Super Tire Corp.

National Labor Relations Board - Board Decisions

Jan 12, 1977

227 N.L.R.B. 949 (N.L.R.B. 1977)

SUPER TIRE CORPORATION
Super Tire Corporation and Joseph Aspell. Case 8-
CA-9743
January 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On August 31, 1976, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief' and has decided to affirm the rulings, findings,2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
The Respondent contends in its exceptions and
brief that the Administrative Law Judge's Decision
"reflects prejudgment, advocacy and bias." In re-
sponse to this, allegation and in furtherance of our
obligation to carefully review the record in cases
before us, we have examined the record in the instant
proceeding and for the reasons stated below find no
merit in the Respondent's allegation.
In support of the above allegation, the Respondent
refers specifically to two statements made by the
Administrative Law Judge, one which goes to its
prejudgment contention and the other which goes to
its argument that the Administrative Law Judge has
identified himself with the General Counsel. The first
statement was made during cross-examination of the
General Counsel's first witness. In that statement, the
Administrative Law Judge indicated that he believed
the witness. In the second statement, which was made
prior to the close of the General Counsel's case, the
Administrative Law Judge expressed his view that
"we have established a pretty strong prima facie
case." While,we believe that the Administrative Law
i Respondent's request for oral argument is hereby denied since the
record; the exceptions, and the brief adequately present the issues and
positions of the parties.
2 In adopting the Administrative Law Judge's Decision, we note that he
inadvertently referred to September 25, 1975, instead of September 22, 1975,
as the date that Alloway informed Charles G. Brestle that the employees had
walked out; he inadvertently referred to August 29 and 30, 1975, instead of
September 29 and 30, 1975, as the dates on which Breatle visited the Old Fort
facility; and he also inadvertently referred to August 14 and September 22,
1976, instead of 1975, as the dates on which the Respondent made unlawful
threats to discharge employees if they complained to management represen-
tatives in New Jersey. However, these minor misstatements do not affect our
conclusion herein.
Based on its assertion that there is no such person by the name of Charlie
227 NLRB No. 132
949
Judge should not have made either of these state-
ments, we reject the conclusion reached by the
Respondent that they are evidence of a biased and
prejudicial attitude on the part of the Administrative
Law Judge. Our conclusion in this regard is based on
a careful review of the entire record in this case,
which reveals that the Administrative Law Judge's
findings of fact and conclusions of law are based on
the preponderance of the evidence presented herein.
That evidence establishes that on the morning of
September 22, 1975, the employees involved herein
complained to the Respondent's branch manager
about what they considered to be unacceptable
working conditions; that the branch manager refused
to contact management in New Jersey in connection
with the employees' complaints; and that, having
failed in their efforts to resolve their conflict with
management, the employees went out on strike in a
concerted manner in protest over the working condi-
tions they deemed to be unacceptable. The General
Counsel's witnesses all asserted that the primary
complaints were related to unsafe working condi-
tions, while the Respondent's witnesses maintained
that the walkout was in response to employee
complaints about "anything and everything." Wheth-
er the employees' complaints were limited solely to
safety complaints or whether they were, as the
Respondent claims, related to the shift change and
the production report requirement, inter alia, both
made effective on the day that the strike commenced,
is not of crucial importance. What is of importance,
however, is the fact that the employees, involved
herein exercised their Section 7 right to engage in a
strike to protest working „conditions which they
considered to be objectionable. For exercising that
right, we find, in agreement with the Administrative
Law Judge, that they were summarily discharged by
the Respondent in violation of Section 8(a)(1) of the
Act.
Having disposed of the Respondent's allegation
that the Administrative Law Judge's Decision "re-
flects prejudgment, advocacy and bias," we now turn
to the Respondent's contention that employees
Aspell and Wheeler ought to be barred from rein-
statement because they engaged in "serious miscon-
Chayis, the Respondent excepts to the Administrative Law Judge's finding
that some of the employees told Charlie Chavis, a Respondent vice president,
2 or 3 days after the walkout that they would like to goback to work if the
Respondent "fixed up the safety conditions." The testimony of David
Belcher on this point reads as follows : "Charlie Chaves, I dunk his name was.
He was the vice president at that time . He come over and talked with us. We
told him we would like to go back-to work if they fixed up the safety
conditions." While it appears that Belcher confused the name of the
Respondent's president , Schaevitz, with the name of the Respondent's vice
president, Charles Brestle, we can not say this with any degree of certainty.
What is clear, however, is that some of the employees told one of the
Respondent's vice presidents that they would like to go back to work if the
Respondent "fixed up" the safety conditions, and that fact is uncontroverted
in the record.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct." The Administrative Law Judge found that the
"(e)vidence offered to support this claim lacks the
necessary credibility or weight to justify their disqua-
lification for reinstatement for this reason." As the
clear preponderance of all the relevant evidence
convinces us that the Administrative Law Judge's
credibility resolutions are correct, we shall adopt his
findings and order reinstatement as recommended by
him.3
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of
the Act.
