The Dayton Rubber Co.

National Labor Relations Board - Board Decisions

Mar 15, 1961

130 N.L.R.B. 1322 (N.L.R.B. 1961)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees was the suggestion that the employees vote against having a union and thus
abandon their efforts at self-organization . It was an offer of a benefit to the
employees in return for their working at cross-purposes with the Union 's organiza-
tional campaign.
D Conclusions with 'regard to interference, restraint, and coercion
It is found that the Respondent interfered with, restrained, and coerced its em-
ployees by the following acts-
(1) Banks telling Whitworth and Bledsaw that Greenberg, president of Respond-
ent, said that all employees favoring the union in the impending election would be
terminated and those remaining "loyal" to Respondent "would be taken care of."
This illegal conduct interfered with the conduct of the election on October 30,
thereby depriving the employees of the freedom of choice contemplated by the Act.
(2) Banks' conversations with Lopez and DeForest occurring in the immediate
hearing and presence of Whitworth violated Section 8(a)(1).
(3) Shaw Green telling Willis McNeely, Billy Rogers McNeely, Charles Thomp-
son, and Curtis Anderson that if the Union won the election, they would be
discharged.
(4) These strategically timed threats and promises created an atmosphere which
made improbable the untrammeled freedom of choice in the election which the Act
contemplated and which the Board is obligated to maintain.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The activities of the Respondent set forth in section III , above, occurring in
connection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
2. International Union of Electrical, Radio, and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, as detailed above, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Dayton Rubber Company and John E . Watson . Case No.
9-CA-2016. March 15, 1961
DECISION AND ORDER
On May 18, 1960, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
130 NLRB No. 140.
THE DAYTON RUBBER COMPANY 1323
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
[The Board dismissed the complaint.]
"MEMBER JENKINS, dissenting :
I cannot agree with my colleagues that the complaint should be dis-
missed. Rather, I would find, on the basis of the evidence, that the
Respondent discriminatorily terminated its guard and plant protec-
tion employees in violation of Section 8 (a) (3) and (1).
While the Board is reluctant to disturb a Trial Examiner's credi-
bility resolution, it has done so where warranted 2 I believe that a
clear preponderance of the relevant evidence in this case requires the
.conclusion that the Trial Examiner was incorrect here in crediting
.Stork's testimony that the determination to contract was made in
October 1959, before knowledge of the union activity of the plant
guards. Not only is Stork's testimony self-contradictory,3 but it is
also contradicted by the testimony of other management personnel'
Moreover, the testimony of Morawski, Pinkerton's manager, as to his
October conversation with Stork shows that it was, in fact, no differ-
ent from many preceding discussions, and thus is also in contradic-
tion of Respondent's contention.
The letter of November 6, 1959, from Morawski to Stork, contrary
to the Trial Examiner's finding, does not incorporate "the agreed to
change of 5 cents more per hour" but merely states that they would
operate "under the terms of our proposal given you on June 11, 1958,
i The Trial Examiner in discussing the background of the alleged unfair labor practices
incorrectly states that Mr. Stork, Respondent 's plant manager , testified that the manage-
ment people, on advice of legal counsel , were of the definite opinion that if a change was
made it should be done at the expiration of the labor-management contract. We find
that such definite opinion was not on the advice of legal counsel.
2 See, e.g., Hot Point Co., a Division of the General Electric Company, 120 NLRB 1768.
2 Thus, Stork testified at one point that at a late October meeting he asked Morawski,
Pinkerton 's manager , whether the Pinkerton proposal of June 11, 1958, would be effec-
tive and that Morawski said at that time that the proposal would still apply but he
would check and let Stork know whether there would be any changes . However, at
another point in his testimony Stork stated that this same conversation occurred on
November 6. It seems incredible that Morawski , after attempting for 1% years to secure
this contract, would not have checked with his superiors immediately after the October
meeting if, in fact, he had been told that the Respondent had made a definite decision.
Further , Stork testified that he informed Wyman , the plant manager and Stork 's immediate
assistant , on October 21 that he had decided to utilize Pinkerton 's services , but later
testified that no other person was aware of his decision prior to November'5.
