The Armstrong Rubber Co.

National Labor Relations Board - Board Decisions

Apr 14, 1987

283 N.L.R.B. 625 (N.L.R.B. 1987)

ARMSTRONG RUBBER CO.
The Armstrong Rubber Company and International
Union of the United Rubber , Cork, Linoleum
and Plastic , Workers of America , Local Union
No. 670, AFL-CIO-CLC. Case 26-CA-11586
14 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 13 November 1986 Administrative Law
Judge Nancy M. Sherman issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision.
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 briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Armstrong Rubber Company, Madi-
son, Tennessee, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
Substitute the following for paragraph 2(h):
"(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
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 Although no exceptions were filed to the judge's granting of the
General Counsel's request for a visitatorial clause, the Board , sua sponte,
has determined to reverse the ,fudge's recommended Order in this respect
because the circumstances of this case do not warrant such a remedy.
Westwood Industries, 280 NLRB No. 12 (May 30, 1986) (not reported in
Board volumes). Accordingly, we have modified the recommended
Order.
Jane Y. Goldman, Esq., for the General Counsel.
Charles Hampton White, Esq., of Nashville, Tennessee,
for the Respondent.
Don P. Copass, of Madison, Tennessee, for the Charging
Party.
DECISION
625
STATEMENT OF THE CASE.
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard in Nashville, Tennessee, on 29 and 30
July 1986 pursuant to a charge filed on 11 April 1986 by
International Union of the United Rubber, Cork„ Linole-
um and Plastic Workers of America, Local Union No.
670, AFL-CIO-CLC (the Union); an amended charge
filed by the Union on 2 May 1986; and a complaint
issued on 5 May 1986 and amended on 29 July 1986. The
complaint alleges that Respondent Armstrong Rubber
Company violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) about 8 April 1986 by dis-
charging seven employees and by converting the position
of quality control technician to that of quality area su-
pervisor, all for the purpose of discouraging activity on
behalf of the Union. Respondent contends that the seven
terminated employees (with whose termination Respond-
ent ceased to' employ any employees whom Respondent's
records classified as quality control technicians) were
discharged because of poor business, and' that the job
classification of quality area supervisor is a new position
which is more responsible than the job classification of
quality control technician. The General Counsel con-
tends that the seven quality control technicians Were dis-
charged, the position of quality control technician was
converted to, that of quality area supervisor, and person-
nel were hired or transferred into jobs bearing that clas-
sification because Respondent had learned that the Union
had filed with the Board a'representation petition seeking
a unit of quality control technicians.
On the entire record, including the demeanor of the
witnesses, and after due consideration of the helpful
briefs filed by counsel for the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation that manufactures tires in
Madison, Tennessee. During the 12-month period ending
30 April 1986, Respondent's Madison facility sold and
shipped directly to, and purchased and received directly
from, points outside Tennessee products, goods, and ma-
terials valued in each case at more than $50,000. I find
that, as Respondent concedes, it is engaged in commerce
within the meaning of the Act, and that assertion of ju-
risdiction over its operations will effectuate the policies
of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background- Respondent 's Lawful 7 April 1986
Decision to Terminate Five Quality Control
Technicians
The Union has represented a unit of hourly paid pro-
duction and maintenance employees at the Madison
283 NLRB No. 92
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plant' since 1962. When the Union first organized the
plant, it was owned by Gates Rubber Company. Re-
spondent has recognized the Union as the representative
of the hourly paid unit since buying the plant in 1973. In
addition to having a contract with the Union and/or its
parent International at the Madison plant, Respondent
also has contracts with affiliates of the Union at Re-
spondent's tire plants in Des Moines, Iowa; Natchez,
Mississippi; and Hanford, California.2 All four of_ these
plants are in the 'area of responsibility of Richard
Twickler, who is Respondent's vice president of manu-
facturing . Although some employees not in the produc-
tion and maintenance unit at the Madison plant are in
fact hourly paid, all the personnel excluded from that
unit are referred to by Respondent, and will be referred
to herein, as salaried personnel.
Respondent's Madison plant (the plant involved here)
produces passenger radial tires. During August through
November 1985, Respondent's production schedule at
that plant called for production of 14,500 tires a day, and
actual production was close to that figure.3 During this
4-month period, 'Respondent's hourly work force ranged
between 549 (August) and 570 (October) employees.
About late November 1985, Vice President Twickler
told Bryant Reed, who is the general manager and "head
honcho" of the Madison plant, to reduce the tire produc-
tion schedule to 12,`500 tires a day effective in December
1985. This was in fact done.4 As of 1 December 1985,
the hourly paid work force totaled 574. During Decem-
ber 1985, Respondent effected about 65 layoffs among
the hourly paid employees, thereby causing the hourly
work-force to diminish to 512 as of 1 ' January 1986. The
complaint does not allege that these December 1985 lay-
offs constituted ,a violation of the Act. Between Decem-
ber 1985 and 1 April 1986, no more hourly layoffs were
effected. Between 1 January 1986 and 1 May 1986, a-
period that encompasses the salaried terminations at issue
here, the hourly work force remained fairly constant in
size.5
Notwithstanding the December 1985 cutback in pro-
duction and the concomitant December 1985 layoffs of
hourly employees, the complement of salaried personnel
at the Madison plant remained fairly constant between
March 1985 (when production was 16,000 tires a day)
and 1 April 1986.6 There is no contention or evidence
that ' any of them was terminated during this period be-
cause of the production cutback. In late March or early
April 1986, on the basis of inventories, Twickler directed
Reed to reduce tire production still further, to 9000 a
day, effective 1 May' 1986. The General Counsel does
' Frequently referred to in the record as the Nashville plant. The two
cities are about 10 miles apart.
2 But see Armstrong Rubber Co, 273 NLRB 233 (1984) (involving Re-
spondent's Hanford plant); and Armstrong Rubber Co., 209 NLRB 1
(1974), enfd, in part and remanded in part 511 F .2d 741 (5th Cir. 1975)
(involving Respondent's Natchez plant). About July 1986, Respondent
decided to close down the Natchez plant permanently.
3 Actual per-day production averaged 14,465 tires in August ; 14,510 in
September, 14,171 in October; and 13;857 in November
4 Actual production for December 1985 averaged 12,020 per day.
5 The number varied between 508 (1 May) and 513 (1 February, 1
March, and 1 April). -
6 Between 1 July 1985 and i April 1986, the number vaned between
157 (1 February 1986) and 164 ( 1 August and 1 September 1985).
not -allege that these- instructions were unlawfully moti-
vated.
Vice President' Twickler testified that shortly after is-
suing these instructions , but before 8 April 1986, he en-
couraged General Manager Reed to "look very closely"
in the "area" of salaried personnel at the Madison plant,
"to look towards an organization of his staff, to try to
eliminate any areas of redundancy, and to move in that
direction." Twickler further testified that he did not
specify to Reed the number of salaried personnel who
should be terminated. About 8 April 1986, 54 salaried
people were eliminated from Respondent's corporate
headquarters in New Haven, Connecticut. In late spring
1986, about 35 salaried people were terminated from Re-
spondent's° corporate office in Natchez, Mississippi. No
contention is made that the New Haven or Natchez ter-
minations were unlawfully motivated.
Effective the week beginning 31 March 1986, to pre-
serve the existing work force while adjusting to then
business conditions, Respondent' s Madison plant cut, its
5-day workweek to 4 days. About 1 April, Reed decided
that the Madison salaried complement should be cut by a
total of 21 people. Together with the division managers,
who report-'directly to him, he decided that 10 salaried
people would be cut from the manufacturing division; 3
from the engineering section; 1 each from the industrial
relations section, the distribution section, and the
accounting/purchasing section ; and 5 from the technical
and quality control division. At meetings of salaried per-
sonnel on 1 and 2 April, Reed announced that 21 salaried
employees would have to be terminated effective l1
April; that the terminations would be distributed in the
manner described above; and that those to be terminated
would be notified by 7 or 8 April. Further, Reed said
that any person who volunteered to retire would bein-
cluded among the 21 people who,had to be severed, and
that anyone who was eligible for and interested in retire-
ment should see Russell Weymouth, Respondent's man-
ager of industrial relations. Reed went on to say that the
specific people to be laid off had not yet been pinpoint-
ed; and that, after the retirees were subtracted, Respond-
ent intended, all other things being equal, to terminate
the junior personnel. Also, Reed 'said that in May there
might be more production, cuts, and consequent layoffs
of eight or nine salaried personnel, probably from the
manufacturing division. Reed further said that cutbacks'
would probably be made if the plant returned to a 5-day
week. Reed testified that, when he made the foregoing
remarks, he believed that any salaried cuts in the manu-
facturing division would be directed at line foremen.
On 1 April Reed ' asked his division managers (includ-
ing Kim McAllister, the head of the technical and qual-
ity control division) to recommend to Reed by 7 April
what job classifications should be used to fill the quota
of personnel to be severed. On Friday,, 4 April, McAllis-
ter advised Quality Control Superintendent Don Dicken-
son (who reports to McAllister) that the technical and
quality control division was going to lose five people,
and asked Dickenson for a recommendation after the
weekend on how to handle any cutback in his depart-
ment. On the morning of Monday, 7 April, McAllister
ARMSTRONG RUBBER CO. 627
told Dickenson that McAllister had decided to let five
quality control technicians go. Dickenson recommended
that the five junior quality control technicans be selected
for termination because such a "formula " was "easier for
everyone to understand."
Later that same day, 7 April , Reed met with division
managers , including McAllister and Industrial Relations
Manager Weymouth . At this meeting, Weymouth report-
ed that one quality control technician in the technical di-
vision, Peggy Clark, had elected to take an early retire-
ment. Then, McAllister recommended that the four re-
maining people to be severed from the technical division
should also be quality control technicians . According to
Reed's credible testimony , McAllister stated that he was
so recommending because the remaining seven quality
control technicians could perform their duties , after the
other five were gone , by deleting the performance of
checks that at an earlier stage of production had been
performed by the foremen in the manufacturing 'divi-
sion. ' Reed agreed with McAllister 's recommendation.
