Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 13, 1975

216 N.L.R.B. 1003 (N.L.R.B. 1975)

THE DAYTON TIRE & RUBBER COMPANY
The Dayton The & Rubber Company , a Division of
the Firestone Tire & Rubber Company and United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC. Cases 16-CA-5385,
16-CA-5573, and 16-RC-6465
March 13, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 4, 1974, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions, a supporting brief, and a motion to reopen the
record.' The Charging Party filed exceptions, a
supporting brief and a request for oral argument2
and, along with the General Counsel, a brief in
opposition to Respondent's motion to reopen the
record. Finally, Respondent filed an answering brief
to the exceptions by the Charging Party.
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.
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 and
hereby orders that Respondent, The Dayton Tire &
Rubber Company, a Division of the Firestone Tire &
Rubber Company, Oklahoma City, Oklahoma, its
officers, agents , successors , and assigns, shall take the
actions set forth in the said recommended Order.
1 Respondent's motion to reopen the record for the purpose of
presenting new evidence as to the physical condition of Paul Grammont is
hereby denied as the evidence which Respondent would introduce concerns
a medical diagnosis made subsequent to the discharge of Grammont and
thus has no bearing on whether the discharge of Grammont violated Sec.
8(aX3) and (1) of the Act. This evidence can, of course , be presented during
the compliance stage of this proceeding.
2 The request by the Charging Party for oral argument is hereby denied
as the record, including the briefs, adequately presents the issues and the
positions of the parties.
DECISION
STATEMENT OF THE CASE
1003
JERROLD H. SHAPIRO , Administrative Law Judge: Upon
unfair labor practice charges filed by the Union named
above in Case 16-CA-5385 and Case 16-CA-5573 on
December 17, 1973, and May 10, 1974, respectively, and
thereafter amended, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 16 , issued a consolidated complaint dated June 20,
1974, against The Dayton Tire & Rubber Company, A
Division of The Firestone Tire and Rubber Company,
hereafter called Respondent or Employer, alleging that
Respondent had engaged in unfair labor practices within
the meaning of Section 8(axl), (3), and (4) of the National
Labor Relations Act, as amended. Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
In the representation matter, Case 16-RC-6465, pur-
suant to a Stipulation for Certification Upon Consent
Election executed by the Employer and Union and
approved by the Regional Director, an election was
conducted on January 24, 1974, among certain employees
of the Employer, in an appropriate bargaining unit. The
tally of ballots showed that challenged ballots were
sufficient in number to affect the results of the election.
Thereafter, the Regional Director ordered a hearing on
certain of the challenged ballots and that it be consolidated
with the unfair labor practice proceeding for hearing,
ruling, and decision by an Administrative Law Judge.'
A consolidated hearing was conducted by me in
Oklahoma City, Oklahoma, on July 9, 10, and 11, 1974.
Upon the entire record, from my observation of the
demeanor of the witnesses , and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation having its principal
place of business in Dayton , Ohio, and having a plant in
Oklahoma City, Oklahoma, where it is engaged in the
manufacture and distribution of tires . In the course of
operating its Oklahoma City plant, Respondent annually
sells and distributes products valued in excess of $50,000
directly to customers located in States other than Oklaho-
ma. I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
National Labor Relations Act, as amended.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, the Union , is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
I The Union filed objections to the Employer's preelection conduct
which the Regional Director consolidated with the challenged ballots for
hearing. The Union at the start of the hearing, without objection, withdrew
these objections.
216 NLRB No. 173
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. BACKGROUND AND ISSUES
The Union for the past several years has unsuccessfully
tried to organize the Respondent's Oklahoma City employ-
ees. On approximately two occasions prior to the election
of January 24, 1974, the Union had failed to win
representation elections conducted by the Board at the
Oklahoma City plant. Nor is this the first time that unfair
labor practice charges have brought the Respondent before
the Board. It has previously been determined by the Board
that during 1971, 1972, and 1973 Respondent used
unlawful means to combat its employees' effort to
unionize . See The Dayton Tire & Rubber Company, A
Division of the Firestone Tire & Rubber Company, 206
NLRB 614 (1973), and 207 NLRB 624 (1973), hereafter
referred to as Dayton Tire I and Dayton Tire II,
respectively.
In Dayton Tire I, concerning events which occurred in
1971 and 1972, the Board found that Respondent violated
Section 8(a)(1) of the Act by coercively interrogating
certain employees about their union activities and about
their voting intentions in a scheduled Board election, by
creating the impression among its employees that it had
their prounion activities under surveillance, by attempting
to poll certain employees about their union sympathies,
and by threatening an employee with retaliation because of
his prounion sympathies. The Board also found that
Respondent violated Section 8(a)(1) and (3) of the Act by
preparing absentee reports on two employees, showing
them these reports, and making them a part of the
employees' personnel files. The Board further found that
Respondent violated Section 8(a)(4), (3), and (1) of the Act
by discharging two employees because of their prounion
activities, by discharging a third employee, and by
assigning a fourth employee an undesirable work station
because of their prounion activity and because they had
testified on behalf of the General Counsel at a Board
hearing, and violating Section 8(a)(4) and (1) by "coun-
seling" two employees about their absences because they
had testified at a Board hearing on behalf of the General
Counsel.
In Dayton Tire II, concerning events which occurred in
1973, the Board found that Respondent violated Section
8(a)(3) and (1) of the Act by creating the impression that
an employee's union activities were being kept under
surveillance , by scrutinizing the union cards in the
possession of this employee, by discriminatorily applying a
rule against solicitation against an employee in order to
discourage him from engaging in union activities, and by
discharging this employee because of his union activities.
The instant case, as did Dayton Tire II, involves the
Union's most recent effort to organize the plant; the
campaign which culminated in the election of January 24,
1974.
The General Counsel, in the unfair labor practice
proceeding , contends that Respondent responded to the.
Union's latest organizational effort by engaging in the
following unlawful conduct:
1. Several supervisors made statements to employees
which reasonably tended to interfere with, restrain, or
coerce the employees from supporting the Union, thereby
violating Section 8(a)(1) of the Act.
2. Three employees were discharged and two employ-
ees were assigned to an undesirable job because they
supported the Union , thereby violating Section 8 (a)(3) and
(1) of the Act.
3. One employee received a written warning notice
because he had given testimony on behalf of the General
Counsel in a Board proceeding and supported the Union,
thereby violating Section 8(a)(4), (3), and (1) of the Act.
The issues raised in the representation case are: (1) the
Union's challenge of the ballot cast by L. J. Price and (2)
the Employer's contention that one ballot should be
declared invalid and not counted.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and
Coercion
The consolidated complaint alleges that Respondent,
through Supervisor Bob Early, admittedly a statutory
supervisor, in violation of Section 8(a)(1) of the Act
threatened employees if the Union organized the plant that
they could not talk as freely as in the past and Respondent
would expect the employees to make fewer errors. In
support of this allegation employee Frank Lee testified,
without contradiction, that on January 16,2 during a
conversation at his work station at which Supervisor Early
was trying to persuade him not to support the Union,
Early, who was Lee's immediate supervisor, voiced the
following warning: "Well, you know if the Union gets in,
we won't be able to talk like we have at the present. Also, if
you build a bad tire now, it'll be between just you and I. If
the Union gets in, we'll have to carry this further." This
warning, in my view, constituted a none too subtle threat
that, if the employees supported the Union, the Respon-
dent would institute stringent terms and conditions of
employment and, as such, reasonably tended to restrain
and coerce employee Lee from exercising his statutory
right to support the Union. By engaging in this type of
conduct Respondent, as alleged in the consolidated
complaint, violated Section 8(a)(1) of the Act.
The consolidated complaint alleges that Respondent
through Darrell Van Houton threatened employees if the
Union organized the plant that Respondent would set new
standards of production and terminate employees who
failed to meet them and further alleges that Van Houton
questioned employees with respect to their union senti-
ments . Van Houton, a temporary supervisor during the
time material to this case and admittedly a statutory
supervisor on January 22 while substituting for employee
Clifton Shepherd's regular supervisor, tried to persuade
him to cast his vote against the Union in the election
scheduled for January 24. It is undisputed that during the
course of the conversation Van Houton told Shepherd that
if the Union organized the plant the Union's timestudy
personnel would establish new production quotas and if
the employees failed to meet these new quotas that they
would be discharged. Shepherd and other employees
2 Unless otherwise specified all dates hereafter refer to 1974.
THE DAYTON TIRE & RUBBER COMPANY
performed jobs for which Respondent sets standards of
production. Employees are expected to comply with the
standards, but there is no evidence that an employee's
failure to meet the standard results in either discharge or
discipline . Shepherd's testimony indicates that if an
employee fails to meet the company's standard of
production that a supervisor will simply speak with the
employee about the matter and not discharge or impose a
lesser penalty upon the offender. Under the circumstances,
including the fact that Shepherd and Van Houton
presumably realize that employers , not labor organizations,
discharge employees , I find that Van Houton' s statement
constituted a threat that if the employees supported the
Union that the Respondent would impose more stringent
terms and conditions of employment and, as such, was
reasonably calculated to restrain or coerce employee
Shepherd from supporting the Union. I further fmd that at
the same time Van Houton made this threat he also
coercively interrogated Shepherd about his union senti-
ments . Van Houton informed Shepherd that when he tried
to convince other employees in the department not to
support the Union that some of them had told Van Houton
they were going to vote against the Union and informed
Shepherd, "You can tell me how you're going to vote if you
want to, but I can't ask you." This conduct was calculated
to place Shepherd in an awkward situation . In effect he
was forced to reveal his union sentiments . It was a form of
interrogation , without any justification. In the context of
this case including Respondent's hostility toward the
Union, this conduct had a reasonable tendency to inhibit
Shepherd from exercising his right to support the Union
and is the type of conduct proscribed by Section 8(a)(1) of
the Act.
The consolidated complaint alleges that Respondent,
through Department Manager Tom Bruening and Fore-
man Ken Miller , both admittedly statutory supervisors,
violated Section 8(aXl) of the Act by warning employees
Respondent would not consider them for the position of
supervisor because of their union activities. In support of
this allegation, employee Dennis Whiteley in substance
testified that Foreman Miller and Department Manager
Bruening told him he would not receive fair consideration
for a promotion to supervisor because of his union
activities . Specifically, the record establishes that, in early
January prior to the election of January 24, it was common
knowledge in Whiteley's department that two supervisors
intended to leave in the immediate future. Whiteley had
attended the company's supervisor training school and on
occasion had filled in as a temporary supervisor and
desired to be considered for one of the open supervisory
positions. On January 14, Whiteley voiced this sentiment
to Department Foreman Miller who asked whether he had
talked with the manager of the department, Breuning, and
stated that , "The Company's number two objective is to
maintain a non-union status and you're working to the
contrary; therefore, you probably won't be considered."
Miller, however, in effect suggested that Whiteley discuss
s The conversations set out above between Whiteley and Miller and
Whiteley and Bruening are based on the testimony of Whiteley who when
he testified was in the employ of Respondent and impressed me as an
honest witness . Also, his testimony about the January 14 and 16
conversations with Miller was not denied . Regarding his January 15
1005
the matter with Bruening and stated he would arrange such
a meeting for the next day. Upon his arrival at the plant
the next day, January 15, Whiteley went to Bruening's
office where in the presence of Supervisor Nat Johnson he
spoke with Bruening. Whiteley who had openly supported
the Union told Bruening that he was under the impression
he was not being considered for a supervisor's position
because of his union activities. Bruening stated that
Respondent could not refuse to consider him for a
supervisor's job because of his union activities as this
would be against the law, but, then in almost the same
breath, voiced the sentiments previously expressed by
Foreman Miller that the Respondent's number two
objective was to maintain a nonunion status and Whiteley
who was working to the contrary should have known
better, especially since he had attended the company's
training school for supervisors. Bruening also remarked
that if an employee stood up and publicly denounced the
Union it would weigh heavily "in his favor." During the
course of the meeting Bruening stated that he had talked
with Miller and that Miller's version of what he told
Whiteley the previous day differed from Whiteley's
recollection. Whiteley asked that Miller be called into the
room to deny the remarks attributed to him by Whiteley.