Wagner, Respondent ' s employee relations manager , denied having been informed on
October 21 of such a decision and testified that it was on November 6 that it was
definitely decided to contract for Pinkerton's services . Wyman , Stork's 'assistant , testified
that Stork asked for the conference with Morawski on November 6, to consider a contract
with Pinkerton.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as revised." This is equivocal language which is far from substantial
corroboration of that portion of Stork's conflicting testimony which
asserts that an agreement was reached in October. As a matter of
fact, Morawski confirmed the applicability of the 1958 proposal with
a 5-cent increase in a letter dated about November 16. Under these-
circumstances, and in light of the overwhelming testimony by Wag-
ner, Wyman, and Morawski, as well as by Stork himself, that the
decision was made on November 6, the fact that the November 6 let-
ter purports to confirm a decision of the prior week is entitled to,
little or no weight 5 I would find that the decision to contract with.
Pinkerton was made on November 6, after receipt of the recognition.
demand from the United Plant Guard Workers, as being more con-
sistent with the weight of the evidence and a reasonable construction
thereof.6
Other evidence also refutes the conclusion that the decision to con-
tract with Pinkerton was made in October. Thus, the Respondent's
continuing to supply replacement uniform clothing to guards after its
alleged decision ; its continued negotiation with the incumbent labor
organization with respect to contract terms relating to guards between
October 26 and November 6, during which time Wagner, Respond-
ent's chief negotiator, reported back each day to Stork; and Stork's
failure to discuss the alleged decision with any other management rep-
resentative are all persuasive factors. The explanation, accepted by
the Trial Examiner and adopted by my colleagues, that the contract
with Pinkerton was not made earlier because there was a lack of uni-
formity among the managerial officials on the matter of guards, is
completely unacceptable to me. It is undisputed that Stork had sole
authority after July 1958 to make the decision and could have done
so notwithstanding any such disagreement. Indeed, the evidence re-
veals that any disagreement by other management personnel was of
no moment since Stork clearly did not discuss the proposal with his
subordinates in October or November 1959. Also, it does not appear
that there was any change in the Respondent's circumstances which
would account for Stork's sudden decision to change the method of
operation other than the advent of the United Plant Guard Workers.'
That Respondent's motivation was unlawful rather than economic
seems obvious to me. Granted that Respondent was seeking to effect
savings, it could have achieved its alleged objective over a year earlier
if this were a substantial consideration. Moreover, Stork's delay in
acting,' his lack of more definite information as to the amount of
5 Cf. Electro -Mechanical Products Company, 126 NLRB 637.
9 See Spielman Motor Sales, Inc., 127 NLRB 322, and Electro-Mechanical Products
Company, supra.
7 See, e.g., J. G . Braun Company, 126 NLRB 368.
8 Hugh Major d/b/a Hugh Major Truck Service , 129 NLRB 322.
THE DAYTON RUBBER COMPANY 1325
savings to be achieved when he did act,' and the timing of the call to
Morawski immediately after receipt of the recognition demand from
the United Plant Guard Workers 10 are strongly indicative that the
real reason was not economic,1' especially in the absence of an adequate
explanation for the delay. And, contrary to the Trial Examiner and
the majority, the statement by one of Respondent's supervisors on
November 6 to the president of the incumbent local union that Re-
spondent had made its decision because "Respondent did not want to
bargain with two unions" is not an expression of opinion protected
uder Section 8 (c) of the Act but, rather, is a, statement of fact which
is, in effect, an admission against interest and is entitled to weight in
deciding whether Respondent's motive was unlawful.12
Accordingly, in view of the foregoing, I would find that the excep-
tions of the General Counsel are meritorious, that the Respondent dis-
criminatorily discharged its guards in violation of Section 8(a) (3)
and (1) of the Act, and that, in order to remedy the unfair labor prac-
tices, the remedial order adopted in Hugh Major Truck Service 13 is
appropriate.
6 Cf. The B. C. Mahon Company, 118 NLRB 1537, at 1542, enforcement denied on other
grounds, 269 F. 2d 44 (C.A. 6).
1n Hugh Major Truck Service, supra; Kalo f Pulp & Paper Corp., 120 NLRB 714.
" See Hugh Major Truck Service, supra. Also, contrary to the view of the Trial
Examiner and my colleagues , If the Respondent were motivated at all by economic con-
siderations , it would have been entirely reasonable for the Respondent at least to have
Inquired whether its guards would accept a lower wage in order to retain their jobs.
This is particularly true since the Respondent was not eliminating the function per-
formed by the employees but was merely replacing them with Pinkerton employees. It
has not been unknown for employees to agree to such a change rather than lose all in-
come and face the necessity of seeking other employment . See, e.g., The R. C. Mahon
Company, supra, at 1943.
32 See , e.g., Atlas Engine Works, Inc ., 129 NLRB 101 ; Borg-Warner Controls, Borg-
Warner Corporation, 128 NLRB 1035.
