, Peres telephoned Bauer at home and told
him that he was having a problem , that Goldsberry "was
taking excessive changeover, and that I just wanted him to
know that I was having a problem in that production cover
area." Peres acknowledged that the compound Goldsberry
had to remove from his machine might take somewhat
longer than ordinary compound because , as he testified, it
was "a little more sticky ." However, he testified that he still
felt that Goldsberry was taking an excessive amount of time
to make the changeover. Peres acknowledged that on that
day he was aware that Goldsberry was wearing a union,
button but stated that "made no difference to me."
At or about 10 o'clock Bauer called Peres and asked him
how production was running and Peres testified that he told
Bauer that Goldsberry was not completing the changeover
and Bauer instructed that he should clock Goldsberry out.
Thereupon Peres told Goldsberry "that he might as well
pack up his tools and check out, and he told me that it was
ready to run, and he walked back to his extruder and was
ready to start it up, and I walked up behind him, and I said,
`Steve, don't bother. Go punch out. You are fired.' "
Wickizer, employed by the Respondent as a cover
operator on the 3-to-11 shift, testified that she was ac-
quainted with Goldsberry and Hanger and that, on the
evening Goldsberry was discharged, Foreman Peres asked
her to assist Hanger , a new air charger, at approximately
7:30 or 8 o'clock in the evening. She related that she did
help Hanger for 1-1/2 or 2 hours and that she did not notice
Goldsberry assisting Hanger. She testified that Foreman
Peres went through the area but that she did not notice him
standing next to Goldsberry . She denied that Peres stayed
in that general area, as O'Dea had testified, during the
entire shift . She further denied that she observed Goldsber-
ry and Hanger take a jack truck and make several trips to
the stock supply area. She also testified that she was
familiar with the matter of running hose number 21021 and,
from her experience in running that type of hose, it was no
harder than any other. She further stated that about a week
after O'Dea was discharged she took over running the cover
machine that he had operated and that she found no
mechanical problems with that machine that would cause
excessive outer diameter, excessive inner diameter, or
offcenter hose. She testified that she did not observe
Foreman Peres, prior to lunch, air charging at the machine
Hanger was operating and further stated that it was not
customary for a supervisor to air charge although on
occasion that did occur . She stated that she had had
changeovers that exceeded an hour and that she never had
received a warning letter.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanger, who went to work for the Respondent on
September 29, and later was assigned the job ofair charger
on the 3-to- 11 shift, testified that he was trained by Walter
Warburton from 3 to 7 in the evening and, thereafter,
Wickizer helped him . According to Hanger, Goldsberry did
not help him or show him where the stock was, and he
denied that Peres stood in his work vicinity but that he was
in and out . He further denied that Peres assisted him in the
performance of his duties .5
Hanger stated that on the evening of September 29 he
observed Goldsberry and O'Dea each wearing a union
button, but that he did not notice any other employees
doing so. He also testified that Supervisor Don Verbas had
asked him if O'Dea was wearing a union button and that he
said O'Dea was . He also related that Bergeron asked him if
O'Dea and Goldsberry were wearing union buttons and
that he replied in the affirmative.
C. Concluding Findings
I am persuaded that the Respondent engaged in conduct
violative of Section 8(a)(l) of the Act, substantially as
alleged in the complaint . Much of the testimony of
Dorwart, still employed by the Respondent, is uncontra-
dicted ; moreover, he impressed me very favorably as a
witness . As set forth above, Dorwart was active in behalf of
the Union, a fact well known to the Respondent . I credit his
testimony to the effect that, on December 1, Supervisor
Poore told him that he would have to watch his step and
that Plant Manager Bergeron had told foremen at a
meeting that Foreman Stowers should try to get something
on him in order to fmd cause to discharge him. About June
30, in a conversation with Foreman Gavers, the latter told
Dorwart he had not gotten a job opening because he was a
union agitator. At a meeting on February 10, Bergeron
spoke about the Union and the up-coming election and
remarked that the McCook facility could be moved at any
time without notice . Foreman Gavers also stated that the
Union would lose the election - and a year would have to
elapse before it could campaign again and , by that time, no
union supporters would be left working at the McCook
plant . Supervisor Poore, in a conversation with Dorwart
about February 10, stated that Sitzman , a quality control
supervisor, had said that the Respondent did not have a leg
to stand on in connection with the discharge of O'Dea, and
further stated that Dorwart should watch his step because
the Respondent was endeavoring to find something on
Dorwart for which he could be discharged, inasmuch as it
was felt that, if another election were held, Dorwart would
again be an organizer . Early in May 1976, Foreman Gavers
told Dorwart that if the Union had gotten in the Respon-
dent would have closed the plant in McCook and moved to
some other area . As we have seen, Foreman Gavers was not
called as a witness.
