Goodyear Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Apr 6, 1984

269 N.L.R.B. 881 (N.L.R.B. 1984)

GOODYEAR TIRE & RUBBER CO.
Goodyear Tire & Rubber Co. and Carl Joseph Cun-
ningham. Case 7-CA-18422
6 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 28 April 1982 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that employee Carl Joseph
Cunningham was engaged in protected concerted
activity when he refused to perform a rustproofing
assignment on 2 October 1980, and that because his
refusal was prompted by his good-faith belief that
performing the assignment would subject him to
abnormally dangerous working conditions it was
also protected by Section 502 of the Act. The
judge therefore concluded that the Respondent
violated Section 8(a)(1) of the Act by discharging
Cunningham for his refusal. We do not agree.
The relevant facts are as follows. Cunningham
was employed by the Respondent as a general
service employee from 12 April 1978 to 12 May
1979 when he was laid off for economic reasons.
On 2 November 1979 he was rehired as a mechan-
ic. His duties as mechanic were varied, including
both mechanical and nonmechanical tasks, and
prior to 2 October 1980 Cunningham had never re-
fused to perform an assignment. However, on that
date, he refused to perform the first rustproofing
job he had been assigned and the Respondent dis-
charged him.
The Respondent admitted that this assignment
was connected to comments Cunningham had
made to two of its supervisors during the few days
preceding the assignment. Cunningham told Retail
Service Manager Doug Petit, "I'd quit before I'd
do a rustproofing because they do not have the
right equipment to do it safely." Cunningham based
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
269 NLRB No. 155
his opinion on his observation of a nearby rust-
proofing specialty shop. He then listed to Petit the
equipment he thought necessary to do the rust-
proofing safely: goggles, respirators, gloves, eye
wash, hats, and overcoats. In the second conversa-
tion, Store Manager Joe McClure questioned Cun-
ningham about his conversation with Petit. Cun-
ningham verified to McClure that he had told Petit
he would quit before doing a rustproofing job and
repeated, "[W]e didn't have all the proper equip-
ment to do rustproofing."
It is undisputed that Cunningham acted alone in
refusing the rustproofing assignment. In fact, no
evidence was presented that Cunningham had ever
spoken to any other employee about the safety of
the rustproofing operation although other employ-
ees had performed that task. Cunningham admitted
that no other employee had ever complained to
him about rustproofing and that he had not heard
of any complaints about this matter.
In Meyers Industries, 268 NLRB 493 (1984), we
held that "in general, to find an employee's activity
to be 'concerted,' we shall require that it be en-
gaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employ-
ee himself."2 We thereby overruled those cases
which held that the individual assertion of a matter
of common concern to other employees constituted
protected concerted activity. 3 Here, it is undis-
puted that Cunningham acted alone about a matter
exclusively of his own concern. Indeed, Cun-
ningham admitted that he did not know of any
other complaints about the rustproofing operation.
Accordingly, for the reasons set forth in Meyers In-
dustries, we find that Cunningham's refusal to per-
form the rustproofing operation does not amount to
protected concerted activity.
Furthermore, we do not agree with the judge's
determination that Cunningham's refusal to per-
form the rustproofing assignment was protected by
Section 502 of the Act. It is well settled that Sec-
tion 502 applies only .where it has been objectively
established that the working conditions are abnor-
mally dangerous. 4 The evidence here does not
meet this standard.
The rustproofing liquid, Dacarcote, and the sol-
vent cleanser, Darsol 195, have flash points, respec-
tively, of 120 degrees fahrenheit and 195 degrees
fahrenheit. Aside from Cunningham's testimony
that the rustproofing liquid emitted an "ethery,
2 Meyers Industries at 497.
3 See, e.g., Alleluia Cushion Co., 221 NLRB 999 (1975).
4True Drilling Co., 257 NLRB 426, 429 (1981); Redwing Carriers, 130
NLRB 1208, 1209 (1961), enfd. as modified on other grounds 325 F.2d
101l (D.C. Cir. 1963), cert. denied 377 U.S. 905 (1964) See also Gateway
Coal Co. v. Mine Workers, 414 U.S. 368, 385-387 (1974).
881
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
painty" and a "gassy, terrible type" smell, the only
further evidence of the materials' danger are the
labels affixed to the containers.5 These read:
CAUTION-COMBUSTIBLE. KEEP AWAY
FROM HEAT, SPARKS AND FIRE. KEEP
CONTAINER CLOSED. USE WITH ADE-
QUATE VENTILATION. AVOID PRO-
LONGED BREATHING OF VAPORS.
