The General Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Dec 12, 1961

134 N.L.R.B. 1160 (N.L.R.B. 1961)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Tire & Rubber Company and United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO. Case
No. 9-CA-2295. December 12, 1961
DECISION AND ORDER
On August 22, 1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of the complaint with respect thereto. Thereafter, the Re
spondent and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to 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, Fanning, and Brown].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The General Tire
K Rubber Company, Mayfield, Kentucky, its officers, agents, succes-
sors, and assigns, shall:
1 The Trial Examiner found that sometime after Christmas 1960, employee Adams
approached Respondent ' s personnel manager, Cantwell , and inquired whether a rumor he
had heard was true , namely, that Respondent had a list of potential union organizers and
that Adams ' name appeared at the top. In response to Adams ' inquiry , although Cantwell
denied that such a list was in existence , Cantwell held up a piece of paper and stated,
"I might have written some names down on it " The Trial Examiner concluded that the
above incident , having been initiated by Adams and occurring in the context of other
statements in which Cantwell assured Adams that he was free to vote any way he chose,
plainly qualified as free speech under Section 8 ( c) of the Act. We disagree Contrary to
the Trial Examiner , we find that Adams was greatly concerned over the rumor ; that
Adams approached Cantwell to have his fears allayed ; and that Cantwell ' s conduct, in
holding up a purported list of names , could have no effect other than to instill fear in
Adams that reprisals would be visited upon any employee who engaged in union activities
By such threatening conduct, Respondent interfered with, restrained , and coerced its
employees in violation of Section 8(a) (1) of the Act
134 NLRB No. 102.
THE GENERAL TIRE & RUBBER COMPANY 1161
1. Cease and desist from :
(a) Interrogating employees concerning their union membership,
sentiments, and activities and concerning their attendance at union
meetings and their contacts with union representatives in a manner
constituting interference, restraint, or coercion within the meaning
of Section 8 (a) (1) of the Act ; and coercively threatening employees
that reprisals would be taken against those engaging in union
activities.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Mayfield, Kentucky, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by a representative of the Respondent, be posted
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS )FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of Section 8(a) (1) of the Act
other than those found by the Trial Examiner and adopted by the
Board herein, as well as the violation found by the Board supra, foot-
note 1, and insofar as it alleges that the discharge of Robert Elliott
constitutes a violation of Section 8 (a) (3) of the Act.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union
membership, sentiments, and activities or concerning their at-
tendance at union meetings or contacts with union representa-
tives in a manner constituting interference, restraint, or coercion
within the meaning of Section 8(a) (1) of the Act; nor will we
coercively threaten our employees that reprisals would be taken
against those engaging in union activities.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
All our employees are free to become, remain, or to refrain from be-
coming or remaining members of United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or any other labor
organization.
THE GENERAL TIRE & RUBBER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat 519), was heard in Mayfield, Kentucky,
on June 27 and 28, 1961, pursuant to due notice. The complaint, issued on May
12, 1961, by the General Counsel of the National Labor Relations Board and
based on a charge duly filed and served, alleged in substance that Respondent had
engaged in unfair labor practices proscribed by Section 8(a)(1) and ( 3) of the
Act by numerous specified acts of interference , restraint , and coercion since October
THE GENERAL TIRE & RUBBER COMPANY 1163
1960, by discharging Robert G. Elliott on March 22, 1961, because of his union
membership and activities, and by changing a certain condition of employment be-
cause of union membership and activities.
Respondent answered, admitting the supervisory status of all the persons to
whom unlawful conduct was attributed, but denying the unfair labor practices.
The issues in this case revolve almost entirely around the, question whether
Elliott's discharge was discriminatorily made or whether it was for continued care-
less and improper work habits and attitudes after repeated reprimands. The issues
are largely factual, turning on the credibility of opposing witnesses, though Respond-
ent also raises questions whether as a matter of law certain statements made by
Respondent's supervisors constituted interference, restraint, and coercion within
the meaning of Section 8 (a)( I).