13 Supra. See also Brown-Dunkin Company, Inc., 125 NLRB 1379 , enfd. 287 F. 2d 17
(C.A. 10).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on November 19, 1959 , by John E . Watson , the General
Counsel of the National Labor Relations Board issued a complaint dated December
10, 1959, against The Dayton Rubber Company, herein referred to as the Respond-
ent, alleging violations of Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended , herein called the Act.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
at Dayton , Ohio, on March 22 and 23, 1960. All parties were represented at the
hearing and were afforded full opportunity to be heard, to introduce relevant evi-
dence, to present oral argument , and to file briefs.
Upon the entire record and from my observation of the witnesses , I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation engaged in the manufacture of rubber and
plastic products at its plant in Dayton , Ohio. During the past 12 months, which is
a representative period, the Respondent sold, shipped, and delivered manufactured
products valued in excess of $50,000 from its Dayton , Ohio, plant directly to points
outside the State of Ohio ; and during this same period, the Respondent purchased
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and received goods valued in excess of $50,000 which were shipped to its Dayton,
Ohio, plant directly from points outside the State of Ohio. On these admitted facts
I find that at all times material herein the Respondent has been engaged in com-
merce within the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Plant Guard Workers of America and its Amalgam-
ated Plant Guards, Local 166, hereinafter called the Union, is and has been at all
material times herein a labor organization as defined in Section 2(5) of the Act.
III. THE ISSUES INVOLVED
The complaint alleges that the Respondent on or about midnight November 14,
1959, did terminate the employment of John E. Watson, Letch Combs, Robert T.
Fox, Roger W. Chapman, Ernest Nance, Elmer F. Frye, Buster M. Chadwell,
Drexal K. Hall, and William Cantrell, guard and plant protection employees, and
since that time has refused to reinstate said employees, all because of their mem-
bership in, sympathies for, and activities on behalf of the Union thereby violating
Section 8 (a) (3) and (1) of the Act. The Respondent does not deny having ter-
minated the aforenamed employees, but contends that it was done solely for eco-
nomic reasons and initiated long prior to any knowledge by Respondent of any
activity or. interest among the aforenamed individuals with or on behalf of the
Union herein involved. No other issues were alleged or litigated. The problem
involved is one of discerning motive.
IV. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent 's plant at Dayton , Ohio , which is the only plant of Respondent
that is involved herein , had some 1 ,700 production and maintenance employees em-
ployed in the calendar year of 1958 . The production and maintenance employees
have been represented by a labor organization since early in the 1930 's and since
1947 have been represented by the Local 178 , United Rubber , Cork, Linoleum and
Plastic Workers of America , hereinafter called Local 178. The labor-management
contract executed between the Respondent and Local 178 covering the period from
November 15, 1958, to November 15, 1959 , specifically provided for inclusion
within the unit of the plant .guards and watchmen employed by the Respondent.
(General Counsel 's Exhibit No. 2. attachment A.) I The labor contract aforemen-
tioned provided for a legal union shop and thus all of the Respondent's guards were
members of Local 178.
While it is not crystal clear from the limited information appearing in the record
the Trial Examiner feels entirely justified to reason ( and to set forth here for a
better understanding of the pertinent events which are to transpire ) that some mem-
bers of the guard forces were concerned about their personal job security under the
provisions of the aforementioned labor-management contract. This because of the
overall plant seniority "bumping" provisions which permitted production and main-
tenance employees to exercise their seniority and "bump " guards in the event of a
layoff and there were guards with less plant seniority . (Article IV, Seniority, Gen-
eral Counsel 's Exhibit No. 2, attachment A.)
The Respondent started building a new plant located in Springfield , Missouri, the
latter part of 1958 . This plant when completed was to handle all of the Respondent's
belt production . While the new plant at Springfield was scheduled for completion
in July of 1959 , initial hiring did not begin until mid-August . The latter part of
October the Respondent instituted a crash program whereby all belt production equip-
ment located at the Dayton plant was to be moved to the new Springfield plant by
November 14, 1959 . Prior to the Springfield , Missouri , operation a substantial
amount, if not all , of Respondent 's belt production had been performed at the.
1 See Section 9(b) of the Act wherein the Board is precluded from finding a unit as
appropriate when guards are included with other employees . This language of the statute
does not prohibit the guards and plant protection employees of an employer from being
represented by a labor organization that includes other employees where the parties
voluntarily agree, but is merely a prohibition against the Board finding a unit as being
appropriate for the purposes of collective bargaining if plant guards are included with
other employees. In the instant case the record Indicates that the production and mainte-
nance unit was never certified by the Board as being an appropriate unit.