In his brief, counsel for the Respondent states that
Bergeron 's offer to replace Dorwart with two men, "far
from indicating a desire to discharge Dorwart, the comment
was made in the context of considering Dorwart for
promotion to a supervisory position." However, counsel for
the Union points out that Dorwart was not offered a
position as foreman until April 1976, which "is some four or
five months after the conversation of December 1, 1975,
thus making it impossible for Poore to have been referring
to this conversation in December."
Concerning Dorwart's testimony that, on April 15, he
had a conversation with Poore about the letter he received
on the subject of his absenteeism record, and that Poore
suggested that the Respondent may have given other
employees such letters in order to camouflage the one given
Dorwart , counsel states that this testimony "is utterly
incredible" and argues that since this was Poore's last day
at work all he said to Dorwart was "good-bye." Counsel
also urges that, as Bergeron testified, Dorwart was only 1 of
approximately 40 employees who received identical letters
and that it is incredible that Dorwart, who stated that the
letter was paper-clipped to his timecard, "didn't even notice
that letters were also clipped to the timecards of other
employees ." Counsel further argues that , even if Bergeron,
on February 10, made statements to the effect that McCook
plant could be moved at any time , such comments , if made,
"were nothing more than Mr . Bergeron's noncoercive
observations and predictions of some possible economic
consequences which could flow from a union strike at
McCook, containing no threats of reprisals . As such, they
were legitimate observations protected by Section 8(c) of
the Act."
With respect to the statement Dorwart attributed to
Bergeron to the effect that the Union would lose the
election and a year would elapse before it could campaign
again and prior thereto there would be no union supporters
left working in the plant, counsel asserts that "this alleged
statement is an utter fabrication by Dorwart." He contends
that, since Dorwart testified that about 19 employees
attended this meeting , counsel for the General Counsel had
these persons as potential witnesses to substantiate Dor-
wart's testimony , and that the failure of the Government
"to call such easily available corroborative witnesses
creates the compelling inference that no such statement was
ever made." However, as pointed out previously, these
potential witnesses were equally available to the Respon-
dent . Finally, the uncontradicted testimony of Dorwart
concerning the statements he attributed to Foreman
Gavers, that the Respondent would have moved the plant if
the Union got in and had been attempting to get rid of
Dorwart but couldn't find anything against him, consti-
tutes, first, an implied threat that the plant would be moved
if the employees attempted to organize in the future and,
secondly, created the impression of surveillance and
constituted a veiled threat.
We turn now to a consideration of the termination of
O'Dea and Goldsberry, and the reasons therefor. Counsel
for the Union asserts that while there "is a maze of
conflicting and tangently related testimony concerning the
8(aX3) violations," these "can be resolved rather simply by
examining" certain exhibits and "some relevant testimony."
He notes that the Respondent was aware of the union
activity of O'Dea and Goldsberry and that, while all parties
agree that they were discharged , "they disagree as to the
S Hanger testified that an agent of the Board took a statement from him,
read it to him, but that he refused to sign it.
ELECTRIC HOSE & RUBBER COMPANY
motivation and as to whether or not reprimands were
discriminately issued ." He further states that, even assum-
ing that these employees "did take excessive time to make
changeovers, and in O'Dea's case produce substandard
hose on two occasions, their discharge is still violative of the
Act."
Initially, counsel for the Union notes that Production
Manager Bauer's letter of August 27 deals, in part, with
excessive changeover time, which was "the exact problem
which precipitated Steven Goldsberry's discharge and
Leonard O'Dea's first warning letter." He then calls
attention to the letter written by Bauer in May 1975, which
related to the matter of offcenter hose, which precipitated
the discharge of O'Dea. Next, he calls attention to the letter
written by Foreman Peres on November 11, which again
related to the subject of offcenter hose. He then asserts that
these writings "clearly indicate that Respondent was
experiencing a problem with excessive changeover time
which predated either of the instant discharges. When
viewed in this light, these letters and some portions of the
testimony become dispositive of the proceedings."