Having found that the Respondent unlawfully
discharged Joseph Aspell, Charles Priddy, Wayne
Allen Demmy, Joseph Allen Saunders, Clinton
Wheeler, Kenneth L. Boltz, David Belcher, David
Rau, Clarence E. Hill, Andrew Cantu, and Michael
Terry, on September 23, 1975, and that it has since
failed and refused to reinstate them, because of their
protected concerted activities, in violation of Section
8(a)(1) of- the Act; we shall order the Respondent, to
remedy such unlawful conduct. Following the dis-
charge of the above-named employees, the Respon-
dent hired six new employees to replace the discrimi-
natees. According to the Respondent, the six new
employees have been able to satisfactorily perform
the work previously done by the 11 discriminatees'. If
the Respondent determines that it can continue to
adequately carry on its business with 6 employees
instead of 11, an unconditional reinstatement order
covering all of the above discriminatees would' be
unwarranted. Accordingly, we shall order that the
Respondent offer said employees immediate and full
reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, dismissing if necessary any
employee hired on or since September 22, 1975, to fill
any of said positions. In the event that there is
insufficient work for all of those to be offered
reinstatement, all available positions shall be distrib-
uted among them in accordance with a system of
seniority or other nondiscriminatory basis. The
Respondent shall place those employees, if any, for
whom no employment is available after such distribu-
tion on a preferential list, with priority in accordance
with a system of seniority or other nondiscriminatory
basis, and thereafter offer them reinstatement as such
3 Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (C.A. 3, 1951)
employment becomes available and before other
persons are hired for such work.
We shall also order the Respondent to make whole
each of the above-named employees for any loss of
earnings he may have suffered by reason of the
Respondent's discrimination by payments to him of a
sum of money equal to the amount he would have
earned from the date of his unlawful discharge to the
date of an offer of reinstatement or placement on a
preferential list, as the case may be, less net earnings
during such period to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), and
including interest at the rate 'of 6 percent per annum
in the manner set forth in Isis Plumbing & Heating
Co., 130 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Super Tire Corporation, Old Fort, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Joseph Aspell, Charles Priddy, Wayne
Allen Demmy, Joseph Allen Saunders, Clinton
Wheeler, Kenneth L. Boltz, David Belcher, David
Rau, Clarence E. Hill, Andrew Cantu, and Michael
Terry immediate and full reinstatement to their
former positions or, if such positions no longer exist,
to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges,
discharging if necessary any employees hired -to
replace them. In the event that there is insufficient
work for all of those to be offered reinstatement, the
Respondent shall place those employees for whom no
employment is available on a preferential hiring list
in the manner set forth in the section of the Board's
Decision and Order entitled `The Remedy.' "
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Make the above-named employees whole for
any loss of pay 23 they may have suffered by reason of
the Respondent's unlawful discharges of them in the
manner set forth in the section of the Board's
Decision and Order entitled `The Remedy.' "
"23 As to Hill and Saunders , deduction shall be made from their
gross backpay for the period each was on sick leave "
SUPER TIRE CORPORATION
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE -
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board, after a hearing
in which all parties were permitted to introduce
evidence, found that we unlawfully discharged Jo-
seph Aspell, Charles Priddy, Wayne Allen Demmy,
Joseph Allen Saunders, Clinton Wheeler, Kenneth L.
Boltz, David Belcher, David Rau, Clarence E. Hill,
Andrew Cantu, and Michael Terry for engaging in
protected concerted activities or for being associated
with employees who did.
WE WILL NOT discharge any employee for the
same reasons for which the Board found that we
discharged the above-named employees.
WE WILL NOT unlawfully discharge employees
for lawfully engaging in union activities or pro-
tected concerted activities.
WE WILL NOT unlawfully threaten to discharge
employees for concertedly lodging complaints
about working conditions with management rep-
resentatives.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the National Labor Relations Act to engage in
self-organization, to bargain collectively through a
representative of their own choosing, to act
together for collective bargaining or other mutual
aid or protection, or to refrain from any and all
these things.
WE WILL offer the above-named employees
their former jobs or, if their jobs no longer exist,
substantially equivalent positions and will restore
their seniority. In the event that there is insuffi-
cient work for all those to be offered reinstate-
ment, we shall place those employees for whom no
employment is available on a preferential hiring
list.
WE WILL pay them any backpay they have lost
because we discharged them.