Miller arrived and denied telling Whiteley he would
probably not be considered for a supervisor's job because
of his union activities but admitted having said, "The
Company's number two objective was to maintain a non-
union status and [Whiteley] was working to the contrary."
The next day, January 16, Miller, apparently in an effort to
clarify what he meant when he first spoke with Whiteley,
told Whiteley, in substance, that Whiteley knew how the
company felt about the Union but nevertheless Whiteley
insisted on acting contrary to the company's wishes and
this was the reason he would not be considered for a
supervisor's position.3 Based on the foregoing, I find that
as alleged in the consolidated complaint Respondent
violated Section 8(a)(1) by telling employee Whiteley that
he would not be considered for a supervisor's position
because of his union activities.
The consolidated complaint alleges that Respondent in
November 1973 at a meeting of its employees ridiculed,
harassed, and invited employees to quit the company's
employment in violation of Section 8(a)(1) of the Act. The
evidence pertinent to this allegation follows:
In Dayton Tire I which issued on October 26, 1973, the
Board concluded that Respondent had committed several
unfair labor practices previously described which included
the discharge of tirebuilder Pat Harrington and the failure
to assign tirebuilder Paul Grammont to tirebuilding
machine Alpha 7 (machine number 7 located in row A).
The Board ordered Respondent to reinstate Harrington
and reimburse him for loss of earnings and to "offer
Grammont assignment to tire building machine No. Alpha
7 or, if that machine is not available, to an equivalent
machine and location in row "A" and to reimburse him for
any loss of earnings because of his failure to receive this
meeting with Bruening I have rejected Bruening's testimony whenever it
does not square with Whiteley's because Whiteley impressed me as the more
credible witness . Moreover, Respondent failed to call Supervisor Johnson or
Foreman Miller to corroborate Bruening's account . I presume their
testimony would have been unfavorable for Respondent.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment. Upon receipt of the Board's Decision and
Order in Dayton Tire I the company's personnel manager,
Greely Sanders, prepared a document bearing his signature
for distribution to the company's tirebuilders. The docu-
ment, referred to hereafter as either the "Grammont-
Harrington Paper" or simply as the "Paper," is entitled
"Tire Builder Employee Meetings." The Paper in sub-
stance states that the Order of the Board "dealing with the
Paul Grammont and Pat Harrington cases are disturbing
to me and should be to you. So that you will know the
Company's position, I have decided to discuss these cases
with you and furnish the facts as we view them." The Paper
goes on to recite briefly the Respondent's reasons, rejected
by the Board, for Harrington's discharge and the failure to
assign Grammont to the Alpha 7 machine. Regarding
Harnngton's case the Paper simply sets out the Respon-
dent's position and the Board's view of the case. In dealing
with Grammont's case, however, the Paper, after reciting
the Respondent's reasons for not assigning him Alpha 7,
declares "it would appear that the- Board's ruling sets
[Grammont] aside from the rest of the builders and
extends certain seniority privileges to him that cannot be
extended to other tire builders. The company must reserve
the right to assign tire builders to any machine based on
component supply and production requirements." In its
conclusionary paragraph the Paper notes, "both these cases
[referring to Harrington and Grammont ] can be appealed
to. the Federal Circuit Court. We have not made a
determination at this time whether to appeal or not."
During the first week in November 1973 and continuing
thereafter Plant Manager Jones and Personnel Manager
Sanders held a series of about 42 meetings with groups of
employees in the company's conference rooms eventually
speaking to all the employees. At the meetings attended by
the approximately 200 to 300 tirebuilders the above-
described Paper was distributed. Attending one of these
meetings in November 1973, with about 15 other tirebuild-
ers from his shift, was Paul Grammont. Plant Manager
Jones and Personnel Manager Sanders initially spoke
generally about the state of the company, i.e., sales,
production, profits, safety, etc., after which employees'
questions were solicited by Sanders. One employee asked a
question concerning the Union at which point Sanders
stated he was happy the question had been asked because
he had prepared something for the employees to read and
distributed copies of the Paper. Sanders asked the
employees to read the Paper and at the same time read it to
them. Grammont spoke up and asked why Sanders was
"picking" on him. Sanders denied he was engaged in this
type of conduct and explained to Grammont and the other
tirebuilders that the company had to decide whether or not
to appeal the Board's decision. Grammont did not
understand, he said, if the Respondent felt it was innocent
why it would even think twice about whether or not to
appeal the Board's decision. Sanders stated that the
Respondent wanted to determine the employees' wishes in
the matter and asked for a vote by the employees.
Grammont again voiced the opinion that Sander's was
picking on him, singling him out. Sanders asked the
employees, "How many of you think Grammont should
have super-seniority?" and was answered by a chorus of
"noes ." Sanders then asked how many of the employees
thought that Grammont should not be assigned to the
Alpha 7 machine and the employees indicated they did not
believe Grammont should get this assignment. Grammont
informed Sanders that he had filed an unfair labor practice
charge with the Board over the matter of his assignment
and had "won" and warned that the Respondent had
better keep the Alpha 7 machine job assignment open for
him because he expected to ultimately win the case.
Sanders stated that it appeared as if the company was
going to appeal the matter since this seemed to be the
sentiment of the employees. During the course of the
meeting, at a point where Grammont was protesting the
fact that Sanders was polling the employees about his job
assignment and whether the company ought to appeal the
Board's Order, Sanders told Grammont, "If you don't like
it, Paul, well why don't youjust quit." Grammont stated in
effect he was not a quitter.4
The above description of what occurred at the meeting of
employees at which Grammont was present when the
"Grammont-Harrington Paper" was distributed is based
on Grammont's credible testimony. I have given careful
consideration to Sanders' testimony - Plant Manager
Jones was not called by Respondent - which in a number
of significant points contradicts Grammont's version. Of
the two witnesses, I have no hesitation in crediting
Grammont who impressed me as more reliable and
trustworthy. In addition, Sanders' denial that he did not in
effect pose any questions to the employees is very suspect
in the light of the credible testimony of tirebuilders
Bratcher and Devaill. At the meeting Bratcher attended,
Sanders asked the tirebuilders if they wanted to vote on
whether Grammont should have his choice of machines
and how many employees thought he should be assigned to
Alpha 7 and the employees took a vote. At the meetings
Devaill attended, Sanders referred to Grammont in the
following manner: "We have an employee at this plant
who likes special favors." Sanders told the employees that
in his opinion "all employees in the plant should be treated
equally and no employees should have special favors" and
asked the employees, "Do you agree?"
I am convinced that Personnel Manager Sanders'
conduct described above reasonably tended to restrain or
coerce employees from exercising their right to support the
Union as guaranteed by Section 7 of the Act. I do not
suggest that Respondent was not privileged to notify its
employees in writing or by other means that the Board's
decision in the case of Grammont, in the company's
opinion, was wrong and explain to the employees the
reason it believed the decision was "disturbing." But in the
instant case , the evidence described above demonstrates
that Respondent's conduct was designed to harass and
humiliate Grammont because of his union activities and
4 This was the second invitation to quit made to Grammont at the voiced the opinion that as a businessman he could earn a higher percentage
meeting During the first part of the meeting Jones and Sanders, while on his money operating out of his garage . Sanders replied, "Well, why don't
discussing the company's financial condition , explained that profits were you just quit and go to work out there in your garage?" Grammont declined
not that good , pointing out that Respondent was only earning a certain the invitation stating he believed the company was "doing wrong" and he
percentage on the money invested in its business . Grammont at this time intended to stay around and correct the injustice.
THE DAYTON TIRE & RUBBER COMPANY 1007
Respondent 's hostility toward him because of these
activities . Thus, in polling the employees Sanders framed
the questions in a manner which not only singled out
Grammont but placed him in an unfavorable light: He was
presented as "an employee who likes special favors," or, as
one who was seeking to violate the Respondent 's policy of
seniority at the expense of his fellow employees . As a result
of Respondent's conduct, some of Grammont's fellow
employees nicknamed him "superseniority ." Also, the
reason advanced by Sanders to the employees for conduct-
ing the poll at Grammont 's meeting rings false. Obviously
Respondent, an employer of about 1 ,000 employees, does
not poll its employees to determine whether to appeal an
Order of the National Labor Relations Board and at the
hearing in this case Sanders did not contend that this was
the reason for the poll.5 This false reason advanced to the
employees to justify the poll indicates that Sanders was
using the Board's Order in the case of Grammont as a
device to single out the most active union adherent in the
plant for the purpose of subjecting him to harassment and
humiliation. Lastly, in evaluating Sanders' conduct I
cannot ignore his reaction when Grammont expressed the
opinion that Respondent was harassing him by asking the
employees about their views concerning his job assign-
ment. Sanders invited Grammont to quit his employment
with Respondent if he did not like what Sanders was doing.
To sum up, I find that Respondent , which is antagonistic
toward Grammont because of his leading role in the
Union's organizational campaign , used the portion of the
Board's Decision and Order in Dayton Tire I involving
Grammont as an excuse to single him out from his fellow
employees for the purpose of harassment and humiliation
and that Respondent in November 1973, in front of his
fellow employees , deliberately humiliated and harassed
Grammont and invited him to quit his employment and
engaged in this conduct for no legitimate reason - but was
motivated by its animus toward Grammont because of his
union activities. This type of conduct reasonably tends to
restrain or coerce employees from supporting the Union -
and by engaging in it , Respondent, as alleged in the
consolidated complaint , violated Section 8(axl) of the Act.
B. The Memo Placed in Paul Grammont's File
The consolidated complaint alleges that Respondent
issued Paul Grammont a warning notice because of his
union activities and because he gave . testimony under the
Act, thereby violating Section 8(aX4), (3), and (1) of the
Act. The essential facts can be briefly stated.
On or about November 21 , 1973, Grammont's supervi-
sor, Herbert Blair, prepared a memo which was placed in
Grammont's personnel file and shown Grammont.6 Enti-
tled, "Excessive Absenteeism" the memo reads:
Since June 5, 1973, Mr. Grammont has been absent
seven (7) times : dates are as follows:
s He denied polling the employees . For reasons expressed earlier I have
rejected his denial.
" Grammont testified, and Blair denied , that the memo when initially
shown Grammont by Blair contained a threat of disciplinary action which
was removed following Grammont 's protest. I have not resolved this dispute
for, even assuming Grammont's version is correct , it is not, in the light of all
the circumstances , sufficient to taint the memo.
I It is undisputed that the company 's policy at this tune regarded an
Rn Date Hrs. Lost 7/ Reason
Tues . 6/05 8.0 NLRB hearing
Wed. 6/27 7.7 Sick, sent
home by guard
Fri. 9/14 1.0 Dr.' s appt.
Thurs. 11 /01 .5 Dr.' s appt.
Tues. 11 /13 1.7 Dr.' s appt.
Mon. 11 /19 8.0 Dr.'s appt.
Tues. 11 /20 4.0 Home damaged
by storm
During this time Mr. Grammont has lost 30.9 hrs
from his assigned work, and lost wages totaling
approximately $142.00.
Mr. Grammont was told that if he would go six
months without a period of absence this memo would
be removed from his file.
There is no evidence that in placing this memo in
Grammont's file that Respondent treated him differently
than other employees. Contrariwise, Respondent has a
well-known policy of placing such memos in employees'
files and in cases involving excused absences, a memo is
normally placed in the employee's file after the third
absences Nor is there evidence that Grammont's absence
from work to testify at the hearing in Dayton Tire II on
June 5, 1973, either in whole or in part caused or motivated
the issuance of this memo. To the contrary, under
Respondent's policy, Grammont would have received this
memo even if he had not been absent on June 5, 1973.
Based on the foregoing, I shall recommend that this
portion of the consolidated complaint be dismissed.