McAllister did not give the names of the persons who
would be severed . He, Weymouth , and Reed all testified,
in effect, that they assumed the persons to be severed
would be selected according to senoirity . The four junior
quality control technicians were advised , during their re-
spective 8 April shifts , that Respondent had decided to
separate ; them .' The complaint does not allege that any of
these four was unlawfully separated.8
B. Respondent 's Allegedly Unlawful 8 April Decision
to Terminate the Remaining Seven Quality Control
Technicians, the Technicians ' Termination on 10
April, and Subsequent Terminations
1„ Respondent's 8 April notice of the Union's
representation petition with respect to the quality
control technicians
Meanwhile, on 7 April , the Union filed with the
Board's Regional Office a representation petition seeking
a unit of the quality control technicians at Respondent's
plant . About 10 or 11 a.m . on 8 April, Weymouth re-
ceived a telephone call from a Board employee in that
office. She identified herself as a Board employee, told
him that the Union had filed a petition that covered the
quality control technicians , and asked him whether he
had received it. He said no. Weymouth testified that, at
the time he received that call , he was aware of the sever-
ance of five quality control technicians , and was not
aware of any other planned severances at that exact
moment.
2. Respondent's 8 April decision to terminate the
seven remaining quality control technicians
At or shortly before noon on that day, 8 April, Wey-
mouth went to Reed 's office. Weymouth told Reed that
' Although McAllister did not recall so stating,to Reed at that time,
McAllister , testified that this was in fact one of the reasons for his recom-
mending the termination of five technicians.
8 These four were James D. Sisk , Ernest J. Carpenter Jr., Morton H.
Sadler, and Marie W Ford . They were named in the Union 's original
charge, filed on I1 April 1986 , but not in the Union 's amended charge,
filed on 2 May 1986.
Weymouth had received a call from the Board asking
him whether Respondent had received a petition respect-
ing the quality control technicians , and that Weymouth
had replied no. Reed admittedly inferred that such a pe-
tition had been filed with the Board . About 2 p.m. that
afternoon , Reed telephoned Twickler.9 Reed told
Twickler that Reed had just heard that the quality con-
trol technicians had petitioned for "joining the Union."10
Twickler remarked that he was a little surprised at the
Union's petition and that "it sounded like an efort to
move under the umbrella of the Union to protect their
job, that unfortunately was not available to them." What
else was said in this conversation is discussed infra in
section II,B,5.
Reed testified that he decided in the afternoon of 8
April to cut the seven remaining quality control techni-
cians. Immediately after his conversation with Twickler,
Reed told McAllister that the remaining seven quality
control technicians would be severed . Reed told McAl-
lister that in the future the quality control foremen were
to do the quality control work . " This was the first time
that McAllister had heard of Reed 's idea to eliminate the
quality control technicians and also the first time McAl-
lister had heard about changing the quality control func-
tion over to be performed by supervisors . Shortly before
3:30 p .m. that day, Reed told Quality Control Superin-
tendent Dickenson that Reed had just been notified that
further cuts had to be made and that he was going to
have to lay off the rest of the quality control technicians.
Reed further told Dickenson that whatever of these
technicians' functions continued to be performed would
have to be performed by Dickenson, Quality Control
Foreman Ernest Axley, and Senior Quality Control
Foreman Rodney Griffin , with one of them working on
9 My finding that Reed initiated this call is based on Twickler 's testi-
mony; for demeanor reasons, I do not accept Reed 's testimony that
Twickler called him . My fording as to the hour is based on Reed's testi-
mony that the call took place between 2 and 3 p .m. and McAllister's tes-
timony that his conversation with Reed later that day (see mfrs), which
Reed admittedly held after his conversation with Twickler, took place
about 2p.m. To the extent that it is inconsistent with Reed 's and McAl-
lister's testimony, I do not accept Twickler's testimony that his conversa-
tion with Reed occurred in "middle or late afternoon"
10 The quotation is from Twickler 's testimony.
11 My finding in this sentence is based on McAllister's testimony; indi-
rectly corroborated , by the evidence (infra) that later that same ! day Reed
made a similar statement to Quality Control Superintendent Dickenson
Because of this corroboration and for demeanor reasons , I do not accept
Reed 's testimony that during this conversation he told McAllister that
Reed wanted to replace the quality control technicians with six quality
area supervisors. Nor do I credit Reed's testimony that during this 8
April conversation he said he was making this decision because the qual-
ity control technicians were duplicating the foremen's checks, and that
Reed "would be using a new system , using the quality area supervisor
and he would be using SPC and the SAS programs [see mfra, sec.
II,D,11, although we had not , all developed them, we would move in that
direction and these people would input their data into the computers and
eliminate duplication of many checks and be much more efficient." I so
find for demeanor reasons; because McAllister testified that he did not
know on 8 April (other than a need to cut more people out of the factory
operation) why Reed had made the decision to terminate the remaining
technicians; and because Reed (as well as McAllister) testified that elimi-
nation of duplicate checks was the basis for McAlhster's recommenda-
tion, accepted by Reed on 7 Apnl , to terminate the five quality control
technicians not named in the complaint.
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
each shift.12 Also in the afternoon of 8 April, Reed told
Weymouth that Reed 'had decided to terminate the re-
maining seven quality control technicians. The complaint
alleges as a violation of Section 8(a)(1) and (3) of the, Act
the termination of these seven-namely, Lee Roy Kemp,
Roy Dailey, William Douglas, Eugene Kincaid, James
Mason, James Hurley, and Lizzie Mae Watson.-
3. The termination notices, given to the quality
control technicians
,a. The, notices given to the technicians whom
Respondent had lawfully decided on 7 April to
terminate
Respondent operates three shifts. During the shifts
which operated on 8 April, Weymouth advised quality
control technicians Carpenter, Sisk, Ford, and Sadler
(none of them alleged to be discriminatees) that their,last
day of work would be 10 April. Inferentially, because of
vacation and severance pay, Sisk and Sadler, at least,
were scheduled to -.remain on Respondent's payroll
through 18 April at the earliest.
b. The notices given to the alleged discriminatees
whom Respondent had decided on 8 April to terminate -
The seven alleged discriminatees were all advised on 9
or 10 April that their last,day of work would be 10
April. All of them received severance pay whose amount
was based on their service with Respondent. Thus, about
10 a.m. on 9 April, alleged discriminatee Dailey was
called into the office. Weymouth said that "they" had
decided - that all 'the quality 'control' technicians were
going, and that "it was total and permanent, no recall."
Then, Personnel Director Shirley Pike told Dailey that
he would get 2 weeks' pay in lieu of notice; that he
would receive 24 weeks of severance pay, to be paid
every other week, until 13 October 1986; that he would
get paid for 27 days of unused vacation, plus 52 hours'
accrued vacation pay, which would pay him through 27
November 1986; and that for 90 days 'after 11 April 1986
Respondent would pay for his $15,000 life insurance ben-
efits and for his hospital, surgical, medical, dental , vision,
and prescription-drug insurance. As of 29 July 1986, the
day that Dailey testified, he had in fact been receiving all
these benefits. In addition, he received a lump-sum pay-
ment from Respondent's profit-sharing plan. Laying to
one side his benefits and his profit-sharing payment, the
payments thus 'promised him totaled more than
$16,000.13
. Inferentially, before noon on that same day, alleged
discriminatees Mason and Kincaid were also advised that
they were to be severed. About noon that day, Dailey,
12 My finding that Reed so told Dickenson is based on Dickenson's
testimony. My finding as"to the date and hour is based on employee Roy
Dailey's testimony that on 9 April Dickenson said that he had not heard
about the layoff of - the remaining quality control technicians until he was
getting ready to go home on 8 April and on Dickenson's testimony that
he first learned about this from Reed during a conversation that included
the'remark to which this footnote is attached.
I s Dailey had been working at the plant for 24 years, since 1962. He
had been working for ' Respondent since it bought the plant from Gates
Rubber in 1973.
Mason; Kincaid, and then quality, control ' engineer
Robert Meyers met with Dickenson in the X-ray office.
Mason asked Dickenson what was going on. -Dickenson
said that he did not know, that he did not like it any
better than the employees did, but that it was something
that he had no control over, and that he had not heard
about it until' he was getting ready to go home on the
previous day.' Mason asked Dickenson whether it would
not have been better if the employees had not been rep-
resented. Dickenson said that he could not agree with
that.
About 7: 15 a.m . on the following day, 10 April 1986,
Weymouth ` and Pike told quality control technician,
Hurley that he was going` to be severed. Pike 'told
Hurley that he would be receiving checks, equal to his
paychecks and consisting of vacation pay and severance
pay, until 18 August ,1986:14' These payments `would
amount to about $9600. She further told him how long
his insurance benefits would run. Pike offered _ to assist
Hurley in drafting his resume, and also offered to pre-
pare a letter of recommendation. Hurley's attendance
had been perfect for at least 10 years, and he had re-
ceived a job performance rating of "M-plus" (that is, ex-
cellent), the second highest rating possible. He asked that
the letter of recommendation include a reference to his
perfect attendance. Weymouth and Pike agreed. Hurley
asked about being rehired. Weymouth and Pike said that
this was possible, but could not be promised, and that
"things were looking very bad." Hurley, asked why so
many quality control, technicians were being laid off.
Weymouth said that he had to do what his "bosses" told
him, and that he had received a call from corporate
headquarters that week. Hurley asked whether corporate
headquarters had told Weymouth to lay off 'all of quality
control. Weymouth said no, that this decision had been
made by Reed and the department heads.ls About 2
hours later, Hurley thanked Reed for the opportunity of
working at the plant. Reed said that he was` sorry that' it.
had taken him so long to cut the salaried employees, that
he had tried to avoid this as long as he could, and that`
about a month earlier he had tried to prevent this by or-
dering that there be no overtime. Hurley thanked Reed
for .issuing this order.
4. Terminations after April 1986
The last day of active work as quality control techni-
cians for all 12 of the technicians was 10 April 1986. One
individual in Respondent's salaried manufacturing super-
vision was terminated for cause on 2 May 1986, and was
not replaced. In June 1986 Respondent terminated four
line foremen. Between 1 January 1986 and 30 July 1986,
14 Hurley had been. working in the plant during all or most of the, 13-
year period when Respondent owned-,it
is My finding that Weymouth so advised Hurley is based on Hurley's
uncontradicted testimony . Weymouth, who was not asked about this con-
versation, testified that Reed told him that Reed had made this decision,
and did not testify that Reed said anything about the department heads.
Technical Services Manager McAllister testified'without contradiction
that Reed did not consult him before the 8 April decision to terminate
Hurley and the other alleged discrimmatees was made, and there is no
evidence of any consultation-with any other department head regarding
this decision.
ARMSTRONG RUBBER CO. 629
25 salaried personnel were terminated (voluntarily or
otherwise) and not replaced-is Between 1 May 1986 and
28 July 1986, the hourly payroll fell from 508 to 388.17
In May 1986 scheduled production fell to 9000 tires per
day from the 12,500 scheduled for April 1986, and in
June 1986 scheduled production fell to 7500. In none of
these 3 months did actual production reach scheduled
production.