Counsel for the Union calls attention to the November 11
memorandum issued by Foreman Peres to all cover
operators, which states, in part:
ALTHOUGH A GREAT DEAL OF EMPHASIS HAS BEEN PUT
ON THE MATTER OF OFF CENTER HOSE THERE STILL SEEMS
TO BE A SIZABLE QUANTITY OF IT PRODUCED.
I WILL AGREE THAT SOME OF THE FACTORS
CONTRIBUTING TO THIS PROBLEM ARE AT TIMES BEYOND
YOUR CONTROL. WHEN THESE APPEAR IT IS YOUR
RESPONSIBILITY TO SHUT DOWN THE OPERATION AND
SEEK ASSISTANCE FROM YOUR FOREMAN, QUALITY
CONTROL , OR BILL SITZMAN BEFORE A SIZABLE AMOUNT
OF AN OFF CENTER PRODUCT IS PRODUCED.
ALSO, IT IS YOUR RESPONSIBILITY TO SEE THAT YOU ARE
AS NEAR ON CENTER BEFORE STARTING A COVERING
OPERATION (CHECKING OF FREE EXTRUDATE), AND
DOUBLE CHECKING THE HOSE ON YOUR FIRST ONE OR
TWO PANS BEFORE YOU ATTEMPT TO SPEED UP THE
COVERING PROCESS ON ANY SPEC. I ALSO WANT MORE
EXTENSIVE USE OF THE THICKNESS GAUGES AND LESS
EYEBALLING.
IT IS ONLY FAIR AT THIS TIME TO WARN YOU THAT IF
THIS PROBLEM PERSISTS I WILL HAVE TO TAKE ACTION
AGAINST THE PARTY OR PARTIES INVOLVED WHICH WILL
RESULT IN SEVERE REPRIMAND OR REMOVAL FROM YOUR
POSITION AS A COVER OPERATOR . THERE WILL BE NO
MORE VERBAL WARNINGS!
Counsel for the Union contends that the foregoing
indicates that the Respondent "had available to it the
option of removing an unsuccessful operator from his
position as a cover operator without discharging him, yet
immediately upon discovering problems by O'Dea and
8 Two other incidents of alleged disparate treatment of O'Dea are
referred to by counsel . He notes that Bauer testified that, when Bill Hams,
an employee, was having some difficulty with the cover machine , his foreman
wrote him a letter suggesting he bid on another job. Whereas , when O'Dea
encountered similar difficulties , he did not receive such a letter but was
advised there was no need to move him . When employee Craig Francis bent
some dies in a cover machine in January 1975, he was given a letter which
979
Goldsberry Respondent elected to discharge them." Coun-
sel further notes that the Respondent admits that it had
never previously discharged any other cover operator for
having similar problems, and therefore, he asserts that "it
becomes apparent that Respondent's alleged reason for
their discharge was pretextual." " In addition, he calls
attention to the fact that Bauer testified that in the past he
had had experience with other employees who had been
unable to produce satisfactorily on the cover machine, but
that they had not been discharged. In consequence, counsel
argues that this testimony "makes it apparent that O'Dea
and Goldsberry were singled out for disparate treatment,"
and that the record establishes that their terminations were
violative of the Act inasmuch as the Respondent "admits
having a problem with these areas of production but admits
it discharged only the two leading Union adherents for it."
Moreover, he calls attention to the fact the Respondent
admitted that "it has a policy of issuing a verbal warning
before any letter of reprimand is issued, but the evidence
indicates that neither Goldsberry or O'Dea ever received
such a verbal warning." Finally, he points to the fact that
the Respondent destroyed all relevant records involving the
time period in question, except the records of Goldsberry
and O'Dea, thus precluding a comparison of their treat-
ment with that of other employees who took similar times
to make changeovers. In consequence, he contends that
"we are left with two facts of record which indicate
disparate treatment": First, a search of the Respondent's
records revealed only three warning letters sent to other
employees for similar conduct which, he contends, indi-
cates that, although the Respondent was experiencing a
substantial number of excessive changeovers, in the case of
other employees the Respondent did not reprimand or
dismiss them; secondly, the Respondent produced records
for a 2-week period which it represented to be a representa-
tive sample and which contained some 10 incidents of
employees taking over 1 hour to make a changeover and, in
addition, contained a number of documents which did not
indicate the total time elapsed .6 In summary, it is the
position of counsel for the Union that the record shows that
the Respondent had a continuing problem with excessive
changeover times and defective hose but, despite this, the
Respondent took no action against O'Dea and Goldsberry
"until their Union activities became apparent." Then,
Goldsberry was terminated and O'Dea began receiving
letters of reprimand which, he asserts, "were not adminis-
tered according to the procedure Respondent followed with
other employees and despite the fact that his supervisors
categorized him as a good air charger."
