Farlow Rubber Supply, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1971

193 N.L.R.B. 570 (N.L.R.B. 1971)

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Farlow Rubber Supply , Inc. and Local 141, United
Rubber , Cork , Linoleum & Plastic Workers of
America , AFL-CIO, CLC. Case 21-CA-9879
October 7, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 13, 1971, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,[ conclusions, and recommendations of the
Trial Examiner.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
LEO F LIGHTNER, Trial Examiner: This proceeding was
heard before me in Los Angeles, California, on June 15,
1971, on the complaint of General Counsel, as amended,
and the answer of Farlow Rubber Supply, Inc, herein
called the Respondent.[ The complaint alleges violations of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, 61 Stat.
136, herein called the Act. The parties waived closing
argument, and briefs filed by the General Counsel and
Respondent have been carefully considered.
Upon the entire record,2 and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find, that
Respondent is a California corporation, engaged in the
repair and servicing of rubber products at its plant in Los
Angeles, California. In the normal course and conduct of
its operations, Respondent annually performs services for
which it receives an amount in excess of $50,000 from
customers, each of which annually purchases from
suppliers located outside the State of California or sells to
customers located outside the State of California goods,
products, and services in excess of $50,000, or whose gross
annual volume of business exceeds $500,000.
The complaint alleges, the answer admits, and I find, that
Respondent is, and at all times has been, an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 141, United Rubber , Cork, Linoleum & Plastic
Workers of America, AFL-CIO, CLC, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
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 Trial Examiner and hereby orders that
the Respondent, Farlow Rubber Supply, Inc , its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order.
I The General Counsel has excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wa/I Products, Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
A. The Issues
The principal issues raised by the complaint and answer,
and litigated at the hearing, are whether the Respondent:
(1) engaged in conduct constituting interference, restraint,
and coercion, thus violative of Section 8(a)(1) of the Act by,
(a) William Brown or Chadwick Brown, in November 1970
or January 1971, at or near Respondent's plant, threatening
employees with discharge because of union membership,
' A charge was filed on March 12, 1971 A complaint was issued on
April 29, 1971, and amended at the outset of the hearing herein, limited to
the location of the Respondent's plant
The amendment was a change in location from 743 Ceres Street, Los
Angeles, to 17907 South Figueroa Street, Los Angeles Thereafter, counsel
for Respondent asked William F Brown, president, when the plant was
moved from Los Angeles to Gardena, and was advised that this had
occurred on June I I find this conflict of no consequence to the decision
herein
4 Certain errors in the transcript have been noted and corrected
193 NLRB No. 70
FARLOW RUBBER SUPPLY, INC
sympathies, or activities; or (b) William Brown or
Chadwick Brown, in November 1970 or January 1971, near
Respondent's plant threatening to close the plant because
of union membership, sympathies, or activities of its
employees; or (c) William Brown or Chadwick Brown, in
November 1970 or January 1971, interrogating employees
concerning their union membership, sympathies, or
activities, or that of other employees; or (d) William Brown
or Chadwick Brown , in November 1970 or January 1971, at
or near Respondent's plant, promising economic or other
benefits to induce employees to forego their support of the
Union; or (e) William Brown or Chadwick Brown, in
November 1970 or January 1971, at or near the plant of
Respondent, soliciting employees to engage in surveillance
of the union activities of their fellow employees; or (2)
whether the suspension of Marvin W. Jackson, on March 1,
1971, or his discharge, on March 3, 1971, and Respondent's
failure and refusal thereafter to reinstate him, were
discriminatorily motivated and thus violative of the
provisions of Section 8(a)(3) and (I) of the Act.
Respondent, by answer, denied the commission of any
unfair labor practice.
B Supervisory Personnel
The complaint alleges, the answer admits, and I find, that
William F. Brown, president, Chadwick Brown,3 secretary-
treasurer , and Huston Neely, plant manager since January
1971, at all times material herein, except for the limitation
stated as to Huston Neely, have been and are agents of
Respondent, within the meaning of Section 2(13), and
supervisors, within the meaning of Section 2(11) of the Act
C. Background
Since December 1968, Respondent has been jointly
owned and operated by William F. Brown and Chadwick
Brown, who hired no plant superintendent prior to January
1971.