On two occasions in the spring of 1986, Respondent's
Des Moines plant shut down for lweek. During undis-
closed periods, Respondent's Natchez and Hanford
plants went on a 4-day week. About July 1986 Respond-
ent decided to shut down the Natchez plant permanent-
ly. -
On an undisclosed date before the hearing in late July
1986, Respondent's Madison plant returned' to a 5-day
week. As of the time of the hearing, that plant had in its
employ seven or eight quality area supervisors, depend-
ing on whether Ernest Axley was employed as such. is
These included four of the individuals who had been ter-
minated as quality control technicians-namely, Sisk,
Sadler, and alleged discriminate-es Kemp and Douglas.
5. The content of the telephone communication
between Reed and Twickler on 8 April 1986
Twickler testified that in the middle of the morning of
8 April he telephoned Reed and suggested that he might
have to cut five or six more salaried employees than
Reed's current schedule called for. However, Reed did
not testify to any conversation with Twickler that morn-
ing. Moreover, Twickler, testified that, as of the time
when he made this call, Reed had scheduled a cutback of
about 18 employees, whereas Reed and Weymouth (as
well as all the other witnesses who testified about this
matter) testified that, as of the morning of 8 April, 21 sal-
aried employees were scheduled for cutback. For these
and demeanor reasons, I do not credit the testimony of
Twickler summarized in this paragraph,
16 This figure does not include four salaried quality control technicians
(Sadler, Sisk , and alleged discriminatees Kemp and Douglas ) who were
terminated as technicians on 10 April but began to work for, Respondent
as quality area supervisors on 21 April 1986 (see infra, sec. H,C). Because
Respondent keeps employees on the payroll for about a week after they
receive their notice of severance, and because these four employees re-
sumed working for Respondent 'as quality area supervisors at the begin-
ning of the second week after their severance as technicians, these four
were never actually off the payroll. Nor does this figure include alleged
discriminatees Dailey, Hurley, Kincaid, Mason , and 'Watson ; as discussed
infra, the General Counsel contends, that they were replaced by Sadler,
Sisk, and others
17 In July 1986 it increased from 370 to 388;
18 McAllister' testified' in July 1986 that he did-,not know whether
Axley's title -was "quality control foreman" or "quality area supervisor,"
but that both jobs were the same and Axley had no authority over the
quality area supervisors Dickenson testified that Axley's title had been
"quality control, supervisor" at all material times both before and after
the quality control technicians' termination; when asked what Axley was
presently doing, Dickenson replied , "He is a quality control supervisor,
the same as the others." On 29 July 1986 the parties stipulated that Ailey
"holds" the position of quality control foreman,, and that he "is now and
has been at all times material to this proceeding , a supervisor of Respond-
ent' within the meaning of Section 2(11) of the Act" At the hearing, Re-
spondent's counsel stated that he had signed this stipulation after the
General Counsel had stated that Arley was not going to be alleged to be
an agent of Respondent. The General Counsel thereafter stated that she
was making no agency contention
Twickler testified that during his alleged morning
telephone conversation with Reed on 8 April, which
conversation I have found did not take place, Twickler
suggested that Reed terminate five or six more salaried
employees than were already scheduled for termination;
and that that afternoon the two men probably reviewed
their earlier conversation. On the basis of this testimony,
I find that on the afternoon of 8 April Twickler suggest-
ed that Reed terminate five or six more people than were
already scheduled for termination; and I do not credit
Reed's testimony that Twickler did not tell him how,
many more people to cut.
. Twickler testified, in effect, that he could not recall
any 8 April discussion specifically about terminating
quality control technicians. Moreover, Reed testified that
Twickler did not tell him whom to cut. Nevertheless, I
find that, during the conversation between Reed and
Twickler on the afternoon of 8 April, Twickler did in
fact at least recommend that Reed terminate five or six
of 'the seven quality control technicians not already
scheduled for termination. I so find on the basis of the
witnesses' demeanor 19 and the following considerations:
The testimony of Reed and McAllister established that it
was during or immediately after Reed's conversation
with Twickler, when Reed admittedly told Twickler
about the representation petition involving the quality
control technicians, that the termination of the remaining
quality control technicians was decided on. Further, ' the
testimony of McAllister and Dickenson (the respective
heads of the division and department where the quality
control technicians worked} establishes that they were
not consulted before the decision to terminate the re-
maining quality control technicians' was made, even
'though I on 1 April Reed had consulted with McAllister
and the other division heads before deciding which sala-
ried employees to terminate . Moreover, in denying to
,quality control technician Hurley that corporate head-
quarters had ordered these terminations, Industrial Rela-
tions Manager Weymouth untruthfully (as shown by
Reed's and McAllister's testimony) attributed the deci-
sion partly to the department heads, 2 0' Further, as dis-
cussed infra, sec. II,C, it was not until after the last day
,of active work by all 12 of the quality control techni-
'cians that Madison management engaged in discussions
,and conduct which would normally be expected to pre-
cede the termination of the seven whom Respondent had
.initially ,planned to retain-namely, discussions and con-
duct which looked toward performing through other
personnel the functions which, before Twickler's conver-
sation with Reed, Respondent had anticipated perform-
ing with these seven. I note, moreover, that the number
of alleged discriminatees (five) who were never rehired
corresponds to the number of employees (five or six)
whose addition to the already scheduled terminations
was allegedly recommended by Twickler to Reed on the
morning of 8 April.
19 See NLRB Y. Walton Mfg. Co., 369 U.S. 404,408 (1962).
20 See Shattuck Denn Mining Corp. Y, NLRB, 362 F.2d 460, 470 (9th
Cm. 1966)
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Respondent's Selection of Quality Area Supervisors,
Its Preparation of a Job Description, and Related
Matters
Reed testified that during the afternoon of 8 April he
decided to reorganize the quality control function, and
replace it with the quality area supervisors. Because on 8
April he told McAllister and (shortly before 3:30 p.m.)
Dickenson that in the future the quality control foremen
(referring to Dickenson, Axley, and Griffin) would have
to perform the quality control -work, I infer that Reed
made that replacement decision after these conversations.
Between the afternoon of Tuesday, 8 April, and
Monday, 14 April, Reed, McAllister, and Dickenson en-
gaged in various discussions about having the work per-
formed by persons in addition to Dickenson, Axley, and
Griffin.21 By 10 or 11 April Reed decided that the work
should be so performed at the pay grade level of 14 (3
grade levels above the quality control technicians' jobs).
Reed testified, in effect, that by that time he had decided
to use six quality area supervisors to replace the seven
quality control technicians allegedly discriminated
against (supra, fn. 11). When asked by company counsel,
"What did you calculate you saved in the way of sala-
ries, by eliminating the Quality Control Technicians?"
Reed replied, "Eliminating 12 quality control technicians
at their base rate, would be somewhere in the vicinity of
$400;000 a year." At the base rate for their jobs, the 12
quality control technicians would have been paid a total
of about $236,000 a year; their yearly salaries would
have totaled about $345,000 if all 12 had been paid (as
they were not) at the maximum. The total wages of the
seven alleged discriminatees was about $194,000 annual-
ly. As discussed infra, this sum exceeded by about
$18,000 the total to the 6 quality area supervisors, whom
Reed decided no later than 11 April to pay at the grade
14 level-3 levels higher than the quality control techni-
cians. Moreover, as previously noted, all 12 of the qual-
ity control technicians were to receive severance pay,
and the cash payments which Respondent promised in
connection with the severance of Dailey and Hurley
alone exceeded $25,000.
No earlier than the afternoon of Wednesday, 9 April,
and no later than Monday, ' 14 April, Reed instructed
Weymouth to find individuals to fill the quality area su-
pervisors' jobs.22 On 14 April Respondent's industrial re-
21 This finding is based on credible parts of the testimony of Reed and
McAllister: Dickenson testified that any such discussions began no earlier
than Wednesday, 16 April, when he and Reed "started talking about SAS
and SPC [see infra; sec. II,D,l] and getting some people in there that we
could put those kinds of programs into our plant " I do not credit this
testimony in view of the fact that the quality area supervisor's job was
posted on 14 April (see infra) and the 14 April date on a memorandum
by Reed to Twickler which stated, inter alia, that Respondent intended
to have, two "Quality supervisors" per shift who "would input quality
data from the Manufacturing areas into the computer."
22 My finding that these instructions were given is based on the testi-
mony of Reed and Weymouth, neither of whom gave a date. My finding
as to the dates is based on the fact that the job was posted on 14 April
and on the evidence that as of noon on 9 April (as shown by Dickenson's
remarks at that time-in the X-ray' office) Dickenson still believed that the
quality control technicians' function would have to be performed by him-
self and the two incumbent quality control foremen
lations department, which is headed by Weymouth,
posted the following notice in the plant-
CANDIDATE SPECIFICATIONS
Due to a reorganization, several positions of "qual-
ity area supervisor" are available. Interested candi-
dates should apply to personnel no later than
Wednesday, April 16, 1986 by 7:00 a.m.
EXPERIENCE: Supervisory and/or quality assur-
ance
EDUCATION: College helpful
This notice was not distributed outside the plant. Wey-
mouth testified that the notice was "probably" drafted
by Dickenson and someone in the industrial relations de-
partment. Dickenson was not directly asked about this
matter, and_some of his testimony is difficult to square
with any conclusion that he participated in drafting it
(see supra, fn. 21, and infra, fn. 26).
A total of 10 persons applied for the posted quality
area supervisor's job. Of these applicants, four-all of
whom were hired-consisted of the only four terminated
quality control technicians whom Personnel Director
Pike telephoned about the notice posted in the plant.23
The six remaining applicants were all working in the
plant when the notice was posted there. Of these six, Re-
spondent selected two line foremen-Bobby Richardson
and Don Murphy-for the job. Richardson was probably
among the line foremen scheduled for inclusion in the 11
April salaried layoff, and Murphy may also have been in
that group.24 The layoff of line foremen, which on 1 and
2 April Reed had anticipated would occur in May, did
not in fact occur until 20 June. On that date, Respondent
laid off four line foremen, rather than the eight or nine
Reed had anticipated before line foremen Richardson
and Murphy were selected as quality area supervisors.25
McAllister credibly testified that the six successful appli-
cants for the quality area supervisors' jobs were selected
about 14 April. At least as of 28 April 1986 no decision
had been reached as to what authority, if any, Axley
23 In response to questions by me, Weymouth gave some testimony
about why only these four, and not the ,remaining seven, had been alerted
to the vacancy and interviewed for the job. Weymouth testified that the
interviews were conducted by him and Dickenson, and that Dickenson's
opinions about these seven technicians played a part in the decision mot
to interview them for the job. Dickenson was not asked either whether
he had taken part in the interviews or what part (if any) he played in the
decision not to tell seven of the technicians about the vacancies, his testi-
mony about the kind of people he wanted for the job is directed to intra-
management discussions after the successful applicants had been selected
and, perhaps, after they had started work. I make no findings about Re-
spondent's real reason for selecting these particular four for consider-
ation.
