Premier Rubber Co.

National Labor Relations Board - Board Decisions

Sep 28, 1984

272 N.L.R.B. 466 (N.L.R.B. 1984)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Premier Rubber Co. and United Rubber, Cork, Li-
noleum and Plastic Workers of America, AFL-
CIO-CLC Cases 10-CA-17671, 10-CA-17904,
10-CA-17954, and 10-CA-18176
28 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER ,
On 10 December 1982 Administrative Law
Judge Hutton S Brandon 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 2 as modified and to adopt the recom-
mended Order as modified
The judge found that the Respondent engaged in
a number of coercive interrogations in violation of
Section 8(a)(1) of the Act While we adopt many
of the 8(a)(1) findings, we reverse the judge's find-
ings concerning the following three incidents
1 The judge found that the Respondent violated
Section 8(a)(1) when on 6 July 1981 its General
Foreman Mark Slier asked employee Wayne Smith
if he had attended a union meeting When Smith
replied that he had, Slier asked if Smith had been
talked into signing a card Smith answered that he
did not have to be talked into signing We find that
Smith was a known union supporter At the hear-
ing, Smith testified that during the union organiz-
ing campaign he attended union meetings, signed a
card, and openly wore a union button We do not
find this innocuous questioning of an open active
union supporter to be in violation of Section
1 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
2 In the absence of exceptions we adopt pro forma the judge's finding
that the Respondent s no-solicitation, no-distnbution rule was invalid
However, we will not order the Respondent to remedy this violation by
refraining from promulgating or maintaining a rule prohibiting conduct
during working time Subsequent to the judge's decision, the Board
Issued Our Way Inc , 268 NLRB 394 (1983), in which it overruled
T R W Bearings, 257 NLRB 442 (1981) relied on by the judge, and re
turned to the rule in Essex International, 211 NLRB 749 (1974) Since the
rules involved here would be lawful on their face under Our Way, no
useful purpose would be served by ordering the Respondent to expunge,
or otherwise not promulgate, its rules The recommended Order and
notice are modified accordingly
8(a)(1) See Rossmore House, 269 NLRB 1176
(1984)
2 The judge also found that the Respondent vio-
lated Section 8(a)(1) when in the first week of
April 1982 its vice president Bob Glay asked em-
ployee Mary Lambert if her husband "worked for
a union" She answered that he did Glay asked her
which union and how much the dues were When
Lambert replied, Glay commented that it was a lot
of money Lambert testified that she was con-
cerned that she had been singled out We do not
find that Glay's questions were unlawfully coer-
cive They were innocuous and not intended to
elicit information about employees' activities or
union sympathies Further, Glay's questions did not
involve an employee of the Respondent nor neces-
sarily a member of the Union Glay's comment re-
garding the amount of union dues Lambert's hus-
band paid was nothing more than his own opinion
and certainly not prohibited interrogation 3
3 The judge found an additional 8(a)(1) violation
when in August 1981 Mark Slier asked employee
Roger Gumm who wore a union badge on the job
why he was wearing that "chicken shit badge"
Again we do not find this to be coercive interroga-
tion but a harmless comment to an open and active
union supporter Slier was merely expressing his
opinion and not inquiring into Gumm's union activ-
ity or sympathies
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 5 and
renumber the subsequent paragraphs accordingly
"5 The Respondent did not violate Section
8(a)(1) of the Act when its general foreman ques-
tioned employees Wayne Smith and Roger Gumm
or when its vice president questioned employee
Mary Lambert"
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Premier Rubber Co, Lenoir City, Ten-
nessee, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied
3 Contrary to the assertions of our dissenting colleague, we have not
abandoned' the analysis in Rossmore House Rather, we are consistent
with Rossmore House in concluding that Vice President Glay did not un
lawfully Interrogate employee Lambert Glay merely asked Lambert
about her husband, a nonemployee He did not attempt to elicit any infor
mation about employee or union involvement in the organizing campaign
at this particular plant Therefore, under all the circumstances, Glay s in
nocuous and general questions did not reasonably tend to restrain, coerce,
or interfere with Lambert's Sec 7 rights
272 NLRB No 76
PREMIER RUBBER CO 467
I Delete paragraph 1(c) and reletter the subse-
quent paragraphs
2 Substitute the attached notice for that of the
administrative law judge _
MEMBER ZIMMERMAN, dissenting in part
Contrary to my colleagues, I find that the sepa-
rate questioning of Wayne Smith and Roger
Gumm by General Foreman Mark Slier and the
questioning' of employee Mary Lambert by Vice
President Bob Glay constituted coercive interroga-
tion in violation of Section 8(a)(1) of the Act ' My
colleagues rest their conditions concerning employ-
ees Smith and Gumm entirely on the fact that they
were open union supporters As I stated in my dis-
sent in Rossmore House, 269 NLRB 1146 (1984),
"just because an employee is an open union adher-
ent does not end the inquiry into the lawfulness of
an employer's interrogation of him"
Smith was a union adherent 2 Slier, however, did
not merely ask Smith an "innocuous" question, as
characterized by my colleagues Rather, Siler asked
Smith if he had been to a specific meeting at the
home of a specifically named fellow employee Not
content with Smith's affirmative answer to that
question, Slier then followed up by asking Smith if
he had been talked into signing a union card Con-
sidering the probing nature of these questions there
is no basis for characterizing them as "innocuous"
To the contrary, they contain a self-evident tenden-
cy to coerce, restrain, and interfere with the exer-
cise of employee rights under Section 7 of the Act
Furthermore, they did not occur in isolation Siler
told Smith later that day, "You do know that if
you get a union here, that will defeat the whole
purpose of moving down here" In the context of
this statement and the background of the Respond-
' I concur in the violations found by my colleagues For the reasons
set forth in my separate opinion in Our Way Inc , 268 NLRB 394 (1983)
I find the Respondent's rule prohibiting solicitation and distnbution
during 'working time to be unlawfully broad
2 The majority refers to Smith as an "open and active union support
er" because he attended union meetings, signed a union authorization
card, and wore a union button I consider the wearing of a union button
to be the only fact here relevant in determining that Smith was an open
and active union supporter The majority's reliance on attending union
meetings , and signing a card in characterizing Smith as an open and
active union supporter is inexplicable Mere attendance at a union meet
mg, even when done with an employer's knowledge, does not per se Ind,
cate that the employee supports the union Indeed, based on the employ
ee's reaction to the meeting, he may reject the Union As for the signing
of a union authorization card as an indicia of Smith's 'open and active
union support" there is no evidence that the Respondent was previously
aware that Smith had signed a card Indeed, It was only through the Re
spondent's unlawful questioning of Smith that it learned this
ent's other unfair labor practices, I find that the
questioning of Smith by Slier violated Section
8(a)(1) of the Act
Similarly, Siler's question to Gumm about why
he was wearing that "chicken shit badge"—a ques-
tion that obviously invites no answer and which is
calculated only to place the employee on the de-
fensive—not only conveyed disdain for the Union
but, more importantly, displeasure with Gumm's
support of the Union In the context of the Re-
spondent's other unfair labor practices, Siler's inter-
rogation had the tendency to interfere with, re-
strain, and coerce Gumm in the exercise of his stat-
utory rights, and therefore violated Section 8(a)(1)
as alleged
Finally, my colleagues have abandoned their
own Rossmore House analysis in finding that em-
ployee Mary Lambert was not unlawfully interro-
gated In a context of other serious unfair labor
practices, only 1 week before the election, the Re-
spondent's vice president came to Lambert's work
station and asked her if her husband worked for a
union Following Lambert's affirmative response,
the Respondent's vice president then specifically
asked her to identify the union, its location, and the
amount of her husband's union dues
In Rossmore House, my colleagues announced
that, in determining in each case whether interro-
gations of employees are unlawful, they would
consider (1) the background, (2) the nature of the
information sought, (3) the identity of the question-
er, and (4) the place and method of interrogation 3
But they now ignore this analytical framework in
determining that the questioning of Lambert by the
Respondent's vice president under the circum-
stances described above was "innocuous "4 Indeed,
to say, as my colleagues do, that because the vice
president's questions were about Lambert's hus-
band they did not involve her, is to demonstrate
that their intention as announced in Rossmore
House to consider "all the' circumstances" actually
means that the only relevant "circumstance" is
whether the interrogated employee could be said to
be a known union adherent
Accordingly, I find that the Respondent violated
Section 8(a)(1) in all three instances
3 269 NLRB 1176, 1178 fn 20
4 Thus, their analysis is oblivious of the unfair labor practice con
duct of the Respondent, the high executive position of the questioner, the
peculiar nature of the information sought and its intrusion on her family's
pnvacy, and the persistence of the vice president in attempting to ferret
out that information
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees regard-
ing their, or other employees' membership in or ac-
tivities on behalf of United Rubber, Cork, Linole-
um and Plastic Workers of America, AFL-CIO-
CLC, or any other labor organization.
WE WILL NOT tell our employees that they are
being denied consideration for promotions because
of their union activities or support.
WE WILL NOT threaten our employees that they
risk denial of promotions if they join or engage in
activities on behalf of the above or any other labor
organization.
WE WILL NOT discourage activities on behalf of
the above Union or any other labor organization
by discriminatorily suspending or discharging or in
any manner discriminating against employees with
regard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT discriminate against employees be-
cause they express an intention to file charges with
the National Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL offer Danny Hedrick immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL expunge from our files any references
to the suspension or discharge of Danny Hedrick,
and WE WILL notify him that this has been done
and that evidence of his unlawful suspension and
discharge will not be used as a basis for future per-
sonnel actions against him.
PREMIER RUBBER CO.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was heard at Loudon, Tennessee, on Septem-
ber 15 and 16, 1982. The charges in Cases 10-CA-17671,
10-CA-17904, 10-CA-17954, and 10-CA-18176 were
filed by United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, CLC (the Union) on
November 20, 1981, 1 February 19, March 4, and May
19, 1982, respectively. Amended charges were filed in
Case 10-CA-17671 on February 1, 1982, and in Case 10-
CA-18l76 on July 1, 1982. A complaint and notice of
hearing issued in Case 10-CA-17671 on February 8,
1982, and subsequently an order consolidating cases,
complaint and notice of hearing in Cases 10-CA-17671,
10-CA-17904, and 10-CA-17954 issued on April 5, 1982.