SUPER TIRE
CORPORATION
i The facts found herein are based on the record as a whole and the
observation of the witnesses The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits , with due
regard for the logic of probability, the demeanor of the witnesses , and the
teachings of N.L. R.B. v. Walton Manufacturing Company & Loganville Pants
Co, 369 U S. 404,408 ( 1962), As to those witnesses testifying in contradiction
DECISION
STATEMENT OF THE CASE
951
LowELL GOERLICH, Administrative Law Judge: The
charge filed by Joseph Aspell on January 13, 1976, was
served on the Respondent , Super Tire Corporation, by
registered mail on January 20, 1976. An amended charge
filed by Joseph Aspell on January 26, 1976, was served by
registered mail on the Respondent on or about January 29,
1976. The complaint was issued on January 30, 1976, in
which it was charged that the Respondent in violation of
Section -8(a)(3) of the National Labor Relations Act, as
amended, herein referred to as the Act , on September 22,
1975, discharged Joseph Aspell, Charles Priddy, Wayne
Allen Demmy , Joseph Allen Saunders, Clinton Wheeler,
Kenneth L. Boltz, David Belcher, David Rau, Clarence E.
Hill, Andrew Cantu, and Michael Terry because they had
engaged in protected concerted activities or were closely
allied and associated with employees who had engaged in
protected concerted activities and threatened employees in
violation of Section 8(a)(1) of the Act.
The Respondent filed a timely answer admitting that the
above employees were terminated as alleged, but denying
that it had engaged in any of the unfair labor practices
alleged.
The cause came on for hearing at Fremont , Ohio, on May
6 and 7 and June 2-2, 23, 24, and 25, 1976. Each party was
afforded a full opportunity to be heard, to call, examine,
and cross -examine witnesses , to argue orally on the record,
to submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered.
Findings of Fact 1 and Conclusions and Reasons
Therefor
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and has been at all times
material herein, a New Jersey corporation with its principal
office located in Camden, New Jersey.
The Respondent is engaged in the mounting , dismount-
ing, and repairing of truck tires and in the manufacture of
parts and equipment used in mounting truck tires. The
Respondent maintains a facility in Old Fort, Ohio, which is
solely involved in this proceeding.
Annually, the Respondent, in the course and conduct of
its business operations, ships products valued in excess of
$50,000 from its Old Fort, Ohio, facility directly to points
located outside the State of Ohio.
Annually, the Respondent, in the course and conduct of
its business operations , performs services valued in excess
of $50,000 for enterprises over which the Board would
assert jurisdiction under any of its jurisdictional standards,
exclusive of the indirect outflow and indirect inflow
standards established for nonretail enterprises.
to the findings herein , their testimony has been discredited, either as having
been in conflict with the testimony of credible witnesses or because it was in
and of itself incredible and unworthy of belief. All testimony has been
reviewed and weighed in the light of the entire record . No testimony has been
pretermitted
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent is now , and has been at all times
material herein , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
At all times material herein William K. Alloway was the
branch manager of the Respondent's Old Fort, Ohio,
facility. Stanley Krein was the, Respondent's vice president
of corporate services who was stationed at the Respon-
dent's, principal office located in Camden, New Jersey. For
some time prior to September 22, 1975, employees had
complained to Alloway and sometimes to Krein about what
they considered to be unsafe and unacceptable working
conditions connected with their employment. These comp-
laints, among others, concerned the hazards of using double
lock rings in the mounting of truck tires, defects in the
forklift, a leaky roof which caused slipping on wet floors,
and open pit in the floor, blocked fire exits, lack of fans for
the elimination of fumes, lack of a curtain to contain flashes
around a welding area , and lack of chains for the air cage.
Apparently the employees' greatest concern lay in connec-
tion with the "three piece rim" 2 used in the mounting of
truck tires. As noted by employee Demmy, "That was the
worst. They were unsafe to air and it was not safe for a man
to put them together." In fact employee Rau complained to
Alloway about the hazards of using double lock rings,
commenting he "didn't want to get [his] head blown off." 3
Alloway responded, "Either you lock them up or well find
somebody else to do it, to work for you."
The procedure followed by the Respondent in locking the
double lock rings was demonstrated while the parties and
the Administrative Law Judge toured the Respondent's Old
Fort facility. The demonstration as well as the oral evidence
disclosed that the worker first inserts an inner tube in the
truck tire and partially inflates it to round out the tube. The
base rim4 is then laid flat on the floor with the valve slot
and the rim gutter up. The tire is then placed on the base
rim and the tube's valve is inserted in the valve slot. Next,
the side ring is slipped over the base rim where it rests on
the bead of the tire. Then the tapered toe of the lock ring is
inserted between the side ring and the rim base, after the
worker stands on the lock ring with one foot at one end of
the split in the ring and hammers the ring with a 3-pound
rim mallet until the lock ring is seated under the "flank" or
gutter groove of the base rim. After the lock ring is seated,
the worker while standing on the tire, and continuing to
strike the rim with the mallet, feeds air into the tube until
2 This type of rim was also referred to as the double lock ring.
3 Alloway admitted that an employee told him that "they didn't want
their head blown off" and that employees had generally complained about
the hazards in connection with the use of double lock rings Alloway testified
that his response was "if they done it in the safe described method I showed
them when I instructed them they would have nothin' to worry about. There
was no safety problem involved."