24 Seven line supervisors were terminated on 11 April, and five more
were terminated on 18 April-4 days after Richardson and Murphy were
selected for the quality area supervisors' jobs. R. Exh. 4, which Wey-
mouth identified as a list of terminations of individuals "from. January 1,
1986 through [30 July 1986] who are no longer employed with" Re-
spondent, does not include Richardson or Murphy, but does include the
names of all four of the quality control technicians who stopped working
as such on 10 April and, without being dropped from the payroll, began
to work as quality area supervisors on 21 April.
25 As previously noted, a line foreman had been terminated for cause
on 2 May.
ARMSTRONG RUBBER CO.
would have over the six quality area supervisors (see
supra, fn. 18).
The record. shows that the job description for quality
area supervisor was not formulated, until after the jobs
had- been posted, Weymouth and Dickenson had selected
the successful applicants, and such applicants had been
hired. Reed testified that the job description did not exist
as of 8 April, and that it was created by Dickenson
"around April 14th [or] the 15th. In, that area." Wey-
mouth testified that during the week ending Friday, _ 11
April, he was not involved at all in formulating a job de-
scription for that position, and that he did not review the
job description with Dickenson until "sometime after
that period . . . It could have been" 14 or 15 April:
Dickenson was not asked when, or even whether, he
created the job description. However, inferences about
the earliest date he could have prepared it can be de-
rived from his testimony about the dates of his discus-
sions regarding the SPC system. (explained iri€ra, sec.
I1,13,1), which is specifically mentioned in that job de-
scription. Thus, he testified that it'was not until "like the
mid-week after all the `technicians were gone" (they last
worked on Thursday, 10 April) that 'he started talking to
Reed about - SPC and the Statistical Analysis System
(SAS, explained'iiifra, sec. II,D,I). Moreover, Dickenson
went on to testify that it may have been as late as 4 days
later (that is, perhaps as late as on or after 21 April, the
quality area 'supervisors' first day of employment as
such) when he and Reed started talking about whether
statistical analysis could be effectively brought into the
plant.26 Although the job description recites that the
quality area supervisor 's duties include "Directing and
training of production supervision in Standard Practice
[Specifications] and Quality ' Control Procedures" and
"Alerting and reviewing factory supervision ofprocess
or product defect problems which, are presently occur-
ring," at least as of 28 April Respondent had not yet de-
cided what authority, if any, the quality area supervisors
would' have over the manufacturing foremen and over
the line foremen.27 -
Twickler testimonially authenticated as a "reorganiza-
tion plan" for the quality control function a memoran-
dum to him- from Reed dated 14 April and specifying
"Quality Control Reorganization" as a subject. On the
basis of the date on this memorandum, Twickler testified
that he received it in' the mail about 16 or 17 April. He
testified that he thereafter approved the plan; he was 'not
asked for a date. Reed's covering memorandum states,
inter alia, "The Quality supervisor at [shift's] end, would
input quality data from the Manufacturing areas into ' the
computer, thus streamlining Quality data output to man-
26 Reed testified that, during his conversation with McAllister on the
afternoon of 8 April, Reed referred to the job title "quality area supervi-
sors." Furthermore, this is the job title used in the 14 April job posting.
Moreover, the "Quality Control Re-Organization" memorandum from
Reed to Twickler dated 14 April (see infra) refers to such persons as
"quality supervisors." However, Dickenson testified that his conversa-
tions with Reed, which according to Dickenson began about 16 April,
included "quite a few discussions about the title for these people. 'Statisti-
cian' didn't seem to fit, you know, that type of thing we came up with
supervisor "
27 Nor is the record clear as to any such authority as of the hearing in
late July 1986. See infra, see. II,D,3. -
631
agement." This is the only reliable evidence as to the
earliest date when Respondent decided to, require quality
area supervisors to learn to operate computers (cf. supra;
his. 11 and 21). Other portions of this memorandum are
discussed infra.
.By memorandum dated 17 March to Reed, McAllister,
and Production Manager Ernest Custer, Respondent's
corporate headquarters confirmed that the annual corpo.•
rate quality -audit, of the Madison, plant would be con-
ducted during the, week beginning -14 April. This audit
was to include floor verification of the system. Alleged
discriminatee Hurley credibly testified that the number
of checks made by the quality control, technicians -was
very important for the annual corporate audit: As previ-
ously noted,,the, decision to terminate 10 salaried person-
nel from the manufacturing division was made by 1
April, the decision to terminate- 5 quality, control techni-
cians was made on 7 April, and the decision to terminate
the rest of the quality control technicians was made, in
the afternoon of 8 April. On an undisclosed date subse-
quent to the afternoon of 8 April but before 12 April,
Reed and Custer decided to postpone the, audit to the
week of 9 June. Reed was not asked Why, this, decision
was reached, Custer did not testify-, and McAllister
(whose- only, appearance on the stand was,as an adverse
witness called by the General Counsel) was not asked
anything about the audit. Quality Control Superintendent
Dickenson testified that the technical department - was
ready for the quality audit the week of 14 April, that he
and, "quality" wanted to have it then because "we had
already collected the data that affected my department,"
but that the "factory" was "pretty well disrupted." Dick-
enson went on to testify that during the week of 14 April
there had been changes in the manufacturing department
in that "some people had been laid off there; a reduction
in ticket and scheduling so . . . it was pretty disrupted."
The termination of 10 salaried personnel in the,manufac-
turing division, which termination had been decided on 1
April, became effective as of 14 April. However, no
more than-5,dRespondent's 513 hourly employees were
laid off in April, the April production schedule was the
same as the March schedule, and actual production in
April was almost as great as it 'had been, in March.28
Moreover, much of Dickenson's description of the events
on the manufacturing floor "in April" is directed at the
consequences of an`hourly layoff (which did- not occur in
March or, to any great extent,, April) rather than a sala-
ried layoff (`job bidding, ' reassignment, people going
even f r o m one, area to another a r e a of the plant, prob-
ably at jobs they h a d never worked' before ... bids up,
people trying to get to their new job and stay long-
enough to train people on their old job"). In May 1986,
the month preceding the week (June 9-13) when the
audit in fact took place, the scheduled and the actual
production had been substantially cut as compared to
April,29 and 97 hourly employees and 1 salaried individ-
ual were terminated.
28 Daily production averaged 12,519 in March and 12,189 in April.
29 May scheduled production was 9000 a day, compared to 12,500 in
April. Actual production averaged 7406 in May, as compared to 12,189 in
April. Scheduled production in June was 7500 a day, and actual produc-
tion averaged 7015.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Quality area supervisors have a salary grade of 14,
ranging between $24,336 and $35,880 annually.30 Al-
though the wages paid to all 7 of the alleged discrimina-
tees fell within this range, their classification (quality
control technician) had a salary grade of 11, ranging be-
tween $19,604 and $28,548 annually: Alleged discrimina-
tees Douglas and Kemp are both paid about 5 percent
more as quality area supervisors than they had been paid
as quality control technicians.st Douglas had been the
highest paid among the quality control technicians alleg-
edly discriminated against,-and as of 21 April 1986 was
also the highest paid quality area supervisor.32 The
lowest paid quality area supervisor (Sisk) had a lower
salary than had been received by any of the quality con-
trol technicians allegedly discriminated against . The av-
erage salary paid to the quality area supervisors as of 21
April 1986 was about $1600 higher than the average
salary which had been received by the quality control
technicians allegedly 'discriminated against. The total
wages` paid as of 10 April 1986 to the seven quality con-
trol technicians who were allegedly discriminated against
exceeded by about $18;000` the total wages of the six
quality area supervisors as of 21 April 1986, the day they
began working as such. This $18,000 was about $8000
less than the salary of the lowest paid alleged discrimina-
tee (Mason) as a' quality control technician' and about
$7000 less than the salary of the lowest paid quality area
supervisor (Sisk)-as of 21 April 1986.
- D. The Duties and Supervision of the Quality Control
Technicians and the Quality Area Supervisors
1. Background, Respondent's acquisition of
computer equipment„ and the SPC and SAS systems
Respondent produced tires at five plants, including the
Madison` plant involved in this proceeding. Reed credi-
bly testified that some sort of quality control program is
necessary in a business such as his. At all material times,
Respondent has had a corporate quality assurance group,
based in New Haven, Connecticut, which administers a
companywide program for checking on the quality con-
trol program conducted by each of the five tire plants.
Throughout the 1-year period between August 1985 and
the hearing in late July 1986, the corporate quality assur'-
anbe group has been assisting the Madison plant in imple-
menting a statistical process control program (SPC, de-
scribed infra) and in setting" up ' a statistical analysis
system (SAS, described infra). The purpose of these data
processing systems is to 'turn data into a form which
gives Respondent more usable results than it could
obtain from merely inspecting the data.
Reed described the SPC program as involving a series
of checks and plotting checks on graphs to determine
whether components produced by Respondent are trend-
ing toward out-of-tolerance weight or dimensions. On an
undisclosed date in late summer or early fall 1985, Dick-
so Axley (see supra, In 18) is also in salary grade 14. The record fails
to show what be is actually'paid.
81 As of 21 April 1986, their last day as quality control technicians,
they were paid about $31,000 and $28,000, respectively
sa My findings in this sentence, and in the rest of this paragraph, ex-
clude consideration of Axley (see supra, fns 18 and 30)
enson and other members of management talked about
setting up some SPC teams. Inferentially, thereafter, and
on undisclosed dates before 7 April 1986, Senior Quality
Control Foreman Griffin attempted to obtain some infor-
mation about SPC, traveled on one occasion to New
Haven corporate headquarters for that purpose, and ob-
tained some brochures and books on that subject. In De-
cember 1985 he started learning to operate a computer to
learn about SPC. Thereafter, he bagan to enter data into
a computer with a keyboard and a screen, which was in-
stalled in the Madison technical office. Reed testified that
Griffin did so to generate-computer reports, and also that
he "was establishing the model." Between' Thanksgiving
and Christmas 1985, Joe Herrin and other personnel
from the New Haven corporate office came to the Madi-
son plant to give '"SPC classes" attended by Dickenson
and by whom he described as "some people ... from
other plants and our own people." In early or mid-Feb-
ruary 1986, the Madison quality control office acquired
an additional computer with a keyboard and a screen,
and also acquired a printer shared by both computers.