Finally, an order consolidating cases, and an amended
consolidated complaint and notice of hearing consolidat-
ing Case 10-CA-18176 with the three previous cases
issued on July 12, 1982. As further amended at the hear-
ing, the consolidated complaint alleges that Premier
Rubber Co. (Respondent) violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act by various
acts of coercive interrogation of employees regarding
their union activities, by threats of plant closure in re-
sponse to the union activity, by threats of denial of pro-
motions due to union activities, by unlawful restrictions
imposed on employees for solicitation of union support
and distribution of union literature, by unlawful threats
of loss of jobs due to union activity, and by unlawful
promises of benefits to discourage union activity. 2 The
8(a)(3) allegations of the complaint allege that Respond-
ent, in order to discourage membership in the Union, un-
lawfully suspended and subsequently discharged its em-
ployee Danny Hedrick, transferred its employee Hugh
Goss to less desirable and more onerous jobs, issued dis-
criminatory disciplinary warnings to employee Roger
Gumm, unlawfully laid off and refused to recall its em-
ployee Claudie Chapman, and unlawfully refused to
transfer its employee Mary Lambert to another work-
shift. The 8(a)(4) allegations of the complaint assert that
a further basis for Respondent's discharge of Hedrick
was Hedrick's expressed intention to file a charge with
the Board, and that Respondent also failed to transfer
Lambert because she had filed charges with the Board.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
' All dates are in 1981 unless otherwise stated
2 At the hearing and in its brief Respondent moved to strike certain
8(a)(1) allegations of the consolidated complaint arguing that no charge
specifiying the acts set forth in those complaint allegations was filed
within the 6-month period of limitations provided in Sec 10(b) of the
Act The motion was denied and the denial is hereby reaffirmed It is
clear that the initial charge m this proceeding, Case 10-CA-17671, which
was filed on November 20 contained a broad assertion that by the specif-
ic acts complained of and by "other acts" Respondent had interfered
with employee exercise of Sec 7 rights The allegations Respondent
seeks to strike are well within the 6-month period encompassed by the
charge in Case 10-CA-17671 And as the Board stated long ago in
Cathey Lumber Co, 86 NLRB 157, 162 (1949)
[W]e conclude that the proviso to Section 10(b) merely extinguishes
liability for those unfair labor practices which were committed more
than 6 months prior to the filing and service of the charge initiating
the case and that a complaint may lawfully enlarge upon a charge if
such additional unfair labor practices were committed no longer than
6 months prior to the filing and service of such charge
PREMIER RUBBER CO 469
FINDINGS OF FACT
I JURISDICTION,
Respondent is an unincorporated division of Eagle-
Picher Industries, Inc , an Ohio corporation, and it main-
tains an office and place of business located in Lenoir
City, Tennessee, where it is engaged in the manufacture
and sale of rubber parts During the calendar year pre-
ceding issuance of the initial complaint herein, Respond-
ent purchased and received at its Lenoir City place of
business goods valued in excess of $50,000 directly from
suppliers located outside the State of Tennessee The
consolidated complaint alleges, Respondent in its answer
admits, and I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
The complaint further alleges, Respondent further
admits, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent began its operations at its Lenoir City
plant sometime in 1980 At its parent plant located at
Dayton, Ohio, Respondent had a collective-bargaining
agreement with Local 160 of the Union In that collec-
tive-bargaining agreement, according to the testimony of
Respondent's attorney, Daniel G Rosenthal, uncontra-
dieted in this regard, there was a provision providing for
recognition of Local 160 at any newly opened plant if a
majority of the employees at the new operation designat-
ed Local 160 as their collective-bargaining representa-
tive From the record it appears that union activity at
Respondent's Lenoir City plant began during the
summer of 1981 Still according to the testimony of
Rosenthal, Local 160 subsequently asserted a claim of
majority representation based on union authorization
cards Respondent resisted recognition based on informa-
tion it had that the cards were solicited through misrep-
resentations to the effect that if Local 160 achieved ma-
jority status the collective-bargaining agreement with
Respondent's Dayton plant would be automatically ap-
plicable to the Lenoir City plant Upon Respondent's re-
fusal to recognize Local 160 at the Lenoir City plant, a
charge alleging an unlawful refusal to bargain by the
Union was filed with the Board Resolution of the
charge was deferred pending an arbitration proceeding
agreed on between Local 160 and Respondent and
scheduled for February or March 1982
The record is not precisely clear as to the results of
the arbitration proceeding However, an election to re-
solve the representation issue was agreed to by the par-
ties and held on April 8, 1982 Challenges to certain bal-
lots in the election were determinative and those chal-
lenges also were arbitrated At the time of the hearing
herein, the arbitrator's decision had not issued and the
representation matter was unresolved 3
3 At the hearing the parties agreed that the arbitration proceeding rela
live to the challenges had no bearing on the instant proceeding
According to the General Counsel's evidence, Re-
spondent began its coercive conduct in the summer of
1981 concurrently with the beginning of the Union's
campaign Alleged unlawful conduct continued through
the spring of 1982 Respondent's conduct alleged to be
independently violative of Section 8(a)(1) of the Act is
set forth below
B The Alleged Unlawful No-Solicitation, No-
Distribution Rule
The complaint alleges, and Respondent by its answer
admits, that since on or about May 21, 1981, Respondent
maintained and distributed to its employees an employee
handbook which contained, inter aim., a provision barring
employees from engaging in the following activities
Unauthorized distribution of literature, written or
printed matter of any description on company
premises including petitions of any nature
Employees are not permitted to distribute any
printed material for any purpose on Company prop-
erty or to solicit or to conduct personal business
during working time Also, the sale of merchandise,
subscriptions or other material is not permitted on
the premises of the company
'
Respondent admitted the existence and distribution of the
handbook The General Counsel alleged that by main-
taining the foregoing provision Respondent prohibited its
employees from engaging in union solicitations and from
distributing union materials in nonworking areas of the
plant during periods of the workday when employees
were properly not engaged in performing their work-
tasks Respondent, on the other hand, contends that it
did not enforce the foregoing rule to prohibit or prevent
union activity or distribution on the Company's premises
Evidence was presented by the General Counsel re-
garding at least one incident of attempted enforcement of
the rule Thus, former employee Danny Hedrick testified
that in mid-June he was engaged in a conversation with
another employee in a break area about signing a union
authorization card and was in the process of showing the
employee the card when he was approached by Supervi-
sor Dwight Moreland who told Hedrick that he was not
allowed to have union material inside the plant Hedrick
testified that he responded that as long as he was in the
break area he was allowed to have the union literature
Moreover, Hedrick even offered to secure literature for
Moreland and asked him if he wished to sign the card In
fact, the following night he brought union literature into
the plant and gave it to Moreland
Moreland, called by Respondent, did not specifically
deny the incident related by Hedrick He recalled only
one time saying something to Hedrick on this subject
and that was that employees could do anything they
wanted to with their material so long as it did not inter-
fere with work Hedrick's recollection appeared to be
more detailed, and his manner sincere Moreover, More-
land did not deny Hedrick's further assertion that he had
actually given literature to Moreland the following night
Further, the existence of Respondent's broad no-solicita-
tion, no-distribution rule lends credence to the likelihood
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Moreland as a supervisor might feel obliged to en-
force it until advised otherwise Accordingly, I credit
Hedrick over Moreland on this issue Thus, while More-
land may not have moved subsequently to bar distribu-
tion of union literature, based on Hedrick's testimony I
conclude that Moreland initially made the comment at-
tributed to him by Hedrick
Even without regard to whether or not Moreland pro-
hibited Hedrick initially from any solicitation or distribu-
tion, it is quite clear that Respondent's rule on its face is
presumptively invalid and unlawful See generally Stod-
dard-Quirk Mfg Co, 138 NLRB 615 (1962) Respond-
ent's rule is so broad as to encompass any distribution of
material on its property without regard to whether such
distribution takes place in work areas or nonwork areas,
and without regard to the time of distribution The rule
further prohibits solicitation during working time In
T R W Bearings, 257 NLRB 442 (1981), reversing Essex
International, 211 NLRB 749 (1974), the Board held that
the use of the words "working time" was ambiguous and
reasonably susceptible to an interpretation by employees
that they are prohibited from engaging in protected ac-
tivity during periods of the workday when they are
properly not engaged in performing their work tasks
The risks of this ambiguity must be borne by the promul-
gator of the rule Rules barring solicitation during work-
ing time without further clarification are presumptively
invalid Accordingly, I conclude that Respondent's no-
solicitation rule here, like its no-distribution rule, is pre-
sumptively invalid
Respondent produced no evidence which would justi-
fy maintenance of its broad no-solicitation, no-distribu-
tion rules Respondent's defense is based solely on the
premise that the rules were not enforced, and it claims
that under Sinko Mfg & Tool Co, 149 NLRB 201 (1974),
no unlawful interference was established I find that cited
cases are inapposite In Sink° Mfg, the rule involved was
not alleged to be unlawful and the Board declined to
pass on the validity of the rule In Detroit Plastic Mold-
ing, 209 NLRB 763 (1974), special circumstances were
present including efforts by the employer to bring its
rule into conformance with Board law Those circum-
stances are not present here
Considering the foregoing, I conclude that Respondent
initially sought to enforce its no-solicitation, no-distribu-
tion rules through Moreland's comments to Hedrick,
thus violating Section 8(a)(1) of the Act I further con-
clude that Respondent's rule on its face with regard to
both solicitation and distribution was unlawfully broad
and violative of Section 8(a)(1) of the Act
C The Alleged Unlawful Interrogation
Hedrick also testified that, around July 1 while at his
work station on the press line, Supervisor Moreland
asked him if he had signed union cards, if he had been
attending union meetings, and whether he knew who else
had been accepting union literature and who had signed
union cards Hedrick replied that he had signed a union
card and had attended some of the meetings, but that he
did not want to give Moreland the names of anyone else
Moreland, in his testimony, denied any conversations
with Hedrick in the summer of 1981 regarding Hedrick's
membership, or his attendance at union meetings He fur-
ther denied asking Hedrick about any employees signing
union cards or attending union meetings While Hedrick
had expressed uncertainty as to the date of the event
with Moreland, his recall otherwise regarding the con-
versation and the remarks attributed to Moreland was
clear and delivered with conviction I credit Hedrick
over Moreland, and I conclude that Moreland's questions
constituted classic interrogation constituting clear inter-
ference with employees' Section 7 rights and was there-
fore violative of Section 8(a)(1) of the Act
Allegations of unlawful interrogation were not restrict-
ed to Moreland Employee Wayne E Smith Jr, a press
operator, testified that then General Foreman Mark Slier
asked him on July 6 4 if Smith had attended a meeting at
employee Hugh Goss' house Smith, who admitted in his
testimony that he had attended a meeting on that date at
Goss' house, replied affirmatively Slier then allegely
asked Smith if they had talked him into signing a union
card Smith replied that he did not have to be talked into
it In another conversation with Slier on the same day
Smith testified that Siler told him, "You do know that if
you get a union here, that will defeat the whole purpose
of moving down here"
Slier, called by Respondent, denied that he had any
conversations with Smith about union activities or meet-
ings Further, Slier, who professed to have a background
in union membership, further specifically denied that he
had had a conversation with Smith inquiring as to
whether he had been talked into signing a union card at
a meeting at Hugh Goss' house While he denied saying
anything to any employees about the possibility of clos-
ing the plant if employees joined the Union, he did not
specifically deny the remark attributed to him by Smith
about the purpose of moving to Lenoir City being de-
feated by unionization, and it is on this remark that the