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted by answer that Respondent,
an Ohio corporation engaged at Mayfield in the manufacture of automobile tires,
is engaged in interstate commerce within the meaning of the Act (by reason of di-
rect outflow to extrastate points of products valued in excess of $50,000 annually
and direct inflow of materials and supplies valued in excess of $50,000 annually),
and that the Charging Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Setting and background
Respondent completed the construction of its tire plant at Mayfield in the summer
of 1960, and thereupon entered into production. It employs approximately 250
employees and approximately 50 supervisors. It operates 2 other tire plants at
Akron, Ohio, and Waco, Texas (whose employees are represented by the Charging
Union), and a total of some 15 plants altogether, of which only the Mayfield plant
and one at Macon, Georgia, are not organized.
Most of the supervisory staff had come from the Akron and Waco plants, and
some of them had formerly been active union members. Those who figured in
this proceeding were Robert E. Rehm, plant manager; Bruce D. Cantwell, personnel
manager; Rudy Girard, general foreman; John T. Michalski, John Nemish, and
Walter Qualk, shift foremen; David A. Robison, floor foreman; James Plant, fore-
man; and Neland Onstott, maintenance foreman
Hiring interviews were made by Cantwell, who customarily reviewed with new
employees the Company's rules as set forth in its booklet entitled "Operating Poli-
cies." New employees were also put through a training program, during which
periodic in-step raises were given and during which mistakes were viewed with
more tolerance than they were after the employees were put on piece-rate produc-
tion. Oral corrections or reprimands were given by supervisors for faulty or im-
proper performance and, where considered serious enough, were reduced to writing
and placed in the employee's personnel file. The employee was usually informed
that the "writeup" was being made. All discharges were made by the plant man-
ager, the personnel manager, and the general foreman, in concurrence, after review
of the personnel file, where they felt that the employee's work record justified
termination.
Union activity began at Mayfield in the week ending February 25, when a
Rubber Workers' representative came to town and met with some of the employees,
first at the home of Thomas R. Elliott (brother of Robert G. Elliott), and later,
on the night of February 25, at Fancy Farm, Kentucky. The bulk of Respondent's
alleged unlawful conduct followed the latter meeting. What preceded it can be
briefly summarized.
B. Preorganizational conduct
Robert G. Elliott testified that during the course of his hiring interview Cantwell
made statements (in calling attention to employee benefits the Company was giving)
that it was unnecessary to have a union and that, though he could not keep an em-
ployee from being for a union, he (or the Company) would rather not have a
union at that time and would like to keep it out. Ronald A. Morgan, Frank L.
Ray, and Edward E. Gibson testified to similar statements made by Cantwell when
they were hired.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Elliott and Charles Glen Thomas testified that both Cantwell and Rehm
spoke to groups of new employees when they were hired, stating in effect that
though they were not opposed to a union , there was none in the Mayfield plant
and that the Company did not want one at that time.
Billy B. Adams, a member of IBEW, worked as an electrician in the mainte-
nance department, in which five of the six electricians were union members, and
their foreman, Neland Onstott, had formedly been steward of the Charging Union
at the Waco plant. Adams testified that there were no secrets between the electri-
cians and Onstott and that the subject of the Union was openly discussed beween
them for some time.
Some of the discussions involved a rumor ( emanating from a clothing company
in Mayfield where Adams' brother was employed) that Adams was supposed to be
at the 'head of a list of potential organizers at the tire plant. Shortly after Christmas,
Adams inquired of Cantwell if there were any such list. Cantwell denied that there
was, but held up a piece of paper, stating that he might have written some names
down on it. Adams mentioned the fact that practically all the men in the mainte-
nance department were unionmen , and Cantwell commented that naturally the Com-
pany would expect them to be involved in any organizing and that it was expect-
ing a man from the Rubber Workers' Union down there right away. Cantwell
added, however, that he did not think Adams would be involved, and that his name
had been brought up only because he was well known to the personnel manager
of the clothing company. Adams stated he would reserve the right to do what he
wanted when the time came to vote but would not help to organize the plant.