AVOID PROLONGED OR REPEATED
CONTACT WITH SKIN.
Further information from the manufacturer stated:
QUESTION: Is Dacarcote toxic to the respi-
ratory system, skin or eyes? ANSWER: Com-
plete data, which is available on specific re-
quest, indicates that the product is not more
toxic than most products containing solvents.
Reasonable care should be taken to prevent
the product from getting into the eyes; and, of
course, the product should not be taken inter-
nally.
Undisputed testimony shows that the manufactur-
er's sales representative did not use any special
safety or protective equipment when conducting
training sessions of the rustproofing operation, but
merely rolled up his sleeves. The sales representa-
tive, Walter Dellinger, testified that, although he
tells his customers that face masks and goggles are
available as optional equipment, his recommenda-
tion is based on business considerations. He also ex-
plained that safety glasses can be substituted for
goggles. (Cunningham wore safety glasses.) Del-
linger further testified that he would only wear a
face mask if he were performing more than one
rustproofing job in a row and then only to prevent
the discomfort of inhaling too much of the sticky
rustproofing spray. 6 Undisputed testimony also
shows that the rustproofing liquid can be washed
out of eyes with no ill effect and washed off hands
with soap and water. McClure testified that he
wore a cloth hat when rustproofing and an over-
coat, when one was available, but their purpose
was merely to keep the sticky material off his hair
a The judge incorrectly stated that Cunningham had knowledge of
these labels before his discharge. No evidence to this effect was present-
ed.
6 On this point, the record shows that in the 8-month period preceding
Cunningham's discharge the Respondent performed only two or three
rustproofing jobs.
I In making this determination, we do not give any weight to Cun-
ningham's testimony that at a nearby rustproofing specialty shop the em-
ployees were equipped with masks, respirators, eye wash, and overcoats.
No evidence was presented that the rustproofing operation at that loca-
tion was identical or similar to the Respondent's or that the equipment
was essential to the safety of the rustproofing operation.
8 In view of this conclusion, we find it unnecessary to determine
whether Sec. 502 would have otherwise applied to Cunningham's refusal
to work.
and clothes. No state certification is required in
Michigan to perform the rustproofing, and no
other evidence of any local, state, or Federal regu-
lation of the operation was presented. On the basis
of the above evidence, we find that the General
Counsel has failed to substantiate that the Respond-
ent's rustproofing operation created abnormally
dangerous working conditions7 within the meaning
of Section 502 of the Act.8 We therefore shall dis-
miss the complaint.
ORDER
The complaint is dismissed.
MEMBER ZIMMERMAN, concurring.
I agree with my colleages that the refusal of em-
ployee Carl Cunningham to perform the rustproof-
ing operation was not protected concerted activity.
In my dissenting opinion in Meyers Industries,' I
stated that, although the activity of an individual,
under certain circumstances, may be presumed to
be concerted, this presumption can be rebutted by
a demonstration that an individual acted solely in
his own interest. Such is the situation here.
It is undisputed that Cunningham did not act in
concert with other employees when he refused to
perform the rustproofing operation. There is no
evidence that he spoke to other employees about
the safety of the operation and Cunningham admit-
ted that no employee had complained to him about
the matter. Further, the evidence demonstrates that
no other employee had ever been sufficiently con-
cerned about this matter to complain to the Re-
spondent. The Respondent's supervisors, Sullivan
and McClure, testified that during their 8 years of
service with the Respondent they did not receive
or know of any other complaints about the rust-
proofing operation. Neither is there a required state
certification for the rustproofing operation and
Cunningham did not allege that the operation vio-
lated any local, state, or Federal safety regulations.
Instead, Cunningham's concern appears to be based
solely on his observation of the rustproofing oper-
ation at a different facility. In these circumstances,
the Respondent has demonstrated that Cunning-
ham's concern about the rustproofing operation
was an individual matter based on his personal ob-
servation of that operation, and, thereby, effective-
ly rebutted any presumption that his activity was
concerted. On this basis, I concur with my col-
leagues that Cunningham's refusal to perform the
' 268 NLRB 493 (1984).
882
GOODYEAR TIRE & RUBBER CO.
rustproofing operation did not amount to protected
concerted activity.2
* See Comet Fast Freight, 262 NLRB 430, 430-432 (1982); Washington
Cartage, 258 NLRB 701, 704 (1981).