4 The three piece rim is composed of a base rim, a side ring or flange, and
a lock ring The latter is a split ring.
5 The employees maintained that if the runs were old and rusty sometimes
as much as 60 pounds ofair pressure was needed to cause the side ring to slip
up the rim and lock into the lock ring. Rau testified, "ve had to put more
than at least 35 or 40 pounds in them to lock them." At the demonstration 12
to 15 pounds of air pressure were used. The rim was completely free of rust.
the side rim is pushed up to a point where it is locked into
the lock ring and the bead of the tire is properly seated.5 A
valve is then inserted in the valve stem of the tube and the
tire is placed in an air cage where it is inflated to around 90
pounds .6 This concluded the mounting of the tire.
There was considerable evidence offered which reflected
upon the safety of the procedure described above. The
General Counsel claimed that safety hazards were inherent
in the procedure, whereas the Respondent claimed that the
procedure was generally used in the industry and that it
presented no safety hazards. The complaints of the employ-
ees indicated that the greatest hazard was present when the
worker, while standing on the tire, inflated it, to the point
where the side ring locked into the lock ring and the tire
seated itself against the side ring. At this point the
employees claimed that the tire might "blow" thus causing
injury to an employee. Indeed Alloway related to an
employee that an employee in Camden, New Jersey, "had
the front of his face blown off," while working with the
double lock rings. Brad Omler, according to employee
Wheeler, was "blown completely over [Wheeler's] head."7
Employee Hill was injured when he slipped while standing
on a tire which was being mounted on a double lock ring.
On another occasion a tire tended by employee Ronald
Fortnur exploded while it was being inflated in the air cage.
According to Fortnur the explosion "shook the building,"
and "the snap ring had blowed off and the air cage was all
dented up," Larry Patrick Bland, an employee of the Office
of Occupational Safety and Health Administration, called
as a witness by the Respondent, testified that if the pressure
"got up over forty pound, and that ring could come out yes,
then I would go serious because it would decapitate a man."
Firestone Tire and Rubber Company Engineer Robert E.
Lee testified, "To inflate it [the tire] up to forty pounds yes,
I would recommend it be done in the cage. I would not
recommend it be done on the floor outside the cage."
As to the air pressure necessary to lock the tire into the
side ring (which is performed by the Respondent on the
floor), Lee testified, "it may be five or ten to maybe thirty or
forty pounds to bring the beads up. . . ." He added "You
only put in a little bit of pressure to take care of the crease
in the tube, that is no problem.... [y ]ou don't want to put
a large amount of pressure in without it [the tire ] being in
the safety cage." "To inflate it up to forty five pounds yes, I
would recommend it be done in the 'cage. I would not
recommend it be done on the floor outside the cage." In this
regard Safety Precautions for Mounting and Demounting
Tube Type Truck Bus Tires published by the U.S. Depart-
ment of Transportation, National Highway Traffic Safety
Respondents's witness, Robert E Lee, division engineer of the Steel Products
Division of the Firestone Rubbber Co., where the three-piece rim is
manufactured, testified that rust may cause conditions which affect the
safety of mounting a tire. Respondent's witness, Orville Richard Winter,
concurred, stating that it would take more pressure to seat the tire with a
used ring than a new ring. A substantial number of the rims and rings worked
upon by the Respondent' s employees were used
6 The air cage was constructed of three 1-1 /2 inch pipes in the shape of
inverted "U's" placed one behind the other at a distance of about 10 inches
The legs of each U-shaped pipe were about 18 inches apart . Each leg of the
"U" was welded securely into a piece of iron. The tire was inserted between
and under these inverted U-shaped pipes. Three such cages were welded
together in a series.
7 Alloway admitted that he had heard that this incident had taken place.
SUPER TIRE CORPORATION 953
Administration, provides that. the airing of a tire mounted
by three-piece flat base rims (which is performed on the
floor by the Respondent) be done in the air cage. The same
procedure appears in Firestone's instructions on how to
mount three-piece convertible rims.
Orville Richard Winter, an employee of Myers Indus-
tries, "the largest supplier in ,the world of tire servicing and
retreading equipment," a witness called by the Respondent,
testified that if there was a tire explosion at 35 pounds
pressure he "wouldn't want to be there." He further
testified that no more than 10 or 12 pounds of pressure
ought to be put in a tire- to seat it and that if it goes beyond
that pressure "you tear that tire back down so you can find
the problem." -
Alloway agreed -that there -was "not any way the
employee would know exactly how much-air he was putting
in that tire." Alloway said he would judge the amount of
pressure by the elapsed time. "If you are on there for over a
minute , you have got more than ten or fifteen pounds of
air." Employees were not supplied with air pressure gauges.