General Counsel relies to establish the complaint allega-
tion that Slier threatened plant closure if employees or-
ganized
Smith clearly exhibited confusion with respect to the
timing of his conversation with Slier Yet, Smith con-
veyed a distinct impression of sincerity in testifying and,
while the accuracy of his testimony in all respects may
be questioned, I am not persuaded that the conversations
and questions that he attributed to Slier were purely fig-
ments of his imagination Accordingly, weighing his tes-
timony against Siler's bland denials of any conversations
with Smith about the Union, I credit Smith I conclude
that Slier did question Smith regarding the union meet-
ing at Goss' house and that such questioning constituted
unlawful interrogation in violation of Section 8(a)(1) of
the Act as alleged in the complaint On the other hand, I
perceive no threat to close in Siler's other remark about
the organization defeating the purpose of moving to
4 Although Smith said Slier questioned him on the sixth day of the
month he was uncertain as to whether it was in June or July Since he
testified it occurred on the same date as a meeting at Hugh Goss house,
and because the testimony of Goss establishes that he started work for
Respondent on July 6 having moved down from Respondent's Dayton,
Ohio plant, I conclude that the incident with Slier more likely occurred
on July 6
PREMIER RUBBER CO 471
Lenoir City There is no evidence that Respondent
closed its Dayton plant when it opened its Lenoir City
plant At worst, Siler's remark was ambiguous and
would not reasonably cause employees to believe that
the Lenoir City plant would be closed if organized I
therefore find no violation of Section 8(a)(1) in the
remark
Employee Mary Lambert attributed additional unlaw-
ful interrogation to Respondent Vice President Bob
Glay Lambert testified that about a week prior to the
election held on April 8, 1982, Lambert talked to Glay in
Lambert's work area In the conversation Glay asked
Lambert if her husband worked for a union Lambert re-
plied affirmatively and Glay went on to question her as
to what union and where it was Glay further asked how
much Lambert's husband's union dues were and when
Lambert answered Glay commented, "That's a lot of
money, isn't it" Later on the same day, Lambert, after
reflecting on Glay's questions and becoming concerned
that Glay had "singled" her out for some reason, asked
Respondent Manufacturing Manager Floyd Routson if
Glay would be asking the other women if their husbands
worked for unions Routson's response was that he was
sure that Glay would be, that he was not Just picking on
Lambert
Although Glay testified for Respondent that he did
have a conversation with Lambert, he denied the specific
remarks attributed to him by Lambert Although Rout-
son was called as a witness by Respondent, he did not
specifically deny Lambert's inquiry of him concerning
Glay's questions Lambert's testimony was reasonable
and straightforward I found her more believable than
Glay, and it was clear that she was concerned by Glay's
questions in view of her subsequent inquiry of Routson
about whether Glay was asking the other employees the
same questions I conclude that Glay's questions to Lam-
bert amounted to interrogation in violation of Section
8(a)(1) of the Act, as alleged
The consolidated complaint was amended at the hear-
ing to allege that on or about September 3, 1982, Rout-
son interrogated an employee and made a promise of
benefit to the employee in the event the employee re-
frained from engaging in union activity 5 This allegation
is based on the testimony of employee Roger Gumm 6
Gumm testified that, around September 1, Routson asked
him at his work station how his meeting had gone
Gumm testified that he took this to be a reference to a
meeting which Gumm had with the General Counsel's
representative in preparation for the hearing herein
Gumm provided no further details with respect to this
remark by Routson or any response by Gumm Gumm
testified that 2 days later Routson came up to him and
asked him, "Roger, do you care if I ask you a dumb
question?" Gumm responded that he would answer and
5 The amendment was allowed over Respondent's objections with an
offer of a reasonable recess for additional time to respond to the allega
lion No additional time was sought by Respondent
6 Gumm's union support was known to Respondent through his wear-
ing of a union button beginning in late July In fact, Gumm credibly testi
fled that, around the first of August, Slier asked him why he was wearing
that chicken shit badge " Siler's question in this regard constituted, I
find, another instance of unlawful interrogation
Routson asked, "Why does Roger Gumm need a union?"
When Gumm replied ambiguously Routson then re-
sponded, still according to Gumm, "that Gumm could
go a long way in this Company if it wasn't for his be-
liefs, that he could be a supervisor, that he should be a
leader and not a follower" Routson could not recall
asking Gumm whether he needed a union The only con-
versation with Gumm that Routson acknowledged
having around September 3 was one in which he simply
advised Gumm that a record in Gumm's personnel file of
a prior verbal warning the year before was being re-
moved from his file He said he told Gumm that it ap-
peared that Gumm had his head on straight and that the
record of the warning was coming out of his file
Gumm's testimony was clear and emphatic and more
believable than Routson's failure to recall questions at-
tributed to him by Gumm Moreover, the remarks attrib-
uted to Routson by Gumm are consistent with Gumm's
testimony concerning an earlier discussion with Routson
about the Union which was not contradicted by Rout-
son In this regard, Gumm testified that right after he
signed a union card in July he talked to Routson in his
office about the Union While Gumm's testimony was
that Routson talked to him about why he needed the
Union or what he thought about a union, he did not at-
tribute any specific questions to Routson Routson told
Gumm that Gumm was up for being promoted, that he
looked good and had a good attitude Although there
may have been no specific interrogation within the dis-
cussion, it clearly revealed Routson's interest in Gumm's
union inclinations Accordingly, crediting Gumm, I con-
clude that Routson's questions to Gumm in September
constituted unlawful interrogation in violation of Section
8(a)(1) I further conclude that, in context, rather than
promising any benefits to Gumm as alleged also in the
complaint, Respondent through Routson's remark to
Gumm in September implied that Gumm was not being
considered for advancement with Respondent because of
his union beliefs As such, Routson's comments clearly
interfered with Gumm's Section 7 rights in violation of
Section 8(a)(1) of the Act
The consolidated complaint alleges that on or about
August 1 Supervisor Moreland also threatened employ-
ees that Respondent would deny promotion to employ-
ees who joined or engaged in activities on behalf of the
Union To support this allegation, the General Counsel
relies on the testimony of employee Joe Hall Hall relat-
ed that on a Sunday evening around the first of August
he visited the plant to ascertain whether or not he could
trade shifts with another employee While at the plant he
talked to Moreland who told him that if Hall had not
had his union badge on he would be considered for a
foreman position Hall replied that he would rather have
his union badge on than be a foreman There were no
witnesses to this conversation according to Hall More-
land, in his testimony, dented the statement attributed to
him by Hall Hall's exposure on the stand was very brief
and he was not cross-examined with respect to the com-
ments he attributed to Moreland On balance, however,
he appeared to me to be truthful and his recall clear I
credit Hall over Moreland who, on the basis of other
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited testimony, displayed no hesitation in talking to
employees about the Union and making disparaging and
coercive remarks 7 I conclude that Moreland's remark to
Smith clearly threatened that employees supporting the
Union would be denied promotional opportunities and
clearly interfered with Hall's Section 7 rights in violation
of Section 8(a)(1) of the Act as alleged
It is also alleged in the consolidated complaint that
Routson on or about April 1 threatened employees with
loss of jobs if they joined or engaged in activities on
behalf of the Union This allegation is based on the testi-
mony of employee Lambert who testified that, in a dis-
cussion with Routson around April 1 concerning produc-
tion problems, Routson mentioned that if the Union did
come into the plant he "would just about guarantee a
strike" and that they had people standing 14 deep wait-
ing for a Job Routson, in his testimony, denied the
remark I credit Lambert here again and conclude Rout-
son made the remark attributed to him However, the
remark is not absolute in forecasting strike action and a
corresponding replacement of employees Since the
remark stopped short of "guaranteeing" strike action it
cannot be said that the statement implies that Respondent
would take measures to force a strike or that a strike
would necessarily follow as a result of matters within
Respondent's exclusive control It cannot be reasonably
construed as threatening an inevitable strike and loss of
Jobs Accordingly, I find Routson's remark did not inter-
fere with employees' Section 7 rights or violate Section
8(a)(1) of the Act
D The Alleged Unlawful Attorney Interviews
It is undisputed that on January 25, 1982, Respondent's
attorney, Daniel G Rosenthal, interviewed a number of
employees in Respondent's Lenoir City plant in prepara-
tion for a pending arbitration proceeding relative to the
union recognition issue and Respondent's position that
union cards had been obtained through misrepresenta-
tion The General Counsel presented four employee wit-
nesses who testified regarding their interviews with
Rosenthal These witnesses, Gumm, Lambert, Smith, and
employee Claudie Chapman, testified not only as to
Rosenthal's interview with them which took place indi-
vidually in a conference room at Respondent's plant but
also how they happened to be interviewed by Rosenthal
In regard to the latter, Lambert testified that she was
first asked in the plant by Burton Rowell, Respondent's
personnel manager, to go in and talk to Respondent's at-
torney Lambert replied that she would rather not go in,
that she did not want to get involved, and she was not
comfortable talking to a lawyer Rowell replied that the
attorney was just trying to do his job and that there was
not anything to worry about and that she should go in
and talk to him When Lambert insisted that she would
rather not, Rowell left He subsequently came back,
however, and asked her again if she wanted to talk to
the lawyer Again she declined Rowell returned a third
7 For a further example in this regard, Hedrick credibly testified that
Moreland in mid July observed Hednck wearing a union button, and
commented that he might as well be wearing shit on his head as to be
wearing a Union button
time and this time Lambert agreed to go in and talk to
the lawyer Smith and Gumm testified that they were
asked by their foreman, Ross Raper, if they would talk
to the Company's attorney and they both agreed Gumm
specifically testified that Raper had said it was voluntary
Claudie Chapman, on the other hand, said he was only
told by Routson, "You're next We've saved the best for
last"
With respect to what was discussed in the meeting
with Rosenthal, Lambert testified that Rosenthal asked if
she was aware that Local 160 was trying to organize, if
she had been approached by anyone to sign a card, who
had approached her, if she was told that if Local 160
came into the plant it would have the same contract as
the Union had in Dayton As they talked Rosenthal pre-
pared a handwritten statement which he asked Lambert
to sign Lambert related that Rosenthal said she did not
have to sign if she did not want to and he allowed her to
change some "things" and she signed the statement
Smith testified that Rosenthal asked him if he had had
any dealings with the Union before, if he was aware of
the union activities at the plant, if he attended a meeting
at Hugh Goss' house, how many people attended the
meeting, if they had tried to force the Union on the em-
ployees, and if another employee had asked him to sign a
union card and if he was forced to sign a union card
Smith said Rosenthal explained that the statement was
for the Company's files to see who wanted the Union
and who did not Smith added that he initially refused to
sign the paper but agreed to if Rosenthal would add on
the paper that he had chosen to leave a lot of what they
discussed out Rosenthal did so and Smith signed
With respect to his interview with Rosenthal, Gumm
testified simply that Rosenthal explained to him that the
meeting was voluntary but that he wanted to know how
Gumm felt about the Union and inquired whether he had
signed a union card Moreover, Rosenthal showed
Gumm a card and asked him if that was a card that he
had signed Rosenthal asked, if the employees voted the
Union in did they expect Dayton's contract with Local
160 He also asked Gumm if he felt like they needed a
union Rosenthal committed Gumm's remarks to writing
and allowed him to make changes
Chapman testified that, in his interview with Rosen-
thal, Rosenthal asked him if he had signed the union
card, why he signed it, how he found out about it, and if
he was forced to sign the card Further, he testified
Rosenthal asked why Chapman felt they needed the
Union
Rosenthal's view of the discussions he had with the
employees was reflected in the statements which were
prepared by him and signed by the employees Rosenthal
explained that he has been engaged in the practice of