THE DAYTON RUBBER COMPANY 1327
Dayton, Ohio, plant and testimony establishes that there were some 450 employees
working in the belt division at the Dayton plant.
The record establishes without contradiction that Respondent began discussing in
April 1958 with the Pinkerton Detective Agency, with whom they had an occasional
business relationship for a number of years, the feasibility of the Pinkerton Detec-
tive Agency taking over the primary duties and responsibilities of the Respondent's
own employee guards on a contract basis. A complete survey of the plant was made
by a representative of the Pinkerton agency in early June 1958 and a complete pack-
age proposal submitted to the Respondent at that time. The proposal set forth a
complete analysis of the services to be rendered and a comparative analysis of the
cost to the Respondent of plant protection by Respondent's own employees as against
plant protection by the employees of Pinkerton. The proposal indicates that there
could be a net savings to the Respondent of $29,768.96 per year by contracting the
guard work to Pinkerton.
In 1958 the managerial hierarchy of the Respondent's Dayton plant was somewhat
different from the managerial hierarchy responsible for the change which provokes
this case. While this fact is not controlling the Trial Examiner does feel that it
provides a partial explanation as to why the changes were not instituted at the end
of the labor-management contract year in 1958 rather than in 1959 when the savings
that would have resulted to the Respondent were substantially the same. The testi-
mony indicates that until late July 1958 Oscar Hugo Stork was the factory manager,
but Mr. Merridan was a vice president in charge of production and was the final
authority so far as the operation of the Dayton plant was concerned. D. R. Clarke
was director of industrial relations at the Dayton plant until September 1, 1958.
Managerial changes made in late July 1958 placed Mr. Stork as the top management
official at the Dayton plant; Mr. Clarke was retired on September 1, 1958, but was
not replaced until January 1, 1959, at which time Leonard R. Brice was named cor-
porate director of industrial relations and Robert S. Wagner became employee rela-
tions manager at the Dayton plant. It is undisputed in the record that Clarke was
never completely sold on the change to the Pinkerton guard system and seriously
questioned the amount of savings to the Respondent as set forth in the aforemen-
tioned Pinkerton proposal. As a result of the lack of unanimity among the managing
officials of the Respondent as to what should be done, if anything, concerning the
guards there were no changes instituted in 1958. However, Stork testified that
the management people, on advice of legal counsel, were of the definite opinion that
if a change was made it should be done at the expiration of the labor-management
contract.
Morawski, the Pinkerton representative, testified that he continued to contact the
Respondent Company throughout the calendar year of 1959 on an average of once
and sometimes twice a month relative to the Respondent instituting the Pinkerton
guard system pursuant to the proposal provided the Respondent in June of 1958.
It is also undisputed in the record and quite apparent, particularly from the testimony
of Charles Wyman, Stork's assistant, that Respondent instituted •a number of changes
during the year 1959 to effectuate economies in order for the Dayton plant to con-
tinue to show a margin of profit comparable to that of past years. These economies
were necessitated by the fact that the belt production division employing some 450
men was to be moved from Dayton to Springfield. While the income from the
finished products produced by the belt division would be removed, many of the fixed
costs and overhead expenses would remain at Dayton, thereby materially affecting
the margin of profit in the remaining products produced at Dayton. Stork testified
that he made the decision to institute the Pinkerton system the latter part of October
1959 and he was not concerned with whether the savings would be that estimated
by Pinkerton of some $29,000 or that estimated by Clarke to be approximately
$11,000. He testified that any savings was his concern and on that basis he made
the decision to institute the change of plant guards. In determining when the de-
cision was made to resort to the Pinkerton guards it is significant to the Trial Exam-
iner that Morawski's letter dated November 6, 1959, to Stork begins as follows:
"This will confirm our decision of last week to the effect that we will assume the
plant protection responsibility as an independent contractor at your Dayton plant
effective 12:01 a.m. on Sunday, November 15, 1959."
John E. Watson, the Charging Party in the instant case, testified that the latter
part of October the guards became concerned with their own job security. This ap-
parently was because of the "bumping" privileges extended to all employees on a
plantwide basis and the impending layoff due to removal of the belt division to the
Springfield plant. The record may not be crystal clear that the employee guards
sought representation in a separate unit for the reason I have indicated, but the Trial
Examiner regards the following questions and answers as support for that conclusion.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. As a result of this bumping procedure what did you do?