A petition for election in Case 21-RC-12066 was filed on
January 25, 1971, reflecting an estimated total number of
employees, in the unit, of 12 A stipulation for certification
upon consent election was executed on April 7th A tally of
ballots, of an election held on April 16th, reflects 16 eligible
voters, who cast 5 votes for and II votes against the Union.
The record is confused relative to the time and extent of
the union activities of the employees, and more particularly
of Marvin Jackson, alleged discriminatee herein.
According to Jackson, the employees began discussing
the possibility of seeking union representation in October
1970. Jackson acknowledged that all of these discussions
were after working hours, in the evening, in a bar identified
as Rockaway. Thomas Schulte, employed by Respondent
at the time of his testimony, asserted the conversation
relative to obtaining union representation commenced in
the middle of 1970 and Jackson was a participant.
9 Referred to in the record as Bob
The precise recitation of Schulte , which I find incomprehensible, was
"Well, I believe that they were either mailed to me or to Marvin Jackson
Marvin had told me, oh, last November or January or something, that the
cards were actually mailed to me I don't remember but they could have
been "
5 Leitsch asserted that he , at the time of his testimony , was manager of
571
According to Jackson, he selected the particular union
because he saw an advertisement identifying the union on
the back of an unidentified sport shirt. Jackson asserted
that in early October he contacted Joe Guerrero, whom he
identified as an organizer and representative of the Union,
from whom he obtained authorization cards. However,
Schulte asserted that the authorization cards were mailed to
Schulte in November or January.' Asked if Jackson
distributed any of the authorization cards to other
employees, Schulte responded, "He may have. I distributed
most of the cards, but he possibly gave out some too."
Jackson asserted that he never passed out cards at the plant
but, inferentially, did pass out cards during his conversa-
tions with other employees at the Rockaway Bar. While
Jackson related that he attended four or five union
meetings, the time and place of these meetings is obscure.
D. Interference, Restraint, and Coercion
Harold G. Leitsch was employed by Respondent, from
the latter part of October 1970 until the end of March 1971,
initially as a grinder and later on other jobs.5 Leitsch
related that in November 1970, he drove Chadwick Brown
a distance of 5 or 6 city blocks, in Respondent's truck, to
enable Chadwick Brown to pick up his car, which was being
repaired. Leitsch asserted that in this short span of time
Brown inquired whether Leitsch had heard anything about
the "union coming." Leitsch responded in the negative.
However, Leitsch asserted that he advised Brown that if the
Union did come in "it's going to be your own fault because
you have made a lot of promises to the employees, from
what everyone has told me, that you have not kept. I said
what you should do is try to make some kind of a set-up or
doing something for them if you don't want the union in."
Leitsch stated that Brown asserted that it the Union came
in Brown knew of four employees he was going to fire.
Leitsch asserted that he advised Brown that Leitsch did not
think that this was really the way to solve the problem or to
do things. Leitsch asserted that Brown then stated that if
firing the employees did not work they would close up the
business. Leitsch asserted that he advised Brown that that
would not solve the problem, that if Brown wanted to have
any kind of a business where he had a good relationship he
and the employees had to work together. Leitsch asserted
that the conversation terminated with Brown requesting
Leitsch to advise Brown if Leitsch heard anything and that
Brown wanted Leitsch to identify who was active on behalf
of the Union. Leitsch acknowledged that he did not hear
anything about the Union, inferentially from other
employees in the plant, until a week after the related
conversation with Chadwick Brown.