labor law representing management for about 5-1/2 years
and had taken in excess of 100 statements from employ-
ees in similar situations According to Rosenthal, he ad-
hered to the principles set forth in the Board's decision
in Johnnie's Poultry Co, 146 NLRB 770 (1964), enf
denied 344 F 2d 617 (8th Cir 1965) More specifically,
he testified that he told the employees the interview was
voluntary, that he did not care how they felt about the
PREMIER RUBBER CO 473
Union or how anyone else felt about the Union, that
nothing they said or did or chose to say or do would
have any effect on their jobs and he only wanted to talk
about the arbitration proceedings and the refusal-to-bar-
gain charge which had been filed by the Union with the
Board Rosenthal related that he told each employee as
he interviewed each one of them alone that they did not
have any obligation to talk to him at all In each case he
showed the employee the grievance that was pending
and the charge Rosenthal contended that he limited his
questions to the scope of the inquiry In this regard, he
denied asking any employee his or her views on the
Union, but admitted that some of them voluntarily relat-
ed their views anyhow Where some said that they were
for the Union he included that in the statements that he
prepared which were signed by the employees He
denied that he had asked any of the employees about
whether any of their coemployees had signed cards
Rather, he contended he restricted the scope of his ques-
tions to what was said in connection with card solicita-
tion With respect to the statments themselves, he admit-
tedly told employees that he was taking the statements
for the purpose of preparation for the arbitration and
that they would be used only if there a hearing
The statements prepared by Rosenthal and signed by
Gumm, Lambert, Smith, and Chapman were received in
evidence 8 While I have no doubts regarding the sinceri-
ty of testimony of Chapman, Lambert, Gumm, and
Smith, having credited them in other places herein, the
statements executed by them appear to be more consist-
ent with the testimony of Rosenthal Thus, in each in-
stance the statement reflects that it was voluntarily
given, that the employee was individually advised that
whatever they said or did in the interview would not
affect their jobs, that the charge and the grievance were
the subject of the inquiry and were explained to the em-
ployee and that the employee was told that the attorney
did not care how he or anyone else felt about the Union
Moreover, Rosenthal impressed me as credible and, as
indicated, is supported by the statements executed by the
employees It is true, as Roger Gumm testified in his
statement, that Gumm referred to solicitation by Joe
Stewart and Hugh Goss However, the fact that Gumm
revealed those names and that they were included in the
statement given to him by Rosenthal does not in and of
itself establish Rosenthal sought their identification in the
inquiry The testimony of Rosenthal that he only asked
about the card solicitation generally is not inconsistent
with Gumm's written statement On the other hand,
Gumm's broad assertion that Rosenthal asked him what
he thought about the Union or how he felt about it was
contradicted by the written statement he gave to Rosen-
thal in which he asserted that Rosenthal told him Rosen-
thal did not care how he or anyone else felt about the
Union Also the fact that some witnesses related that
"other things were discussed" does not contradict Rosen-
thal's testimony that he stuck to questions within the
scope of the inquiry about the charge and the grievance
although there was some cordial references to other sub-
jects completely outside the issue of union organization
8 R Exhs 3, 4, 5, and 8
Accordingly, on balance I credit Rosenthal, where he
contradicts the employees interviewed by him who testi-
fied herein
In Johnnie's Poultry Co, 146 NLRB 770, 775 (1964),
the Board stated
In allowing an employer the privilege of ascer-
taining the necessary facts from employees in these
given circumstances [the verification of a union's
claim of majority status and the investigation of
facts concerning issues raised in a complaint], the
Board and courts have established specific safe-
guards designed to minimize the coercive impact of
such employer interrogation Thus, the employer
must communicate to the employee the purpose of
the questioning, assure him that no reprisal will take
place, and obtain his participation on a voluntary
basis, the questioning must occur in a context free
from employer hostility to union organization and
must not be itself coercive in nature, and the ques-
tions must not exceed the necessities of the legiti-
mate purpose of prying into other union matters,
eliciting information concerning an employee's sub-
jective state of mind, or otherwise interfering with
the statutory rights of employees When an employ-
er transgresses the boundaries of these safeguards,
he loses the benefits of the privilege [Footnotes
omitted ]
Aside from the argument based on the testimony of
the employees which I had discredited to the effect that
Rosenthal's inquiries were collateral to the issues in the
arbitration and Board charge, the General Counsel as-
serts that Rosenthal's interrogation was unlawful under
Johnnie's Poultry because it took place in a context taint-
ed by Respondent's hostility to union organization as es-
tablished in its other independent violations of Section
8(a)(1) of the Act as alleged and found herein Respond-
ent counters with the argument that all Johnnie's Poultry
safeguards were met in Rosenthal's interviews
As that Fifth Circuit Court of Appeals stated in Texas
Industries v NLRB, 336 F 2d 128, 133 (1964)
Any interrogation by the employer relating to union
matters presents an ever present danger of coercing
employees in violation of their § 7 rights On the
other hand, fairness to the employer dictates that he
be given a reasonable opportunity to prepare his de-
fense
In Johnnie's Poultry, supra, the Board sought to estab-
lish standards preserving the opportunity of the employ-
er to prepare his defense while minimizing the danger of
coercive impact on employees Since Johnnie's Poultry,
the Board has rather strictly applied its standards and in
Standard-Coosa-Thatcher, Carpet Yarn Division, 257
NLRB 304 (1981), enfd 691 F 2d 1133 (4th Cir 1982),
the Board held that compliance with Johnnie 's Poultry sa-
fegaurds constituted the "minimum required to dispel the
potential for coercion" in instances of employer interro-
gation of employees in anticipation of litigation, thus sug-
gesting that any breach of the safeguards Is a per se vio-
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lation In all cases the affirmative duty is on the employ-
er to extend the safeguards to the questioned employees
W W Grainger, Inc , 255 NLRB 1106 (1981)
Board decisions indicate that the most common viola-
tions of Section 8(a)(1) related to the Johnnie's Poultry
standards involve the failure to secure the employee's
voluntary participation in the questioning, the failure to
tell the employee the purpose of the questioning, and the
failure to assure the employee of freedom from reprisals
Failure to comply with the safeguards in these specific
respects are per se violations of the Act, and as the
Board said in Kyle & Stephen, Inc , 259 NLRB 731, 733
(1982), such safeguards are "applicable irrespective of
the employer's intent to coerce, the extent of questioning
or number of employees so interrogated, or the remote-
ness of the interrogation to the alleged unlawful con-
duct" On the other hand, research has revealed no case,
and the General Counsel has cited none, where violation
of the Act has been found where the questioning was at-
tended with all of the Johnnie's Poultry safeguards, except
that it did not take place in a "context free from employ-
er hostility to union organization" See generally Plains
Cooperative Oil Mill, 154 NLRB 1003 (1965), Neuhoff
Bros Packers, 151 NLRB 916 (1965), Lipman Bros, 147
NLRB 1342 (1964) Cf General Plastics Corp, 188
NLRB 710 (1971) I conclude that the fact that the em-
ployee questioning takes place within a context not en-
tirely free from employer union hostility does not estab-
lish, per se, a breach of Johnnie's Poultry safegaurds re-
quiring the finding of a violation of the Act After all, a
conclusion on a per se basis that Johnny's Poultry safe-
guards have not been complied with where there is evi-
dence of employer union animus as reflected by inde-
pendent 8(a)(1) violations would unreasonably deprive an
employer of its opportunity to prepare its defense Some
support for this conclusion can be found in Lammert In-
dustries, 229 NLRB 895 (1977) In that case, an adminis-
trative law judge, with apparent Board approval, exam-
ined an alleged Johnnie's Poultry violation occurring in
the context of an employer's union hostility and conclud-
ed that such hostility, in context, did not make the em-
ployer's questioning of employees through counsel and in
the presence of the other Johnnie's Poultry safeguards un-
lawful Thus, the implication is that where the breach of
the safeguards involves only the "context" of the ques-
tioning by the employer, the totality of the circumstances
must be considered
In the instant case, based on Rosenthal's credited testi-
mony supported by statements executed by the General
Counsel's witnesses, I find that Rosenthal in the conduct
of the questioning complied with the Johnnie's Poultry
safeguards 9 With respect to the context of the question-
9 While Lambert s testimony suggests some degree of pressure related
to the interview in view of the fact that she was asked three times to talk
to Rosenthal, the fact remains that Rosenthal explained to her the volun
tary nature of the interview and she continued with It even to the point
of signing a statement regarding her response to Rosenthal's questions
Rosenthal's explanation to her of the voluntary nature of the interview
coupled with the assurance against any reprisals, I conclude, effectively
removed any coercion which may have been attendant to the repeated
request for the interview
ing, it is quite clear, as found above, Respondent at the
time of questioning had revealed hostility to union orga-
nization by a number of violations of Section 8(a)(1) of
the Act However, while such violations may be consid-
ered as serious, they were not extensive and widespread
and for the most part were largely remote in time to
Rosenthal's interviews, most having occurred 5 to 6
months earlier The one violation of Section 8(a)(3) and
(4) of the Act found below occurred more than 2 months
prior to Rosenthal's interviews Further, Respondent's
willingness to arbitrate the recognition issue, a matter di-
rectly related to Rosenthal's questioning of the employ-
ees, tended to diminish employee perception of over-
whelming union hostility which would otherwise serve
to increase the risk of coercion Accordingly, under
these circumstances, and because all of the other John-
nie's Poultry safeguards were complied with, I find Re-
spondent did not violate Section 8(a)(1) of the Act
through Rosenthal's interviews with the employees 1°
E The Alleged Discriminatory Actions
1 The suspension of Danny Hedrick
The consolidated complaint alleges that Respondent
on or about July 13, 1981, suspended Hedrick because of
his membership in and activities on behalf of the Union
Hedrick was active in the union campaign and secured
some 12 or 15 employee signatures on union authoriza-
tion cards " Hednck's conversations with Moreland re-
garding the Union have already been noted
Hedrick, a press operator, was working on the third
shift (11 p m to 7 a m) on July 10 under the supervision
of Moreland Hedrick's assignment for that evening re-
quired 482 minutes of production 12 Hedrick related that
around 3 to 3 30 a m as Supervisor Moreland came
through his work area Hedrick asked him who was
going to sweep the floor for Hedrick in the press line
that morning Moreland replied that Hedrick was to
clean up his own area Hedrick protested that there was
no way that a person could run 482 minutes on the press
line and have it ready for the next shift and get the floor
swept up Nonetheless, Moreland told Hedrick that
sweeping inside the press line was the press operator's
job and that Hedrick would do it Hedrick proceeded to
work and by the end of the shift had achieved 100 per-
cent production Hedrick testified, however, that as he
was leaving to go to the timeclock that morning he was
asked by Moreland to wait to speak to Routson Hedrick
10 In reaching this conclusion with respect to Rosenthal s interviews,
generally I note that Respondent on January 18, 1982, posted a notice to
employees refernng to the arbitration heanng on the issue of union rec
ognition and observing that some employees might be called as witnesses
The notice, signed by Routson, affirmatively stated that there would be
no reprisal or reward on the part of Respondent for anything any em
ployee might say or do or not say or do in that heanng or in preparation
for that hearing In my view this notice would also serve to lessen the
chance of coercive impact in the Rosenthal interviews
At the time of the initial union campaign, Respondent employed ap-
proximately 40 or 50 employees at the plant
12 Production was figured on the basis of minutes", 480 minutes rep-
resented a full shift However, according to Respondent, the minutes of
production required had built into it allowance for employee break and
lunchtime The constant goal, however, was 100 percent production
PREMIER RUBBER CO 475
did so and met with Routson in Routson's office where
Routson asked Hedrick about the "problem" the preced-
ing night Hedrick replied that there was no way a man
could run 482 minutes on a press line and get his area
cleaned up and have It ready for the next shift Routson