From the foregoing evidence it is clear that the dangers
feared by the employees in using double lock rings were
neither fictitious nor spurious but of a substantial nature.
Alloway's response to the employees' complaints refer-
enced above were generally negative. As observed by one
employee the complaints- were "just shoved under the rug."
Apparently matters reached a crisis stage on the morning
of September 22; 1975, when the employees refused to work
on double lock rings because the rims were very rusty and
thus were considered dangerous to use in mounting tires.
The matter was brought to Alloway's attention and his
response was that the employees were a "bunch of
kindergartens." He directed the employees to continue. The
employees responded that they wanted to call Vice Presi-
dent Krein in New Jersey in connection with their com-
plaints. Alloway replied that he would fire any employee
who phoned Krein.8 During the same morning Alloway
told the employees that they had "to get more production
out" and that they were not giving him "tires to run." He
distributed a "3 x 5 card" to each employee and announced
that it was to be used for a production study. The employee
was directed to write on the card the- duties which he
performed during the day. According to Alloway the
employees "laughed about it, they figured it was impossible
to keep track of what they did on a little piece of 3 x 5
8 Alloway admitted that on at least one occasion he had told employees
that he would fire them if they phoned Krem. Krein, on the other hand, had
solicited their calls.
9 Shortly prior to September 22, 1975, the Respondent had received
complaints from customers in regard to the service at the Old Fort facility.
Howard W Weeks, Respondent's manager of sales operations, visited the
facility on September 16, 17, and 18, 1975 "to see what was going on." Weeks
found a "back up of work." When Weeks returned to Camden, he met with
Vice President Charles R. Brestle and Krein and it was decided "to put work
reports into effect at the Old Fort location, to try to determine exactly where
the problem was coming from" Brestle informed Alloway of the work
reports and told him to institute a one-shift operation on September 23, 1975.
According, to Alloway the employees grumbled and growled about the shift
change klloway also said that Weeks informed him that the Old Fort
operation was "sloppy."
10 Alloway had the door locks changed about 4:30 p.m on September 22,
1975. Aspell and Demmy had had keys to the front door.
11 After the discharges, picket signs were procured and picketing of the
Respondent's facility commenced
card." Alloway had also notified the employees that there
would be a shift change.9
Thereafter the employees worked until the lunch hour, at
which time they punched out. They told Alloway, "we was
going to have a meeting and discuss what we were going to
do if he was not going to call New Jersey." During the
lunch hour they discussed the situation and decided not to
go back to work. As expressed by employee Clinton
Wheeler, "We figured that if 11 men went out, Bill would
definitely call Stanley Krein. Of the groups, we figured that
we were stronger as a unit . We felt they were not going to
fire 11 of us until they - hear what the reason is." The
employees decided to stay out the rest of the afternoon and
return the next morning. The next morning when the
employees returned to work the sheriff, in the presence of
Alloway, who was at the plant, informed them that they
had been fired. Alloway, Belcher, Rau, Wheeler, Aspell,
and Hill were present at the time 10
Those who did not return from lunch were Aspell,
Wheeler, Priddy, Cantu, Belcher, Rau, and Terry. Boltz and
Demmy did not work on September 22; Saunders and Hill
were on sick leave.
About 2:30 p.m. on September 25, 1975, Alloway
informed Charles G. Brestle, senior vice president, that the
employees had walked out. Brestle told Alloway "to hold
on" and he would "get back to him." Brestle conferred with
President -Schaevitz and it was decided to replace the
employees, that the Respondent "just couldn't put up with
people walkin' out on [it]." 11 According to Brestle, Alloway
said he did not know the reason the employees walked out.
About 3 or 4 p.m. on the same day, Alloway also talked
to Krein. According to Krein, Alloway reported that the
employees "bitched" about the shift change and were
unhappy about the production report. Alloway said he did
not know why the employees walked out.12 ,
Krein explained the reason that the Respondent took the
action it did: "Well, one thing, they walked out for no
cause . Number-two, I had gone on the record in August of
1975 and said that under no circumstances would I tolerate
actions such as a walk-out and I wanted them to call me if
there was a problem and I feel that they just didn't live up
to that." Thus the employees' discharge accommodated
Krein's threat to throttle concerted activity.
Brestle visited the Old Fort facility on August 29 and 30,
1975, at which time he spoke with Aspell and Wheeler in
In July 1975 the employees had caused a semblance of a walkout over
wages . Alloway phoned Krein and told him that the employees had walked
out. Krem asked to speak to the employee spokesman. Demmy was chosen.