I join my colleagues in finding that the evidence fails to substantiate
that the Respondent's rustproofing operation created abnormally danger-
ous working conditions within the meaning of Sec. 502 of the Act.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Midland, Michigan, on January
21, 1982. The proceeding is based upon a charge filed
October 23, 1980, by Carl Joseph Cunningham, an indi-
vidual. The General Counsel's complaint alleges that
Goodyear Tire and Rubber Co., of Akron, Ohio, violat-
ed Section 8(aX1) of the National Labor Relations Act
by discharging Cunningham because of his protected
concerted activity of refusing to perform dangerous
work.
Briefs were filed by the General Counsel and the Re-
spondent. Upon a review of the entire record in this case
and from my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the manufacture, distri-
bution, and sale of tires and related automotive products
and services and it has gross annual revenues exceeding
$500,000. It maintains a sales and service outlet in Mid-
land, Michigan, and annually receives goods valued in
excess of $50,000 from suppliers outside Michigan. It
admits that at all times material herein it is and has been
an employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
11. THE ALLEGED UNFAIR LABOR PRACTICE
Cunningham, the Charging Party, was hired by the
Respondent on April 12, 1978, as a general service em-
ployee at a rate of $2.35 an hour. He received three
raises of 25 cents an hour each on occasions when he ob-
tained Michigan automobile mechanic certificates for
passing tests on various automotive specialties.
On May 12, 1979, Cunningham was laid off for eco-
nomic reasons. Thereafter, he secured employment with
an automobile dealer in Midland as a front-end alignment
employee at $4 per hour. Cunningham was rehired by
the Respondent on November 2, 1979, after the Re-
spondent's service manager, Joe McClure, visited the
Charging Party at work and asked him to return to the
Respondent, promising that he would be rehired as a
full-time mechanic at $5.05 per hour. When the automo-
bile dealer failed to offer an equivalent raise, Cun-
ningham accepted McClure's offer.
At Goodyear, Cunningham performed a variety of
tasks, including jobs as a mechanic as well as nonme-
chanical jobs such as changing tires. He sometimes
griped about doing tire work and other jobs when he did
not get any commission. However, until October 2, 1980,
he never refused to do any job and Service Manager
McClure considered that he "usually performed very
well as a worker."
On September 22, 1980, McClure was doing a rust-
proofing job and asked Cunningham to assist him by
doing the necessary preparatory work of drilling holes in
the automobile's rocker panels. Cunningham, who wears
glasses with safety lenses, did not ask for goggles or any
other protective gear. He did his task and McClure pro-
ceeded with the rustproofing.
Later the same day, just before closing, Cunningham
and Retail Service Manager Doug Petit were having a
general conversation and the subject of the rustproofing
job came up. Cunningham testified that Petit asked him
why he did not do it, and Cunningham replied,
"[T]here's plenty of mechanical work to do . . . and I
wouldn't do a rustproofing anyway, I'd quit before I'd
do a rustproofing because they do not have the right
equipment to do it safely." Cunningham's belief that the
Respondent did not have the necessary safety equipment
was based on his observations of his brother performing
rustproofing at Tuf-Kote, a rustproofing speciality shop,
where the employees had equipment such as goggles,
mask, gloves, eye wash, and coats. Further, Cunningham
had observed that the rustproof liquid emitted an
"ethery, painty" and a "gassy, terrible type" smell.
Petit testified that, when the subject of McClure's rust-
proofing job came up, Cunningham said that he would
"take time off before he will do rustproofing; he does not
want to get sticky, does not want to have to be working
all day with that sticky mess on him." Petit denied that
Cunningham said anything about safety or proper equip-
ment.
Petit told Service Manager McClure that Cunningham
would not do rustproofing and a few days later McClure
asked Cunningham if he had said he would quit before
he would do rustproofing. Cunningham replied that he
did and told McClure, "[W]e didn't have all the proper
equipment to do rustproofing." Cunningham testified that
McClure said, "[W]ell, you could get fired for saying
something like that" and McClure testified that he "hon-
estly don't recall" if he made the latter statement.
On October 2, 1980, McClure told Cunningham that
there was a rustproofing job for him. Cunningham testi-
fied that McClure said, "[W]e saved it especially for you.
We're going to give you one alternative. Either you do
that rustproofing or you're going to punch out and go
home." McClure admitted the conversation but denied
that he said the job was especially saved for Cun-
ningham. McClure also added that Cunningham had said
the job "took too long and he couldn't make any money
and it was a nasty job." McClure was asked whether he
and any other member of management had discussed
seeing to it that Cunningham was given the next rust-
proofing job that came in and he replied, "[T]o be per-
fectly honest, after hearing that I had a man that was
883
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to refuse some work if it were assigned to him, I
fully intended to give him a chance to do a rustproofing
job, yes."