While Chadwick Brown did not expressly deny the
recitation of Leitsch, and did acknowledge making
inquiries relative to employees' knowledge of the union, I
find Leitsch to have been unimpressive as a witness. I find
an apartment , drove an ice cream truck , and was also an ordained priest in
the American Orthodox Catholic Church He explained that he took his
training, to become a priest, in New York City and that it comprised one
year of working with the bishop and the pnmate , the latter being identified
as W H Swinger His current activity in the matter of conducting religious
services is obscure
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no other evidence in the record of threats by either of the
Browns, of the types described. I also find it improbable
and implausible that Leitsch, having denied knowledge of
the existence of any union activity, would seek to advise
management how to avoid such a possibility I am therefore
constrained to reject the testimony of Leitsch except as to
the portion related to the initial inquiry.
Ken Myer has been employed by Respondent for
approximately 2 years as a machinist Myer asserted that he
had two conversations relative to the Union with manage-
ment. He first talked to Chadwick Brown, in late November
or early December 1970, in the shop. According to Myer,
Brown advised that he had heard a rumor about union
activity and inquired if Myer was involved. Myer credibly
related that he responded that someone had approached
him, inquired about Myer's opinion about the Union, and
that Myer had responded that he had not formed any
opinion at that time. This terminated his conversation with
Brown. The second conversation was in late December in
the plant office. Chadwick Brown called Myer into the
office and William Brown was present. One of the Browns,
Myer was uncertain which, inquired if Myer was involved
in any union activity. Myer asserted that he didn't know
anything about union activities, but the Union might be a
solution to some of the problems the employees had around
the shop like bad working conditions. Myer asserted that
Chadwick Brown made some comment about absenteeism
and tardiness which needed correction also. William Brown
asked Myer which union the employees would contact and
he responded that he did not know. Myer, having his
memory refreshed by his pretrial statement, asserted that
one of the Browns asked if he had signed an authorization
card or passed out authorization cards and that he
responded in the negative. This ended this conversation.
Thomas Schulte credibly related that, in December 1970,
after work one evening, he met Chadwick Brown in a bar
near the plant. During an extended conversation, Schulte
mentioned that conversations, apparently comprised of
false reports, were initiated by employees to see if they
would be repeated to management and come back to the
employees. Schulte asserted that Chadwick Brown respond-
ed "Oh, you mean like the union?" Schulte asserted he
responded in the affirmative. I find this incident of no
consequence since it does not constitute interrogation
However, the conversation permits an implication that
Brown had heard of union activity, from unidentified
employees.
Marvin Jackson, alleged discriminatee herein, asserted
that in early January 1971, at approximately 3 or 3:30 p.m.,
he had a conversation with Chadwick Brown, who inquired
if he had heard anything about union activities starting at
Farlow Rubber, to which he responded in the negative.
Jackson asserted that he also had a conversation with
William Brown in January 1971, after working hours one
evening, at the Rockaway Bar, during which William
Brown inquired whether Jackson had heard anything about
a union being started at Respondent's plant, to which
6 Inaccurately stated by Jackson to have been in November 1969
7 While the record reflects that Jackson absented himself from his
employment, by Respondent, for approximately 2 months, in the spring of
1970, during which time he apparently sought employment by competing
Jackson responded that he did not know anything about it.
William Brown denied having a conversation with Jackson
relative to the Union. On this conflict, I credit William
Brown.
William Brown asserted that he could remember "very
vaguely" asking Ken Myer if Myer had heard any rumors
about the Union being organized in the shop, however, he
could not place the time of the conversation and could not
recall making any reference to absenteeism or tardiness.
Asked on how many occasions he had talked to employees
relative to the union activity in the shop, William Brown
responded that he did ask some employees if there was any
union activity in the shop, and it might have been as early
as August or September 1970; however, he could not recall
bunging it up more than one time , or precisely to whom it
was that he directed the inquiry.
It is undisputed that William Brown did address the
employees, at a meeting of the employees, 3 days before the
election, during which he expressed his views relative to the
union. There is no contention that this speech was violative
of the Act.
Chadwick Brown could not remember if he had a
conversation with Myer relative to the Union, asserting that
he may have asked him if there was union activity in the
shop. Chadwick Brown also asserted that he may have
asked several employees if there was union activity in the
shop but it was "no more or less than that." Chadwick
Brown asserted that he had heard a lot of rumors that there
was union activity and that a union would be coming in.