Krein informed Demmy that, if the employees continued working, he would
come to Old Fort and retroactively adjust the matter
Krein appeared at Old Fort on August 14,1975. Krein adjusted the wages
and told the employees he would not "tolerate a situation such as happened
in July where they walked off the job." At the same meeting, Alloway told
employees, "If anybody calls [New Jersey], I'll fire them
12 Alloway's claim that he did not know the reason for the employees'
walkout is unbelievable especially in the light of the testimony of Respon-
dent's field operations manager, Rex Daisy, who testified that on the night of
September 22, 1975, Alloway told hun the employees "had walked out that
day regarding the complaints . . . . they were complaining from . .
anything and everything." Those Respondents' witnesses who testified that
safety matters were not embraced in the complaints of the employees are
discredited Such conclusion is not at variance with Brestle's statement, "and
maybe Bill [Alloway ] had told me they walked out on lum and it was unsafe
working conditions they complained about."
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the presence of a total of six employees. Aspell and Wheeler
expressed a desire to return to work and asked Brestle why
they were discharged. According to Brestle, he told them
"that they were not responsible people, were not depend-
able and that [they] had a business to run and [they] had a
service to perform." In reference to dependability , Brestle
mentioned the fact that the employees had not returned
from lunch. He also mentioned that the employees had
walked out before. According to Brestle, "I told them they
could have called Camden and got hold of Mr. Krein or
myself. They had said there would be retaliation and that
Bill would have fired them." Brestle told Aspell that "Mr.
Krein had discharged [the employees] because of the
walking out and the closeness of the employees."
Brestle testified that the decision to terminate the
employees was made on September 22, 1975, around 3 p.m.,
and they were "terminated" on September 23, 1975.
Boltz had not been scheduled to work until midnight on
September 22, 1975. However, some of the employees came
to his home and informed him of the discharges. Boltz
visited Alloway on September 23, 1975, at the office.
Alloway told Boltz that if he wanted to cross the picket line
he could come in to work. At first Boltz agreed, but later
refused and let Alloway know that he would not cross the
picket line. Boltz was terminated. Alloway told Boltz,
"anybody that did not come in and go to work that they
were done." Boltz had not been involved in the decision to
walk out. He testified that he "agreed" with the strikers and
"went along with them." He said that the employees "felt
that we should have better working conditions. Like
loading trucks, stacking tires, mounting double lock rings,
hours. Things like that."
Demmy was also to have reported for work at 12
midnight on Monday. Prior to his reporting, Alloway
phoned Demmy's home aroung 2 o'clock on September 22,
and asked his mother, Jean Demmy, to ask Demmy to
phone him. Alloway told Demmy's mother that there had
been "a walkout" and he did not "want Wayne to come to
the shop tonight"; he did "not want him to lose his job."
Demmy phoned Alloway. Alloway informed Demmy that
the "guys had walked out with something to do about
safety." Alloway also told Demmy that "the four big shots"
were flying in from New Jersey for a meeting at the
Ramada Inn. At first Alloway invited Demmy to-come to
the Inn, but later in the conversation said that he "should
wait." Alloway told Demmy not to come in for work, that
he "would get ahold of him." Alloway did not call Demmy
so he did not report for work that night.
On the morning of September 23 Demmy phoned
Alloway and inquired whether he should come in to work.
Alloway directed Demmy to call Stanley Krein in Camden,
New Jersey. Krein told Demmy that "all of the guys that
were involved in the walkout didn't have jobs anymore.
That due to the closeness of the employees, that all that
were involved at all were just terminated." Upon being
asked by Demmy what he was "going to do," Krein
responded, "tell them [his] job had been eliminated due to
the closeness of the employees." Krein acknowledged the
phone call and testified that Demmy said he would like to
return to work. Krein replied, "when all this is over,
certainly, you are welcome to come back." Krein said that
when Demmy notified him that he was not returning to
work he was terminated. Demmy did not cross the picket
line.
Employee Terry phoned Krein on September 30, 1975,
and asked him if he would be permitted to return to work.
According to Krein, he. replied that "we were not going to
take him back. He had been terminated." "He was involved
in the walk-out and it was just an unfortunate situation
from his standpoint." Krein maintained this position even
though Terry represented that he was the victim of the
other employees' insistence.
Hill had been injured on September 9, 1975, while
mounting a double lock ring. He was released to return to
work on September 25, 1975. Hill called Alloway- and
informed him of this fact. Alloway replied, "[Y]ou are fired
.... haven't you heard everybody got fired? . . . there
was a walkout due to safety reasons." Thereafter, each day
for 3 weeks Hill tried to reach Krein. When Hill finally
reached Krein, he was told that "everybody's job was
eliminated."