replied that that was the press ,operator's job and ob-
served that Hedrick's attitude had been going down
"real bad lately" Routson added, according to Hedrick,
that when Hedrick had first come he was really excited
about his career there and was a real good employee, but
since the "Union business" had started, Hednck's attitude
had been going down Accordingly, and although it is
undisputed that Hedrick had in fact cleaned up his area
prior to the meeting with Routson, and Routson was
aware of it, Hedrick was suspended for 3 days Hedrick,
who had been employed by Respondent beginning in
January, had had only one prior warning by manage-
ment regarding his work in April occasioned by some
damage done to a press by Hedrick due to improper op-
eration
Respondent's position with respect to Hednck's sus-
pension was related by Moreland and Routson Moreland
testified that on July 10 Hedrick approached him and
told him that he was through "running his minutes" and
that he was not going to clean up the press area More-
land told Hedrick that the cleanup time was figured in
with the production percentages and that the area had to
be cleaned up Hedrick responded that he was not going
to clean it up and then proceeded to the cafeteria area
Moreland subsequently saw Hedrick coming out of the
cafeteria and at that time told him again to clean up his
press area and Hedrick again told him, "No, I'm not
going to" Moreland then told Hedrick that he wanted to
see him after work and Moreland proceeded to call
Routson at his home regarding the situation The call
was placed at 6 30 a m and Routson was at the plant at
approximately 6 40 a m The two waited for Personnel
Manager Burton Rowell to come to the plant and, on
Rowell's arrival, Hedrick was called into Routson's
office Hedrick was asked if he knew what he had done
and Hedrick replied, "Yes, I refused to do a job" He-
drick was asked if he knew what the penalty was and he
replied, "Yeah, a written warning or something like
that" He was told, however, that not carrying out a
direct order of any kind from a supervisor was an auto-
matic discharge Hednck's response was that Superman
went out in the 1950s and he could not do everything at
one time Moreland testified that he was aware that
around 5 minutes before quitting time Hedrick had
cleaned up his work area, and admitted that Hedrick at
the meeting with Routson had stated that he had cleaned
up his work area so "what was the big deal ?" Neverthe-
less, the decision was then made to suspend Hedrick for
3 days Moreland, who was supported by the testimony
of both Rowell and Routson regarding the meeting with
Hedrick, denied that there were any considerations in
the decision to suspend Hedrick other than his failure to
obey a direct order Routson, in his testimony, added
that the fact that Hedrick had gone back and swept up in
his press area prevented his discharge, since Respond-
ent's rules provide for discharge of employees refusing to
do an assigned job task
The General Counsel, relying on Hednck's denial that
he refused a direct order to clean up in his area as well
as the undisputed fact that Hedrick did in fact clean up
his work area prior to his suspension, coupled with Re-
spondent's union animus and its knowledge of Hedrick's
union inclinations, argues that the suspension of Hedrick
was based on union considerations in violation of Section
8(a)(3) and (1) of the Act Further evidence of discrimi-
nation against Hedrick was shown, the General Counsel
argues, by testimony of employee Joe Hall who related
that he also had not cleaned up in his work area during
the week of July 10 but had not been disciplined for
such failure Respondent argues, on the other hand, that
Hedrick's suspension was based solely on the fact that he
refused to follow a direct order of Moreland to clean up
Moreover, Respondent contends that if it had been in-
clined to discriminate against Hedrick it could have dis-
charged him under its rules, but that since Hedrick had
in fact gone ahead and cleaned up his work area it im-
posed the lesser penalty of a 3-day suspension
Resolution of the issue of discrimination against He-
drick rests largely on the determination in this instance
of whether Moreland issued a direct order to Hedrick
which Hedrick failed to follow I credit Hedrick The
fact that he did sweep up around his work area is con-
sistent with Hedrick's contention that he did not refuse
to obey a direct order of Moreland That Hedrick may
not have cleaned up immediately after he had completed
his production is not particularly significant since Re-
spondent concedes that once an employee had achieved
100 percent production the employee is not required to
go into further production and may use any remaining
time in the shift as he sees fit Here Hedrick had
aChieved his production and had even swept up prior to
the end of his shift
In Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d
899 (1st Cir 1981), the Board held that the General
Counsel in alleged unlawful discrimination cases must
first make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision affecting the employ-
ee Once the prima facie case is established, the burden
then shifts to the employer "to demonstrate the same
action would have taken place even in the absence of
protected conduct" Id at 1089 It is quite clear here that
the General Counsel established a prima facie case of dis-
crimination with respect to Hedrick's suspension by
virtue of Respondent's previously found union animus,
Respondent's knowledge of Hedrick's union inclinations,
the timing of the suspension shortly after Hedrick's union
activities became known, Respondent's failure to disci-
pline other employees for not cleaning up prior to the
end of their shifts as demonstrated by the credited testi-
mony of Hall, and the fact that Hedrick had actually
cleaned up around his work area I conclude that Re-
spondent has not rebutted the General Counsel's prima
facie case In reaching this conclusion, I note initially
that, having credited Hedrick, Respondent's contention
that Hedrick refused to obey a direct order is unsubstan-
tiated Accordingly, Respondent's defense has no basis in
fact Respondent's actions therefore appear consistent
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with a determined effort to fabricate a fault on Hedrick's
part In addition, in the discussion prior to imposing the
suspension on Hedrick, I find, on Hednck's credited tes-
timony not specifically contradicted by Respondent, that
Routson referred to Hedrick's attitude and specifically
related Hedrick's involvement with the Union to a
change in attitude for the worse This further shows Re-
spondent's concern with Hedrick's union involvement
Accordingly, I conclude that Respondent has not rebut-
ted the General Counsel's prima facie case and shown
that Hedrick would have been suspended without regard
to his union involvement Hedrick's suspension therefore
violated Section 8(a)(3) of the Act
2 The discharge of Hedrick
The events on which Respondent relied to effectuate
the discharge of Hedrick occurred on Hedrick's shift of
November 16-17 On that shift Hedrick was assigned to
operate presses 1, 2, 11, and 12 It is undisputed that He-
drick achieved only 74 percent production that evening
and his production sheet for that evening contained no
comments reflecting why he had not achieved the 100-
percent goal 13 Moreover, a graphic recording device
which reflected the amount of time specific presses were
operated by Hedrick revealed an inordinate and inexpli-
cable break in production between 3 and 3 30 a m
The following morning Hedrick met with a union rep-
resentative and decided to file charges with the Board
based on his suspension the preceding July Since He-
drick could not recall the dates of the suspension, he
telephonically contacted Personnel Manager Rowell and
asked him for the dates of his suspension the preceding
July Rowell inquired of Hedrick what he wanted the
dates for and Hedrick explained that he was going to file
a charge with the Board In the meantime, according to
the testimony of Day-Shift Supervisor Harold Hodge,
Hodge found that Hedrick's efficiency for the preceding
night had been only 74 percent without any comments
or explanations on his production sheet Hodge reviewed
the bar graph which showed a substantial period of time
when Hedrick was apparently not running all of his
presses and Hodge decided to call the matter to the at-
tention of Routson It was about this time that Rowell
reported to him the telephone call of Hedrick which
Rowell concluded was rather strange Routson testified
that he remarked that he did not think it was strange in
view of what they had discovered the preceding night
about Hedrick Routson further testified that he re-
marked that he thought "the young man is probably in
trouble" and decided to get Hedrick in and "go over and
see if there's something that he hasn't told us or put on
his press sheet " Hedrick was called in and, in the pres-
ence of Rowell and Slier, Routson asked him about the
bar graph for the preceding night According to Rout-
son, Hedrick admitted that he just did not do the pro-
duction It was then decided that Hedrick should be dis-
charged and the discharge was effectuated Routson's
testimony is corroborated by that of Rowell and a memo
" It was Respondent's practice to require employees in the comments
section of the production sheet to explain any problems encountered
which would tend to cause their less than 100 percent production
regarding the matter was prepared by Rowell and dated
November 23 14 The disciplinary action report with re-
spect to the discharge of Hedrick which was signed by
Hedrick, Routson, and Rowell contained in a comment
section the following basis for Hedrick's discharge
Danny Hedrick, this date, failed to perform his as-
signed job duties to the extent that 25% required
production was not accomplished with no reason
offered or given This is employee's second viola-
tion of Item #9, page 30, of employee handbook,
the first resulting in 3 days suspension Considering
this employee's history, including above infractions
and a warning for carelessness, he is terminated ef-
fective 11-17-81 15
Respondent through its witnesses denied that He-
drick's discharge was based on any consideration other
than his violation of the rule specified Hedrick's version
of what took place in the meeting with Routson, Rowell,
and Stier does not significantly contradict the version of
Routson and Rowell Hedrick testified that his explana-
tion to them for not achieving his production the night
before was that "you can't get that on that line, there's
no way" Routson referred to Hedrick's "attitude" going
down and added that they could not tolerate that kind of
attitude and the kind of employee that Hedrick was at
that time Further, Rowell, according to Hedrick, re-
marked that Hedrick knew that he was in the wrong the
night before or he would have not made that "silly
phone call" to Rowell that morning, referring to He-
drick's inquiry regarding the dates of his prior suspension
so that he could file a charge with the Board Hedrick,
on cross-examination, testified that he attempted to ex-
plain to Routson and Rowell in his discussion with them
and on the basis of the bar graph that he had not taken
as long a break as they had attributed to him In this
regard, Hedrick related that part of the problem was at-
tributable to the sequential order in which he loaded the
presses He further related that he had mentioned a prob-
lem he was having to Supervisor Harold Hodge Never-
theless, Hedrick did not make any explanation for his
low production on his production sheet Moreover, he
admitted that he had taken a break the night before at a
time when he was not "ahead in his minutes" of produc-
tion and after he had concluded that there was "no possi-
ble way" to get his production that evening With re-
spect to the problem on the sequential order starting up
his production again after his break, he admitted that it
was a standard problem encountered every time someone
takes a break
In arguing the violation with respect to Hedrick's dis-
charge, the General Counsel relies on Hedrick's earlier
unlawful suspension, the timing of the discharge immedi-
ately after Hedrick had informed Rowell of his decision
to file charges with the Board regarding the prior sus-
14 R Exh 20
15 Item 9 in the employee handbook, R Exh 16, provides for dis
charge for a first violation of a refusal or failure to do job assignment or
follow instructions of foreman or other supervision" This was the same
rule on which Respondent relied in suspending Hedrick in July
PREMIER RUBBER CO 477
-
pension, and the fact that there was evidence that other
employees on other occasions had failed to make 100
percent production and yet had not been disciplined or
discharged With regard to the latter contention, the
General Counsel submitted into evidence production
records of Respondent for the months of July, August,
and November, 16 as well as for February 1982 17 Exami-
nation of the production records clearly establishes that a
substantial number of employees failed to achieve at least
74 percent of production, the production rate Hedrick
had achieved on November 17 These employees were
not discharged Respondent would explain the difference
in the treatment on the premise that the employees who
had these lower production rates were trainees, or were
not permanent operators and were just filling in tempo-
rarily It is quite clear, however, that Respondent failed
to explain in at least one instance the failure to discipline
at least one employee who failed to achieve an appropri-
ate production rate That was Wayne Smith who the
record reflects achieved only 75-percent production for
November 3 and 72-percent production for November 4
Moreover, there was no evidence that Smith had satis-
factorily explained his production failure on his press
sheet .