Reed testified that these two computers were "SPC
units," and that before April 1'986 they were being used
on tread length control and on belt width control, re-,
spectively. He went on to testify that as of 7 April 1986
the plant had not installed any new data processing
equipment, and that these same units (the two computers
and the printer) were being used as of the date of his tes-
timony (30 July 1986) for the SPC system, "plus we are
using the SPC functions in plotting other operations."
Quality control technicians were required to -enter the
results of their checks, audits, and inspections ,onto 6 to
15 forms that they filled out every day. Dickenson' credi
bly testified that the originals of these forms were all
sent to Griffin, who put out weekly or monthly quality
ratings based on an accumulation of all the checks which
had been made. Dickenson did not testify about the
extent, if any, to which these quality ratings constituted
or were based on the computer reports which (according
to Reed) were being generated by Griffin's operation of
the SPC units. However, I conclude that data 'set forth
in the quality control technicians' reports were entered
into the SPC units by Griffin for the purpose, at the very
least, of maintaining tread length control and belt width
control, purposes for which (according to Reed) these
units were used before April 1986. Thus, Dailey, a qual-
ity control technician in the finishing department until
his termination on 10 April 1986, credibly testified that
some of the forms filled out by him were "fed through
computers, I don't ' know how much." Hurley, a night-
shift control technician in the millroom until his termina-
tion on 10 April 1986, credibly testified that the scrap
weight tickets were put in the "data processing box."
Moreover, the quality control technicians' reports includ-
ed information which would have been useful for the
purposes which the computers (according to Reed) were
actually serving (see infra, fn. 33). Furthermore, after 28
April 1986 at least some of this same information was en-
tered into these same computers by quality area supervi-
sors whom Griffin had instructed in computer operation
(see infra, sec. II,D,4). Finally, Reed testified that until
ARMSTRONG RUBBER CO. 633
April 1986 Griffin performed the same data-entry func-
tion thereafter performed at least partly by quality area
supervisors, who entered into these same computers data
of the same kind as that collected by quality control
technicians (see infra, sec. II,D,4).33
The SAS system is a statistical analysis computer pro-
gram that, on the basis of data put into the computer,
gives the percentages, of Respondent's production which
are in tolerance or out of tolerance. Dickenson testified
that "we" started getting information on SAS about De-
cember 1985. Before Christmas 1985, Herrin gave some
information about SAS to Dickenson and other persons
whose names are not shown by the record but who, in-
ferentially, were also members of management . Reed tes-
tified that on unspecified dates before mid-April 1986,
the plant technical department had a "model" of the
SAS system, which Griffin had .been doing some work
with. Respondent developed and installed the SAS
system, itself in mid-April 1986 after the alleged discri-
minatees' termination.
The quality area supervisors' job description (drawn
up no earlier than 14 April) stated, inter alia, that they
were to "Become active Statistical Process Control team
members"-teams whose setting up had been discussed
by management in late summer or early fall 1985 . During
the first week, that the quality area supervisors were
working as such, all of them spent all their working
hours attending training sessions on statistics control,
with Griffin and Herrin as instructors. These training ses-
sions included instruction on how to operate the two
computers that had been in the technical office since De-
cember 1985 and February 1986, -respectively, and that
Griffin had operated during this period . During the week
following the quality area supervisors' week of full-time
instruction, instruction was combined with operations on
the floor. Thereafter, and as of the second day of the
hearing (30 July 1986), the quality area supervisors con-
tinued to receive additional training, including training
on how to enter data into the computer. Dickenson testi-
fied on that hearing day "Most of them can enter quite a
bit of their own data." This procedure comsumes 15 to
60 minutes a day per man. As discussed infra, the quality
area supervisors spent most of the rest of their time col-
lecting statistical data on tires and their components, and
noting such data, on audit "sheets -or other paper. As dis-
cussed infra, the quality contol technicians had also col-
lected such data, and noted them on audit sheets.
Dickenson testified that, Respondent began using the
SPC system soon after the quality control technicians
were laid off (cf. supra, sec. II,D,1). He testified" that it
"does take time" (he did not specify how long) to "estab-
lish" the SPC system, but that, once it is established,
comprehensible results can be reached with much small-
er samples, and for a much longer timeframe, than was
possible with "the old way of gathering data," He fur-
ther testified that when data are entered by computer
into the SAS system, the computer can produce charts
showing "where you are today or last week, last month,
compared to where you are right now." Reed's ' explana-
Sa Thus, both quality control technicians and quality area supervisors
collected data on the width and length of tread
tion of the SAS system shows that Dickenson was refer-
ring to charts showing the percentages of production
which are in tolerance or out of tolerance.
I infer that, until deciding on 8 April 1986 to terminate
all the employees classified as quality control technicians,
Respondent planned to give them about the same kind of
statistical and computer training administered to the
quality area supervisors on and after 21 April 11986, and,
on the basis of such 'training, to require quality control
technicians to perform the same` king of computer work
which was in fact performed by the quality area supervi-
sors. I so infer from the following evidence: Respondent
had been planning since August ' 1985 to implement the
SPC system and to set, up an SAS 'system. A significant
portion'of the quality control technicians' duties (like the
principal duty of the quality area supervisors) was to
compile the data which were put into the computers
when SPC and SAS were introduced. Reed testified that,
when Senior Quality Control Foreman Griffin (the su-
pervisor of the quality control technicians and, later, the
quality area supervisors) entered into a computer some of
the data complied by the quality control technicians, he
"was establishing the model." Reed further testified that
Respondent's entire data processing equipment consisted
of two computers (which he described as "SPC units")
and a printer, all of which Respondent was using before
the quality control technicians were terminated and
which Respondent thereafter used for the SPC system
and the SAS program. Finally, when selecting quality
area supervisors, Respondent hired mostly former quality
control technicians, but did not (so far as the record
shows) make any effort to ascertain whether applicants
had any statistical or computer training or aptitude.34
2. The supervision and general duties of quality
control technicians.
During the first 3 months of 1986, each quality control
technician 'covered one of three areas--namely, (1) the
millroom, (2) tire assembly, and (3) finishing, curing, and
the warehouse. When the plant was operating on three
shifts, one technician would be ' assigned to each 'of the
three areas on each shift,. except that two technicians
would be assigned to area 3 on the day shift. In addition,
Respondent employed one "floater," who filled in for
technicians who were absent or on vacation, and helped
out when production was picking up. On occasion, Qual-
ity Control Superintendent Dickenson asked quality con-
trol technicians to change areas , and in most cases these
employees were willing to do so.35 These i l quality
control technicians reported directly to Quality Control
Foreman Ernest Axley. Axley reported directly . to
Senior Quality Control Foreman Rodney Griffin, who
reported directly to Quality Control Superintendent
84 As previously noted , among the terminated quality control techm-
ctans whom Respondent did not advise of the quality area supervisor's
jobs was Hurley, whose college major was mathematics and who in 1970
had had a college course m' computers . However, Hurley has never run
an SPC computer on the SPC program , and does not know what the
SAS program is.
85 Both of the quality control technicians who testified had worked as
such in two areas.
634- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dickenson, who in turn reported directly to Technical
Services Manager Kin McAllister. As previously noted,
each quality control technician submitted at. the end of
each shift a, number of written -reports. The original
copies were ^ sent to Senior Quality Control Foreman-
Griffin; who used them to prepare- a weekly or monthly
quality rating. A copy of each such report was sent to
the superintendent of the area in question, to corporate
headquarters -in New Haven, to the "technical depart-
ment," to Production Manager Ernest Custer, to Quality
Control Superintendent Dickenson, and (sometimes) to
Technical Services Manager McAllister. General Manag-
er Reed, testified that, if these reports showed that most
of the checks were within specification, Respondent "as-
sumed" that the product was satisfactory. Dickenson tes-
tified that he "would glance at [the reports] and look and
see if there was any circles around there, denoting some-
thing that was out of spec. If there was no circle,,, l
would probably [throw] them, away." There is no evi-
dence as to what corporate headquarters, the "technical
department," Custer, or, McAllister did with these docu-
ments.36
3. The supervision and general duties of quality area
supervisors
Quality, area supervisors are directly' supervised by
Senior Quality, Control Foreman Griffin and. (perhaps)
by Axley; who--had been, the immediate superior of qual-
ity control technicians and, as such, had directly report-
ed to Griffin.37 Griffin still reports directly to Quality
Control Superintendent Dickenson, who in turn still re-
ports directly to Technical Services Manager, McAllister.
Two quality area supervisors are assigned to each
shift. All 6 of them perform their duties throughout the
plant; Dickenson testimonially attributed at least partly
to their limited numbers the difference between their
work areas and the more limited work areas in which
each of the 11 quality control technicians respectively
worked. The quality area 'supervisors' job ' description,
prepared" on an undisclosed date after they started to
work as such , states , inter alia, that they are expected to
"Monitor all phases, of our performance and adherence
to the following: specification, standard practice specifi-
cation, equipment checks, hold release, set-ups, and local
procedures." Reed testified that as of 8 April 1986 he in-
tended to confer on quality area supervisors ' "superviso-
ry, privileges," which he explained as "to 'stop an oper-
ation if it ` was found out of `control, to work within the
other manufacturing supervisors, superintendents that
would be on the floor at that time." He went on to testi-
fiy that these were the only "supervisory privileges" he
had had in mind. McAllister credibly testified' that as of
28 April it had not yet been decided what authority, if
any; the quality area supervisors would have over 'the
manufacturing foremen and line foremen. He further cre-
dibly testified that as of that date the quality area super-
36 McAllister was called, by the General Counsel as an adverse wit-
ness, and was not asked -about this matter. Custer did not testify,
8' See supra, fns. 18 and 30. At least as of 28 April 1986, 3 months
before the hearing , no decision had been reached as to what authority, if
any, Axley would have over quality area supervisors.