C. The Assignment of Onerous Work
The consolidated complaint alleges that in violation of
Section 8(aX3) and (1) of the Act Respondent assigned
employees Marcos Mendez and Larry Frazee to the task of
unloading tires from box cars because of their union
activities.
Employees Mendez and Frazee both of whom are
warehousemen openly supported the Union. On Monday,
January 21, they were assigned with about five other
warehousemen for a 2-week period to the Company's rail
dock to load and unload tires . On January 23, the day
before the representation election, Mendez and Frazee
came to work wearing company T-shirts but with the
company emblem covered by lettering telling the employ-
ees to vote for the Union. They were the only warehouse-
men who wore such T-shirts. The General Counsel
contends that the evidence establishes it was because of
this that they were assigned the task of unloading boxcars
on January 23 and 24. I disagree.
The record demonstrates that although it is usually not
customary for warehousemen employed on the rail dock to
employee's absence from work during any part of the workday, i.e, late 5
minutes, as an absence and did not distinguish between excused and
unexcused absences.
6 It is undisputed that Blair failed to follow company policy and place a
memo in Grammont's file after the third absence. In this regard Blair
credibly testified that this was simply negligence on his part: He had
neglected to check Grammont's attendance records because of the press of
work in the department.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform the same job for 2 consecutive days that when
there is substantially more of one type of work the
employees work consecutive days doing this type of work.
This is exactly what occurred during the 2 weeks from
January 21 through February 1. During this period there
was a substantial number of boxcars waiting to be
unloaded. Also it is undisputed that it was important that
these cars be promptly unloaded for the reason that
Respondent was paying demurrage until the cars were
unloaded. As a result, on the 2 days in question, all but one
of the warehousemen assigned to the rail dock unloaded
boxcars. In other words, employees other than Frazee and
Mendez worked consecutive days unloading boxcars.
Based on the foregoing, I find the evidence is insufficient to
establish that in assigning employees Mendez and Frazee
to the task of unloading boxcars on January 23 and 24 that
the Respondent discriminated against them.
Accordingly, I shall recommend that this allegation of
the consolidated complaint be dismissed.
D. The Discharge of David Laufer
The consolidated complaint alleges that Respondent
discharged employee David Laufer because of his union
activities.
Laufer , discharged on December 11, 1973, had been
employed by Respondent since February 9, 1973, and was
employed on the second shift as a tire trimmer in
department 133. His immediate supervisor was Ronald
Maddox who reported to the department shift foreman,
Jim Lape.
Laufer was a union adherent who openly expressed his
support for the Union . About 2 months before his
discharge Laufer , in effect , told Supervisor Maddox he
favored the Union.
The circumstances surrounding Laufer 's discharge on
December 11 , 1973, can be briefly stated . The employees
on Laufer 's shift - the second shift - start work at 3 p.m.
On December 11 at or about 3 p.m. as Laufer was walking
from the break area toward his work station to begin work,
first-shift employee Mike Schkolovyi handed him a union
authorization card and asked him to give it to employee
Joe Evans. Evans was a tire trimmer on the second shift
and his work station was about 60 feet from Laufer's.
Laufer took the union card and proceeded to his work
station where he laid down his tools and continued on to
Evans' work station where he laid down the card on Evans'
workbench . Evans, who previously had asked Schkolovyi
for a union card accepted the card without comment. No
words were exchanged . The whole transaction which
admittedly took place during worktime - the walk to
Evans' work station , the handing over of the card to Evans,
and the walk back to Laufer 's work station - took less
than 60 seconds . It did not interfere with or disrupt
production.
The description of the transaction which led to Laufer's
discharge is based on the testimony of Evans and Laufer
who impressed me as reliable and trustworthy witnesses.
Their testimony conflicts with Supervisor Maddox's on the
following points : ( 1) How soon after 3 p.m. Laufer walked
over to Evans' work station. (2) Whether Laufer handed
the card to Evans or simply laid the card down on his
workbench. (3) During the period Laufer was away from
his work station did the red light flash on - which
indicates production was coming to a standstill because the
work was piling up at Laufer's station. Regarding the
manner in which the card was passed to Evans and how
soon after 3 p.m. Laufer walked over to Evans' work
station , Laufer, whose testimony was essentially corrobo-
rated by Evans, impressed me as the more reliable witness.
Likewise, in denying that the red light was lit when he
walked over to Evans' work station, Laufer impressed me
as the more reliable witness. Also, the failure of Supervisor
Maddox to inform Foreman Lape or Personnel Manager
Sanders that the red light was on or that Laufer's absence
had caused an interference with production, and the failure
of Sanders' memo of December I I explaining the reason
for Laufer's discharge to indicate that Sanders had been
told that the red light was on, convince me that Maddox's
testimony about the red light was an afterthought without
a basis in reality. For if this was a fact, Maddox would
certainly have communicated the information to either
Lape or Sanders and it would have been relied on by
Sanders to justify the discharge.
Unknown to Laufer, Supervisor Maddox had observed
him carry the union authorization card to Evans' work
station. When he observed this, Maddox testified, "I got
sick at my stomach first," and further testified by way of an
explanation that, "I guess that was a nervous reaction
because up to that point Laufer had made no reaction to
me as to whether he was pro-union or non[sic ]." 9 Maddox
"really did not know what to do" about the matter, so he
testified he walked over to fellow Supervisor Don Foreman
and asked what "[he] should do about it," and following
Foreman's advice Maddox notified Foreman Lape. Mad-
dox told Lape, "[he] was sick to [his] stomach." Lape
asked, "What's the matter?" Maddox told him, "I just saw
David Laufer give Joe Evans a Union authorization card."
Lape asked if he was positive, and when Maddox answered
in the affirmative, Lape asked two or three times whether
he was positive it was a union authorization card. When
Maddox reassured Lape that the card involved was a union
card, Lape stated he would take care of the matter. Shortly
after Lape notified Maddox to get employees Laufer and
Evans and bring them to the office of Personnel Manager
Sanders.
Leaving Laufer and Evans in the outer office, Lape and
Maddox went into Sanders' office. Sanders asked Lape to
describe what occurred between Laufer and Evans. Lape
told him that Maddox had reported that he was sick to his
stomach because he had observed Laufer hand over a
union authorization card to Evans. Maddox agreed that
this is what had taken place at which point Evans was
called into the office. Sanders told Evans he understood
that during working time Laufer had brought a union card
to him. Evans replied that this was true. Sanders asked if
Evans was familar with the company rule regarding
solicitation, and Evans indicated that he was familar with
the rule. Evans was asked to leave the office and Laufer
was called into the office. Sanders asked Laufer whether it
9 This is untrue for as found previously , it is undisputed that Laufer had specifically told Maddox he was proumon.
THE DAYTON TIRE & RUBBER COMPANY 1009
was true he had "handed" Joe Evans a union authorization
card . When Laufer replied in the affirmative , Sanders told
him that it was against the company rules and showed
Laufer the company handbook which had been issued to
all employees including Laufer and directed his attention
to the regulation entitled "collections and solicitations"
which reads in pertinent part: "all fund raising . . . and
handing out of literature and other materials unrelated to
your work in working areas is prohibited at all times.
Anyone who breaks this rule and thereby neglects his own
work or interferes with the work of others will be subject to
discharge." Sanders commented that if he allowed Laufer
to violate this rule he would have to allow everyone else to
do the same . At this point, Evans was called back into the
office and Sanders, in the presence of Laufer , told Evans
that since he was the "recipient" he did not have to worry
about being disciplined, but Sanders did not know what he
would do about Laufer . Evans made a plea on behalf of
Laufer . Evans asked that Laufer be given another chance
since he had obviously learned his lesson and pointed out
that Laufer's wife was pregnant and it was only a few days
before Christmas . Sanders rejected the appeal and sent
Evans back to work . Sanders then told Laufer that he had
no alternative but to discharge him.
On April 26 Laufer received a letter from Sanders
offering him reinstatement to his old job and requesting he
report to work on May 6. Sanders testified that the reason
he offered to reinstate Laufer was that based upon
information given him by employees in Laufer 's depart-
ment he had arrived at the conclusion that Laufer was an
innocent bystander who had been used as a conduit for the
delivery of the union card by employee Schkolovyi.
The General Counsel in an effort to show disparate
application of the Respondent 's no-solicitation rule prod-
uced evidence of certain instances of solicitation of money
for flowers, for a "check poker" game, and for a Christmas
cake, all of which occurred during working time. I have
carefully considered this evidence and the evidence
adduced by Respondent on this point and am of the view
that even when viewed most favorably to the General
Counsel , it does not establish that Respondent knew that
its no-solicitation rule was being violated by employees
who were engaging in the aforesaid conduct and tolerated
this conduct.
Ultimate conclusions about Laufer's discharge
The person who made the ultimate decision to fire
Laufer, Personnel Manager Sanders, testified Laufer was
discharged because he engaged in conduct which violated
the company 's published rule against solicitation and
distribution on working time. Sanders specifically testified
that he decided to discharge Laufer "because he left his
work station and distributed a Union card to Evans." In
agreement with the General Counsel, I believe that the
discharge of Laufer was discriminatorily motivated in
violation of Section 8(aX3) and (1) of the Act. In reaching
this conclusion I was motivated by the following considera-
tions:
(1) The conduct which caused Laufer's discharge did not
violate the rule upon which Respondent justified the
discharge nor did Respondent believe Laufer had breached
this rule. Respondent 's published rule entitled, "collections
and solicitations" in pertinent part prohibits employees
from "handing out of literature and other materials
unrelated to [their] work in working areas" and warns that
"anyone who breaks this rule and thereby neglects his own
work or interferes with the work of others will be subject to
discharge. " (Emphasis supplied.) Laufer, as found previous-
ly, when he handed the union card to Evans neither
neglected his own work nor did he interfere with Evans'
work. The entire transaction took up less than a minute
without a word being spoken by either party. But more
important, the record demonstrates Respondent did not
believe that Laufer had neglected his own work or
interfered with Evans' work. It is undisputed that Respon-
dent knew that Laufer was away from his work station for
less than 1 minute . The report from Supervisor Maddox to
Foreman Lape upon which Personnel Manager Sanders, in
substantial part, based his decision to discharge Laufer as
well as Sanders' memo of December 11 explaining the
reasons for the discharge do not mention any interference
with production or neglect of work caused by Laufer's
conduct. Also, Foreman Lape's questioning of Maddox
and Sanders' questioning of Evans and Laufer was
designed to ascertain whether Laufer had engaged in union
activities; i.e., hand a union card to Evans. There was no
attempt by Respondent to discover whether or not there
was any interference with, or neglect of, work - rather,
Respondent was only interested in curing union solicita-
tion. Cf. Wellman Industries, 201 NLRB 958 (1973).
(2) Supervisor Maddox whose report triggered the
discharge of Laufer admitted that the reason he reported
that Laufer had given Evans a union card had nothing to
do with any interference with production, but was
motivated solely by the fact that Laufer had distributed a
union card. It is plain that if Maddox had not reported this
matter that Laufer would not have been discharged. It is
also plain that when Maddox observed Laufer hand over
the union card to Evans that he was concerned not with
any interference with production or neglect of work by
either Laufer or Evans or even that a company rule had
been violated. The sole reason that Laufer's conduct was
objectionable, in Laufer's mind, was because it indicated
that Laufer was an active union adherent who was passing
out union cards. Thus, when he observed Laufer distribute
the card Maddox testified, "I got sick to my stomach .. .
that was a nervous reaction because up to that point Laufer
had made no reaction to me as to whether he was pro-
union or non[sic]. I really did not know what to do." Since
he did not know what to do about what he had observed -
a strange reaction if in fact Laufer in Maddox's mind had
violated a published company rule - Maddox consulted a
fellow supervisor for advice and acting upon this advice
went to Foreman Lape and, as described in detail above,
informed Lape that he had observed Laufer hand over a
union card to Evans. The only thing important to both
Maddox and Lape about this transaction was that it was a
union card which was involved. Maddox did not directly
or indirectly inform Lape that either Laufer or Evans had
neglected his work or that the incident had otherwise
interfered with production. In short, Maddox's testimony
as to his own state of mind and what he reported to his
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superiors establish beyond any doubt that Maddox in
reporting Laufer was not motivated by any legitimate
business consideration , i.e., the fact that Laufer had left his
work station during worktime , but was motivated solely by
the fact that Laufer was engaged in union activity. Any
doubt of this was removed by his admission , albeit a
reluctant one made during cross-examination , that the
reason he reported Laufer was not because he had left his
work station during worktime but because he had observed
him engaging in activity on behalf of the Union , handing a
union card to Evans.