The elements noted above in the General Counsel's ar-
gument and the facts of the case clearly establish a prima
facie violation of the Act with respect to both the 8(a)(3)
and (4) allegations of the complaint with respect to He-
drick Respondent's expressed defense, Hedrick's failure
to achieve his production on the evening before his dis-
charge, I conclude, does not sufficiently rebut the Gener-
al Counsel's prima facie case and establish that Hedrick
would have been discharged without regard to his union
sympathies or his expressed intention to file a charge
with the Board The fact that Hedrick was at some fault
in failing to achieve a higher production rate cannot be
denied However, as shown at least in the case of Smith,
Respondent did not automatically discharge employees
for achieving less than the normally required production
rate Thus, disparate tieatment is clear Moreover, it is
also clear that Respondent' appeared to attach greater
significance to Hedrick's failure to achieve production
than might have otherwise been accorded it because of
Hednck's expressed intention of filing a charge with the
Board Routson's undemed reference to Hednck's "atti-
tude," and Rowell's reference to Hedrick's "silly phone
call" during the discussion with Hedrick at the time of
his discharge further reveal Respondent's concern with
more than a simple failure of production by Hedrick
That Respondent's concern with Hedrick's attitude was
related to Hedrick's union involvement was shown by
Routson's remark on suspending Hedrick in July that his
attitude had been going down since the "union business"
started
Further evidence of discrimination against Hedrick is
found in the credible testimony of Clydene Goss, an em-
ployee and wife of Hugh Goss, the self-identified em-
ployee union organizer She testified that subsequent to
Hedrick's discharge, in a regularly scheduled meeting be-
16 GC Exhs 3, 5, and 6
" G C Exh 4
tween the finishing department employees and manage-
ment personnel, Routson was asked why Hedrick had
been discharged Routson replied that Hedrick was a
good boy but he just listened to the wrong people Mrs
Goss inquired if Routson was referring to her husband,
and Routson replied, "You said it, Clydene, I didn't"
Routson could not recall having made such a remark I
credit Mrs Goss, whose testimony on the point was
straightforward and uneqUivocal I find that Routson's
remark gave implicit affirmation to the relationship in
Routson's mind between Hedrick's "attitude" and his
union acitivity Hedrick's attitude unquestionably was
relied on by Respondent in effectuating his discharge
The foregoing, including Respondent's union animus,
the disparate treatment accorded Hedrick, a known
union supporter, and the fact that Respondent equated
Hedrick's "attitude" with his union involvement, substan-
tiates the conclusion which I reach here that the evi-
dence does not establish that Respondent would have
discharged Hedrick without regard to his union activity
I therefore find that his discharge violated Section
8(a)(3) and (1) of the Act Moreover, and in any event, it
is undisputed that, in deciding to discharge Hedrick, Re-
spondent relied in part on the discipline (suspension) pre-
viously administered to Hedrick in July Since I have
found that that discipline was discriminatory and viola-
tive of Section 8(a)(3) and (1) of the Act, it follows that
the discharge of Hedrick would not have taken place but
for Respondent's prior unlawful conduct
With respect to the alleged violation of Section 8(a)(4),
Respondent contends that no such violation can be found
because at the time of Hedrick's discharge no charge had
actually been filed In Hoover Design Corp, 167 NLRB
'461, 462 (1967), enf denied in pertinent part 402 F 2d
987 (6th Cir 1968), the Board stated "a discharge of an
employee because he made known a decision to seek
Board assistance on behalf of himself or for himself and
others is an independent violation of Section 8(a)(4) "
See also First National Bank & Trust Co, 209 NLRB 95
(1974) Cf NLRB v Scrivener, 405 U S 117 (1972) Ac-
cordingly, Hedrick's announcement of his intention to
file a charge with the Board causes him to be embraced
by the protection of Section 8(a)(4) so thai. any retalia-
tion by Respondent against Hedrick because of his an-
nounced intention would constitute a violation of that
section of the Act Here, the timing of Hedrick's dis-
charge within hours of Hednck's communication to
Rowell of his intention to go to the Board strongly sup-
ports a conclusion that such communication played a
part in the discharge The conclusion is buttressed by
Rowell's undemed reference to Hedrick's "silly phone
call" during the meeting when Hedrick was discharged
Moreover, even Routson's testimony reflects that Rout-
son equated Hedrick's announcement of his resort to the
Board as tantamount to an admission of misconduct on
the part of Hedrick with respect to his production the
night before To this extent the discharge was directly
related to the filing of the charge and clearly makes out
the prima facie case of an 8(a)(4) violation There is no
evidence to substantiate any contention that Hedrick was
seeking to avoid anticipated discipline by filing a charge
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Board On the contrary, Hedrick did not even
reveal to Rowell that he was going to file charges until
asked by Rowell Moreover, Hedrick credibly testified
that the timing of the filing of the charge was related to
the presence and assistance of a union representative
who had just come to town
In light of the foregoing, I find and conclude that Re-
spondent's discharge of Hedrick was also responsive to
Hedrick's expressed intention of filing a charge with the
Board Accordingly, to the extent Respondent's action
was responsive to Hedrick's intention to file a charge, it
became an additional and inseparable part of the illegal
discharge for union activity Under these circumstances,
I conclude Respondent has not rebutted the General
Counsel's prima facie case by showing that Hedrick
would have been discharged without regard to his inten-
tion to seek Board assistance I therefore conclude that
the discharge of Hedrick also violated Section 8(a)(4) of
the Act
3 The alleged unlawful transfer of Hugh Goss
The consolidated complaint alleges that Hugh Goss
was transferred to a less desirable and more onerous job
on January 13, 1982, because of his union or other pro-
tected concerted activities Goss had worked for Re-
spondent in its Dayton plant for about 15 years when he
transferred to Lenoir City He started work there on
July 6 and almost immediately became involved in union
activity As a matter of fact, on the first day that he
came into the Lenoir City plant Goss testified he talked
to Glay and asked Glay if he would recognize the Union
if the Union would show him that they had a majority of
employees signed up 18
Goss initially was assigned to work as a press operator
on the second shift when he began work in Lenoir City
However, about the first week of August he was trans-
ferred to the first shift where he worked as a utility man
He further testified that sometime in November he was
transferred back to the second shift as a press operator
and was told by his foreman at the time that he was
being transferred because Respondent was going to have
a layoff and the utility job was being done away with
Nevertheless, Goss testified that the utility man's position
on the first shift after he was transferred was temporarily
filled by two women employees Goss admitted, howev-
er, that these employees were also assigned other jobs in
addition to utility work
Goss testified that on the second-shift job he got an in-
crease of pay of 33 cents an hour as a pressman in addi-
tion to a 10-cent-per-hour shift differential While Goss
did not testify regarding any more onerous working con-
ditions with respect to the press operation, he did com-
plain that the assignment to the second shift created a
hardship for him because his wife worked on the first
shift He conceded, however, that Respondent offered to
assign his wife to the second shift in order to meet this
18 Glay, in his testimony, testified that Goss told him that his main
purpose in transferring to Respondent's plant in Lenoir City was to orga-
nize a union While Goss denied such an assertion, I find It unnecessary
to resolve this difference in their testimony It is, in any event, clear that
Respondent was well aware of Goss' organization intentions
difficulty, but Goss rejected that because it would create
only additional hardships due to having to leave his chil-
dren unattended during the second shift This offer of
Respondent occurred about 2 or 3 weeks after he had
moved to the second shift Goss also conceded that
sometime around a month after he had been on the
second shift he was offered the opportunity to transfer
back to the utility job he had left on the first shift
Contrary to the testimony of Goss and the allegation
of the complaint, Respondent asserts that Goss was not
transferred to the second shift until January 18, 1982, and
that Goss was transferred to fill the position of Joe Hall
who was laid off on the same date Personnel records in-
troduced by Respondent regarding Goss' shift change as
well as the layoff of Joe Hall were introduced into evi-
dence and I find fully substantiate the date of Goss'
transfer 19 Moreover, Routson testified that the reassign-
ment of Goss and the layoffs occurred because of a pro-
duction curtailment and a plant layoff and because all
utility jobs, the classifications in which Goss was work-
ing, were eliminated To substantiate its claim of absence
of discrimination with respect to Goss, Respondent
points to the admission of Goss that he was offered a su-
pervisory or management job on at least two occasions
after his transfer to Lenoir City Lastly, it is uncontra-
dieted that Goss exercised his seniority for shift prefer-
ence and returned to the first shift as press operator in
April 1982, bumping Roger Gumm to the second shift in
the process
The General Counsel argues that Respondent's knowl-
edge of Goss' union activity, coupled with Respondent's
union animus, establishes that the transfer of Goss to the
second shift was discriminatorily motivated I find the
violation is not established In my opinion the record
does not reveal a prima facie case of discrimination Goss
was transferred to a higher paying job There was no
showing whatsoever that the job of press operator was
in fact more onerous for Goss The only thing the record
shows is the transfer of Goss to the second shift was
simply inconvenient for him There was absolutely no
showing that Respondent could expect such inconven-
ience would be so burdensome on Goss as to cause him
to quit or to discourage him in his union activities After
all, it must be recalled that Goss was hired on the second
shift when he first came to Lenoir City and he worked
on that shift for over a month Moreover, this record
does not show that Respondent was even aware the
second shift would be an inconvenience to Goss until
sometime after he was on the second shift Even then,
Respondent sought to remedy that inconvenience by an
offer of a transfer of Goss' wife to the second shift
Moreover, even Goss' claimed inconvenience on the
second shift loses significance in view of the fact that he
declined an early transfer back to the first shift in favor
of the recall of another employee Lastly, Goss was
transferred back to the first shift on his own decision to
exercise seniority for that shift There was no showing
that he could not have done this earlier
" Other record evidence, G C Exh 3, shows Goss did do some press
line work in November, but that was on the day shift
PREMIER RUBBER CO 479
Even assuming that the General Counsel had estab-
lished a prima facie case, I am satisfied that Respondent
successfully rebutted it Respondent's claim that the utili-
ty classification was done away with because of layoffs
and a reduction in work force at the time Goss was
transferred to second shift constitutes a reasonable, credi-
ble explanation for the assignment of Goss to the second
shift Respondent's evidence in this regard was not in
any way contradicted While two employees by Goss'
testimony did do some work in the utility classification,
it is quite clear that their work was not confined to that
classification Accordingly, such evidence does not con-
tradict the claim that the classification as such was done
away with at that time Accordingly, despite Respond-
ent's union animus, I find no violation of Section 8(a)(3)
and (1) of the Act in the transfer of Goss to the second
shift
4 The alleged discrminatory issuance of warnings
to Roger Gumm
Gumm was employed by the Company on November
22, 1980, and he worked as a press operator Gumm tes-
tified that he was active in getting a union card signed
and wore a union badge in the plant Comments made by
management personnel to him regarding his union incli-
nations have already been noted herein
Gumm was initially disciplined regarding his work on
November 9 when he received a verbal warning for
"quality carelessness" Subsequently, on November 17,
Supervisor Harold Hodge talked to him about his 70-per-
cent production rate of November 16 On that occasion,
according to Hodge's writeup of the incident, 20 Gumm
had explained that he had not felt good that day In any
event, neither the verbal warning on November 9 nor