Cunningham indicated he would not do the rustproof-
ing and McClure told him to punch out and go home.
Cunningham then said he was told he might as well take
his tools with him. He asked if he was fired and was
told, "[C]all it what ever you want."
There is no Michigan certification requirement for
rustproofing of vehicles and Cunningham received no
training in the task. Service Manager McClure and Store
Manager John Sullivan, as well as employees Mike Arts
and Nelson Wagner (both employees of the Respondent's
Midland store during 1980), had received training from
the Respondent's supplier of rustproofing equipment and
materials. Both Arts and McClure had performed rust-
proofing at the Midland store and were available for
work on October 2, 1980.
Dacar Chemical Co. is the Respondent's supplier of
rustproof liquid (Dacarcote) and a solvent cleanser
(Darsol 195). Caution labels, affixed to the containers of
Dacarcote and Darsol 195, state:
CAUTION-COMBUSTIBLE. KEEP AWAY
FROM HEAT, SPARKS AND FIRE. KEEP
CONTAINER CLOSED. USE WITH ADE-
QUATE VENTILATION. AVOID PRO-
LONGED BREATHING OF VAPORS. AVOID
PROLONGED OR REPEATED CONTACT
WITH SKIN.
Dacarcote has a flash point of 120 degrees fahrenheit,
Darsol 195 degrees fahrenheit. The only information
which is provided to Dacar sales representatives with re-
spect to the safety of Dacar products is set forth in a
question and answer pamphlet which states:
QUESTION: Is Dacarcote toxic to the respirato-
ry system, skin or eyes?
ANSWER: Complete data, which is available on
specific request, indicates that the product is not
more toxic than most products containing solvents.
Reasonable care should be taken to prevent the
product from getting into the eyes; and, of course,
the product should not be taken internally.
The Dacar sales representative, Walter Dellinger, was
not an expert on safety matters. Dellinger's predecessor
had conducted training sessions for Goodyear employ-
ees, including McClure and Sullivan. In his demonstra-
tion he did not wear a respirator, hat, or goggles, and
did not wear a protective coat over his shirt and tie, but
simply rolled up his shirt sleeves and performed the
entire operation. Although Dacar also sells various
equipment, including safety glasses and cloth face masks,
none of the protective gear was purchased by Goodyear
at any store in which Sullivan worked and the Goodyear
employees there did not use respirators, goggles, protec-
tive overcoats, or hats while rustproofing customers' cars
(although Service Manager McClure might wear an
overcoat and did wear a paper hat which he created).
Sales representatives are expected to try to sell these
protective items to customers. Both Store Manager Sulli-
van and Service Manager McClure testified that they
have not suffered nor did they know of any other em-
ployee that may have suffered any injury or effects such
as nausea, headaches, or difficulty in breathing from per-
forming rustproofing.
111. DISCUSSION
The issues in this proceeding are whether Carl Joseph
Cunningham was terminated for refusing to perform rust-
proofing work because of his belief that such work was
unsafe and whether refusal for such reason constitutes
protected concerted activity that would warrant a find-
ing that Cunningham's discharge was an unfair labor
practice.
The Respondent also questions whether the original
charge or a copy thereof was properly served upon the
Respondent. Store Manager Sullivan denied receiving a
copy of the charge. However, when Sullivan gave an af-
fidavit to a representative of the Board, he included a
comment that "McClure told me this around the time I
got this unfair labor practice charge in the mail." Sulli-
van also stated that, when he gave his affidavit, he was
shown the charge and it was read to him. Also, an affi-
davit of the docket supervisor of Region 7 of the Nation-
al Labor Relations Board shows that, in the normal
course of business, unfair labor practice charges are sent
by certified mail to all the respondents, along with an
"initial case letter" and other documents. The xerox
copy of the initial case letter shows, in the lower left-
hand corner, that attached thereto is a certified mail re-
ceipt slip which indicates that the charge was sent to the
Respondent by certified mail. Under the circumstances, I
find that the Respondent was served properly with the
original charge and that, otherwise, all parties have had
an opportunity to present evidence and argument such
that a proper record exists for a decision on the merits of
the issues presented.