(3) The severity of the penalty imposed upon Laufer
indicates its imposition was motivated by unlawful
considerations . It is undisputed that Respondent in
policing conduct which constitutes a violation of its
published rules uses a progressive disciplinary system
which commences with an oral warning for a first offense
and for future offenses a written memo in the offenders file
which culminates in a more severe penalty . Also it is
undisputed that when it comes to disciplining employees
Respondent is not limited to the most drastic penalty of
discharge . Against this background the discharge of Laufer
makes no sense . There is no indication in the record of any
prior complaints about Laufer. To the contrary, during his
short tenure of employment - 10 months - his hourly
rate of pay had been increased by $1 per hour, an
indication that he was regarded as a better than satisfacto-
ry employee. Yet Laufer was treated as if he had
committed a criminal offense. He was abruptly discharged
in the middle of a workday and not allowed even to
complete the day, all because he had left his machine for
less than 1 minute to give another employee a union card. I
find it difficult to believe that Respondent would have
acted in a similar manner for another satisfactory employ-
ee who committed the first offense of soliciting during
working time for a charitable bake sale. In other words, in
the circumstances of this case, I am unable to ford that
Laufer was engaged in the type of misconduct as to
warrant such drastic and precipitate action by Respondent
and ford that the discharge penalty imposed indicates that
Respondent was motivated by unlawful considerations. See
Betts Baking Co., Inc. v. N.LRB., 380 F .2d 199, 205 (C.A.
10, 1967) (" it is fair to weigh all the facts, including not
only the union animus of the Company, but the seriousness
of the offense , for if the offense be minor, it is reasonable
to infer that the severity of the penalty had its source in
some conduct beyond the offense").
(4) Respondent's explanation for offering to reinstate
Laufer lends further support to the inference that his
discharge was discriminatorily motivated . In explaining
why, on April 26, he offered Laufer his job back, Personnel
Manager Sanders , who made the original decision to
discharge Laufer, testified he had received information
from employees that Laufer was an innocent party and was
used by a union adherent "as a conduit for the delivery" of
the union card . In other words when Sanders determined
that Laufer was really not an active union adherent but
had only inadvertently acted as a messenger boy, he
offered to reinstate him. The plain import of this admission
10 It is settled that while an employer has "the right to enforce
reasonable rules ... [he I must not distort those rules to club a union which
is that the significant factor which influenced Sanders'
initial decision to discharge Laufer was a belief that Laufer
was a union adherent engaged in union activities not the
fact that he had left his work station during working time
or had interfered with Evans' work.
(5) The recent unfair labor practices engaged in by
Respondent in Dayton Tire II involving the discharge of
employee Rose is relevant in evaluating the Respondent's
motivation for discharging Laufer. See, e .g., Tonkin Corp.
of California, d/b/a Seven-Up Bottling Company of Sacra-
mento v. N.LR.B., 420 F.2d 495, 496-497 (C.A. 9, 1969);
N.LRB. v. Clinton Packing Co., 468 F.2d 953, 954 (C.A. 8,
1972). There the Board found that Respondent violated
Section 8(aX3) and (1) of the Act by pretextually
discharging employee Rose in March 1973 for allegedly
violating the no-solicitation rule involved in the instant
case . It is undisputed that Rose and Laufer are the only
employees ever disciplined for ostensibly violating this
company rule. In my opinion, the nature and proximity of
the unfair labor practice involving Rose lends support to
the General Counsel's contentions that Laufer's discharge
was discriminatorily motivated . But, even absent the
background of Rose 's unlawful discharge , for the reasons
set out above, the evidence preponderates in favor of a
finding that Laufer's discharge was discriminatorily moti-
vated.
For all of the aforesaid reasons, including Respondent's
animus toward the Union's organizational campaign, I find
that Respondent 's rule against solicitation during working
time which is lawful on its face was used for an unlawful
purpose, lo and the evidence preponderates in favor of a
finding that the discharge of Laufer was discriminatorily
motivated in violation of Section 8(a)(3) and (1) of the Act.
In arriving at this conclusion I have carefully considered
the principle case relied on by Respondent in its posthear-
ing brief, Springfield Garment Manufacturing Co., 152
NLRB 1043 (1965), and believe it is factually distinguish-
able. The record in the instant case is substantially more
compelling in a number of critical respects which demon-
strate the Respondent 's improper motivation.
E. The Discharge of Bobby Bratcher
The consolidated complaint alleges that Respondent
discharged employee Bobby Bratcher on April 26 because
of his union activities.
Bratcher who was employed continuously by Respon-
dent from October 1970 was a union adherent who openly
campaigned for the Union and attended all of the Union's
organizational meetings . Respondent knew of his union
sympathies . At a company meeting of the employees held
in mid-January where Plant Manager Jones and Personnel
Manager Sanders were explaining the disadvantages of
unionization, Bratcher openly indicated he supported the
Union . He engaged in a debate with Sanders on a point
raised by Sanders . The debate ended with Sanders
silencing Bratcher and later during the meeting and the
next day Sanders asked Bratcher to apologize for the
position he had taken which in Sanders view was factually
is attempting to organize the employees ." N.L.RB. v. Overnice Transporta-
tion Company, 308 F.2d 284, 290 (C.A. 4, 1962).
THE DAYTON TIRE & RUBBER COMPANY 1011
incorrect. Bratcher refused to apologize."
Bratcher was notified of his discharge on April 26. The
reason given to him , and the reason advanced at the
hearing, to justify the discharge essentially is that Respon-
dent believed Bratcher was physically unable to perform
his job . In order to understand and evaluate this defense, it
is necessary to set out Bratcher 's history of injuries and
illnesses.
For the 12-month period ending February 12, 1973,
Bratcher went to the company's medical clinic a total of
about 13 separate times for injuries and illnesses, including
at least 3 work-related injuries : a hernia, a cut finger, and
an injured shoulder . Bratcher's shift foreman, Kinder, by
memorandum dated February 12, 1973, notified Personnel
Manager Sanders about Bratcher's requests for medical
treatment and expressed the opinion that Bratcher was
taking undue advantage of the company's medical facili-
ties.
Three months later, May 14, 1973, Bratcher injured his
back while removing a tire from his machine and upon
investigation by the Respondent's safety department it was
discovered that the injury was caused by his failure to
follow correct operating procedures . The following day,
May 15, 1973, while performing the light duty job of
cutting defective lumps out of rubber, Bratcher incorrectly
used the knife thereby cutting his leg. These injuries caused
him to miss several days of work. On May 16, 1973,
Bratcher 's immediate supervisor, Richard Hurley, by
memo to Personnel Manager Sanders , detailed the above
two injuries and referred to Bratcher 's history of visits to
the medical clinic described by Foreman Kinder in his
memo of February 12, 1973, and concluded:
It is the opinion of the writer that this employee has
on occasions taken advantage of the Dayton Tire
Company by being paid to go to the dispensary for
outside petty injuries and illnesses . The writer also feels
that he doesn 't practice or has any concern for safety or
safety rules and is a definite safety hazard.
To save this employee from a possible serious injury
and the Dayton Tire additional expense, I strongly
recommend this employee be released from employ-
ment at the Dayton Tire Company.
Manager of Industrial Relations Sloan and Personnel
Manager Sanders , because of Hurley's memo, reviewed
Bratcher's entire medical history and thereafter met with
Bratcher some time in June 1973 and advised him they felt
he was abusing the use of the company's medical facilities,
he should get himself healthy, he should follow safe
operating procedures and use better judgment at work, and
warned that if he did not follow safe operating procedures,
it would result in his discharge . Also, it is undisputed that
Foreman Kinder personally told Bratcher that if his
injuries continued that Kinder would request that he be
disqualified from working as a tirebuilder . Bratcher's
record thereafter did improve . He visited the medical clinic
only about six or seven times during the remainder of his
employment - a period of 10 months.
11 The above description of what occurred between Sanders and
Bratcher is based on Bratcher's credible testimony which in some respects
conflicts with Sanders '. Bratcher was the more convincing witness . Even if
The events leading up to Bratcher 's discharge are as
follows: On April 16 while performing his job as a
tirebuilder, Bratcher injured his back lifting a roll of belts.
It is undisputed that the work being performed by him at
the time was the type of work normally done by the
company's tirebuilders. Bratcher immediately went to the
company's medical clinic and was placed by the company's
doctor on light duty for a period of 2 days at which time
the doctor referred him to another doctor who, upon
examining Bratcher, diagnosed his injury as a back strain
which would keep him from working until Monday, April
29.
On April 16 when Supervisor Hurley learned about
Bratcher's injury, he told Bratcher that in view of his past
medical history that he did not feel Bratcher was capable
of handling the tirebuilder's job and that Hurley intended
to talk with Foreman Kinder about having Bratcher
"disqualified" from this job. At this point Bratcher and
Hurley went to Kinder's office and Kinder was advised
about the injury. Kinder told Bratcher that because of his
medical history including the previous "on the job"
injuries, that he was afraid if Bratcher continued to work as
a tirebuilder that Bratcher would injure himself perma-
nently and for this reason intended to recommend that
Bratcher be disqualified from his job as a tirebuilder and
transferred into another department where the work was
lighter.
On April 17 Kinder, by memo to the plant manager
described Bratcher's past history of injuries and his most
recent injury of April 16. The memo concluded with this
recommendation:
It is the opinion of this writer that Mr. Bobby
Bratcher be disqualified as a tire builder due to his
physical ability to perform. The company is only
jeopardizing Mr. Bratcher's physical health by allowing
him to perform as a tire builder. If some other
classification with less strenuous physical requirements
are available in the plant, the writer would recommend
a transfer. If such a classification is not available, the
recommendation would be to release Mr. Bratcher
from employment for his health sake!
The problem of employees physically unable to
perform as tire builders must be faced and faced now.
If they are unable to perform it is the responsibility of
management to recognize and handle employee as
deemed necessary. Employees are disqualified due to
failure to maintain rate and other substantiating
reasons. The attribute of being physically unable to
perform as a tire builder is also reason for disqualifica-
tion to protect the physical well being of our employ-
ees!
Thereafter, various officials of the company including its
safety manager, the manager of industrial relations, and
the personnel manager considered Bratcher's past history
of medical problems including past "on the job" injuries
and decided to approve Kinder's recommendation that
Bratcher be disqualified as a tirebuilder and further
Sanders' version is credited, it is plain that by his conduct Bratcher plainly
indicated to Jones and Sanders that he was an active union adherent who
would vote for the Union in the election of January 24.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decided that since the only jobs which Bratcher would be
eligible for transfer into involved lifting 12 that he should be
terminated and be informed of this decision at the time he
was released for employment by the company's doctor.
It is undisputed that in the past Respondent has
terminated employees for the reason that Respondent
believed they were physically unable to perform their jobs.