Hodge's discussion with Gumm on November 17 is al-
leged or argued by the General Counsel to be discrimi-
natory However, the consolidated complaint does allege
that two disciplinary actions taken against Gumm on
February 25 and 26, 1982, were discriminatory In this
regard, Gumm testified that he was issued a written
warning on February 25 for improperly loading a mold
and running bad parts Gumm admitted that he had a
problem with his mold that evening but had rectified the
situation just as quickly as a quality control girl had
brought the matter to his attention He testified generally
that he had "cut corners" before in production sometime
resulting in some bad quality parts and, when caught,
had changed back to the correct manner of operating
without being reprimanded He did not specify any spe-
cific incident, however, when this had occurred
On February 26, 1982, at the completion of his shift,
Gumm had achieved only 87 percent production Slier
took him to Rowell's office where, according to Gumm,
"they started jumping on to me about my attitude and
said it was bad," and that Gumm "couldn't go no where
with this Company anymore because my attitude was
rotten and I should change it if I was going to do any-
thing in this Company" Gumm was then asked to leave
while they considered whether or not they would sus-
pend Gumm Gumm went to the cafeteria where he
20 R Exh 6
waited and decided that because of certain personal
problems it would be better for him to avoid any risk of
losing his job Accordingly, when he returned to the
office, he specifically apologized for his attitude and he
was told that he would be advised regarding any repri-
mand The following work day Gumm was advised that
his suspension was suspended and, instead, that he would
be on probation for a year
Based on the foregoing evidence, the General Counsel
argues that because Gumm was identified by Respondent
as a union supporter and since Respondent's actions with
respect to him were "inexplicably inconsistent with its
past practice" there was no justifiable or logical reason
for its actions against Gumm other than his union activi-
ties and sympathies
Respondent does not specifically dispute Gumm's testi-
mony regarding the February 25 and 26 events Re-
spondent's witnesses did deny that union considerations
were involved in any respect in the discipline accorded
to Gumm Routson testified for Respondent that he par-
ticipated in the interview with Gumm in February, and
that Gumm offered no excuse for his low production
Accordingly, it was decided that Gumm would be given
a 3-day suspension However, when Gumm came back
into the room he was apologetic and it was subsequently
concluded that since Gumm had some financial problems
it would serve no useful purpose to further punish him
with a 3-day suspension
Notwithstanding the evidence in this record of Re-
spondent's union animus, I am unable to conclude that
the General Counsel has established a prima facie viola-
tion with respect to the warnings issued Gumm While
Respondent was well aware of Gumm's union inclina-
tions, its knowledge in this regard predated by several
months the alleged discriminatory reprimands There-
fore, timing does not support a conclusion of discrimina-
tion Moreover, Gumm had had one prior warning in
November after his involvement in union activity which
was not alleged to be discriminatory Supervisor Hodge
had also talked to him regarding his low production rate
of 70 percent on November 16, which also was not al-
leged to be discriminatory In light of this background
and Gumm's admitted production of scrap on February
25, the warning to him on that date would appear to be
based on valid and nondiscriminatory grounds Likewise,
a clear and legitimate basis existed for discipline of
Gumm on February 26 because of his failure to achieve
more than 87 percent production, particularly in light of
the prior warnings to him While an 87 percent rate
would not at first appear sufficient to warrant discipline,
it does represent a substantial drop for Gumm since he
had been averaging over 100 percent during the month
prior to February 26
The testimony of Respondent's witnesses does not con-
tradict Gumm's claim that Respondent in disciplining
him on February 26 referred to his attitude However,
unlike the situation involving Hedrick, there was no
showing that Respondent related Gumm's "attitude" to
his union activity Finally, if Respondent was bent upon
discriminating against Gumm because of his union activi-
ties, it is highly unlikely that it would have reconsidered
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and retracted Gumm's suspension Accordingly, I con-
clude that the disciplining of Gumm on February 25 and
26 did not violate Section 8(a)(3) and (1) of the Act
5 The alleged discriminatory layoff of Claudie
Chapman
The complaint alleges that Respondent discriminatori-
ly laid off Chapman on February 17, 1982 Chapman
started work for Respondent on September 2, 1980, and
had worked in various positions At the time of his layoff
he was working as a press operator on the second shift
Chapman testified that he had signed a union authoriza-
tion card on November 18, but had not worn a union
button in the plant Chapman, as already related, was
one of those interviewed by Company Attorney Rosen-
thal on January 26
When Chapman reported for work on February 17,
1982, Supervisor Harvey Ross Raper took Chapman to
Rowell's office where he met with Rowell, Routson,
Raper, and Suer Routson asked him if he realized that
he had not been getting his 100 percent production while
everybody else had Chapman responded that as far as
he knew neither of the operators on the first or third
shift had been getting their 100 percent on his line Rout-
son inquired of Chapman what his problem was and
Chapman said there was no use in talking about it be-
cause he had talked about it until he was blue in the face
before and it had not done any good Routson then told
him that they were not going to fire him because he was
a good maintenance man and a good utility man Instead,
he would be laid off and he would be called back Chap-
man inquired about whether he could be transferred into
two other jobs either as a spray booth operator or an ex-
truder helper He contended that there were two em-
ployees working in those positions, specifically Brenda
Harrison and Marsha Hawn, who had less seniority then
he Chapman's testimony reflects no specific response by
Routson to that inquiry, and Chapman was, in fact, laid
off Chapman admitted in his testimony that he remarked
at the time that he was glad that he was getting laid off
rather than being fired It is undisputed that, on April 21,
Chapman was telephonically offered a recall to work in
a utility classification Chapman rejected the offer of
recall because he was told by Rowell who made the
offer that the job would not be permanent but that it
could last from 1 day to 3 weeks or perhaps longer
Supervisor Raper and Manufacturing Manager Rout-
son testified with respect to Respondent's action in
laying off Chapman Raper testified that Chapman had
initially been a press operator but was disqualified be-
cause of his inability to do the work He was also dis-
qualified as a barwell operator, so he was tried out in
mold maintenance where Raper said he also did not
work out Thereafter, he was transferred to the utility
position and performed well in that job 21
Apparently in late fall 1981, there was a layoff and Re-
spondent tried to reassign Chapman so as to prevent his
layoff because of his seniority Accordingly, because
Chapman asked to be again qualified on the press opera-
21 The utility classification was referred to by Raper as a stock han-
dler
tor's job, he was assigned to the press operation 22
During the week of February 10 to 17 after review of
the production records, Raper observed that Chapman
had achieved 100 percent production only one time
within that period He testified he brought the matter to
Routson's attention, and it was concluded after a review
of the records that Chapman was not able to perform the
job even though, according to Raper, Chapman had been
given substantial help at times Accordingly, the decision
was made to lay him off Routson corroborated Raper
and confirmed that because of Chapman's inability to do
the work as a press operator, he was laid off rather than
reassigned because there was no position for which he
was qualified to which he could be assigned 23 Raper
and Routson denied that there were any union consider-
ations involved in the decision to lay off Chapman
I conclude that the evidence is insufficient to establish
a prima facie case of discrimination against Chapman
While production records of Chapman for the months of
December and January are not reflected in the record,
the records of his production in November and Decem-
ber are Those records indicate, as Respondent contends,
that Gumm rarely achieved 100 percent production and
for most of the time was significantly under that rate
More specifically, during the month of February prior to
his layoff Chapman's efficiency was only 85 percent
This was at the conclusion of a 90-day probationary
period during which Chapman should have improved his
efficiency He did not, and there existed a legitmate
basis, I find, for his termination The fact that Respond-
ent laid him off rather than terminate him further reflects
the absence of any discrimination against him Moreover,
Respondent's failure to reassign him to another classifica-
tion does not establish discrimination here in the absence
of evidence that there were other positions to which
Chapman could have been assigned and for which he
was qualified While Chapman's testimony indicates that
there were two positions held by people with less senior-
ity than he, his testimony does not establish that he was
qualified for those positions One position referred to was
the barwell operator, a position for which he was not
qualified, according to Raper's testimony which I credit
in this regard Accordingly, I find no violation of Sec-
tion 8(a)(1) and (3) of the Act with respect to Chapman's
layoff
6 The alleged discriminatory refusal to reassign
Mary Lambert
The complaint alleges that on or about April 26, 1982,
Respondent discriminatorily refused to return its employ-
ee Mary Lambert to the first shift That action, the com-
plaint alleges, constituted retaliation against Lambert be-
cause of her union activity and also because she had been
22 Production records show that Chapman started back at the press
operator's job on the second shift on November 16 Respondent's evi-
dence was that It generally granted employees in new assignments a 90-
day probationary penod Thus the end of the probationary period with
respect to the requalification of Chapman would have been approximate
ly February 17, 1982
23 As already related, supra, in connection with the Goss transfer to
the second shift, the utility classification was not filled at the time of
Chapman s layoff
PREMIER RUBBER CO

481
named in a charge filed by the Board in Case 10-CA-
18176 24 Thus, it is contended that Respondent violated
Section 8(a)(3) and (4) with respect to Lambert
Lambert was employed by Respondent on November
3, 1980 Her conversations with management officials
have already been noted Lambert related that she signed
a card for the Union a month or two prior to the elec-
tion on April 8, 1982 Prior to her transfer to the second
shift in mid-April 1982, Lambert had been working on
the first shift in the inspection' department She was
transferred then into the second shift in an "insert prepa-
ration" area, after having been told by her supervisor
and personnel manager, Rowell, that work was slow and
they did not have enough orders to keep inspectors busy
She was advised that they would be moving her to the
second ,shift to work in the insert area because they
needed two shifts run on that job anyway During the
time that she was on the second shift, Lambert testified
that she heard that a new job was opening up on the first
shift and an employee named Glenda Seay was recalled
to work in that job Lambert thereafter inquired of
Rowell about the new position starting on the day shift
and Rowell explained to her that it was a tedious and
difficult job, that they had had a lot of trouble with it so
they were placing a quality control operator on the job
Lambert testified herein that she was not aware of any
such classifications as a quality control operator although
there was a classification of quality control auditor
Lambert further testified that it had always been Re-
spondent's policy to fill vacancies through a job posting
procedure under which interested employees bid on job
vacancies and were assigned the jobs based on seniority
and qualifications She maintained that that procedure
was not followed with respect to the job to which Seay
was recalled and Lambert maintained that she had more
seniority than Seay Subsequently, at a time not specified
by Lambert, Lambert met Routson in the plant and ex-
plained to him that she was having a difficult time at
home because of working on the second shift and that it
was causing her a lot of hardship She asked to be reas-
signed to day shift if only for a week or so Routson re-
plied that when a permanent inspection job became
available on the day shift that Lambert would definintely
be placed back on that shift in that position, but he could