A. Well, at first-The first implication where the guards were involved at
that time where they had overridden , overrode past conditions or past practices
or whatever they wanted to call it in regard to bumping rights in general and
threw our department wide open to general bumping.
Q. My question is, what did you do as a result of this bumping procedure?
A. Well, in turn I protested on the condition of the contract and their past
practice.
Q. All right.. What else did you do?
A. Well, at that particular time while I in turn had made contacts which I
had in the past with Mr. Lawson of United Plant Guard Workers for petition
cards in order to petition for a new bargaining unit.
Q. (By Trial Examiner .) May I establish the time, please, when you pro-
tested the bumping procedure that the Respondent was following in connection
with the doing away with the fan belt division.
A. As near as I can recall it was in the proximity of around the 27th, 28th,
29th of October.
Q. (By MR. REYNOLDS.) Of 1959?
A. That's right.2
Mr. Watson continued to relate that after he contacted Mr. Lawson the latter
part of October 1959 and obtained authorization cards, these in turn were dis-
tributed to the plant guards and returned to him with a majority of the employees
having signed by November 1 or 2, 1959. The parties have stipulated that Charles
E. Lawson, regional director for the Union, filed with the Regional Office of the
National Labor Relations Board in Cincinnati, Ohio, a petition for certification of
representatives ( for a plant patrolman and guard unit ) on November 4, 1959. This
petition was received and filed by the Ninth Regional Office of the Board on
November 5, 1959, in Case No. 9-RC-3866. The parties have further stipulated
that Lawson sent a registered letter to the Respondent dated November 4 which
was received on November 5, 1959, advising the Respondent that a majority of its
guards at the Dayton , Ohio, plant had designated the Union as their collective-
bargaining representative for purposes of bargaining in regard to rates of pay, hours
of employment , and working conditions.
A conference was held between Morawski and Stork on the morning of Novem-
ber 6, 1959 , and as evidenced by their testimony as well as Morawski 's letter to
Stork dated November 6, 1959 (General Counsel's Exhibit No. 3), a definite under-
standing was reached between Respondent and Pinkerton that the Pinkerton Detec-
tive Agency would take over the plant patrol and guard duties at the Dayton plant
effective at 12:01 a.m. on Sunday, November 15, 1959.
The above-related sequence of events, which are for the most part undisputed,
provide the basis from which this Trial Examiner must determine whether or not
the motivating forces influencing the Respondent 's decision in regard to the change
of plant patrolmen and guards were prompted by nondiscriminatory considerations,
or motivated by the union activity of the plant guards and thus proscribed by
the Act.
B. Respondent 's contentions
The Trial Examiner understands the Respondent 's position to be, both from the
evidence presented at the hearing and from the Respondent 's brief, simply that the
change in plant guard protection from their own employees to employees of
Pinkerton Detective Agency was motivated solely from economic considerations and
that the change occurred at a time "dictated " by both legal considerations as well
as bargaining timeliness; i.e., the expiration of labor-management contract appli-
cable to all production and maintenance employees which included the plant guards.
As proof of their position and contentions the Respondent has presented a sub-
stantial amount of undenied testimony and evidence indicating that the matter of
changing the guards was under consideration nearly 11/2 years in advance of any
known interest on the part of Respondent 's employees in a separate plant guard
union. The General Counsel's own witnesses confirm the fact that the activity of
the plant guards in a separate plant guard union was an extremely well-guarded
secret and the General Counsel has not contended either by way of testimony or
argument that Respondent had knowledge of their union activity until November 5,
2 Normally the reason why employees seek affiliation with a union is not a factor.
Under the circumstances of this case, where the employees had been represented by a
union for a number of years, it was deemed to be of significance to distinguish this case
from the usual case of an employer being confronted with a union for the first time.
THE DAYTON RUBBER COMPANY 1329
1959. As indicated earlier herein Stork's testimony and Pinkerton's letter of
November 6, 1959 , are to the effect that the decision of Respondent was made
prior to the receipt of any knowledge by Respondent of the guard 's union activity.
Secondly the Respondent contends that its action was motivated solely from
economic considerations. Uncontroverted testimony by Stork and Wyman attest
to the reasons for economies and various steps taken by Respondent to effectuate
all possible savings. The record is abundantly clear, and I find, that reasonable
efforts by skilled people predicted the savings in using Pinkerton guards to be from
$11,000 to $29,000 a year. Wagner testified that after the Pinkerton guards were
employed he had made a study of the actual savings and reported to Wyman the
savings to be $470 per week, exclusive of the cost to the Respondent of uniforms.