Ultimate conclusions about the discharge of
Bratcher
To recapitulate, Respondent was concerned about
Bratcher's history of injuries and sickness. Prior to the
events leading up to his discharge, Bratcher's immediate
supervisors - Kinder and Hurley - both had expressed
concern about this matter. Hurley, as early as May 1973,
recommended that Bratcher's employment be terminated
to save [Bratcher] from a possible serious injury and the
[Respondent ] additional expense." Management, however,
did not discharge him, but instead counseled Bratcher
about the matter and cautioned him that any further "on
the job" injuries resulting from failure to use safe operating
procedures would result in his discharge . Then, on April 16
in performing a run-of-the-mill work task , Bratcher
seriously injured his back. In my view, this latest injury,
when coupled with Respondent's past concern and the fact
Respondent had discharged other employees who it
believed were not capable of physically performing their
jobs, provided ample justification for Respondent's deci-
sion to remove Bratcher from his job as a tirebuilder.
While the failure of Respondent to transfer Bratcher, who
was an admittedly "good" employee, to another position
might be considered unfair, it was not unlawfully discrimi-
natory, since the record does not establish that Bratcher
has been treated differently than any of the other
employees who were terminated because Respondent
believed they were not capable of performing their job.13
Nor does the record refute Respondent's contention that it
was not able to reassign Bratcher to a nonstrenuous job on
a permanent basis without violating its system of seniority.
The record does not establish that Respondent discriminat-
ed against Bratcher when it failed to reassign him to a
different job. Accordingly , I am constrained to conclude
that the General Counsel has not met his burden of
establishing by the necessary preponderance of the
evidence that the discharge of Bratcher was unlawfully
motivated and violated Section 8(aX3) and (1) of the Act.14
F. The Discharge of Paul Grammont
The consolidated complaint alleges that Respondent
discharged employee Paul Grammont because of his union
activities.
12 Bratcher was eligible to transfer only into certain jobs, all of which
involved lifting, because of the Respondent 's system of department
seniority . The evidence is not sufficient to establish that Respondent,
without violating its seniority policy, was able to permanently assign
Bratcher to a job which did not require strenuous work.
13 The General Counsel's assertion in his posthearing brief that there is
such evidence is not supported by the record.
14 I am also of the view that the portion of the consolidated complaint
which in substance alleges that Supervisor Hurley threatened Bratcher with
The facts leading up to Grammont's discharge are as
follows: On January 2 Grammont injured his back at work
and was not able to continue working. He was hospitalized
for a short period in January and was treated by his own
physician who then referred him to a specialist, Doctor
David Brown, an orthopedic surgeon. Doctor Brown
examined Grammont on April 11 and determined he had
sustained a sprained back and advised Grammont to
engage in certain exercises and expressed the opinion that
the stiffness in his back would subside with time, that there
would be no permanent disability, and that Grammont
would be able to return to work in the near future.
In late April the Respondent's safety manager, McCow-
an, contacted Jeff Dasovich, the attorney for the Respon-
dent's insurance company, Liberty Mutual Insurance
Company, who was handling the workmen's compensation
suit filed by Grammont against Respondent 15 and
McCowan, as he testified, "pushed" the insurance compa-
ny into arranging a further medical appointment for
Grammont with Doctor Brown. This appointment was
scheduled for May 3 by Attorney Dasovich. Attorney
Dasovich apparently notified McCowan and Attorney
Don Kilpatrick, the lawyer representing Grammont in the
workmen's compensation suit, of the appointment. Attor-
ney Kilpatrick notified Grammont.
On Friday, May 3, in the afternoon, Gramniont visited
Doctor Brown who advised him there was no permanent
injury to his back, that he no longer needed medical
treatment and should return to work. As to whether or not
he told Grammont when to return to work, Doctor Brown
testified, "I told him he could return to work right then -
not that minute necessarily, but not to wait a month or
anything like that." Grammont indicated he was afraid
Respondent would discharge him on his return and also
complained that he still experienced pain in his back.
Doctor Brown advised him that he had nothing to do with
any possible decision by Respondent to discharge Gram-
mont and with respect to the existing soreness in
Grammont's back told him this was common and that it
would take some time before the soreness worked itself out
completely and that if it was economical for the Respon-
dent the best therapy would be for Grammont to simply
work for 2 hours and to rest 2 hours. Doctor Brown told
Grammont that he would submit a report to the Respon-
dent's insurance company which in substance would state
that he needed no further medical treatment, suffered no
permanent disability, and should return to work.
When Grammont left the office of Doctor Brown on
May 3, he phoned his attorney, Kilpatrick, and told him of
the result of his meeting with Doctor Brown. Attorney
Kilpatrick advised his client, Grammont, that the law of
the State of Oklahoma required that Doctor Brown submit
a report concerning Grammont's medical condition and
the loss of his job because of his union activities is not supported by any
evidence and shall recommend that this portion of the complaint be
dismissed.
15 Granlmont had instituted a workmen 's compensation suit against
Respondent in the State Industrial Court over his injury and retained
Attorney Don Kilpatrick to represent him in that action . Attorney
Kilpatrick's undenied testimony is that the suit was against Respondent and
its insurance carrier and that Attorney Jeff Dasovich entered an appearance
on behalf of Respondent and the insurance carrier.
THE DAYTON TIRE & RUBBER COMPANY
that Kilpatrick would receive a copy of this report and that
Grammont should wait until he received a copy of this
report. Grammont phoned Kilpatrick on Monday and
Tuesday, May 6 and 7, and learned Kilpatrick had not
received a copy of the doctor's report.
In the meantime , on May 3, Doctor Brown - following
his examination of Grammont-had dictated a report
which was transmitted to Respondent and its insurance
company. The report reads:
This is a medical report on [Paul Grammont]. The
patient states he still has pain in his back with
strenuous use. Examination today reveals near normal
range of motion. He has no muscle spasm . It is my
opinion this patient should return to work. He has no
permanent disability, and he is no longer in need of
medical care.
At or about the same time, on May 3, Respondent's safety
manager, McCowan, phoned Doctor Brown and asked
about the outcome of Grammont 's examination . Doctor
Brown stated that Grammont suffered no permanent
disability, he needed no further medical treatment and
"was ready to return to work at any time," and Grammont
had been so informed . McCowan almost immediately
either by phone or in person notified Grammont's
foreman , Kinder , and Personnel Manager Sanders that
Grammont had been released for work and Respondent
should expect him at work Monday, May 6. McCowan had
previously notified Personnel Manager Sanders that
Grammont was scheduled to be examined by a doctor on
May 3. On Monday, May 6, when Grammont did not show
up for work, McCowan once again phoned Doctor Brown
who repeated what he had told McCowan the preceding
Friday. Once again, McCowan informed Personnel Man-
ager Sanders that Grammont had been released for work.
But, as described earlier , Grammont was waiting for his
attorney to receive Doctor Brown 's report . Unfortunately,
Doctor Brown 's secretary did not get around to transcrib-
ing his dictation and mailing the report until Monday, May
6, and the report was not received by Respondent until
May 8.
On May 8, Grammont , still waiting for the report, did
not report for work and at the end of that day Personnel
Manager Sanders who, as he testified , had not seen Doctor
Brown's report, decided to discharge Grammont for
violating the company 's published work rule entitled
"absence from work" which reads: "absence without
permission or without giving advance notice indicates an
indifference to your job interest . Three days of unreported
absence will be considered as a voluntary quitting of your
job." Sanders , on May 8, mailed the following letter to
Grammont:
Our records reveal that Dr. David R. Brown
examined you on May 3, 1974 and advised you to
return to work on May 6, 1974. Further, and consistent
with the employee policy as stated in the Handbook for
Hourly Dayton Employees, paragraph 3.9 which I
quote "absence without permission or without giving
Is This telephone conversation with the knowledge of Grammont was
taped by Sanders who also had his secretary listen in and transcribe the
1013
an advance notice indicates an indifference to your job
interest. Three days of unreported absence will be
considered as a voluntary quitting of your job.
This letter is to advise you that your three days no
report for the dates of May 6th, May 7th, and May 8th
must be considered as a quit. Therefore, you have been
removed from the Dayton payroll.
The letter was dated May 9. Sanders, who generally
impressed me as an untrustworthy witness testified that he
dictated the letter to his secretary on May 9 about 8 a.m.
The letter which was sent by registered mail was received
by Grammont at his home at noontime, May 9. Sanders
would have me fmd that it took about 3 hours for this letter
to be delivered to Graminont from the time of its deposit at
a U.S. Post Office. This allows about 1 hour for the typing
and delivery of the letter to the Post Office. Respondent's
attorney earlier in the proceeding indicated that mail
delivery in the area of Oklahoma City was very slow and
that it was not a rare occurence for a letter to take 3 or 4
days to get delivered. Under the circumstances , I fmd that
Sanders prepared and mailed this letter prior to May 9,
presumably on May 8, and predated the letter May 9.
On May 9, in the morning, Grammont again. asked
Attorney Kilpatrick whether the report from Doctor
Brown had arrived at which point Attorney Kilpatrick,
who had not as yet received the report, phoned Attorney
Jeff Dasovich and asked if Dasovich had received the
report and whether Doctor Brown had released Grammont
to go back to work. Attorney Dasovich advised Attorney
Kilpatrick to have Grammont phone either McCowan or
Sanders immediately. Kilpatrick told this to Grammont
who went home and immediately phoned the Respondent's
plant and asked McCowan when he could return to work.
McCowan replied that he had been instructed not to speak
with Grammont but that Grammont should speak with
Sanders. Grammont was advised that Sanders was not
available at that time and would phone him about 1 p.m.
Later that morning, at noontime, Grammont received
Sanders' letter, described earlier, which notified him he had
been discharged . Grammont immediately told his attorney,
Kilpatrick, about the letter. Attorney Kilpatrick advised
Grammont not to discuss his discharge with anyone but
that Kilpatrick would write a letter to Respondent on his
behalf. Accordingly, when Sanders returned his phone call
at 1 p.m. on May 9, Grammont did not bring up the
subject of his return to work.16
On May 10, Attorney Kilpatrick received a copy of
Doctor Brown's report, apparently from Respondent's
insurance company, and on May 14 sent the following
letter to Sanders:
I am in receipt of your May 9th, 1974 letter
addressed to my client, Mr. Paul Grammont, wherein
you advised him that he is terminated from your
employment.
It is true as you state in your letter that my client was
examined by Dr. David Brown on May 3rd, 1974 at
which time Dr. Brown advised my client that he was
conversation m shorthand . This was the first time in his many years as the
Respondent's personnel manager that Sanders engaged in such conduct.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to release him to return to work , however, Mr.
Grammont was not advised by Dr. Brown to return to
work on May 6th. In fact , Dr. Brown did not tell Mr.
Grammont on what date he would be released to return
to work . I advised my client not to return to work until
we were furnished a copy of the report from Dr. Brown
stating in writing when he would be released to return
to work....
My client feels that he is still temporarily totally
disabled . However, he has at all times stood ready to
try to return to his employment when told to do so by
Dr. Brown....
As stated above, my client stands ready and willing
to return to Dayton in an attempt to perform his
job....
There is no evidence that Respondent answered this letter.
To conclude, it is undisputed that during the period of
time prior to his release for work by Doctor Brown that
Grammont had indicated to Respondent he was interested
in performing light duty work for Respondent until his
back was better. In February, Grammont expressed such
an interest on two occasions to McCowan and once to
Sanders . Also, Attorney Kilpatrick, at Grammont's re-
quest, late in February or early March, indicated to Jeff
Dasovich , the attorney representing Respondent and its
insurance company in Grammont's workmen's compensa-
tion suit, that Grammont was willing and ready to go back
to work on light duty. Dasovich stated he would check with
the company and later informed Attorney Kilpatrick that
the company did not want Grammont to return to work
doing light duty. Clearly, Respondent knew that Gram-
mont was interested in continuing his employee relation-
ship.
Ultimate conclusions about Grammont's discharge
Grammont who started work for Respondent in January
1970, as evidenced in the record in the instant case and the
Board's Decision in Dayton Tire I, is one of Respondent's
most experienced and capable tirebuilders . Grammont was
also the leading union adherent among the approximately
900-odd voting unit employees. He was the head of the in-
plant organizing committee and served as an election
observer for the Union during the election of January 24.