Saunders was also on sick leave at the time of the
discharges due to an injury received in a motorcycle
accident on July 19, 1975. He was released for work on
January 5, 1976. Prior to September 22, 1975, he had
contacted the Respondent at which time he had been asked
when he would be ready to go back to work. On January 5,
1976, Saunders informed Alloway that he was ready to go
back to work. Alloway replied that he did not have a job,
that "everybody had been terminated." Alloway added that
the employees had "walked out on what he called a wildcat
strike on safety hazards" and that "they was terminated
because of the strike." Alloway also said that Saunders'
position had been filled because of "the length [of time he ]
had been off work." Saunders was Demmy's brother-in-
law.
In his affidavit given to a Board agent, Alloway deposed:
"I called Camden again and Stan Krein or maybe Charlie
Brestle said that they were terminating the men. They said
they were going to terminate the whole crew even though
some of them hadn't taken part in the walkout."
On September 22 or 23 Aspell engaged in a phone
conversation with Krein. Krein said that the employees'
jobs had all been eliminated; that they had walked off the
job and for the "last time" and the Respondent could not
tolerate it.
Some of the employees told Charlie Chavis, a Respon-
dent vice president, 2 or 3 days after the walkout that they
would like to go back to work if the Respondent "fixed up
the safety conditions." Chavis replied that this was not "up
to him." Upon being asked why the employees had been
discharged, he answered that they were "all too close
together and that is why [they were ] fired." 13
On September 24, 1975, Aspell, Wheeler, and Demmy
filed a complaint with the Occupational Safety and Health
Administration, U.S. Department of Labor. The complaint
listed various alleged safety violations about which the
employees had complained to Alloway. The complaint was
13 This testimony is uncontroverted in the record.
SUPER TIRE CORPORATION 955
withdrawn after the employees were informed by a repre-
sentative of OSHA that they "would be better off with the
National Labor Relations Board." 14
B. Conclusions and Reasons Therefor
"Section 7 guarantees, and Section 8(a)(1) protects from
employer interference the rights of employees to engage in
concerted activities, which, as Congress has indicated, H.R.
Rep. No. 245, 80th Cong., 1st Sess. 26, include the right to
strike." N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 233
(1963). Thus the Respondent's employees on September 22,
1975, had the right protected by Section 7 of the Act to
protest concertedly to their Employer about their condi-
tions of employment (here safety hazards and other
matters) which they considered objectionable and to strike
in support of those protestations. This they did15 and were
summarily discharged by the Respondent for exercising
these- protected rights. The discharges were unfair labor
practices in violation of Section 8(a)(1) of the Act. N.L.R.B.
v. Washington Aluminum Co., 370 U.S. 9 (1962). See also
N.L.R.B. v.-KDI Precision Products, Inc., 436 F.2d 385
(C.A. 6, 1971). Moreover, although all dischargees did not
participate, in the initial walkout, by reason of the Respon-
dent's determination to stamp out all potential sympathiz-
ers, dispel any idea that concerted activities were tolerated,
and start with a new complement of employees unassoci-
ated with employees who had exercised Section 7 rights, all
became victims of the Respondent's unlawful acts. Indeed
those who were on sick leave and were not due to report for
work were grouped with the'strikers and rendered the same
treatment.16
'The discharges of Joseph- Aspell (5/14/74), Charles
Priddy (6/28/74), Wayne Allen Demmy (8/12/74), Joseph
Allen Saunders (2/24/75), Clinton Wheeler (5/28/75),
Kenneth L. Boltz (7/10/75), David Belcher (7/28/75),
David Rau (7/28/75), Clarence E. Hill (8/27/75), Andrew
Cantu (9/18/75), and Michael Terry (9/22/75),17 on
September 23, were in violation of Section 8(a)(1) of the
Act.
Additionally Alloway's threats of August 14 and Septem-
ber 22, 1976, that employees-would be discharged if they
complained about working conditions to -management
representatives in New Jersey violated Section 8(a)(1) of the
Act in that the Respondent threatened employees with
14 In the report of filing of complaint under Sec. 11(c) filed by the acting
area director in respect to Aspell, Wheeler, and Demmy, it was reported,
"Fired September 23, 1975. He refused to work under unsafe conditions
mentioned on attached sheet."
15 "Concerted activity exists when an employee's complaints and dissatis-
faction are directed to employment conditions of concern to other employ-
ees." Waco Insulation, Inc., 223 NLRB 1486 (1976).
16 This conclusion is buttressed by the fact that the Respondent's answer
admits that the employees named in the complaint were terminated as
alleged in the complaint, Alloway's affidavit reveals that it was the
Respondent's intent to terminate the whole crew even though some had not
taken part in the walkout; "closeness of employees" reflected adversely upon
their desirability; and Hill was discharged even though he was on sick leave.