Based on this actual figure the Respondent will be saved in excess of $24,000 per
year, or a figure very close to the comparative cost analysis originally submitted by
the Pinkerton Detective Agency.
The factory manager, Stork , testified that on the basis of legal advice received it
had been decided that if and when a change in the plant guards was ever instituted
it should be done at a time that would coincide with the expiration of the labor-
management contract covering these employees . While some students of industrial
relations might challenge the wisdom of the timing insofar as "employee relations"
or "union relations" are concerned , few would question the timing insofar as the
Respondent 's legal liabilities to Local 178 are concerned.
C. General Counsel 's contentions
The General Counsel has stated the issue in this case to be very much as that
which has heretofore been set forth by the Trial Examiner. The General Counsel
states in his brief:
The issue: Whether the Respondent terminated the employment of nine of
its guard employees on November 14, 1959, primarily because it had knowledge
that a majority of guards in a plant protection unit had joined and were to be
represented by the Plant Guard Workers Union, a Union new to the collective
bargaining history of the Respondent; or, in the alternative, whether the said
termination of the guards was primarily motivated by reason of economy.
In an effort to show that the conduct of the Respondent was motivated by the
labor activity of the guards the General Counsel argues as follows: On November 6,
1959, Respondent's supervisors informed the president of Local Union No. 178 of
the Respondent's decision to have the guard duties at the Dayton plant performed
by Pinkerton guards. In the ensuing conversation and explanation of events as they
had occurred, a statement is attributed' to either Wagner or Brice to the effect that
the "Respondent did not want to bargain with two unions." While there is some
uncertainty as to who made the statement, it is undenied that a statement of similar
purport was made. The Trial Examiner does not regard the uncertainty as to
whether Brice or Wagner made the statement as vital for a determination of the
issues herein, because to the extent that the statement is detrimental to the Respond-
ent it is equally detrimental regardless of which of the aforementioned Respondent
supervisors made the statement. The Trial Examiner cannot attribute to this post-
action comment the same significance as that desired by the General Counsel. Such
an expression unaccompanied by threats, coercion, or promises of benefit or acts of
union discrimination is protected under the language of Section 8(c) of the Act.
To argue that such a permissible expression of opinion proves the motivation for
an unlawful act is to beg the very question to be determined. The Trial Examiner
has considered carefully the circumstances and events surrounding the making of
this remark, both as it appears from the direct testimony presented at the hearing
and the pertinent portion of the pretrial sworn affidavit given by Wagner. I am of
the opinion that the statement in no way interfered with, restrained, or coerced any
employees and cannot be attributed as the motivation behind the Respondent's
action as it affected a determination made prior to any knowledge on the part of
Respondent of the union activity by the guards.
Secondly the General Counsel argues that the Respondent's contention that the
change in plant guards was effectuated because of the need for economy simply
cannot be true, otherwise it would have endeavored to negotiate with the Union in
an effort to ascertain if greater savings might be effectuated through the Union than
could be effectuated by having the Pinkerton guards. While this is not an unreason-
able argument to advance, it is more than offset by the realities of the situation.
Commonsense would indicate to the Respondent that it could not expect the same
employees, under the leadership of a new union, to accept substantially less than
597254-61-vol. 130---85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these employees had been receiving under their former union affiliation. Further-
more it is not for the National Labor Relations Board to dictate to an employer which
of two methods of operation might be more economical. We are concerned here
with motivation and the Trial Examiner cannot conclude that the failure of the
Respondent to contact either the Union or its regional director, Lawson, in any way
minimizes the Respondent's claim that the change in guards was motivated because
of economy reasons .3 In this connection the General Counsel refers to the testimony;
of the plant manager, Wyman, wherein he testified that he made no recommendation
for the abolishment of the guard unit. Wyman testified that he was instructed by
Stork during 1959 to conduct a survey of costs because of the impending loss of
income occasioned by the removal of the belt division from Dayton to. Springfield.
Wyman related that he reviewed the departmental budgets and operating expenses
of every department in the plant with a view toward making reduction in expenses
and effecting possible economies. Written reports were submitted to 'Stork and a
great many of the recommended economies effectuated. Wyman stated that he had,
not considered the plant guards in his survey because in his opinion the number of
employees was down to a minimum and it was not possible to make further reduction
in the number of employees. Wyman specifically stated that he did not regard it as
a part of his assigned duties to make recommendations as to whether or not the
guard unit should be eliminated. This testimony is consistent and is entirely reason-
able. Wyman was a production man and the production and maintenance employees
were in a "line" or operating relationship to him, but the guard employees were
under the direct control and supervision of the personnel department and their
relationship to him was one of "staff." . Under normal circumstances where such a
relationship exists it would be most unusual for a production man to cross over the.
lines of authority and recommend the abolishment of a service department. More-
over, it is reasonable to believe that Wyman had some knowledge of the then-pending
negotiations between Pinkerton and the Respondent as it affected this area of possible
economy.