Cantwell assured him that the employees could do what they chose.
Adams also testified to a somewhat similar occurrence sometime in February
when he mentioned to Onstott the rumor that the electricians, especially himself,
were involved in organizing the plant. Onstott acknowledged having heard the
rumor, but expressed the hope that none of the electricians would be involved.
Adams went again to see Cantwell, who stated he did not think Adams was en-
gaged in organizing and added that the Company naturally would rather not have
a union at that time and that after a couple of years it would have such favorable
conditions at the plant that the men would not want a union.
Although Respondent made no substantial denial of the foregoing testimony
I find that none of the statements which Cantwell, Rehm, and Onstott made con-
tained any threat of reprisal or force or promise of benefit. The statements during
the hiring interview to the effect that the plant was unorganized and that the
Company preferred to keep it that way were expressions of free speech, priveleged
under Section 8(c). The Adams-Cantwell interviews, which were sought by Adams
on his own initiative, reflected only a frank discussion of Adams' concern about
the rumor that he was a potential organizer. Cantwell expressed only the natural
expectation that all union men would be involved in any organizational movement,
but assured Adams he was free to do what he chose. Those statements plainly
qualified as free speech.
I reject the General Counsel's argument that the statements made during the
hiring interviews were calculated to test the employees' reactions to the subject
of unions, enabling it not to hire those who demonstrated propensities toward union
activities and to instill fear in all employees that they would suffer reprisals thereafter
if they engaged in union activities The General Counsel cites Fleming Manufac-
turing Company, Inc., 119 NLRB 452, as supporting his view that the technique
of calling applicants for employment into its office individually or in small groups in
and of itself was calculated to interfere with the employees' guaranteed rights. The
Fleming case is plainly distinguishable on its facts, as shown by the Trial Examiner's
findings at pages 458 and 459 (adopted by the Board). The interrogation there
was for the purpose of requiring the employees to disclose their position with
respect to a forthcoming election, to identify the union adherents, and to intimidate
them into voting against the union.
I find, therefore, that Respondent's preorganizational conduct was not violative
of Section 8(a)fl) of the Act.
1 Onstott did not testify and Rehm's testimony related to other matters. Cantwell testi-
fied that, without instruction from the Company, lie decided to make it a part of the hiring
interview to explain that there was no union in the plant, that the Company felt there was
no need for a union because of the benefits it was giving, and that he did not think the
employees needed a union
THE GENERAL TIRE & RUBBER COMPANY 1165
C. The union meetings; the interrogation
In the week ending February 25, a Rubber Workers' representative met with a
few employees, including Robert G. Elliott, at the home of Elliott's brother, Thomas,
and suggested that a further meeting be organized so that he could talk with addi-
tional employees. Robert Elliott undertook to make the arrangements, and did so
by procuring the use of the Knights of Columbus hall at Fancy Farm (10 miles west
of Mayfield) for Saturday night, February 25. Some 10 or 12 employees attended.
A number of witnesses testified to interrogations concerning that meeting by
supervisors early the following week. The record showed no denial of testimony
by Joseph E. Toon, Thomas Elliott, Edward D. Elder, and Walter Thompson, re-
spectively, concerning the interrogation on Monday by Cantwell of Toon, by
Michalski of Elliott, by Nemish of Elder, and by Plant of Thompson, and there
was also no denial that Qualk made a "kidding" remark to Frank L. Ray about the
Union and asked who the steward was. Elliott also quoted Michalski as saying
among other things that anyone who was for the Union had no business working
there; Elder quoted Nemish as asking whether he had gone to the meeting and if
he knew who went; and Thompson attributed similar inquires to Plant.