visors did not discipline employees , and that at no time
had they authority to recommend discipline . 38 Industrial
Relations Manager Weymouth testified in late July , that,
when the quality- area supervisors were first hired, Re-
spondent planned that they would usually - go through
the manufacturing foreman ' to effect a change , but in' the
unusual circumstance -quality area supervisors "will have
authority" to do it themselves . On the following day;
Dickenson testified at one point that quality area supervi-
sors; if they find a defective product or improper oper-
ation, have authority to stop it without finding the pro-
duction foreman . However, he elsewhere testified that,
when the quality area supervisors find such deficiencies,
"[w]e' would notify the manufacturing people and help'
wherever we could to stop that operation from going on
.... Tie if off if necessary . . . you're reacting to the
conditions you find." When quality control technicians
(not contended to be supervisors) found a defective
product or improper operation , they could not ordinarily
stop production, or take corrective action, without the
approval of the foreman in that department . However, if
the problem was serious and the foreman was not readily
available , quality control technician Hurley, - at least,
would -tell the operator to shut down the operation,, and
would then find the foreman and tell him about the prob-
lem.39 Like quality control technicians , quality area su-,
pervisors do not have any employees under them.4°
In the course of the quality control technicians' work,
they carried with them a clipboard holding audit , forms,
a tape measure, a tread gauge, - and on occasion a mill
knife . They used chalk to mark defective- tires, but the
record fails to show whether they carried chalk with
them. Quality area supervisors carry with them, a clip-
board - to hold audit forms or slips of paper, a gauge; a
tape measure, a mill knife , a flashlight, and chalk to mark
defective tires. -
4. The nature of the checks performed and the data
collected by the quality area supervisors and the
quality control technicians
In the millroom, the quality area supervisors recheck
chemical weights of the rubber mixture which comes out
of the "Banbury" mixer; collect data on the width,
length, and I gauge of the treads; collect, data on the
gauge and width of the sidewalls; check fabric dimen-
sions and the splice width of ply; and perform random
audits on the mixer setups. Also, the quality area supervi-
sors initially collected, but later stopped-collecting, data
as to strands, turns, and diameter of beads., Quality con-
39, For demeanor' reasons, I do not credit Dickenson's testimony that
they have authority to recommend discipline.
39 Hurley had been a quality control technician for 13 years. He im-
pressed me as having a good deal more self-confidence than Dailey, who
had been a quality control technician for 5 years and who credibly testi-
fied to the belief that he had mo authority to stop the machines or to tell
an employee how to operate his machine Dickenson , who testified that
quality control technicians had no such authority, was in general an unre-
liable witness; see supra fns 21 and 26.
40 In view of the evidence summarized in the text, I conclude that-
"quality area supervisors" are not "supervisors" within the meaning of
Sec 2(11) of the Act Indeed, Respondent has not contended otherwise,
ARMSTRONG RUBBER CO.
trol technicians had collected all these data and had
made similar random audits.
In the tire assembly area , quality area supervisors in-
spect the inside and outside of tire carcasses to determine
whether the correct carcasses have been used, whether
the correct specifications have been imprinted on the
tires, whether the tread had been correctly identified,
and whether the tires have such defects as improper
splices, wide liners , whitewall splices, wrinkled turn-ups,
or trapped air. Also, quality area supervisors perform
random audits of the tire assembly machine setups. The
quality control technicians had performed all these in-
spections and had made similar random audits.
In the finishing, curing, and warehouse area, the qual-
ity area supervisors perform audits on samples of finished
goods. On occasion, if an audit suggests that a defect is
"running" in a particular kind of tire, the quality area su-
pervisors check each of these tires individually. Except
that the quality area supervisors seldom use the opti-
mizer, the audit-of the tires which are in fact checked is
the same as the one which had been performed by the
quality control technicians on the tires checked by them.
The quality control technicians had audited all tires,
except that they audited only samples of "some catalog
numbers that are proven that they were okay." Each tire
in "price club" orders had been checked by quality con-
trol technicians and is now checked by quality area su-
pervisors.
The quality control technicians' duties included track-
ing down tires already in the warehouse when a check of
similar tires suggested a defect common to all of them.
Quality area supervisors have these same duties.
A significant proportion of the quality control techni-
cians' workday had been devoted to making checks of
work which was at least supposed to have been checked
by the foreman and/or the operator.41 From time to
time, these "double checks" had disclosed mistakes made
by the foreman and/or the operator-on very rare occa-
sions of a possibly dangerous nature. Dickenson testified
that if a mistake was not caught by the operator, the
foreman, or the quality control technician who checked
it, all three would be considered blameworthy, although
the technician would be less to blame than the others. In
the millroom, these "double checks" had included check-
ing each setup and each changover of the mixers; check-
ing each setup of the extruders (tubers); and checking
three setups per shift of the gum calender. In tire assem-
bly, these "double checks" had included checking each
changeover of the bead forming operation; checking
each tire assembly setup; and checking the cutting oper-
ation. Although the quality area supervisors do make
such checks on a random basis, their regular perform-
ance either has been eliminated or is the responsibility of
the foreman or the operator.
Before 11 April 1986, oil connections were made in
the presence of a quality control technician (who was re-
sponsible for seeing to it that the connection was made
41 Dickenson testified that such tasks consumed 70 to 80 percent of the
quality control technicians' time. I believe this figure to be somewhat
overstated because elimination of most of these checks had been pro-
posed by McAllister on 7 April as a concomitant to the termination of
about 42 percent of the quality control technicians.
635
properly) and, the pipefitter; normally, the maintenance
foreman was not present. Thereafter, the pipefitter and
the maintenance foreman were responsible for the cor-
rect coupling, for which the quality area supervisors had
no responsibility.
For an undisclosed period which continued after 21
April 1986, employee Meyers was classified as a quality
control engineer, and performed certain tests required by
the Department of Transportation. At least some of these
tests required the use of an X-ray machine, and at least
some of them called for checks on the dimensions of
cross sections, circumference, and tread radius on a cer-
tain number of tires. Thereafter, and on an undisclosed
date before 30 July 1986, Meyers was reclassified as a
quality area supervisor, and the quality area supervisors
were all taught to perform these DOT-required tests.
There is no evidence that-the particular X-ray operation
initially performed by Meyers was ever performed by
the quality control technicians. However, the quality
control technicians had used an X-ray machine to per-
form random tests-in the finishing operation.
E. Analysis and Conclusions
In Birch Run Welding, the court held:
[A]lthough the General Counsel must usually show
that the employer knew about individual employees'
union activities before the Board may conclude that
the employer violated § 8(a)(3), the General Coun-
sel may also prevail by showing that the employer
ordered general lay-offs for the purpose of discour-
aging union activity or in retaliation against its em-
ployees because, of the union activities, of some. This
theory is viable even though some employees who
actually opposed the union ... were laid off with
their pro-union counterparts.
Birch Run Welding v. NLRB, 761 F.2d 1175, 1180 (6th
Cir. 1985), and cases cited. I conclude that the General
Counsel has shown by a preponderance of the evidence
that Respondent decided on 8 April 1986 to terminate
the seven alleged discriminatees because, Respondent had
just found out that the Union had filed a petition seeking
to represent them. Although there is no evidence wheth-
er any of the employees in the proposed unit had in fact
engaged in any union activity, Respondent clearly be-
lieved that some or all of them had. Thus, immediately
after learning about the petition, General Manager Reed
telephoned Vice President Twickler and (according to
Twickler) said that Reed had just heard that the quality
control technicians had petitioned for "joining the
Union." Moreover, during this conversation Twickler
admittedly remarked that "it sounded like an effort to
move under the umbrella of the union to protect their
job." If as I find) such a belief, motivated the termina-
tion of the seven alleged discriminatees, their termination
was unlawful whether or not Respondent was correct in
that belief. Gulf-Wander Corp., 233 NLRB 772, 778
(1977), enfd. in relevant' part 595 F.2d 1074 (5th Cir.
1979), And cases cited; Crucible, Inc„ 228 NLRB 723, 729
(1977), and cases cited; Hedison Mfg Co., 249 NLRB
791, 808-809 (1980), enfd. 643 F.2d 32 (1st Cir. 1981).
636 DECISIONS OF THE NATIONAL LABOR -RELATIONS BOARD
Persuasively pointing to Respondent's unlawful motive
is the timing of Respondent's decision to terminate the
seven alleged discriminatees. The credible evidence
shows that as of 7 April, and until Reed learned around
noon on 8 April about the Union's petition and called to
tell Twickler, about it shortly before 2 p.m., Respondent
had every intention of retaining these seven employees,
and that the termination decision was reached by 2 p.m.
on 8 April. There is no credible evidence that anything
at- all intervened during this period of less than 2 days,
other than Respondent's receipt of notice about the peti-
tion, to account for the change in Respondent's plans.42
Particularly in view of this sequence of events, such
timing points to the conclusion that the decision to ter-
minate these seven employees was motivated by the
Union's petition. Birch Run Welding, 761 F.2d at 1180-
1181; Jim Causley, Inc. i' NLRB, 620 F.2d 122, 125 (6th
Cir. 1980); NLRB v. Tennessee Packers, 390 F.2d 782, 784
(6th Cir 1968); Lebis Contracting, 267 NLRB 49, 50
(1983). Lending further support to such an inference is
that by Reed's own testimony the alleged discriminatees,
who had been classified as quality control technicians,
were "replaced" by personnel who had the newly de-
nominated job classification of quality area supervisors;43
such persons were selected about the working day fol-
lowing the last- day when the seven alleged discrimina-
tees worked as quality control technicians. Fedco Freight-
lines, 273 NLRB 399, 401 (1984); Stymco Mfg.,Co., 251
NLRB 427, 438 (1980), enfd. 678 F.2d 46 (6th Cir. 1982);
B. J. & R Machine. Co.,- 270 NLRB 267, 269 (1984). As
compared to the work that Reed and McAllister planned
as of 7 April to assign to the seven alleged discriminatees
after the remaining quality control technicians were ter-
minated as of 11 April, the only difference of any signifi-
cance between such technicians' work and the work per-
formed by the quality area supervisors is that, to the
extent that the data compiled by them were entered into
the computer, all the data compiled by the quality con-
trol technicians were entered by Senior Quality Control
Foreman Griffin, whereas some of the data compiled by
the quality area supervisors were entered by them.44 I
regard this change as- insubstantial in view of the follow-
ing: When selected, the quality area supervisors did not
(so far as the record shows) have any knowledge about
operating computers; indeed, four of them were former
quality control technicians. Further, there, is no evidence
`42 Indeed, the only - evidence even suggesting any' other factor is
Twickler's uncorroborated and discredited testimony that on the morning
of 8 April he suggested to Reed that the already scheduled cutback be
increased by five or six. However, Reed testified that the decision to ter-
minate'the seven alleged discruninatees (which he testified was made by
him) was not until the afternoon of that day
43 AsRespondent's able brief puts it (p 7), "Reed determined that the
Company would use a quality assurance, supervisor, rather than quality
control technicians "
44 The record fails to show how much was entered from the quality
control technicians' compilations as compared to the quality area supervi-
sors' compilations.