The circumstances relating to Goldsberry's employment
and the incidents that immediately preceded his termina-
tion have been related above and need not be repeated
here. The record clearly shows that Goldsberry had not
been a model employee, a fact conceded by counsel for the
Union. He had received three letters of reprimand for
stated that "the only alternative if this continues is to remove you from the
cover machine ." Counsel notes that, in O'Dea's case, he was advised that the
alternative was discharge . Counsel argues that since Hams and Francis are
still employed, but in different positions, "evidences Respondent's policy of
moving, rather than discharging, persons unable to handle the cover machine
job."
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absenteeism and had been terminated because he missed 3
consecutive days of work without reporting. It seems clear
that no question could have been raised about the propriety
of his termination on that occasion, but the Respondent
rescinded the discharge and permitted Goldsberry to return
to work. On Friday, September 25, Goldsberry worked
without incident. The following Sunday he attended his
first union meeting and appeared at work on Monday,
September 29, wearing a union button. During his lunch
break on that day Goldsberry discussed the union meeting
that he had attended with several employees in the
lunchroom, asked them if they would be willing to sign
authorization cards, and told them where they could meet
with Union Representative Zanoni if they were interested.
Present on this occasion was a foreman, but Goldsberry did
not know he held that position. As has been related, after
Goldsberry returned to his work station he experienced
some difficulty in making a changeover and, as he testified
credibly, assisted a new employee in performing his job.
Although I am of the view that O'Dea and Goldsberry
exaggerated to some extent in testifying that Foreman Peres
spent a substantial amount of time in their area during that
shift, I am convinced that Peres did, in fact, observe them
more closely than customary.
It seems somewhat odd to me that Foreman Peres found
it necessary to call Bauer at home and report to him that
Goldsberry was taking an excessive amount of time to
make a changeover, and about a half hour later for Bauer to
call Peres and order that Goldsberry be terminated.
Counsel for the Union, in his brief, asserts that the
testimony of Peres "is rendered suspect by several matters."
He noted that Peres apparently was able to remember the
exact time, 7:22 p.m., that a run of hose was completed and
the exact time , 8 p.m., that he picked up a set of dies, "but
he is unable to remember talking to the plant manager who
was in the plant" and, further, "unable to remember
telephoning the plant manager at home when Bergeron
testified he had called to assure that Goldsberry would not
be reinstated again" and, "unable to remember who was
there water charging the hose, but remembers everyone else
involved and the relevant times." Further, he notes that
Peres at one point asserted that Goldsberry never com-
pleted his changeover but thereafter stated that Goldsberry
was ready to start up his machine when he was terminated.
In addition, he observes that, while Peres stated he called
Bauer because production was tight at that time, he
nevertheless permitted employee Wickizer to "stand
around for one and one half hours and then sent her back
to assist another operator run twin hose, a job admittedly
one man can do, and left Goldsberry' s machine down for
an hour until shift change." He also calls attention to the
fact that Peres allowed another employee to "sit around,
drinking coffee on overtime." Finally, he points out that
Peres testified that he took Goldsberry to task for unneces-
sarily talking with Hanger, but both Wickizer and Hanger
testified that they did not recall that Goldsberry talked to
them. Plant Manager Bergeron was admittedly in the plant
that evening about 9:15, to see Foreman Peres and asked
the latter if he had any problems, to which Peres replied in
the negative. However, approximately 15 minutes later
Peres called his supervisor, as related above, and reported
concerning Goldsberry. For the foregoing reasons, counsel
for the Union takes the position Peres was not a credible
witness. Hanger, as a witness, admitted that the day in
question was his first day and that he had had no prior
training. He further admitted making prior inconsistent
statements to a Board agent but he refused to state why he
refused to sign these statements, even after having been
apprised by me that his refusal might adversely reflect upon
the believability of his testimony . I was not favorably
impressed with Hanger and, therefore, where his testimony
differs from that of witnesses presented by counsel for the
General Counsel, I do not credit him.