Next the General Counsel argues that the timing of the change in status of plant
guards clearly indicates the Respondent's motive to be antiunion and thus proscribed
by Section 8(a)(3) and (1) of the Act. It is true that the events of November 6,
1959, at which time the final conference with Morawski was held and thereafter the
notification to Local Union No. 178 of the Respondent's plans to eliminate its guard
employees and contract the work to Pinkertons, is subject to suspect. Suspect as it
might be, however, in order to be convincing it must preponderate that vast amount
of undenied testimony by both Morawski and responsible Respondent supervisors
indicating a serious consideration of the change for approximately 18 months and
the realities of the economies to be effectuated in such a move. The factory man-
ager, Stork, testified that he alone had the authority to make the change and that he
made a definite decision the latter part of October 1959 to institute the change from
plant employees to Pinkerton guards. After a careful consideration of the demeanor
and candor of all witnesses, and the total evidence presented, I find that the decision
to change the plant guards was made in late October 1959. This of course was in
advance of any known activity among the plant guards as to their association with a
separate plant guard union.
After a careful study of all of the evidence it is clear to the Trial Examiner that the
information received by Respondent on November 5 from Lawson was not the
motivating factor for the basic decision that is involved herein, but at most only
served as the catalyst which stirred Respondent to the realization, that it must make
known to affected parties that decision which had been made. Had the so-called
catalyst stirred the Respondent to take action affecting the employment of these
plant guards at a time earlier than had previously been determined as the appropriate
time to take such action, there might then have been a technical violation calling
for a limited remedy .4 It is also entirely possible that Respondent had an obligation
8It is apparent that in advancing this argument the General Counsel is seeking to bring
this case within the ambit of a portion of the Board' s reasoning in The R. C. Mahon
Company, 118 NLRB 1537, enforcement denied 269 F. 2d 44 (C.A. 6). The factual dis-
tinctions in the instant case are numerous and do not permit such argument, i.e., in
Mahon guards Williams and Schmidt offered to take a wage cut.
+ See J. M. Lassing, et at. d /b/a Consumers Gasoline Stations , 126 NLRB 1041, wherein
the Board found that the Respondent had for valid economic reasons determined that a
portion of their operation would be discontinued as of a definite date, but advanced the
date by several months when the Union entered the picture. Accordingly the Board
ordered backpay and appropriate reinstatement in keeping with the Respondent's dis-
criminatory conduct.
THE DAYTON RUBBER COMPANY 1331
to bargain with the plant guard union between the date of demand. for recognition
and November 15, 1959. However, a 'refusal-to-bargain charge, Section 8(a)(5),
was neither alleged nor litigated and need not be pursued further by this Trial
Examiner.
The General Counsel argues that all of the details of the contract between the
Respondent and Pinkerton were not completed until late November 1959, i.e., the
precise rates of the Pinkerton employees were not definitively determined until the
November 6, 1959, meeting between Stork and Morawski and further the fact that
the Respondent did not receive the certificate reflecting the insurance coverage by
the Pinkerton agency until November 30, 1959. Again while these arguments are
available to the General Counsel they are not persuasive. There is a plethora of
evidence in the record indicating that both before and after the change of guards
occurred there was every reason to believe that the change would result in substantial
economy. The amount of savings resulting to the Respondent is only relevant to
this proceeding to the extent that it tends to prove or disprove Respondent's advanced
reasons for the change, namely, savings. Of course it would be foolhardy for the
Respondent to advance as a reason, economy, if the resulting savings was negligible.
Under the circumstances of this case which clearly reflects a need for plant economies
and the undisputed substantial economies which resulted to the Respondent, it can
easily be said that the Respondent's advance reason for the change is substantially
supported by the evidence. The certificate of insurance coverage furnished by
Pinkerton in no way affected the contract between Pinkerton and Respondent. This
was merely proof to the. Respondent that Pinkerton had the kind of insurance coverage
which they had indicated in their letter of November 6, 1959. The November 6
letter, incorporating as.it does the June 11, 1958, proposal and the agreed-to change
of 5 cents more per hour, must be considered as the basic contract agreement and
I so find. The date of making the contract with Pinkerton is a matter quite apart
and wholly separated from the basic decision to enter into the contract.