not tell her when that would be Lambert testified that
she protested that she did not think that someone "could
be done that way," i e, just moved from one job to an-
other without it being posted or anything discussed
about it and Routson replied, "Well, we've still got a lot
of things going right now," and "we don't have this
union thing settled yet either"
According to Lambert, another temporary vacancy
was filled on the first shift by June Latham who had
been recalled from layoff while Lambert remained on the
second shift Although initially recalled and put on a
tumbler operator's job, Latham worked on that position
for only 1 hour and then was placed in inspection to re-
place an inspector that was pulled out of the department
24 The charge, as amended, however, alleged that it was Lambert's
transfer to a less desirable job which was discriminatory rather than Re
spondent's refusal to reassign her on the first shift
and put on the tumbler operator's job Lambert testified
that Latham had less seniority than she Lambert's testi-
mony did not establish exactly when Latham was re-
called and put on the day-shift inspector's work nor does
the record otherwise establish the date
Still according to Lambert, at some point in time after
May 19, 1982, when she had been named in the charge
filed in Case 10-CA-18176 and while she was still on
second shift, she was put back into inspection work on
the second shift After having worked in that position for
about 3 days, she asked her supervisor if she was back in
inspection permanently He said that she was Lambert
then again saw Routson in the plant and asked him if she
was back in inspection permanently why could she not
be put back on the day shift Routson asked what the su-
pervisor had told her, and Lambert replied that the su-
pervisor's response was equivocal and she protested that
she did not think she would have been "done this way,"
that she thought she would be treated right and told
what was going on Routson replied, still according to
Lambert, "Well, I didn't think that a person like you
would file a discrimination charge against me either" It
is uncontradicted that Lambert was in fact transferred
back to the day shift about June 21, 1982
Respondent's evidence does not specifically contradict
Lambert's testimony, but it does explain its own actions
Because of the reduction in force it had been necessary
to reassign Lambert to the second shift based on her se-
niority 25 Rowell testified without contradiction that
Lambert was the last in seniority among the inspectors
and, when she was able to bid on the first shift job in
that position, she was returned to the first shift Routson
testified that he had told Lambert that her seniority had
put her on the second shift but that if she could get
somebody to trade shifts with her that would be all right
with him When Lambert protested that she did not
think that they would do something like that to her, he
admittedly replied that he was a little taken back when
he received the unfair labor practice charge about Lam-
bert and Routson had inquired, "What have I done7"
With respect to the recall of employees from layoff
during the time that Lambert was on second shift, Rout-
son testified that an employee operating a cryogenic de-
flashing machine (a tumbler operator) was on day-to-day
sick leave for treatment It was decided to temporarily
replace her by recalling Latham for temporary assign-
ment to the ill employee's job Latham worked on the
job for a day or two training on the operation after
which time it was decided that a more senior employee,
Linda Harrison, an inspector, should be given the tum-
bler operator job because she was more senior and it was
a higher paying position Latham was then put into Har-
rison's inspection job on the first shift These assign-
ments, according to Routson's testimony, lasted for about
a week and a half until the return of the ill employee
With respect to the recall of Seay, Routson and Rowell
testified that Seay as a quality control employee was
maintained on a different seniority list Seay was recalled
25 The initial assignment of Lambert to the second shift was not al
leged to be discriminatory although the charge in Case 10-CA-18176, as
filed, made that contention
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do a special job which had previously presented prob-
lems to Respondent and Respondent wanted to ensure
through use of a person with quality control experience
that the job was done right Subsequently, after the job
was "straightened out" it was put up for bid and Seay
bid on it on a permanent basis Both Routson and Rowell
denied that the failure to transfer Lambert back to the
first shift in any way involved union considerations or
the fact that Lambert had been named in a charge filed
with the Board
I find that the General Counsel has failed to establish a
prima facie case with respect to Lambert There is no
contention that Lambert's initial assignment to the
second shift was based on union considerations In addi-
tion, the transfer could not be considered as based on
Lambert's involvement in filing charges with the Board
inasmuch as no charges had been filed at that time With
respect to the alleged 8(a)(3) violation, while Respond-
ent's union animus makes its actions suspicious, Lam-
bert's union activity was not so vigorous or extensive as
to make her a logical or likely target for discrimination
Moreover, there is nothing from the standpoint of timing
which would suggest that the failure to reassign Lambert
to the day shift was based on union considerations Rout-
son's remarks to Lambert about the "union thing" not
being settled does not dictate a finding that the failure to
transfer her to the first shift was discriminatory Lambert
was not shown to be qualified for the tumbler operator
work or for the work done by the quality control opera-
tor It does appear that Lambert could reasonably have
been assigned to Harrison's job rather than Latham, and
Latham assigned to the second shift in Lambert's place
However, because Latham's recall was only on a day-to-
day basis and dependent on the return of the ill tumbler
operator replaced by Harrison, it was not illogical to
keep Latham on the same shift as the employee she actu-
ally replaced, Harrison As It turned out Latham's recall
lasted only a few days When Harrison returned to her
position, Latham was reassigned to the second shift I
can find no discrimination against Lambert in these as-
signments
In regard to the alleged 8(a)(4) violation and with re-
spect to the existence of positions on the day shift to
which Lambert could have been reassigned, this record
does not establish clearly that the vacancies were not, in
fact, filled prior to the time of the charge naming Lam-
bert being filed The comment of Routson expressing
surprise that Lambert filed the charges against him is
vague and too ambiguous under the circumstances here,
including the fact that Lambert was reassigned to the
day shift within a month after she filed the charge, to
support the conclusion that the failure to reassign Lam-
bert was due to her having filed the charge
Assuming that the General Counsel had established a
prima facie case of a violation with respect to Lambert, I
am persuaded that Respondent successfully rebutted it
Explanations of Rowell and Rouston regarding the filling
of the positions on the day shift during the time Lambert
was on the second shift were, I find, not only reasonable
and logical, but also uncontradicted I credit these rea-
sons Accordingly, I conclude that neither the 8(a)(3) nor
the 8(a)(4) violations alleged with respect to Lambert
have been established by the requisite preponderance of
evidence
CONCLUSIONS OF LAW
1 Respondent Premier Rubber Co is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By interrogating its employees concerning their
union activities and their union desires, by telling em-
ployees that they are being denied consideration for pro-
motion because of their union activites or support, by
threatening employees that they risk denial of promo-
tions because of their union activities, and by maintaining
and enforcing a broad no-solicitation, no-distribution rule
prohibiting employees from engaging in protected con-
certed activities under the Act during periods of the
workday when employees are not properly engaged in
performing their work tasks, and in places where work
tasks are not performed, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(1) of the Act
4 By suspending its employee Danny Hedrick because
of his union activities in July 1981 and by terminating
Hedrick in November 1981 because of his union activites
and because of his expressed intention to file charges
with the Board, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(a)(3), (4), and (1) of the Act
5 Respondent did not violate Section 8(a)(3) or (4) of
the Act with respect to its failure to reassign its employ-
ee Mary Lambert to the first shift prior to June 21, 1982
6 Respondent did not violate Section 8(a)(3) and (1)
of the Act by its assignment of Hugh Goss to a second-
shift position, by issuing disciplinary warnings to its em-
ployee Roger Gumm or by laying off its employee Clau-
die Chapman
7 The unfair labor practices engaged in by Respond-
ent as set forth above in Conclusions of Law 3 and 4
constitute unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has committed viola-
tions of Section 8(a)(1) of the Act, I shall recommend
that it be required to cease and desist therefrom and take
certain affirmative actions designed to effectuate the poli-
cies of the Act to include the posting of an appropriate
notice to employees Since I have found that Respondent
discriminatorily suspended its employee Danny Hedrick
for 3 days and subsequently discharged him because of
his having engaged in union activities and having ex-
pressed his intention of filing a charge with the Board, it
will be recommended that Respondent be ordered to
offer Hedrick immediate and full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to seniority
or other rights and privileges, and make him whole for
any loss of earnings he may have suffered as a result of
his unlawful suspension and discharge Backpay is to be
PREMIER RUBBER CO 483
computed in accordance with the formula approved in F
W Woolworth Co, 90 NLRB 289 (1950), with interest
computed in the manner prescribed in Florida Steel
Corp, 231 NLRB 651 (1977) 26 Moreover, consistent
with the Board's decision in Sterling Sugars, 261 NLRB
492 (1982), I shall recommend that Respondent be re-
quired to expunge from its records any reference to both
the unlawful suspension and the unlawful discharge of
Hedrick and to provide written notice of such action to
Hedrick and inform him that Respondent's unlawful con-
duct will not be used as a basis for further discipline
against him
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend27
ORDER
The Respondent, Premier Rubber Co, Lenoir City,
Tennessee, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Interrogating its employees regarding their or other
employees' membership in and activities on behalf of
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, CLC, or any other labor organiza-
tion
(b) Threatening employees that they are being denied
promotions or are risking denials of promotion if they
join or engage in activities on behalf of the Union
(c) Maintaining and enforcing an unlawfully broad no-
solicitation, no-distribution rule which prohibits employ-
ees from engaging in protected concerted activity under
the Act during periods of the workday when employees
are not properly engaged in performing their work tasks,
and in places where work tasks are not performed
(d) Discouraging activities on behalf of the above
Union or any other labor organization by discriminatori-
ly suspending or discharging employees or by discrimi-
nating against them in any manner with respect to their
hire or tenure of employment or any term or condition
of employment
(e) Suspending, discharging, or otherwise discriminat-
ing against employees because of their expressed inten-
26 See generally Isis Plumbing Go, 138 NLRB 716, 717-721 (1962)
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
tion of filing charges with the National Labor Relations
Board
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action which is nec-
essary to effectuate the policies of the Act
(a) Offer Danny Hedrick immediate and full reinstate-
ment to his former job or, if such job no longer exists, to
a substantially equivalent position without prejudice to
his seniority or other rights and privileges and make him
whole for any loss of earnings in the manner set forth in
the remedy, including any losses occasioned by his sus-
pension in July 1981
(b) Expunge from the records of Danny Hedrick any
reference to his suspension or discharge and notify him
in writing that this has been done and that the evidence
of his unlawful suspension and unlawful discharge will
not be used as a basis for any future disciplinary actions
against him
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Lenoir City, Tennessee place of business
copies of the attached notice marked "Appendix "28'
Copies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
IT IS ALSO ORDERED that the consolidated complaint
be dismissed insofar as it alleges violations of the Act not
specifically found herein
28 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board