Everyone who was asked denied knowledge. Chadwick
Brown asserted that there was no badgering and no inquiry
as to whether the employees were "doing this or that."
Chadwick Brown could not identify the employees to
whom he addressed his questions.
I find both William Brown and Chadwick Brown credible
witnesses on the basis of demeanor, as well as from a
careful scrutiny of their testimony and consideration of its
plausibility. Accordingly, my findings are limited to
interrogation of the identified employees.
The Suspension of Jackson on March 1 and
His Discharge on March 3
Jackson commenced working at Respondent's plant, for
the predecessor owner, in November 1962. Prior to the
acquisition of the Respondent by the Brown brothers in
December 1968,6 Jackson for 4 years had been foreman,
and during that period of time had worked in the office in
pricing, as well as running a lathe in the shop. At the time of
his termination he was building rubber rollers.?
Jackson asserted that he slipped on a carpet, at home,
and hurt his back. He called the plant, on Tuesday,
February 23, reported that he had hurt his back and
intended to seek medical attention from a doctor. On
Wednesday, February 24, he reported for work and was
advised by Neely, plant superintendent, that he should have
a doctor's certificate certifying that he was capable of
returning to work. Jackson acknowledged having advised
firms, I find that the evidence relative to Jackson's activity, in either
February or March, or possibly in April or May 1970 , too remote for
consideration or discussion herein
FARLOW RUBBER SUPPLY, INC. 573
Respondent, inferentially Neely, that he had been attended
by Dr. Mueller, who allegedly was located in Huntington
Park.8
William F. Brown related that when Jackson was advised
that he needed a medical release, Jackson asserted he would
obtain it and be at work on Thursday. Jackson did work all
day on Wednesday. On Thursday, about 10:30 a.m.,
Jackson advised William F. Brown, by telephone, that he
had been unable to reach the doctor who had treated him,
identifying Dr Mueller as the doctor in question, and
advising that he would attempt to obtain a release later the
same day and be at work Friday morning. Jackson did not
report for work on Friday, but did call William F. Brown at
approximately 10:30 a.m. At that time , Jackson advised
that the doctor would not give him a release until the doctor
was paid, and Jackson inquired if he could pick up his
paycheck, in order to be able to pay the doctor and obtain
the release. Brown responded that the payroll would be
ready, at the usual time, approximately 3 p.m. Friday is
plant payday When Jackson arrived at the plant, he
inquired of William Brown if the payroll had been
prepared. Brown responded that Charlotte Stilson, secretar-
y and bookkeeper, who makes up the payroll, was then
preparing it. The plant office is comprised of two rooms.
One room is the office of William F. Brown and Chadwick
Brown. In the outer office, Charlotte Stilson has her desk
next to a safe or vault.9
Charlotte Stilson had been employed, by Respondent, for
approximately 1 year at the time of her testimony. The
books and records of Respondent are under her control and
it is her responsibility to lock them in the safe at night. She
related that she saw Jackson about 3 p.m. on Friday,
February 26, at which time he inquired if he could have his
paycheck, which had not yet been prepared. She advised
him accordingly. She related that, at that time, she had on
her desk all of the records of Respondent, including
accounts receivable, accounts payable, customer ledgers,
price records, and time cards. During the time Jackson was
in the office, Hale came in, for a short period, then left.
Jackson inquired if Falcon Wheel was contributing to
Stilson 's salary, and she responded in the negative. Jackson
then asserted that if Falcon Wheel was not then contribut-
ing that he knew for a fact that in the future, they would be
paying part of Stilson's salary and that he had that
information from a reliable source. Jackson then inquired
as to the hourly rate being paid another employee,
identified as Joseph Fierro. Stilson responded that she
could not give him that information. Jackson then advised
Stilson that if Stilson would go to the restroom Jackson
could look at the records and Stilson wouldn't have
anything to do with it. Stilson advised Jackson to forget it,
that Stilson could not leave the office or let anyone see the
books as they were her responsibility. After Jackson's
paycheck had been prepared, Stilson handed it to William
F. Brown, for signature. Upon receiving his check, Jackson
left the office. Stilson promptly advised both William F.