At all times during the Union's campaign to organize the
Respondent's employees, Grammont actively solicited
employees to support the Union. Respondent knew that
Grammont was the leading union adherent and because of
this was hostile toward him. In Dayton Tire I the Board
found that Respondent in violation of the Act assigned
Grammont to an undesirable work station and refused to
assign him to a requested , desirable work station because
of his union activities and because he had testified on
behalf of the General Counsel at a Board hearing. In
Dayton Tire II the Board found that representatives of
11 Safety Manager McCowan and Personnel Manager Sanders, in
substance , testified that their course of conduct in connection with
Grammont 's medical situation was not out of the ordinary . No corroborat-
ing testimony was adduced to support this blanket assertion , McCowan as
Respondent violated the Act by making certain statements
to Grammont which were calculated to deter him from
soliciting employees to sign union cards. Then, as I found
earlier in this Decision, in November 1973, Personnel
Manager Sanders, in violation of the Act engaged in
conduct which was calculated to harass and humiliate
Grammont while at the same time inviting Grammont to
quit working for Respondent if he did not enjoy being
subjected to this harassment and humiliation. I do not
believe that it is an overstatement to conclude that the
record establishes that Respondent believed that Gram-
mont was the leading union adherent among its employees,
that Respondent was antagonistic toward him because of
his union activity, that Respondent discriminated against
him because of his union activity, and that Respondent
entertained a strong desire to get rid of Grammont because
of his union activities.
The fact that Respondent wanted to part company with
Grammont because of his union activities does not per se,
however, establish that his discharge was unlawfully
discriminatory. For it is settled that in these circumstances,
"if the employee himself obliges his employer by providing
a valid independent reason for discharge - i.e., by
engaging in conduct for which he would have been
discharged anyway - his discharge cannot properly be
labeled a pretext and ruled unlawful." P. G. Berland Paint
City, Inc., 199 NLRB 927 (1972). In this respect, Personnel
Manager Sanders testified that in the 2-year period prior to
Grammont's discharge that Respondent had treated other
employees in Grammont's situation the same way as
Grammont. Specifically, that four employees were dis-
charged after 3 consecutive days of absence following their
release for work by a Doctor. Sanders' testimony on this
point lacked any degree of specificity. He had no
independent recollection of the details surrounding any of
these discharges nor an independent recollection of the
names of the employees involved. Moreover, his testimony
is uncorroborated. As I indicated earlier, Sanders, in
general , did not impress me as either a reliable or
trustworthy witness. Under the circumstances, I do not
credit his uncorroborated testimony that these employees
occupied the same status as Grammont and that they were
treated in the same manner as Grammont.
I am of the opinion that the record demonstrates that
Respondent, motivated by its union animus toward
Grammont , engaged in an extraordinary course of conduct
which played a significant role in accomplishing his
discharge. The close personal attention devoted to Gram-
mont's medical condition by management in a plant of
over 1,000 employees was not in my view motivated by
normal business considerations.17 Safety Manager
McCowan initiated the medical appointment with Doctor
Brown for May 3 and promptly notified Personnel
Manager Sanders of this fact. On Friday, May 3,
immediately after Doctor Brown finished his examination,
McCowan phoned him for the results and then immediate-
ly communicated the results to Personnel Manager
was the case with Sanders did not impress me as either a reliable or
trustworthy witness when testifying about matters pertaining to Gram-
mont's discharge.
THE DAYTON TIRE & RUBBER COMPANY 1015
Sanders . On Monday, May 6, McCowan again phoned
Doctor Brown about Grammont and again immediately
communicated the conversation to Personnel Manager
Sanders . I cannot believe , in the circumstances of this case,
that this close personal attention given to Grammont's
health and availability for work by top management in a
plant of over 1,000 employees was motivated by a concern
about his health or by other legitimate business considera-
tions . Rather, I find that it was Respondent's antagonism
toward Grammont because of his union activities which
prompted the close attention.
Also significant in evaluating the Respondent 's motiva-
tion in discharging Grammont is the haste in which the
discharge was effectuated . Sanders decided to terminate
Grammont even prior to his receipt of Doctor Brown's
report and was in such a hurry to finalize the discharge that
he prepared and mailed the discharge letter on May 8,
predating it May 9. If Sanders believed that Grammont's
discharge was based on legitimate business considerations,
consistent with the Respondent's past policies, I am
convinced Sanders would not have acted with such haste
nor would he have predated the discharge letter.
In sum, all of the circumstances leading up to and
surrounding the discharge of Grammont lead me to
conclude that this case cannot be described as one in which
"the employee himself obliges his employer by providing a
valid independent reason for discharge " but rather in this
case the Respondent 's unlawfully motivated course of
conduct itself played a significant role in causing the
discharge. Respondent itself helped create the situation
which led to the discharge.
Finally, in evaluating the motivation of Respondent in
discharging Grammont, I cannot ignore the fact that
Respondent appears to have deviated from its published
rule in effecting the discharge . Grammont , as previously
found, did not report to work on Monday, May 6, since he
was waiting for Doctor Brown's medical report. Grammont
testified that section 3 .5 of the Respondent's handbook for
employees required that he submit such a report to the
company's physician prior to returning to work. This
section of the employee , handbook entitled "physical
examination," in pertinent part reads:
If an employee has been absent due to an accident or
illness for more than five consecutive working days, a
return-to-work physical examination is required by
their private doctor and Dayton's Medical Department
before that employee will be authorized to return to
work. This is for the employee's protection as well as
the safety of the other employees . There are two
conditions that must be met before an employee will be
permitted to return to work.
A. The employee must bring to the Medical
Department a memo from their doctor indicating that
he considers their physical or mental condition such
that they are able to return to work . The employee
should tell their doctor the kind of work they do so that
he can judge their fitness. He may wish to place
limitations on what the employee can do.
B. When the Medical Department receives the
above memo from the employee's doctor stating that he
thinks the employee is able to return to work, he will
then be given a back-to-work physical examination.
This will be on the employee's time.
Grammont's belief that before returning to work he had to
submit a report from Doctor Brown to the company's
doctor is consistent with the plain language of the
company's published rule. Nevertheless, McCowan and
Sanders testified that the rule does not mean what it says
- but that while employees have the option of submitting
written releases from their doctor in cases involving on-the-
job injuries, that the rule is intended to only apply to
injuries incurred by employees off the job. Other than their
testimony, Respondent offered no corroborating evidence
that the rule does not mean what it says - and as I have
indicated previously, Sanders and McCowan, when testify-
ing as to matters involving Grammont 's discharge, were
unimpressive witnesses . Moreover , the record establishes
that when employee Bratcher injured his back at work in
April, and when he received a hernia injury on the job in
June 1972, on both occasions he was eligible to return to
work in the eyes of the Company only after the physician
employed in the company's medical clinic had received a
written release from Bratcher's physician and had conduct-
ed a separate examination to certify the fact that Bratcher
was able to work. In other words, Respondent's haste in
acting upon Grammont 's release even prior to the receipt
of Doctor Brown's report - conduct which I have found
was unlawfully motivated - is also contrary to the
Respondent's written policy upon which Grammont was
entitled to rely. This is a further indication that Respon-
dent's antagonism toward Grammont because of his union
activities played a significant part in placing Grammont in
a situation which Respondent could characterize as a
voluntary quit. In this regard, I note that Personnel
Manager Sanders , at the employee meeting in November
1973, expressed the desire that Grammont voluntarily quit
his employment in order to rid himself of a leading union
advocate, and I am convinced that it was this strong desire
which caused Sanders to help create a situation which he
used as a pretext to discharge Grammont as a voluntary
quit.
Based on the foregoing, I find that in discharging
Grammont Respondent was motivated in significant part
by its animus toward him because of his union activities.
Accordingly, by engaging in this conduct, Respondent
violated Section 8(a)(3) and (1) of the Act. In reaching this
decision, I have been guided by the observations of the
Court of Appeals for the tenth Circuit that: "The Act may
be violated if union discrimination is but a partial motive
for the discharge" and its further observation that
"[r]arely, if ever, does an employer admit that an employee
has been discharged for participation in union activities.
Discrimination must, therefore, usually be proved by
circumstantial evidence, and properly so." Betts Baking Co.
v. N.LR.B., 380 F.2d 199, 203, 204 (C.A. 10, 1967).
V. THE CHALLENGED BALLOTS (CASE 16-RC-6465)
Respondent, at the representation election, challenged
the following ballots : F. J. Barron, Dennis K. Whiteley,
Will Ward, and Marcus Mendez . The Union challenged
the ballots of L. J. Price and David Jones. Two ballots cast
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Pat Harrington and C. B. Chambers were challenged by
the Board agent because they were not on the voting
eligibility list. Finally, the Respondent contests the validity
of one ballot which was marked "SiR" in the "Yes" block.
At the hearing, Respondent withdrew all of its challenges
and the Union withdrew its challenge to the ballot of
David Jones. Accordingly, I shall recommend that the
ballots cast by employees F. J. Barron, Dennis K.
Whiteley, Will Ward, Marcus Mendez, and David Jones be
opened and counted. Likewise, I shall recommend that the
ballots of Pat Harrington and C. B. Chambers be opened
and counted inasmuch as the Board in Dayton Tire I found
that they had been discriminatorily discharged by Respon-
dent and were entitled to reinstatement to their former
jobs. Left for disposition is the Union's challenge to the
ballot cast by Price and the Respondent's contention that
one ballot is invalid because of a marking in the "Yes" box.
A. The Alleged Invalid Ballot
The ballot used in the election was the customary one
used in elections where only one union appears on the
ballot. The voters were asked the following question: "Do
you wish to be represented for purposes of collective
bargaining by [name of Union]." The ballot contained
instructions prominently displayed for the voters to
"MARK AN `X' IN THE SQUARE OF YOUR
CHOICE." The ballot contained 2 squares - 1 beneath
the word "YES" and I beneath the word "NO."18 Other
than the instruction "DO NOT SIGN THIS BALLOT"
printed at the bottom of the ballot, there is no warning
given the voter that the ballot will be voided if he makes
any marking on the ballot other than the "X " within the
square of his choice.
The challenged ballot contained an "X" in the "YES"
square and the word "SiR" directly alongside of the word
"YES." Respondent contends that this ballot is invalid
because the voter placed identifying letters on the ballot,
thereby destroying secrecy. The Union urges that the
wording alongside the "YES" was intended to emphasize
the voter's voting intention, that "YES SiR" is not an
identifying mark and clearly illustrates the true intent of
the voter to cast his ballot in favor of the Union.19
Discussion and ultimate findings
The Board's official ballot - particularly in a one-union
election - is simple and easy to understand and it would
not have been an abuse of the Board's discretion, had it
adopted a policy of rejecting any ballot not marked in
precise conformity with the clear instructions on the
ballot's face . The Board, however, has regarded such a rule
as unnecessarily strict. Instead, it has evolved through
decisions in particular cases over the years precedents to
serve as guidelines in resolving challenges to ballots with
so-called irregular markings . See generally NLRB. v.
Whitinsville Spinning Ring Co., 199 F.2d 585, 588 (C.A. 1,
1952).
is I use the term "square" herein to refer to the designated voting square,
and the term "box" to refer to the surrounding compartment.
19 1 have not considered the Union's further contention that other ballots
The official ballot, as noted, directs the voter to "MARK
AN "X" IN THE SQUARE OF YOUR CHOICE." The
Board treats as valid any ballot which a single square has
been marked in substantial compliance with the prescribed
procedure. See e.g. Bridgeton Transit, 124 NLRB 1047,
1048 (1959) (one ballot had "a check mark instead of an
`X' in the `YES' square;" in the other, the "YES" square
was "blocked in with pen lines"); Marshall, Meadows &
Stewart, Inc., 59 NLRB 1286 (1944) (one ballot had only a
"NO" in the "NO" square ; a second had an "X" in the
"NO" square with "NO" beside it; a third had a triple "X"
in the "NO" square; a fourth had a "YES" in the "YES"
square). Also acceptable is a ballot on which one square
has been properly marked, even though there is certain
additional language in the surrounding box. F. J. Stokes
Corp., 117 NLRB 951, 954 (1957) (one ballot had "X" in
the "NO" square, with "hell" printed "alongside to the
right"; the other had "X" in the "NO" square with "hell
no" printed "alongside to the right"); George K Garrett
Company, Inc., 120 NLRB 484 (1958) ("four letter
expletive" written adjacent to the voter's "X" in the "NO"
box); Pioneer Electronics Corp., 112 NLRB 1010 (1955)
(ballot with "X" in the "NO" square and the words "no
union" written out alongside in the "NO" box).