While the matter is by no means crystal clear, I am
persuaded that the Respondent's attitude towards Golds-
berry changed markedly after it became aware that he was
a union supporter. Prior thereto, it had tolerated his
absenteeism and had reinstated him after he had been
terminated for reasons that could not properly be ques-
tioned. I am convinced that on the day he was terminated
he experienced difficulty with making a changeover and
also assisted Hanger , a new employee, in the performance
of his job. Moreover, the timing of his termination in
relation to his discussion of the union meeting he had
attended the previous day, which was overheard by a
foreman, cannot be overlooked. During the course of the
workday, he was observed by Foreman Peres more closely
than customary, and the latter seized upon the fact that
Goldsberry took longer than usual to make a changeover as
a pretext for discharging him, whereas the record clearly
shows that it was not unusual for other cover operators to
take longer than normal to make a changeover. According-
ly, I conclude and find that the Respondent terminated
Goldsberry because of his union activity.
Maxine Wickizer, who was employed by the Respondent
as a cover operator on the 3-to-1I shift, testified that she
was acquainted with Goldsberry and Hanger and that, on
the evening Goldsberry was discharged, Foreman Peres
asked her to assist Hanger , a new air charger, at approxi-
mately 7:30 or 8 o'clock. She related that she did help
Hanger for 1-1/2 or 2 hours, and that she did not notice
that Goldsberry assisted Hanger . She testified that Fore-
man Peres went through the area but that she did not notice
him standing next to Goldsberry. She denied that Peres
stayed in that general area, as O'Dea had testified, during
the entire shift. She further denied that she observed
Goldsberry and Hanger take a jack truck and make several
trips to the stock supply area. She also testified that she was
familiar with the matter of running hose number 21021 and
from her experience in running that type of hose it was no
harder than any other. She further stated that about a week
after O'Dea was discharged she took over running the cover
machine that he had operated and that she found no
mechanical problems with that machine that would cause
excessive outdiameter, excessive innerdiameter or offcenter
hose. She further testified that she did not observe Foreman
Peres, prior to lunch, air-charging at the machine Hanger
was operating, and further stated that it was not customary
for a supervisor to air charge although that on occasion did
occur. She also stated that she had had changeovers that
exceeded an hour and that she never had received a
warning letter.
ELECTRIC HOSE & RUBBER COMPANY 981
Hanger, who went to work for the Respondent on
September 29 and later was assigned the job of air charger
on the 3-to-11 shift , testified that he was trained by
Warburton from 3 to 7 in the evening and , thereafter,
Wickizer helped him . According to Hanger , Goldsberry did
not help him or show him where the stock was, and he
denied that Peres stood in his work vicinity, but that he was
in and out; he further denied that Peres assisted him in the
performance of his duties . On cross-examination , Hanger
testified that an agent of the Board took a statement from
him, read it to him , but that he refused to sign it . He also
stated that , on the evening of September 29, he observed
Goldsberry and O 'Dea each wearing a union button but
that he had not noticed any other employees doing so. He
also testified that Supervisor Don Verbas had asked him if
O'Dea was wearing a union button and that he replied in
the affirmative , and that Bergeron asked him if O'Dea and
Goldsberry were wearing union buttons and that he replied
in the affirmative.
The termination of O'Dea occurred on January 23, some
4 months after he appeared in the plant wearing a union
button and after the Respondent had been informed by the
Union that he was on the in -plant organizing committee.
O'Dea received his first warning letter on December 2,
allegedly for taking too long to make a changeover. O'Dea
discussed this matter with Foreman Peres and asked how
long it should take to make a changeover , to which Peres
replied that it depended on what he was changing from and
what he was changing to. When O'Dea asked how long it
should have taken him to make that changeover, Peres
stated that he did not know but in any case O'Dea took too
long. O 'Dea asked Peres whether anyone in the plant had
ever seen him "screwing off" on a job , Peres responded in
the negative except for that evening , and added that
normally O'Dea was "a damn good operator ." He further
stated, "We have been watching tonight and we thought
you were screwing off." Counsel for the Union points out
that his conversation was not denied by Peres , and that it
indicates that the reprimand O'Dea received was not issued
in "the normal course of business ." He further contends
that Peres and someone he did not identify "were admitted-
ly watching O'Dea," and suggests that the purpose was "to
find something to reprimand O'Dea for ," noting that "why
else would at least two people be watching someone who is
admittedly `a damn good operator?' " Counsel calls
attention to the fact that Bauer in effect testified that he
may have overlooked excessive changeovers in reviewing
the worksheets and argues that the Respondent was so
unconcerned about the changeover times "that it allowed
documents indicating excessive times to slip through its
fingers , but took the time to watch the only man in the plant
wearing a union button."