Brown and Chadwick Brown as to the request which
Jackson had made. Stilson asserted that she was "shook" by
the experience as she was scared to leave and did not know
how to handle the situation.
William F. Brown credibly related that as a result of
Stilson's report, he and his brother, Chadwick Brown,
decided to suspend Jackson for 3 days to provide them
essential time to analyze "what the repercussions could be
and why he was doing what he did or why it happened and
what was the reasoning behind it and everything else."
William Brown advised Neely to contact Jackson at home,
over the weekend, and to advise him that, as a result of
what had happened at the office, both Browns had decided
to suspend him for 3 days, until they could make a decision
on what else to do. Neely did not reach Jackson prior to
Jackson's arrival at the plant on Monday morning, at which
time Neely advised him of his suspension.
On Monday morning, Jackson presented a doctor's
report signed by Dr. G. W. Rheinchild.10 Jackson,
appearing as a witness during General Counsel's case-in-
chief, asserted that Neely, on March 1, advised that
Jackson was suspended for 3 days for "harrassing the
secretary and trying to get information from her." Neely
advised that this related to the events of the prior Friday.
Jackson acknowledged asking Stilson what hourly rate
Fierro was being paid. He also acknowledged that she
advised that she could not give him that information as it
was confidential. He denied asking Stilson to leave her desk
and go to the restroom so he could look at the records. On
this conflict, I credit Stilson.
William F. Brown credibly related that later the same
day, Monday, March 1, in a telephone conversation in
which his brother, Chadwick Brown, participated, that
Jackson inquired about the suspension and William Brown
advised that they were going to analyze what Jackson did
and then make a determination as to the action they should
take, and he would be advised if they were going to
terminate him or allow him to continue as an employee.
Brown asserted that Jackson advised that he was only
"kidding" in his conversation with Stilson. Brown related
that he advised Jackson that Jackson had placed the
Company in jeopardy, since it involved everyone working
in the plant if the records had been removed or taken out or
copied. Brown related that Respondent is a job shop, that
the accounts have taken years to build up, and that
knowledge of the identity of Respondent's customers would
have tremendous value to the competitors. William Brown
related that he and his brother had put in a fireproof vault
in preference to machines which they needed, in the plant,
to protect the records against fire or theft. William Brown
asserted that Jackson then inquired about his vacation pay,
asserting that he was entitled to I week's vacation pay.
Brown advised Jackson that he was not entitled to vacation
pay but they would have to make a determination on that
matter and that Jackson would be advised by Wednesday.
While Chadwick Brown's recitation of the conversation
B Jackson asserted herein that so far as he knew there was no Dr
Mueller in Huntington Park His explanation of the reason he gave the
name of Dr Mueller, as the attending physician, was that he did fall and
hurt his back "and sometimes if you don't tell them a lie , they just don't
understand the reason and t wanted to protect my job "
9 Stilson's office was described as approximately 10 feet square, and the
adjacent vault as being about 6 feet square . The outer office also contains a
desk used by Larry Hale, who was identified as president of Falcon Wheel
Corp, the distributor for Respondent
10 Jackson acknowledged that Dr Rheinchild did not treat him and
never examined him, but had prepared the statement based entirely on
Jackson's report that he had been injured on February 23
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Jackson, on Monday, March 1, is not four-square with
the recitation of his brother, I do not find any variation
which would cause me to modify my credibility findings.
This is particularly true since Jackson was not recalled as a
rebuttal witness, and thus did not dispute the recitation of
either William F. Brown or Chadwick Brown relative to his
conversations with them on March 1, 2, or 3.