The Board has likewise accepted a ballot even if there
are markings in more than one square so long as there is an
"X" or other unmistakable designation in one square and
the words or marks in the other square are not inconsistent
with that choice . See e.g. Knapp-Sherrill Co., 171 NLRB
1547 (1968) (ballot had "X" in the "NO" square and the
derogatory words "Puto el Union" in the "YES" square).
Going a step further, the Board has counted a ballot
despite the absence of any mark in a voting square if one of
the voting boxes contains a clear and consistent mark. See,
e.g., Crucible Steel Company of America, 117 NLRB 1616
(1957) (ballot had no mark in either "YES" or "NO"
square but word "union" was written in the "NO" box
immediately after the printed word "NO" on the same
plane).
On the other hand, the Board refuses to count a ballot
even where a mark appears in only one place (whether
square or box) if that marking indicates a choice which is
inconsistent with that location . See Burlington Mills Corp.,
56 NLRB 365, 368 (1944).
To sum up, the Board is willing to count a ballot with a
clear, consistent designation even though the mark may be
something other than the prescribed "X," and even if there
are surplus words or signs which reinforce or, at least, are
not inconsistent with the basic choice . In the instant case, I
am of the view that the word "SiR" printed in the "YES"
box adjacent to and on the same plane as the word "YES"
over the "YES" square reinforces the intent of the voter to
cast his vote for the Union. Respondent does not urge
otherwise , rather it contends that the ballot should be
invalidated , because "the voter placed identifying letters on
his ballot, thereby destroying secrecy." For the reasons set
out below, I reject this contention.
smularly marked were not challenged . No evidence was offered on this
point.
THE DAYTON TIRE & RUBBER COMPANY
The test which the Board applies where the argument is
advanced that additional markings on a ballot tend to
identify the voter and because of this should invalidate the
ballot was spelled out in Bridgeton Transit, 124 NLRB
1047, 1048 (1959):20
Under our precedents, a ballot will not be invalidat-
ed by reason of its marking if the marking clearly
indicates the voter 's choice in the election and does not
inherently identify the voter , or is not such a departure
from the usual ways in which people mark ballots to
warrant the conclusion that it is an identifying mark,
uhless it can be shown that the marking was used for
identification purposes at the suggestion or urging of
the participating Union or the Employer.
I am of the opinion that the ballot in question clearly
reveals the intent of the voter , and the marking on the face
of the ballot is not inherently such as to disclose the
identity of the voter. I find further, that the departure from
the normal method of marking ballots involved in this case
was not so unusual as to give rise to the possibility of
revealing the identity of the voter, nor is there any
:ontention that the disputed marking was used for
dentification purposes at the suggestion or urging of the
Union. For these reasons and guided by the Board's policy
is explained in Bridgeton Transit and consistent with the
Board's decisions in Knapp-Sherrill, F. J. Stokes, George
'jarrett, Pioneer Electronics, and Crucible Steel, I find that
he ballot in question is a valid ballot , and I shall
•ecommend that the Board count it in determining the
3utcome of the election.
B. The Challenge to Price's Ballot
The Union at the election challenged the ballot cast by
Louis Price, Jr., on the ground that Price was a statutory
supervisor.
On August 1, 1973, Price had been employed by
Respondent over 2 years and was a final inspector in
department 133 and worked on the third shift. This
department , which approximates the size of a football field,
employed about 50-odd employees on the third shift. Its
supervisory hierarchy on August 1, 1973 was as follows: In
charge of the three shifts was Department Manager Robert
High . The shift foreman was Jim Lape. There were three
statutory supervisors who, in fact , carried the job title
"supervisor". The three were Gary.Cooper, Ron Maddox,
and Don Foreman.
A part of the duty of the supervisors employed in
department 133 was to train and instruct new hires and to
reinstruct the more senior employees. The two entry-level
jobs in the department , sorter and labeler , have a high
turnover of employees and as a result , there is continually a
substantial number of new employees in these jobs who
need "close supervision": They require training. About
20 The Board's rule as defined in Bridgeton Transit was first explicated in
Lantz Iron & Steel Co., 97 NLRB 909 ( 1951), which modified the rule of
Ebco Manufacturing Co., 88 NLRB 983 (1950) and Laconia Malleable Iron
Company Inc., 95 NLRB 161 ( 1951). See Pioneer Electronics Corp., 112
NLRB 1010 (1955). The Board's decision in Lantz Iron do Steel not only
modified the Ebco and Laconia cases cited by Respondent, but in effect,
overruled Warren Petroleum Corp., 96 NLRB 1478, 1435 (1951), also cited
1017
August 1, 1973, Respondent came to the conclusion that
the two supervisors on the third shift over the sorters and
labelers were spending an inordinate amount of time with
the sorters and labelers instructing new hires which
detracted from their ability to effectively supervise their
other employees. It was decided that they should be
relieved from supervising the labelers and sorters who
would be trained by an instructor and on serious problems
would report directly to Foreman Lape. Respondent
appointed Price to the temporary position of instructor for
the sorters and labelers on the third shift. Also, Respon-
dent created the same position for the department's first
and second shifts and appointed Ivan Brown on the first
and Benny Cato on the second shift. Officials of Respon-
dent testified in substance that Price's authority and duties
were identical to Brown's and Cato's. The Union at the
hearing conceded that Brown and Cato "did exactly the
same thing as Price and got paid the same, and all that
business". Price assumed the position of instructor on
August 10, 1973, and Cato and Brown on September 17,
1973. They remained instructors until April 29 - at which
time they were assigned the position of management
trainee - otherwise known as clock-card supervisor, who
are admittedly statutory supervisors excluded from the
stipulated bargaining unit. In regard to the representation
election held on January 24, the names of Brown, Cato,
and Price were on the eligibility list prepared by Respon-
dent, and all three voted with only Price's vote being
challenged.
The newly created position of instructor in department
133 was only temporary until the problem of training had
been solved, but Respondent had no idea of how long it
would be necessary for Price to work as an instructor. The
person who made the decision to create the position of
instructor, Department Manager High, testified that
nothing was ever communicated to the instructors about
the duration of their assignment and, in the same vein,
Price testified that he was never told by management how
long the assignment would last 21
Prior to Price's assignment, the labelers' supervisor was
Cooper, and the sorters' supervisor was Foreman. When
Price took over the job of instructor the labelers and sorters
- new hires as well as the senior employees - were told
by management that Price was assigned to instruct and
help them and that the employees should come directly to
Foreman Lape with any serious problems.22
During the time material to this case, four tire sorters
and seven labelers were employed on the third shift. After
a tire goes through final inspection, a tire sorter segregates
the 150 to 200 different types of tires. This requires an
ability to read various numerical codes printed on the tire.
A labeler labels the finished tire which requires a
knowledge of the meaning of various numerical codes
printed on the tire and an ability to perform certain paper
by Respondent.
21 I reject Foreman Lape's testimony that he told Price the assignment as
instructor could come to an end "any day." Lape was not a convincing
witness on this point.
22 1 do not credit the uncorroborated testimony of labeler Green that
Price, Cooper, and Lapt told the labelers that Price was their supervisor.
Price, Cooper, and Lape each denied this.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. It is undisputed that work performed by the sorters
and labelers is unskilled and very routine.
Price, as an instructor, explained the basic fundamentals
of their work to new hires after which he assigned them to
work with an experienced employee. He periodically
observed the employees - new hires and senior employees
- at work and showed them what they were doing wrong
and advised them how to improve their work. Price divided
his work day this way, between the labelers and sorters. He
did nothing else in the way of production work. Also, one
day a week he held a meeting with the labelers and
presumably the sorters at which time he talked about their
work performance for the preceding week. He compliment-
ed their good work and pointed out their bad work and
explained how it could be improved.
It is undisputed that Price had no authority to discipline
employees or to effectively recommend discipline. When
Price believed that discipline was warranted, he reported
the facts to Foreman Lape who made an independent
evaluation of the situation.
Likewise, Price had no authority to either reward or
effectively recommend that an employee be rewarded.
Price did compliment employees orally and in writing for
being good employees but would place such a written
commendation in an employee's file only after discussing
the matter with Foreman Lape who decided whether a
commendation was warranted. During his 9 months as an
instructor, Price after securing the approval of Lape wrote
two such letters of commendation.
Discussion and ultimate findings
Section 2(11) of the Act defines a supervisor as a person
who has authority "in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge and
assign, reward or discipline other employees or responsibly
to direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not merely
routine or clerical in nature, but requires the use of
independent judgment." I am satisfied that the record as a
whole reflects that Price, during his tenure as an instructor,
had no authority to hire, transfer, suspend, lay off, recall,
promote, discharge, reward, discipline, adjust grievances,
or effectively recommend action as to any of these matters.
Although in instructing and training employees Price
assigned and directed them, this was done routinely and
did not require the use of the type of independent
judgment required by Section 2(11). It was the kind of
work performed by instructors which the Board in
numerous cases has found insufficient to make a person a
23 There is no evidence that other than to instruct or reinstruct
employees in their work that Price transferred employees between jobs or
otherwise assigned or directed employees' work . In this regard, I note that
the sorters and labelers perform routine tasks which required very little
assignment or direction as defined in Sec. 2(11) and the little that was
required was performed apparently by Foreman Lape.
2' In addition to the department 133 supervisors and Price , a group of
employees called "classifiers" reported directly to Lape. The classifiers were
specifically excluded by the parties from the stipulated voting unit.
25 In addition to supervisors it appears that a substantial number of
salaried employees excluded from the voting unit used this parking lot as
well as other employees included in the voting unit.
26 In Dayton Tire I the Board found that these employees were statutory
statutory supervisor.23 See, e.g., National Cash Register
Company, 95 NLRB 27, 32 (1951), and E. I. du Pont de
Nemours And Company Inc., 85 NLRB 1516, 1517 (1949).
Based on the foregoing, I find that Price did not possess or
exercise any of the authority listed in Section 2(11) of the
Act and further find that during the time material to this
case, he did not occupy the status of a statutory supervisor.
The conclusion that Price did not occupy the role of a
statutory supervisor does not end this matter because, as I
expressed to the parties at the close of the hearing, I was
concerned whether the record demonstrated that Price's
community of interest was not substantially the same as
the employees in the voting unit. In this regard, the record
reveals the following:
While an instructor, Price performed a number of duties
ordinarily performed by Respondent's supervisors: (1)
Price distributed, collected, and verified the employees'
timecards and affixed his initials on the part of the
timecard reserved for the initials of the employee's
"supervisor"; (2) Price distributed the employees' pay-
checks; (3) Price instructed the new hires and reinstructed
the older employees; (4) Price reported directly to
Foreman Lape.24
In a number of respects Respondent treated Price as if he
were a member of management: (1) Price used the air-
conditioned office reserved for supervisors and in perform-
ing his job as instructor, he spoke to employees in this
office and frequently spent his lunch and break periods
with the supervisors in the office; (2) Price dressed like a
supervisor - dress shirt, slacks, tie, and name tag; (3) Price
had parking privileges in the parking lot used by supervi-
sors which the employees called "the supervisors' parking
lot" 25 (4) Since Respondent has no permanent code
number for an instructor in department 133, it decided that
the three instructors should use a code number on their
timecards which would result in a rate of pay commensu-
rate with their job. The code selected was the one used for
the classification of clock-card supervisor, also known as
management trainee, which position was excluded by the
parties from the stipulated voting unit.26 The timecards for
Price and the other two instructors carried this code
number but instructors Brown and Cato on the part of the
timecard reserved for "job description" consistently wrote
the word "instructor." Price, on the other hand, during his
entire 9 months as an instructor, except for the first week,
described his position as being that of a "supervisor."