Although it is true that the quality area supervisors perform substan-
tially fewer "double checks" than the quality control technicians in fact
performed, Respondent had planned such a change in the remaining tech-
nicians' duties at the time that it decided on 7 April to terminate four
technicians and before Respondent's 8 April decision to terminate the rest
of them.
that when selecting them Respondent made any, effort to
ascertain whether they had any experience in,- or aptitude
for, statistics or the operation of computers. Moreover,
the evidence indicates that before terminating the quality
control technicians Respondent had been taking steps
looking to the performance by them of the computer
function now performed by the quality area supervisors.
Finally, at the time of the hearing (more than 2 months
after the quality area -supervisors began work as such),
their ability to enter, their compiled data into the comput-
er was somewhat limited in Dickenson's words, "Most
of them can enter quite a bit of their own data"). Further
pointing to the essential identity of the two jobs is the
action of Respondent's Madison management in terminat-
ing the quality control technicians, and hiring-the quality
area supervisors, before Vice President Twickler, had
even received (much less approved) a purported reorga-
nization plan supposedly calling for such action and
before drawing up the job description for the quality
area supervisor's job. Indeed, when Respondent got
around to drawing up this job description, Respondent
drew up a fair description of the quality control techni-
cians ' jobs with the addition of certain computer
duties.45 Moreover, the authority of and the supervision
over the quality area supervisors had not been fully de-
termined as of the date of the hearing, more than 3
months after the quality area supervisors began to work
as such.
Further indicative of Respondent's unlawful motive is
Respondent's failure to make, before- terminating the
seven alleged discriminatees, the- arrangements- which it
eventually did make for the continued performance of
quality control functions previously performed by the
quality control technicians. Although Reed admitted that
some sort of quality control program is needed in - Re-
spondent's business, and although- Respondent performed
after the technicians' termination the work which as of 7
April Respondent had intended the seven' alleged discri-
minatees to perform after 11 April, until 9 April' at the
earliest Respondent did nothing at all (so far as the
record shows) looking toward obtaining other persons to
perform such work. Although creating an appearance of
common motive for the termination of all 12 of the qual-
ity control technicians, Respondent's termination of the 7
alleged discriminatees effective the same day as the ter-
mination of the 5 quality control technicians whose ter-
mination had been decided on for lawful economic rea-
sons before Respondent learned of the Union's petition46
meant that during the next 2 weeks only 3 people-Grif-'
fin (when he was not instructing the quality area supervi-
sors), Axley, and Dickenson-were available to perform
the quality control work" which Respondent had planned'
as of '7 April to be performed by the 7 alleged discrimin-
atees and which, 2 weeks after their termination, began
46 More specifically, quality area supervisors were to be "completely
trained on Statistical Process Control Methodology," to be "active Statis-
tical Process Control team member[a]," "to do all data entry," and to
"review all chart plotting and procedures."
46 This common termination date may have been the reason all the
quality control technicians were named in the original charges filed by
the Union, which at that time may not have suspected that the decisions
to terminate the technicians were not simultaneous.
ARMSTRONG RUBBER CO. 637
to be performed by the quality area supervisors. Further-
more, Respondent's termination of the seven alleged dis-
criminatees before making any arrangements for the per-
formance of the work Respondent had intended them to
do imposed on Respondent the further inconvenience of
having to postpone the quality audit from the week of 14
April to the week of 9 June. That this, was the reason for
the rescheduling is shown by Reed's testimony that the
quality audit was not rescheduled until after Respond-
ent's 8 April decision to terminate the seven alleged dis-
criminatees ; by the probability that the audit would have
been rescheduled before 8 April if the decision to re-
schedule it had been motivated by events which oc-
curred before 8 April; and by the demonstrable falsity of
Dickenson's testimony that the rescheduling was moti-
vated by confusion due to an hourly layoff, although the
most recent substantial hourly, layoff had occurred more
than 3 months earlier. Moreover, Respondent's conduct
after deciding to terminate the remaining seven quality
control technicians indicates that Respondent was at-
tempting to resume the performance of their work as
quickly as possible, while at the same time to conceal the
fact that the, quality area supervisors were essentially
quality control technicians with a different job title.
Thus, Respondent posted the quality area supervisor's
job on the next working day (14 April) after the day that
the quality control technicians lost routine access to the
plant bulletin board, and about that same day selected all
the successful applicants. Further, the job posting con-
tained no job description from which the technicians (or
anyone else) could infer that the supposedly new jobs
were essentially the same as the ostensibly discontinued
ones; and, by controlling the number and identity of
technicians who learned about these vacancies before
they were filled, Respondent controlled the number and
identity of the technicians who would have been includ-
ed in the unit sought by the Union and who filled the
quality area supervisors' jobs.
Finally, the evidence shows that the reasons advanced
by Reed for the termination of the seven alleged discri-
minatees were not the real reasons. Reed testified that he
decided on 8 April to terminate these seven because the
quality control technicians were basically performing
double checks and the technicians' termination would
save money. Although the record does show that these
were the reasons for Reed's 7 April decision to terminate
the five quality control technicians not named in the
complaint, the record further shows that these were not
the real reasons for the termination of the seven alleged
discriminatees. Rather, the evidence shows that Respond-
ent's decision to eliminate most of the double checks had
been reached on 7 April, before Respondent learned
about the Union's petition; that the work which on 7
April Respondent had decided to have performed after
10 April by the seven alleged discriminatees was in fact
performed after -28 April by the quality area supervisors;
and that this change at best saved Respondent little
money and may well have cost it more.
Nothwithstanding the foregoing, Respondent contends
that no finding of unlawful termination can be made be-
cause there is no independent evidence that Respondent
did not want its quality control technicians to be repre-
sented by the Union; indeed, Respondent points to the
fact that it has recognized the Union as the representa-
tive of the hourly paid employees since buying the Madi-
son plant in 1973, and also has contracts with affiliates of
the Union at three other plants (see supra , fn. 2, and at-
tached text). However, the evidence shows that, within
about 2 hours after learning on 8 April of the Union's pe-
tition, Respondent decided to terminate the seven quality
control technicians whom on 7 April it had decided to
retain; that Respondent thereafter replaced them with
personnel whose total cost to Respondent was almost as
high as (and perhaps higher than) the cost of the seven
alleged discriminatees; and that the reasons advanced by
Respondent for its action are not true. Moreover, noth-
ing in the record shows any reasonable explanation,
other than the union petition that Reed found out about
around, noon on 8 April, for Respondent's decision by 2
p.m. on 8 April to terminate the alleged disc ri:minatees
whom on 7 April it had decided to exclude from the sal-
aried layoff to be effective on 11 April. From these cir-
cumstances,, I infer that Respondent acted out of union
animus and with the purpose of procuring the withdraw-
al, or dismissal of the Union's petition on the basis of the
seeming abolition of the petitioned-for jobs. See Ames
Ready-Mix Concrete v. NLRB, 411 F.2d 1159, 1161 (8th
Cir. 1969); NLRB v. Melrose Processing Co:, 351 F.2d 693,
698-699 (8th Cir. 1965); NLRB v Ri-Del Tool Mfg. Co.,
mem. 486 F.2d 1406, 84 LRRM 2630, 2631 (7th Cir.
1973);47 Shattuck Denn, 362 F.2d at 470; Postal Service,
275 NLRB 510, 511 (1985); Cedar Falls Health 'Care
Center, 276 NLRB 1300, 1302 (1985); Halloran House,
249 NLRB 759'(1980); Aker Plastics, 262 NLRB 1128,
1134 (1982).
As to cases in which an employer asserts permissible
reasons for an allegedly unlawful discharge, the Board
requires an analysis under Wright Line,411 even when (as
in this case) the reasons asserted by the employer have
been found to have played no part in the discharge deci-
sion . Taylor & Gaskin, 277 NLRB 563 (1985). Cf. Squire
Distributing Co. v. Teamsters Local 7, 801 F.2d 238, 242
(6th Cir. 1986). Accordingly, I fmd, for the same reasons
that underlie my finding'that Respondent's tendered rea-
sons for the seven terminations are purely pretextual,
that Respondent has failed to sustain its ' burden of show-
ing that Respondent would have terminated the 'alleged
discriminatees for such reasons in the absence of the
Union's petition.
For the foregoing reasons, I fmd that Respondent vio-
lated Section 8(a)(1) and (3) by terminating quality con-
trol technicians Lee Roy Kemp, Roy Dailey, William
Douglas, Eugene Kincaid, James Mason, James Hurley,
and Lizzie Mae Watson.
I have found that Respondent converted the position
of quality control technician to that of quality area su-
47 The court stated-
Where the employee is a leading union advocate whose discharge
would tend to undermine the union organizational effort and where
the Company had previously indicated that it valued the employee's
service, the discharge itself is sufficient evidence of antiunion animus.
48 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (lst
Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NI,I.B v. Trans-
portation Management Corp., 462 U.S 393 (1983)
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pervisor in furtherance of Respondent's scheme to con-
tinue performance of work performed by the technicians
while ridding itself •(in violation of Sec. 8(a)(1) and (3))
of employees bearing that job title, and thereby to pro-
cure withdrawal or dismissal of the Union's petition for
an election among the employees with that job title. Ac-
cordingly, I find that by such conversion Respondent
violated Section 8(a)(1) and _(3). Honda of San Diego, 254
NLRB 1248,A263 (1981); Martin-Brower Co., 261 NLRB
752, 758-759 (1982), enfd. 716 F.2d 896 (4th Cir. 1983);
Amber Delivery Service, 250 NLRB 63 (1980), enfd. 651
F.2d 57 (1st Cir. 1981); Emerson G. M. Diesel, Inc., 258
NLRB 1242, 1247-1248 (1981).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. Respondent has violated Section 8(a)(1) and (3) of
the Act by terminating employees Lee Roy Kemp, Roy
Dailey, William Douglas, Eugene Kincaid , James Mason,
James _ Hurley, and Lizzie Mae Watson about 11 April
1986.
4. Respondent has violated Section 8(a)(1) and (3) of
the Act by converting the position . of quality control
technician to that of quality area supervisor.