In respect to Saunders, "closeness" was manifested in the fact that he was
Demmy's brother-m-law. Saunders was also on the Respondent's payroll
during the seeming walkout in July. Moreover, the discharge of the whole
crew and the replacement of each member thereof gratified the Respondent's
desire to operate with employees who would forego their Section 7 rights.
Indeed it is clear that the Respondent 's misconduct was intended to cause
and did cause a chilling effect on any replacement who had ideas about
engaging in concerted activities.
discharge for engaging in concerted activities protected by
Section 7 of the Act.18
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
2. By interfering with, restraining, -and coercing em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. By unlawfully discharging Joseph Aspell, Charles
Priddy, Wayne Allen Demmy, Joseph Allen Saunders,
Clinton Wheeler, Kenneth L. Boltz, David Belcher, David
Rau, Clarence E. Hill, Andrew Cantu, and Michael Terry
on September 23, 1975, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.19
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully dis-
charged Joseph Aspell, Charles Priddy, Wayne Allen
Demmy, Joseph Allen Saunders, Clinton Wheeler, Kenneth
L. Boltz, David Belcher, David Rau, Clarence E. Hill,
Andrew Cantu, and Michael Terry on September 23, 1975,
and has since failed and refused to reinstate them, because
of their protected concerted activities, in violation of
Section 8(a)(1) of the Act, it is recommended that the
Respondent remedy such unlawful conduct. It is recom-
mended in accordance with Board policy20 that the
Respondent offer said employees immediate and full
reinstatement to their former positions21 or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, dismissing if necessary any employee hired on or
17 The dischargees are listed in the order of their seniority. The dates in
parentheses are their hiring dates.
18 Par. 7 of the complaint is dismissed in that it was not established that
the events therein alleged occurred within the 6-month period prior to the
filing of the charge with the Board and the service ofa copy thereof on the
Respondent. (See Sec. 10(b) of the Act.)
19 By refusing to reinstate the discrimmatees who had made unequivocal
requests to return to work and before they were permanently replaced, the
Respondent also violated Section 8(a)(l) of the Act. IMCO Poultry, 202
NLRB 259,262 (1973).
20 See The Rushton Company, 158 NLRB 1730,1731(1966).
21 The Respondnet maintains that Aspell and Wheeler ought to be barred
from reinstatement because they engaged in "serious misconduct ." Evidence
offered to support this claim lacks the necessary credibility or weight to
justify their disqualification for reinstatement for this reason. See Hartmann
Luggage Company, 183 NLRB 1246 (1970); Stewart Hog Ring Company, Inc.,
131 NLRB 310, 313 (1961); and Fauview Nursing Home, 202 NLRB 318
(1973).
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since September 22, 1975, to fill any, of said positions, and
make them whole for any loss of earnings they may have
suffered by reason of the Respondent' s acts herein detailed
by payments to them of a sum of money equal to the
amount they would have earned from the date of their
unlawful discharges to the date of an offer of reinstatement,
less net earning during such period to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), and includ-
ing interest at the rate of 6 percent per annum in the
manner set forth in Isis Plumbing & Heating Co., 130 NLRB
716 (1962).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER22
The Respondent , Super Tire Corporation , Old Fort,
Ohio, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Unlawfully discharging employees who engage in a
lawful strike or exercise any rights guaranteed by Section 7
of the Act and protected by Section 8(a)(1) of the Act.
(b) Unlawfully threatening to discharge employees for
concertedly lodging complaints about working conditions
with the Respondent 's management representatives.
(c) In any other manner interfering with , restraining, or
coercing any employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor
Relations Act, an amended , to engage in self-organization,
to bargain collectively through a representative of their own
choosing , to act together for collective bargaining or other
mutual aid or protection , or to refrain from any and all
these things.
2. Take the following affirmative action which will
effectuate the policies of the Act:
22 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herem shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
23 As to Hill and Saunders, deduction shall be made from their gross
backpay for the period each was on sick leave.
(a) Offer Joseph Aspell, Charles Priddy, Wayne Allen
Demmy, Joseph Allen Saunders, Clinton Wheeler, Kenneth
L. Boltz, David Belcher, David Rau, Clarence E. Hill,
Andrew Cantu, and Michael Terry immediate and full
reinstatement to their former positions or, if such positions
no longer exist , to substantially equivalent positions with-
out prejudice to their seniority or other rights and privileg-
es, discharging if necessary any employees hired to replace
them and make them whole for any loss of pay23 that they
may have suffered by reason of the Respondent's unlawful
discharges of them in accordance with the recommenda-
tions set forth in the section of this Decision entitled
"Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its facility at Old Fort, Ohio, copies of the
attached notice marked "Appendix." 24 Copies of said
notice, on forms provided by the Regional Director for
Region 8 , after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt' thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order,, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaints be
dismissed insofar as they -allege violations of the Act other
than those found in this Decision.
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."