William Brown related that he had a further telephone
conversation with Jackson on Tuesday, March 2. On that
date, Jackson advised both Browns that if he was not given
his vacation pay, he would go to the labor commissioner
and have Respondent's time cards audited, asserting that
he did not believe that the employees had been paid for all
of their overtime. William Brown asserted that he advised
Jackson that he was welcome to go to the commissioner or
anyone else
William Brown related that he advised Jackson, in a
telephone conversation, on Wednesday, March 3, that he
and his brother had decided to discharge Jackson because
of Jackson's efforts to compromise the Company, that they
had lost confidence in him and felt that he was
untrustworthy, and that they did not know why Jackson
wanted Company records but were aware of his attempt to
obtain them. Brown asserted that Jackson's response was
that he was "kidding." i i
William Brown related that, on Monday, March 1, an
employee, identified as John Tracey, advised William
Brown and his brother, Chadwick, that Jackson had been
attempting to go into the rubber business as a competitor.
William Brown asserted that Tracey advised that, in
January, Tom Schulte and Jackson approached Tracey to
go into business with them and with Milton Cooper, who at
that time owned the building in which Respondent was
located Cooper also owned a building in what is identified
as the Watts section of Los Angeles, which contained 10
thousand square feet, with heavy power, and which was
vacant. Tracey advised that Cooper's daughter and son-in-
law were going to manage the business, that Jackson and
Schulte were going to put up $2,500 each. They advised
Tracey that he would have a better job and make more
money and could have a part ownership. According to
Brown, Tracey related that Jackson and Schulte had
discussed this matter with him on two or three different
occasions.
Tom Schulte, recalled as a witness for Respondent,
related that he did attend a meeting with Cooper and
Jackson. He was uncertain if it was in December 1970, or
January or February 1971 The meeting was at a building
1 i Jackson acknowledged that he was advised that he was suspended for
3 days, and thereafter he was advised that he was being terminated
However, Jackson's version of his discharge notice was that he talked to
Cha4wick Brown , who advised that he was terminating Jackson "because I
was working for the union and trying to get valuable information for them
from the secretary " I do not credit this assertion of Jackson, for the
reasons explicated, infra
11 William Brown related the nature of the business of Respondent as
rebuilding industrial rollers, molding rubber products, building manhole
gaskets and cutting them, casting polyurethane resins, casting polyurethane
on mandrels, and cutting washers off them In other words, they are a job
shop industrial rubber company
11 In fact, William Brown asserted that one reason he was hesitant
about discharging Jackson was the fact that Jackson is a good rubber
builder, and that it takes a long time to train a good rubber builder It was
for this reason that Brown was not anxious to dispense with the services of
owned by Cooper near 100th Street . The meeting was for
the purpose of discussing whether they could go into
business, with Cooper supplying a substantial portion of the
capital. According to Schulte, Jackson estimated that it
would require $25,000, while Schulte' s estimate was higher.
The proposed business was identical to that of
Respondent.12 Schulte related that Jackson was familiar
with the rubber business.13 Schulte related that he is the
polyurethane man at Respondent's plant and would have
assumed the same responsibility in the proposed plant.
Schulte asserted that they discussed who would be
employed and how many would be involved, and Cooper
indicated that his daughter and son-in-law would be
interested. Schulte acknowledged that he discussed this
matter with Tracey a few days later . Cooper inquired why
they thought they could get business or, alternatively, if
there was that much business around town and Jackson
responded that he could get the customers and pricing
necessary. t4
CONCLUDING FINDINGS
1. Interference, restraint, and coercion
It is beyond question that the interrogation engaged in by
William Brown and Chadwick Brown was violative of the
proscriptions of Section 8(a)(1) of the Act. Prior to the Blue
Flash case,15 all interrogation relative to union member-
ship, activities, and desires was held to be per se unlawful.
In Blue Flash the Board found legitimate reason for inquiry,
when conducted with appropriate safeguards. The Board
held that the test is whether, under all the circumstances,
interrogation reasonably tends to restrain or interfere with
the employees in the exercise of rights guaranteed by the
Act.