The following day O'Dea received his second warning
letter, which stated that he had produced large outerdiame-
ter hose . While this was not disputed by O'Dea , the Union
contends that the defect was not due to operator error and
that the Respondent was aware of this fact when it sent
O'Dea that letter . As previously related , O'Dea produced
some 3 ,654 feet of oversize hose on this occasion . Accord-
ing to the Respondent, the defect was caused by too much
rubber , whereas O'Dea took the position that it was caused
by excessive water pressure expanding the hose . It is the
position of counsel for the Union that these divergent views
make it critical "to determine whether the inside as well as
the outside diameter were expanded." In this connection,
he observes that the Respondent has destroyed all records
relevant to the hose in question , "leaving us with conflicting
testimony." Although the Respondent's witnesses claimed
that they remembered the hose as being only larger
outerdiameter, counsel points out that the plant produces
some 600,000 feet of hose per day, of which approximately
23,000 feet is either seconds or scrap . He further calls
attention to the fact that O'Dea related that he measured
the hose and found that it was within tolerance and that the
quality control man, Gorley, checked the hose and made no
comment about large outerdiameter or excess rubber. In
addition, Foreman Peres had seen the hose and made no
comment about too much rubber , and Quality Control
Operator Sitzman reviewed the reports for December 2 and
admittedly found nothing out of the ordinary . Counsel calls
attention to the fact that on January 12 the quality control
man told O'Dea that a run of hose produced by the
previous operator had come out of the vulcanizer and was
no good, and commented that no more water-charged hose
would be run until the problem was located . The following
day, Sitzman personally supervised the water charging of
the hose and thereafter water pressure valves were installed.
Counsel for the Union asserts that the evidence establishes
that the Respondent was aware of a problem with the
water-charged hose and that "the only logical explanation
is that O'Dea's hose was expanded by water pressure after it
was produced and despite all this, Respondent seized the
opportunity to give O 'Dea his second warning letter."
According to counsel, this theory is supported by a
conversation O'Dea had with Peres on January 13, in which
O'Dea asked if he had run all that hose by himself he
probably would have been fired and that Peres replied
"most likely." Counsel contends that this statement "clearly
evidences an attempt to get O'Dea since the other employee
received not even a reprimand ." Counsel for the Union
calls attention to the fact that on cross-examination O'Dea
admitted that he ran the hose and that the quality control
man informed him it was both large outerdiameter and
large innerdiameter , which he contends clearly indicates
that one of the Respondent 's employees whose job it was to
measure the hose reported that it was both large innerdiam-
eter and larger outerdiameter , a condition caused by excess
water pressure . He further notes that , after having elicited
this testimony, the Respondent did not put the quality
control man on the stand , thereby giving rise to an
inference that his testimony would be adverse to the
Respondent.
The third and final reprimand O'Dea received was on
January 23 and dealt with the production of offcenter hose.
On this occasion O'Dea produced only 89 feet of scrap and
some 3,000 feet of offcenter hose . While O'Dea admittedly
produced the hose, there is testimony that the quality
control man checked the hose and found nothing wrong
with it, and that Sitzman reviewed the reports of the quality
control man for January 22 , and noticed nothing out of the
ordinary . Foreman Peres first testified that Bauer asked
him if he had had any problems running number 21021
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hose and he indicated to Bauer that they had not had any
problems . However, shortly after so testifying Peres then
testified that after he looked at the hose it "was more or less
unbelievably offcenter, no cover on one side ." In this
connection, counsel states that either Foreman Peres "was
so negligent in his supervision that he did not notice one of
his five operators producing hose with a cover on only one
side, or something happened to the hose after it was
produced ." He suggests that, out of deference to Foreman
Peres, the latter possibility occurred . He further calls
attention to the fact that about 12 days after O'Dea was
discharged a bearing was replaced on the machine he had
operated, the function of the bearing being to keep the
drum turning evenly and smoothly, and that other defective
hose was produced on that machine the night following
O'Dea's discharge . Counsel for the Union states that, while
the Respondent sought to explain the second incident as a
vulcanizer problem, it had previously attributed it to a
power failure . He argues that the possibility of mechanical
failure causing both defective runs is a strong one but that,
"for the second time Respondent chose not to reprimand
one employee who produced defective hose, but chose to
discipline O'Dea for having problems with the identical
hose within a single day 's time."