5. The unfair labor practices set forth in Conclusions
of Law '3 and 4 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent had engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom, and from
like or related conduct, and to take certain affirmative
action in order to effectuate,the policies of the Act,
When, as here, an employer has unlawfully terminated
employees, the Board ordinarily requires the employer to
offer the employees reinstatement to the jobs of which
they were unlawfully deprived or, if no such jobs exists,
substantially equivalent jobs. In the instant case, Re-
spondent no longer employs employees who perform
precisely the same combination of tasks which was per-
formed by the discriminatees before their unlawful termi-
nation. Because Respondent's creation of this situation
constituted an unfair labor practice and was motivated
by an effort to conceal Respondent's unlawful motives
for ridding itself of the discriminatees, and because all of
the work that Respondent had intended them to perform
before it learned of the Union's petition is still being per-
formed by Respondent's personnel, the fact that the dis-
criminatees' exact same jobs no longer exist would not
necessarily preclude an order requiring Respondent to
offer such jobs to the discriminatees. Fibreboard Corp. v.
NLRB, 379 U.S. 203, 215-216 (1964); Alert Medical
Transport, 276 -NLRB 631, 673 (1985). However, I con-
clude that it would be more appropriate to require Re-
spondent to offer the discriminatees reinstatement in the
quality area supervisors' jobs, which, for purposes of this
case, I find to constitute substantially equivalent employ-
ment (see supra, sec. II,D). The only work-performed by
quality area supervisors but not quality control techni-
cians consists of entering data into the computer and cer-
tain X-ray work, neither of them tasks which consume a
large proportion of the workers' time. Because Respond-
ent gave on-the-job training in such procedures to all the
persons hired about 14 April as quality area supervisors,
and because the failure of the discriminatees (other than
present quality area supervisors Kemp and Douglas) to
receive such training is a direct result of 'their unlawful
termination, Respondent is in no position to claim that
mere lack of such training renders inappropriate an order
requiring the other discriminatees to be offered jobs as
quality area supervisors. To be sure, such an- order
would be unjust to both Respondent and the discrimina-
tees if they could not be trained for such new tasks.
However, I conclude that they can be so trained. Thus,
so far as the record shows, all four of the quality control
technicians who were selected as quality area supervisors
learned such tasks at a rate satisfactory to Respondent.
Further, so far as the record shows, in selecting'the qual-
ity area supervisors, Respondent did not take into consid-
eration either their experience in operating computers or
their aptitude in learning such work (the only tasks then
performed by quality area supervisors which had not
been performed by quality control technicians). Finally,
the record indicates that before the Union filed its peti-
tion Respondent was planning to train its quality control
technicians to enter their data into the computer and to
require them to do so. I conclude that -the discriminatees
are capable of being trained for these new tasks and
would in any event have eventually been required to
learn how to enter their data into the computer. In deter-
mining after the reinstatement of any discriminatees
(except Kemp and Douglas) whether they have made
satisfactory progress in learning these new tasks, Re-
spondent must, or course, evaluate them on the basis of
the training which they have had an opportunity to re-,
ceive, rather than comparing them with other quality
area supervisors whose opportunity for training has not
been affected by discriminatory denial of employment.
As previously noted, the discriminatees were all being
paid at a level which fell within the salary range at-
tached to salary grade 14. I agree with the General
Counsel that the required offers of employment should
be to the salary grade 14, which Respondent has at-
tached to the quality area supervisors' jobs, rather than
to the salary grade 11, which Respondent had attached
to the job classification of quality area technicians. Such
a requirement is analogous to the routinely issued re-
quirement that reinstatement offers include wage in-
creases and other improvements afforded to incumbents
in the discriminatee's old job during a period when that
job was unlawfully withheld from him. Chem Fab Corp.,
275 NLRB 21, 22 (1985); Kansas Refined Helium Co., 252
NLRB 1156, 1159 (1980).
Accordingly, Respondent will be, required- to offer jobs
as quality area supervisors, with the salary grade 14, to
discriminatees Roy Dailey, Eugene Kincaid, James
Mason, and James Hurley, dismissing, if necessary,
ARMSTRONG RUBBER CO.
Morton Sadler, James Sisk, Don Murphy, Bobby Rich-
ardson, Robert Meyers, and any other individual (except
discriminatees Lee Roy Kemp and William Douglas)
hired or transferred into such a job since 12 April 1986,
without prejudice to the seniority, or other rights and
privileges, they would have enjoyed if they had not been
terminated about 11 April 1986. Because at the time of
the July 198'6 hearing discriminatees Kemp and Douglas
were in fact working for Respondent as quality area su-
pervisors, Respondent will not be required to offer them
employment as such, but will be required to afford them
the seniority, and other rights and privileges, they would
have enjoyed if they had not been unlawfully terminated
about 11 April 1986.
Up to this point, I have failed to discuss any affirma-
tive relief to be afforded to the seventh discriminatee,
Lizzie Mae Watson. She is the discriminatee with the
lowest seniority, and the record affirmatively shows that
Respondent customarily uses seniority as the basis for de-
termining the identity of salaried employees to be termi-
nated for economic reasons within a particular job classi-
fication. Although Respondent unlawfully terminated
seven quality control technicians, Respondent may have
initially employed only six persons to replace them (see
supra, fn. 21). Moreover, when Respondent did add an-
other quality area supervisor (Robert Meyers), Respond-
ent transferred him from another job and transferred at
least some of the duties of that job, to the quality area
supervisors. However, the, record otherwise fails to show
the circumstances surrounding Meyers' transfer or Re-
spondent's usual practice in determining whether to fill
salaried vacancies by transfer, recall, or otherwise. More-
over, because the 14 April selection of only six quality
area supervisors was part of a design to conceal Re-
spondent's discriminatory motivation by, concealing the
seven discriminatees' replacement, it cannot be assumed
at this point that Respondent decided in good faith that
as of 14 April it needed only six persons instead of seven.
Accordingly, if no vacancy for Watson is left following
the other discriminatees' responses to Respondent's job
offers and the dismissal (if necessary) of Sadler, Sisk,
Murphy, and Richardson, Respondent will be required to
put Watson on' a preferential hiring list. Any other job
and related rights she may have will,be determined at
the compliance stage,
Further, Respondent will be required to make all
seven of the discriminatees whole for any loss of pay or
other benefits they may have suffered by reason, of their
unlawful termination, less net interim earnings, to be
computed in the manner prescribed- in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as called for in
Florida Steel Corp„ 231 NLRB 651 (1977),48 Because Re-
spondent's unlawful scheme for concealing its discrimina-
tory motivation was directly responsible for the 1-week
interval between the discriminatees' last day on the
active payroll as quality control technicians and the first
day of work by the quality area supervisors, that week is
to be included in the backpay period, and gross backpay
is to include what the discriminatees would have been
paid during that week but for their unlawful termination.
'&e See generally Isis Plumbing Co., 138 NLRB 716 (1962).
639
In addition, Respondent will be required to expunge
from its files any reference - to the unlawful teminations,
and to notify the seven discriminatees that this has been
done and that evidence of such unlawful actions will not
be used as a basis for future personnel actions against
them. Sterling Sugars, 261 NLRB 472 ( 11982). The Gener-
al Counsel's request for a "visitatorial clause" will be
granted in view of the possible complexity of computing
the "make-whole" remedy here . Hilton Inn North, 279
,NLRB 45 (1986); but see Westwood Industries , 280 NLRB
No. 12 (May 30, 1986) (not reported in Board vol-
umes).50 Also, Respondent will be required to post ap-
propriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed51
ORDER
The Respondent, The - Armstrong Rubber Company,
Madison,. Tennessee, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in International Union of
the, United Rubber, Cork, Linoleum and Plastic Workers
of America, Local Union No. 670, AFL-CIO-CLC, or
any other labor organization, by terminating employees,
converting one job into another job, or otherwise dis-
criminating in regard to hire or tenure of employment or
any term or condition of employment,
(b) In any like or ralated manner interfering , with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act..
2. Take the following affirmative action necesary to of
fectuate the policies of the Act.
(a) Offer jobs, as quality area supervisors, at salary
grade 14, to Roy Dailey, Eugene Kincaid, James Mason,
and James Hurley, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(b) Afford Lee Roy Kemp and William Douglas the
seniority, and any other rights or privileges, they would
have enjoyed if they had not been terminated about 11
April 1986.
(c) If no position as quality area supervisor is available
for Lizzie Mae Watson, place her on it preferential list,
and' offer her such a job as such employment becomes
available and before other persons are hired for such
work.
(d) Make Dailey, Kincaid, Mason, Hurley, Kemp,
Douglas, and Watson whole for any loss of pay or bene-,
fits they may have suffered by reason of the discrimina-
so Such problems may include , without limitation, determining the
wage rate at which the discriminatees' gross baclpay is to be computed.
As the General Counsel points out, when Respondent lured dtscrimina•
tees Kemp and Douglas as quality area supervisors , Respondent paid
them about 5 percent more than they had, received as quality control
technicians.
si If no exceptions are filed as provided by See. 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.
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion against them, in the manner set forth in the remedy
section of this decision.
(e) Remove from its files any reference to the unlawful
terminations and notify the employees in writing that this
has been done and that the terminations will not be used
against them in any way.
(f) 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 or useful for analyzing the amount of backpay due
under the terms of this Order.
(g) Post at its facility in Madison, Tennessee, copies of
the attached notice marked "Appendix."52 Copies of the
notice, on forms provided by the Regional Director for
Region 26, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order ` what steps the Re-
spondent has taken to comply.' For the purpose of deter-
mining " or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Respondent, its officers,
agents, successors, or assigns, or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure. Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had on any matter reasonably re-
lated to compliance with this Order, as enforced by the
court.
52 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 Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government.
After a hearing at which all-sides had an opportunity to
be heard and state their positions, the National Labor
Relations Board has found that we violated the National
Labor Relations Act and had ordered us to post and
abide by this notice.
WE WILL NOT discourage membership in International
Union of the United Rubber, Cork, Linoleum and Plastic
Workers of America, Local Union No. 670, AFL-CIO-
CLC, or any other union, by terminating employees,
converting one job- into another job, or- otherwise dis-
criminating in regard to hire or tenure of employment or
any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 the Act.
WE WILL offer jobs as quality area supervisors to Roy
Dailey, Eugene Kincaid, James Mason, and James
Hurley, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL afford to Lee Roy Kemp and William
Douglas, who are now working, as quality area supervi-
sors, the seniority, and any other rights and privileges,
they would have enjoyed if they had not been terminat-
ed.
If no position as quality area supervisor is available for
Lizzie Mae Watson, WE WILL put her on a preferential
hiring list, and offer her such a job as such employment
becomes available and before other persons are hired for
such work.
WE WILL make all seven of these employees whole,
with interest, for any, loss of pay or benefits they may
have suffered by reason of the discrimination against
them.
WE WILL remove from our files any reference to the
unlawful terminations of all seven of these employees,
and notify them that these terminations will not be used
against them in any way.
THE ARMSTRONG RUBBER COMPANY