The Board further elaborated in its decision in the
Johnnie's Poultry case 16 in which the Board stated that the
purposes which the Board and Courts have held legitimate
(permitting interrogation) are of two types: verification of
the union's claim to majority status to determine whether
recognition should be extended. . . . and investigation of
facts concerning issues raised in a complaint, where such
interrogation is necessary in preparing the employer's
defense for the trial of a case.
There is no indication in this record of the existence of
either of the conditions outlined by the Board in the
Johnnie's Poultry case, nor were the enumerated safeguards
taken. Accordingly, I find the interrogation of employees
Jackson, but on balance decided it was too dangerous to continue him
11 Jackson 's sole appearance as a witness was during General Counsel's
case-in-chief and preceded the testimony of William Brown and Schulte
Jackson was not called as a rebuttal witness Jackson acknowledged that he
and Schulte approached Cooper with an idea of interesting Cooper in
going into the rubber business Jackson placed the time of meeting as
before January However, Jackson denied knowledge that Cooper had a
building in Watts Jackson, in conflict with Schulte , denied advising
Cooper that he could obtain a customer list and the pricing structure
Jackson asserted that Cooper was to invest $15,000 while he was to raise
either $2,000 or $4,000 Jackson denied approaching Tracey, asserting that
Tracey approached him Jackson then asserted that the meeting with
Cooper was 6 months prior to his discharge Where Jackson's testimony is
in conflict with the others, set forth supra, I do not credit Jackson
15 Blue Flash Express, Inc, 109 NLRB 591
16 Johnnie's Poultry Company, 146 NLRB 770, 775
FARLOW RUBBER SUPPLY, INC.
by William F. Brown and Chadwick Brown, in each
instance, as found in the section titled "Interference,
Restraint, and Coercion," coercive and thus violative of the
provisions of Section 8(a)(1) of the Act.
There is not a scintilla of evidence in this record that
William Brown, at any time, threatened any employee with
discharge because of his union membership, sympathies,
and activities, or threatened to close the plant because of
the union membership, sympathies or activities of the
employees, or promised economic or other benefits to
induce the employees to forego their support of the Union.
or solicited an employee to engage in surveillance of the
union activities of fellow employees The only evidence that
Chadwick Brown engaged in any of these enumerated
activities was the testimony of Leitsch, which I have found
not credible. Absent evidence to support the allegations of
paragraphs 10, 11, 13, and 14 of the complaint, I will
recommend dismissal of said allegations.
2. The suspension and discharge of Jackson
An essential condition to a finding of discriminatory
conduct by an employer is evidence from which it may be
inferred that the employer had knowledge of the employ-
ees' union activities.
In numerous cases the Board and Courts have held that
direct knowledge of an employee's union activities is not a
sine qua non for finding that an employee had been
discharged because of such activity, but may be inferred
from the record as a whole. The number of employees and
the abruptness and timing of the discharge are among the
factors to be considered. Wiese Plow Welding Co., Inc, 123
NLRB 616.
Jackson, who asserted that he did pass out authorization
cards, related that no supervisor and neither of the Brown
brothers ever saw him passing out authorization cards or
doing anything of that nature. Jackson acknowledged he
never had any conversation with the Brown brothers or any
supervisor with respect to who had signed authorization
cards. Jackson's testimony was that all of his conversations
relative to the Union were away from the plant, after work,
at the Rockaway Bar Jackson makes no contention that
any reference was made to the Union at the time he was
advised of his suspension for 3 days by reason of the events
of Friday, February 26 It is patent that the Brown brothers
were aware of the union activities in the plant, by reason of
the petition for election, which was filed on January 25. It
does not follow that either Brown was aware of Jackson's
activity. In fact, Jackson asserted that when he was asked
by Chadwick Brown if he knew anything about the Union,
in January, he denied such knowledge. Jackson asserted
that he was advised, at the time of his termination, by
Chadwick Brown, that he was being terminated because he
was working for the Union "and trying to get valuable
information for them, from the secretary." William F.