A. Reason for Termination
There is no controversy over the fact that Service
Manager McClure discharged Cunningham because of
his refusal to do a rustproofing job. The setting for the
discharge was deliberately arranged by McCLure after
he had heard from Sales Manager Petit that Cunningham
had said, on September 22, 1980, that Cunningham
would not do rustproofing. Cunningham was told to do
rustproofing shortly thereafter on October 2, 1980, de-
spite the fact that he had received no training in the task
and despite the fact that other experienced or trained
personnel were available to do the assignment. Cun-
ningham testified that he mentioned safety and the lack
of proper equipment to both Petit and McClure. Howev-
er, both deny hearing such a comment and instead testi-
fied that Cunningham made remarks about not wanting
to work with a sticky mess on him and not wanting to
do a long, nasty job on which he could not make money.
The testimony given by Store Manager Sullivan tends to
attribute some of McClure's comments to Petit and I find
an indication that the remarks attributed to Cunningham
may be contrived. In any event, they tend to be improb-
able, especially when it is recognized that Cunningham
884
GOODYEAR TIRE & RUBBER CO.
was used to working with sticky grease in his duties as a
mechanic. It also appears improbable that Cunningham
would risk his job over comments related to the cosmet-
ics of working with sticky material. Accordingly, I
credit Cunningham's testimony that he mentioned his
concern over proper equipment and safety as the reason
for not wanting to do rustproofing.
Under these circumstances, I find that the General
Counsel has shown that Cunningham's refusal to perform
a rustproofing job was based upon Cunningham's belief
that it was unsafe to perform without proper safety
equipment and that the Respondent knew of his belief.
Otherwise, it is shown that Cunningham was considered
to be a good employee and it is clear that his discharge
would not have taken place in the absence of his refusal
to do the rustproofing job.
B. Nature of the Charging Party Activity
The alleged unfair labor practice necessarily is related
to the Charging Party's having been engaged in protect-
ed concerted activity. In Brown & Root, Inc. v. NLRB,
634 F.2d 816 (5th Cir. 1981), it recently was affirmed
that employee activities are protected when, as a con-
certed protest, they refuse to work in what they perceive
to be unsafe conditions. Thus, it is well established that a
charging party's protest over safe working conditions is
protected and it can be considered to be concerted activ-
ity if, as here, it directly involves the furtherance of a
right which inures to the benefit of fellow employees. Al-
leluia Cushion Co., 221 NLRB 999 (1975). Here, employ-
ees Arts and Wagner had performed or were trained to
perform rustproofing and thus they were in a position to
benefit from Cunningham's activities. Accordingly, Cun-
ningham's conduct cannot be considered to be merely an
unprotected unilateral attempt to establish only personal
conditions of employment.
Section 502 of the Act specifically gives employees the
right to quit labor because of a good-faith belief of ab-
normally dangerous working conditions. Here, I con-
clude that Cunningham's awareness of his brother's use
of safety equipment when regularly performing the same
rustproofing task for another company, combined with
his lack of training and his awareness of the warning
label on the rustproofing liquid that cautions against use
near heat or fire and to avoid prolonged breathing of
vapors or prolonged or repeated contact with the skin, is
enough to establish that he had a genuine good-faith fear
for his safety. Modern Carpet Industries, 236 NLRB 1014
(1978). I further find that the Respondent's attempt to
show that Cunningham was merely feigning, as an
excuse to avoid performance of a "sticky" task, is im-
plausible in view of the Charging Party's normal work
activities with grease. I also find that Cunningham's con-
cern over the perceived danger of improper use of rust-
proofing material is no less real because it might have no
immediate effect or because other persons have not
shown a concern over either immediate or long-range
hazards.
Under these circumstances, and upon a review of the
briefs and the entire record, I am persuaded that the
General Counsel has shown that Cunningham quit work
in good faith because of abnormally dangerous work
conditions and, that Cunningham was engaged in pro-
tected concerted activity under Section 7 of the Act, and
therefore his discharge for engaging in such activity was
a violation of Section 8(a)(1) of the Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By discharging Carl Joseph Cunningham on Octo-
ber 2, 1980, because he engaged in protected concerted
activity for the mutual aid and protection of himself and
other employees, the Respondent engaged in an unfair
labor practice in violation of Section 8(aXl1).
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is recommended that the
Respondent be ordered to cease and desist therefrom and
to take the affirmative action described below which is
designed to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is
recommended that the Respondent be ordered to offer
Carl Joseph Cunningham immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges he
previously enjoyed. It is also recommended that the Re-
spondent be ordered to make Carl Joseph Cunningham
whole for the losses which he suffered as a result of his
termination in accordance with the method set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed by the Board in Florida Steel Corp., 231
NLRB 651 (1977).
[Recommended Order omitted from publication.]
885