The testimony of Plant Manager Bergeron to the effect
that supervisors had been instructed to remain impartial
and treat everyone fairly has not been overlooked. How-
ever, this is contradicted by the fact that as previously
pointed out, Dorwart was told by Foreman Gavers that he
did not get a job on which he had bid because he was a
"union agitator." In addition, Bergeron , as O'Dea testified,
at a meeting on December 8, Bergeron stated that the
Respondent 's Wilmington, Delaware, plant would soon be
completely closed because of the Union, and also said that
unions were no good for anyone, did nothing but collect
dues and bring gangsters and crooks into town. Such
statements are scarcely intended to insure impartiality and
fairness . In my opinion , they indicate hostility toward
unions.
To conclude, I am of the view that the Respondent was
motivated in substantial part by O'Dea's union activity in
terminating him. O'Dea was originally hired in May as an
air charger at $2.65 per hour ; within 4 months he had
progressed to $3.60 per hour and had become a cover
operator . He had not , during this period , received a
warning or reprimand and from all that appears he was
considered a good employee . O'Dea impressed me very
favorably as a witness, and I find it very difficult to believe
that his work performance deteriorated to such an extent
that it was necessary for the Respondent to issue written
reprimands to him . I note that, in the meeting concerning
his termination , O'Dea inquired if there was not some other
job he could do and Bergeron replied , "No, not under the
circumstances ." Counsel for the Union asserts that "this is a
strange response when viewed in light of Peres' testimony
... wherin he testified that some individuals with three
reprimands are still working in the plant and that the
reprimands were for absenteeism and not doing their job
properly." Accordingly, he argues that the "circumstances"
must have "referred to something other than O'Dea's
reprimands." Upon considering all the evidence and the
reasonable inferences to be drawn therefrom , I conclude
and ford that the Respondent terminated O'Dea because of
his union activity and because he gave the Board an
affidavit in connection with the investigation of Case 17-
CA-6777, thereby violating Section 8 (a)(3), (4), and (1) of
the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Electric Hose & Rubber Company, McCook, Ne-
braska, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO-CLC, is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. By making threats to and questioning its employees
concerning their activities in behalf of the Union, the
Respondent violated Section 8(a)(1) of the Act.
3. By discharging Steven H . Goldsberry, the Respon-
dent violated Section 8(a)(3) and (1) of the Act.
4. By discharging Leonard O'Dea, the Respondent
violated Section 8(a)(4) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above, have a
close, intimate, and substantial relationship to trade , traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (4) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. It will be recommended that the Respondent offer
Goldsberry and O'Dea immediate and full reinstatement to
their former positions and, if not available, to an equivalent
position , without prejudice to their seniority and other
rights and privileges , and make them whole for any loss of
earnings each may have suffered by reason of the discrimi-
nation against him, by payment to him of a sum of money
equal to that which he would have earned from the date of
his discharge to the date of the offer of reinstatement,
consistent with Board policy set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest on backpay to
be computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in these
proceedings and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ELECTRIC HOSE & RUBBER COMPANY 983
ORDER?
Respondent, Electric Hose & Rubber Company,
McCook, Nebraska, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Unlawfully questioning employees concerning their
union activities or desires or threatening them with reprisals
for engaging in union or protected concerted activities.
(b) Unlawfully discharging or otherwise discriminating
against any employee or in any other manner interfering
with , restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Steven H. Goldsberry and Leonard O'Dea
immediate reinstatement to their former jobs or, if such jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges.
(b) Make the said employees whole for any loss of
earnings each may have suffered by reason of Respondent's
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all obj ections thereto shall be deemed
waived for all purposes.
unlawful discrimination against him, in the manner set
forth in the section of this Decision entitled "the Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its premises in McCook, Nebraska, copies of
the attached notice marked "Appendix." 8 Copies of said
notice, on forms to be provided by the Regional Director
for Region 17, after being duly signed by a representative of
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
8 In the event the Board's Order is 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."