Brown denied any reference was made to the Union at the
time of discharge, asserting Jackson was advised that he
was being discharged by reason of his effort to obtain
confidential company records, causing the Browns to
17 In so finding I am not unmindful of the fact that Chadwick Brown
corroborated William F Brown as to the reason for the discharge of
Jackson I am also aware that Chadwick Brown was self-contradictory on
575
conclude that they could not trust him. On this conflict I
credit William F. Brown on the basis of demeanor as well as
the plausibility of his recitation in the light of the facts in
the record.17
I have found an absence of knowledge of Jackson's union
activities, on the part of Respondent, at the time of
discharge. However, were I convinced the Browns had such
knowledge I would nevertheless find an absence of the
credible evidence essential to support a finding of
discriminatory motivation for the discharge. Long Island
Airport Limousine Service Corp., 191 NLRB No. 16.
Accordingly, for the reasons set forth, and on the entire
record as a whole, I find there is insufficient credible
evidence to support a finding that Respondent was
discriminatorily motivated in effectuating the discharge of
Jackson. I shall recommend the dismissal of the allegations
of the complaint related thereto.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation 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.
CONCLUSIONS OF LAW
1. Respondent is an employer, engaged in commerce
and in an activity affecting commerce, within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local 141, United Rubber, Cork, Linoleum & Plastic
Workers of Amenca, AFL-CIO, CLC, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By engaging in the conduct set forth in the section
entitled "Interference, Restraint, and Coercion," to the
extent therein found, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. Respondent, in suspending Marvin W. Jackson on
March 1, 1971, and in discharging Marvin W. Jackson on
March 3, 1971, did not engage in unfair labor practices
within the meaning of Section 8(a)(3) 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.
THE REMEDY
Having found that the Respondent has engaged, and is
engaging, in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
In view of the nature of the unfair labor practices
committed, the commission of like or related unfair labor
the matter of his mention of Jackson's union activities at the time of
discharge My resolution is based upon an evaluation of the record as a
whole
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices reasonably may be anticipated. I shall therefore 8 (a), (b), and (c), paragraphs 9, 10, 11, 13, 14, and 15, of the
recommend that Respondent be ordered to cease and desist complaint be, and they are hereby, dismissed.
from in any like or related manner infringing upon rights
guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, upon the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following-
RECOMMENDED ORDER is
Respondent, Farlow Rubber Supply, Inc., its officers,
agents, successors, and assigns, shall.
I Cease and desist from:
(a) Interrogating employees in a manner violative of the
provisions of Section 8(a)(1) of the Act.
(b) In any like or related manner interfering with,
restraining , or coercing, its employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other
concerted activity for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959
2. Take the following affirmative action designed to
effectuate the policies of the Act-
(a) Post at its place of business, in Los Angeles,
California, copies of the notice attached hereto marked
"Appendix." 19 Copies of said notice, on forms to be
furnished by the Regional Director for Region 21, shall,
after being duly signed by an official representative of the
Respondent, be posted by it immediately upon receipt
thereof, and maintained by it for 60 days thereafter, in
conspicuous places, including all places where notices to its
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Trial Examiner's Decision,
what steps Respondent has taken to comply herewith. 20 It is
further recommended that unless, on or before 20 days
from the date of the receipt of this Trial Examiner's
Decision, Respondent shall notify said Regional Director
that it will comply with the foregoing Recommended Order,
the National Labor Relations Board issue an Order
requiring Respondent to take the aforesaid action.
It is also recommended that the allegations of paragraph
18 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and Order,
and all objections thereto shall be deemed waived for all purposes
'y In the event that 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
20 In the event this Recommended Order be adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 20 days from the date of this Order what steps Respondent
has taken to comply therewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees in a manner
violative of the provisions of Section 8(a)(1) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or any
other labor organization, to bargain collectively
through representatives of their own choosing and to
engage in any other concerted activity for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
FARLOW RUBBER SUPPLY,
INC.
Dated By
( Representative) ( Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office,
Eastern Columbia Building, 849 South Broadway, Los
Angeles, California 90014, Telephone 213-688-5229.