Respondent never questioned his use of this designation; 27
(5) Price went to the monthly safety meetings which were
attended solely by the department foreman and his three
supervisors ; (6) Although he was an hourly-paid employee
supervisors.
27 Price, in explaining why he described himself on his timecards as a
"supervisor" testified he did not believe he was a supervisor but wrote an
incorrect job description because this was the description which correspond-
ed to the code number on the timecard. This is not true . The record
establishes that the job description for Price's code number is "clock-card
supervisor" not simply "supervisor." In some situations this might be an
insignificant variance , but here the titles "supervisor" and "clock-card
supervisor" refer to different classifications and it is plain Respondent's
employees, including Price, realize that the difference between them is
significant. I do not believe that Price's use of the term "supervisor" was an
inadvertence.
THE DAYTON TIRE & RUBBER COMPANY 1019
- supervisors are salaried - Price, as described above,
was treated wage-wise in a manner comparable to a
statutory supervisor - "the clock-card supervisor." In fact
when Price was reassigned in April to the position of
`block-card supervisor" he did not receive an increase in
pay since he was already earning the rate of pay called for
by that classification.
The evidence as detailed above strongly indicates that
Price did not have the same interests as the other
employees in the stipulated voting unit . In fact, Price
apparently felt that he was a member of management. He
designated himself as "supervisor" on his timecard and on
the employees' timecards . When all the circumstances
described above are taken into account it is not surprising
that employees Laufer, Green, and Celestine in substance
testified that they regarded Price as a supervisor.
The Union challenged Price's ballot at the election on
the sole ground that he was a statutory supervisor. It was
not until the end of the hearing, after the parties had
rested, that Respondent was put on notice that I viewed the
issue of Price 's so-called community of interest as impor-
tant to the disposition of his challenged- ballot. Respondent
had not previously been given notice that this was an issue
nor has Respondent ever been given notice that the closely
related issue involving the intent of the parties as to the
scope of the stipulated voting unit is an issue in this case.28
Under the circumstances , it is doubtful whether Respon-
dent has had a fair opportunity to present evidence on
these issues . Cf. International Ladies' Garment Workers'
Union v. N.L.R.B. 339 F.2d 116, 124-125 (C.A. 2, 1964).
But, I need not decide this point because , in agreement
with Respondent , for the reasons set out below, I am of the
opinion that Price's ballot should be opened and counted.
If this issue was mine to decide in the first instance, as I
have indicated above, I might very well have found that
Price did not have a community of interest with the voting
unit employees , and excluded him from the unit. The case
is not in that posture . The election was held pursuant to a
Stipulation for Certification Upon Consent Election, a
procedure whereby the scope and composition of the
voting unit is decided by agreement of the parties and not
the Board . Here Respondent and the Union agreed, in
pertinent part , that the voting unit should include "all
production and warehouse employees and green tire
inspectors" excluding "general office clerical and plant
clerical employees, professional employees , technical em-
ployees , management trainees, laboratory employees,
classifiers, guards, watchmen and supervisors, as defined in
the Act." The law is settled that in stipulated unit cases, the
function of the Board is solely to ascertain the parties'
intent with regard to the disputed employee or employees
and then to determine whether such intent is inconsistent
with any statutory provision or established Board policy.
The Tribune Company, 190 NLRB 398 (1971). Applying
this two-fold test , I conclude that the parties intended to
include the three instructors employed in department 133
within the scope of the production unit . In reaching this
conclusion, I have considered that the Board with only rare
exceptions has traditionally - absent a finding of
28 The Union , the party which is challenging Price's ballot , however
cannot successfully urge that it was not given an opportunity to litigate the
supervisory status - regarded instructors as production
employees and included them within a unit of production
employees. See, e.g., E. I. du Pont de Nemours and
Company, 85 NLRB 1516, 1517 (1949). It is a fair inference
that the parties meant to include the three instructors in
department 133 within the general term "production
employees." Also, an inference from the specific exclusions
of "plant clerical employees" and "classifiers" is that the
parties intended that all employees encompassed by the
general definition "production employees" and not explic-
itly excluded were meant to be included. If this was all, I
would be constrained to conclude that the parties' unit
agreement was vague as to whether they intended to
include the three instructors, Price, Brown, and Cato. Any
ambiguity has been removed, however, by the conduct of
the Respondent and the Union. Respondent placed the
names of Brown, Price, and Cato on the voting eligibility
list that it submitted to the Union and the Board. The
Union allowed Brown and Cato to vote without challenge
and challenged Price's vote, not because he was an
instructor, but solely because he was a "statutory supervi-
sor."
Based on the foregoing, I find that the Respondent and
Union intended to include instructors employed in
department 133 within the scope of the voting unit. I also
find that the inclusion of Price within the stipulated unit
does not violate any statutory provision or Board Policy.
Price is neither a statutory supervisor, a managerial
employee, a confidential employee, nor does he occupy a
status which the Board has traditionally excluded from
voting units as a matter of policy. The fact that he might
lack a community of interest with the other unit employees
would not exclude him from voting. The Tribune Company,
190 NLRB 398 (1971). Accordingly, I shall recommend to
the Board that the Regional Director open and count
Price's ballot.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent, the Dayton Tire & Rubber Company,
A Division of The Firestone Tire & Rubber Company, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, United Rubber, Cork, Linoleum and
Plastic Workers Of America, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening employees with more stringent terms
and conditions of employment if they supported the
Union, by asking whether an employee intended to cast his
ballot for the Union, by threatening that an employee
would not be considered for the position of a supervisor
because the employee supported the Union, and by
subjecting an employee to harassment and humiliation and
inviting the employee to quit his employment because of
the employee's union activities and to discourage others
from supporting the Union, Respondent has engaged in
issue involving the parties intent when they agreed to the voting unit.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices within the meaning of Section 8(aXl)
of the Act.
4. By discharging David Laufer and Paul Grammont
because of their union activities and in order to discourage
other employees from supporting the Union, Respondent
engaged in unfair labor practices within the meaning of
Section 8(aX3) and (1).
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(aX3) and (1) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act. It will also be recommended, in
view of the nature of the unfair labor practices, that
Respondent be ordered to cease and desist from infringing
in any manner upon the rights guaranteed employees by
Section 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, 1941).
Having found that Respondent discriminatorily dis-
charged employee David Laufer , I shall recommend that
the Respondent make him whole for any loss of earnings
suffered by reason of such discrimination , by payment of a
sum of money equal to that which Laufer normally would
have earned as wages from the date of his discharge
December 11 , 1973, to April 26, 1974, the date Laufer was
offered reinstatement to his former position , less net
earnings during such period, with backpay computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and with
interest computed thereon as prescribed by the Board in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent discriminatorily dis-
charged employee Paul Grammont, I shall recommend
that Grammont be reinstated to his former job or if that
job no longer exists to a substantially equivalent position
without prejudice to his seniority and other rights and
privileges, and that he be made whole for any loss of
earnings he may have suffered , by payment to him of a
sum of money equal to that which he would normally have
earned from the date of his discharge, May 8 , 1974, until
Respondent offers to reinstate him, together with interest
thereon , less net earnings, if any , during such period.
Backpay and interest shall be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). In arriving at this remedy, I have carefully
considered the possibilities that Grammont in May 1974
still bothered by a sore back would not have been cleared
for work by Respondent 's own physician or that perhaps
after returning to work Grammont would have found the
work of a tirebuilder too strenuous for his back and
voluntarily quit . There is nothing in the record , however,
which establishes this with any degree of certainty. To the
so 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.
contrary, it is undisputed that Grammont during the time
material unequivocally indicated to Respondent that he
stood "ready and willing to return to Dayton in an attempt
to perform his job ." Under the circumstances , I am of the
opinion that Respondent, rather than Grammont, must
assume the risk of the uncertainty, for it is Respondent by
its unlawful conduct that created the uncertainty.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 29
Respondent, The Dayton Tire & Rubber Company, a
Division of The Firestone Tire and Rubber Company,
Oklahoma City , Oklahoma, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Rubber, Cork,
Linoleum And Plastic Workers Of America, AFL-CIO-
CLC, or any other labor organization by discharging
employees or by otherwise discriminating in regard to the
hire or tenure of employment of employees or any term or
condition of employment.
(b) Questioning employees whether they intend to vote
for the above-named Union, or for any union.
(c) Threatening employees with more stringent terms and
conditions of employment if they give their support to the
above-named Union , or any other union.
(d) Threatening that employees will not be considered
for the position of supervisor because of their union
activities.
(e) Subjecting employees to harassment or humiliation
and inviting them to quit their employment because of
their union activities.
(f) In any manner , interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make David Laufer and Paul Grammont whole for
any loss of earnings suffered by reason of the discrimina-
tion against them, in the manner set forth in the section
herein entitled "The Remedy."
(b) Offer Paul Grammont immediate and full reinstate-
ment to his former position or, if this position no longer
exists, to a substantially equivalent position, without
prejudice to seniority or any other rights and privileges.
(c) Preserve and, upon request, make available to the
Board and its agents , for examination , copying, and
reproduction, all payroll records, timecards and other time
records, shipping records , individual and other production
records, and all other data necessary or helpful to analyze
and compute the backpay required by this Order and to
ensure the proper reinstatement of employees as required
by this Order.
(d) Post at its office and place of business in Oklahoma
City, Oklahoma, copies of the attached notice marked
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.
THE DAYTON TIRE & RUBBER COMPANY
"Appendix ." 30 Copies of said notice to be furnished by the
Regional Director for Region 16, after being signed by a
representative of Respondent , shall be posted by Respon-
dent 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
customarily posted . Reasonable steps shall be taken to
ensure that said notices are not altered , defaced, or covered
by any other material.
(e) Notify said Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint
be dismissed insofar as it alleges unfair labor practices not
found herein.
IT IS FURTHER DIRECTED that Case 16-RC--6465 be
severed and remanded to the Regional Director and that
the Regional Director shall , pursuant to the Rules and
Regulations of the Board, within 10 days from the date of
this Decision, Order, and Direction, at a time and place he
shall announce, count the alleged invalid ballot and open
and count the ballots of F. J. Barron, Dennis K. Whiteley,
Will Ward, Marcus Mendez , L. J. Price, David Jones, C. B.
Chambers, and Pat Harrington and thereafter prepare and
cause to be served on the parties a revised tally of ballots,
including therein the count of the challenged ballots and
the appropriate certification.
30 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1021
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer to reinstate Paul Grammont to his
former job or, if that job does not exist, to a
substantially equivalent one.
WE WILL reimburse David Laufer and Paul Gram-
mont for any loss of earnings suffered because we
discharged them, together with 6 percent interest per
annum.
WE WILL NOT discharge or otherwise discriminate
against you for joining or supporting United Rubber,
Cork, Linoleum and Plastic Workers of America,
AFL-CIO-CLC, or any other labor organization.
WE WILL NOT question whether you intend to vote
for the above-named Union as your bargaining
representative.
WE WILL NOT threaten you with more stringent terms
and conditions of employment for supporting the
above-named Union, or any other union.
WE WILL NOT threaten that you will not be
considered for the position of supervisor if you support
the above-named Union, or any other union.
WE WILL NOT subject you to harassment or humilia-
tion or invite you to quit our employment because you
support the above-named Union, or any other union.
WE WILL NOT in any manner interfere with, restrain,
or coerce you in exercising the rights guaranteed to you
by the National Labor Relations Act.
THE DAYTON TIRE &
RUBBER COMPANY, A
DIVISION OF THE FIRESTONE
TIRE & RUBBER COMPANY