Next the General Counsel argues that because the undisputed proof shows that
orders for clothing were taken from the individual guards in late October and early
November the decision to change the guards could not have been made until after
the letter of November 4 from Lawson was received. The inferences available
from the action of Respondent in taking routine orders for clothing replacement in
early November is easily and effectively explained by Respondent through the testi-
mony of the Safety Director Hart who had direct supervision over the guards. Hart
testified that he first learned of management's decision to replace the guards with
Pinkerton employees at a meeting on November 6, 1959, and that he did not com-
municate this information to either of the guard lieutenants, Saul or Rice, until
November 11, at which time both the lieutenants as well as the other plant guards
were notified. There were no orders taken after November 5, 1959.5 The re-
placement of guard clothing was a routine matter that was normally handled by
Lieutenants Saul and Rice. In the instant case they were performing their routine
duties in the absence of full knowledge of a decision which had previously been
made.
The General Counsel next argues that because the Respondent's labor contract
proposals to Local 178, submitted to said Union on October 26, 1959, included two
items concerning the wages , hours, and working conditions of guards , Respondent
had not determined on October 26 that there would be a change in the plant guards.
Again while this is an action casting some suspicion on Respondent and Stork's
testimony as to when the decision was -made, it is effectively and persuasively ex-
plained. Wagner testified that he began preparation of the Company's proposals to
Local 178 sometime in September. Anyone that has ever had the task of preparing
for negotiations of a labor contract knows that considerable time and advance
preparation is most desirable. The Respondent's proposals to the. Rubber Workers
consisted of 48 item changes contained in 17 typewritten pages. The two items
relating to guards also were related to the powerhouse and could easily have been
overlooked by Wagner, the Respondent's chief negotiator. Furthermore, Wagner
had no definite knowledge of the contract with Pinkerton -until so informed on
November 6, 1959.
The General Counsel also contends that the remarks made by Safety Director
Hart to the guards on November 11, 1959 , when he told them of their termination
are indicative of an illegal motive on the part of Respondent . Hart testified that he
only told the guards they were to be terminated effective at 12:01 a .m. on Novem-
5 Several guards testified to orders having been taken on November 3, 4, or 5. Only
Robert Fox "believed" he placed an order on November 6 or 7 and his clothing order was
never filled. I do not credit Fox's testimony.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 15, 1959, and would be replaced by Pinkerton guards. Several of the guards
testified that when they asked Hart why, he replied: "You should know," or "You
should know, you brought it on yourself." Assuming arguendo that Hart made
the remarks attributed to him, they do not prove anything. First, because the
remarks are subject to a myriad of different interpretations; and secondly because we
are concerned here with the motivation of a decision made several days before
his remarks and a decision of which he had no knowledge until the matter was
a fait accompli.
D. Conclusions
The Trial Examiner has taken the time to set forth the arguments advanced by
the General Counsel because it is felt that they were set forth with sincerity and con-
viction and have been deemed by the Trial Examiner to be worthy of consideration.
These arguments at best, however, are only circumstantial and arouse suspicion,
but do not prove by a preponderance of the evidence the allegations of the
General Counsel's complaint. Suspicious as the Trial Examiner may be, these sus-
picions are more than offset by the overwhelming evidence presented by the Re-
spondent of its consideration of the change in the guard employees long before any
union activity by the plant guards; the undenied and undisputed necessity for the
Respondent to effectuate certain economies; and the actual savings resulting from
the contracting out of the guard work to the Pinkerton Detective Agency. The
General Counsel has the burden of proving by affirmative and substantial evidence
the facts which he asserts and where it is just as reasonable to infer a proper motive
as an unlawful one, the burden of proving the case by substantial evidence has not
been overcome by the General Counsel. In arriving at my conclusion I have not
been unmindful of the complete lack of union animus on the part of Respondent.
On the basis of the credited testimony of Stork as to when the decision to change
over to Pinkerton guards was made and on the basis of the entire record, the
General Counsel has not persuaded me by a preponderance of the substantial evi-
dence that the Respondent was unlawfully motivated .6
Upon the above findings of fact and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
See Punch and Judy Togs, Inc., 85 NLRB 499; Caleneia Service Co., 103 NLRB
1190; and National Dairy Products Corporation, 127 NLRB 313.
Bridgeport Brass Company and United Steelworkers of America,
AFL-CIO. Case No. 10-CA-4400. March 15, 1961
DECISION AND ORDER
On September 1, 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in this case finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner further found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that they be dismissed.
130 NLRB No. 133.