There was also undenied testimony by Edward E. Gibson that Michalski inter-
rogated him in the week following the meeting concerning his feeling toward the
Union, and that some 2 or 3 weeks later Michalski interrogated him -further con-
cerning contacts by a union representative, whether he had heard other employees
talking about the Union, and what they felt or thought about it.
Testimony by Robert Elliott and Charles Thomas as to interrogations and state-
ments by their foreman, David Robison, on two occasions on either the Monday
or Tuesday following the meeting is subject to considerable discount by reason of
conflicting testimony given by Ronald A. Morgan and because Thomas was sub-
stantially impeached by his prior affidavit to the Board. Indeed, I am convinced
from all the evidence that the truth concerning Robison's interrogations on the two
occasions is as stated in two paragraphs quoted below from Thomas' affidavit to
the Board, introduced by Respondent. Thomas' testimony on direct examination
was substantially in accord with the first paragraph, as was Morgan's testimony; and
Thomas' testimony on cross-examination was in substantial accord with the second
paragraph here following: 2
Two or three days after the meeting Dave Robison came up to me and
Robert Elliott about 6 or 7 o'clock and told us he had heard that there was 7
guys at the union meeting and for us not to worry about it because we could
say anything to him and he wouldn't tell it. Elliott didn't exactly tell Robison
that we went to the union meeting but we got that idea over to him that we had
gone to the union meeting. Robison didn't ask us the names of those who went
to the union meeting.
Later either that day or next day Robison at lunch asked us why we wanted
a union. . . . He said "they" wanted to know. He didn't say who "they"
were. He wanted to know what parts of our job we didn't like, so they could
change it. We told him what we didn't like about the job-that the Company
changed the rates back and forth-that the Company cut our sack on the
batches and it was hard for us to gain enough time for dinner (we were to
work ahead and gain enough time for lunch). This was all [that was] said
at this time.
I therefore do not credit testimony by Elliott and Thomas, denied by Robison,
which goes beyond, or is in conflict with, the foregoing .3 I also do not credit
the uncorroborated testimony of Elliott, denied by Robison, that on the following
Friday, Robison renewed his interrogation concerning the union meeting.
I conclude and find that by the interrogation of employees, as above found, con-
cerning the union meeting , the identity of employees who attended it, the contacts
2 Here and elsewhere in this report, including Appendix A, appropriate corrections have
been made in the spelling of all names.
8 E.g, Elliott's testimony that Robison stated that she had been asked by Rehm to question
the men to find out who attended the meeting but had refused to do so, and that Robison
nevertheless proceeded to ask if they had attended the meeting and how it had come about ;
that Robison warned him that Rehm was out to get him ; testimony by Elliott and Thomas
that Robison warned them against getting cards signed on company time and that if they
had anything in their pockets or their lockers pertaining to the Union they had better get
rid of it, and that Robison expressed fear that the Company would close the plant if the
Union started to come in.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employees by union representatives, and concerning the discussions of the Union
among the employees and their sentiments toward it, and by Michalski' s statement
to the effect that prounion employees should not work for the Company, Respondent
engaged in interference, restraint, and coercion within the meaning of Section
8(a)(1) of the Act. Camden Lime Company, 118 NLRB 1526, enfd. 254 F. 2d 814
(C.A. 3); N.L.R.B. v. Clay M. Bishop, et al., d/b/a New Hyden Coal Co., 228 F.
2d 68 (C.A. 6), enfg. 108 NLRB 1145; Star Cooler Corp., 129 NLRB 1075; Cull-
man Electric Cooperative, 99 NLRB 753. These were plainly not casual or iso-
lated inquires; Respondent's supervisors were engaged in a deliberate course of
conduct aimed at exploring fully the genesis and the extent of the organizational
activities and the identity of the participants, and in Michalski's case, at least, the
interrogation was coupled with statements condemnatory of employees who favored
the Union. Such interrogation tended reasonably to interfere with and to restrain
the employees in the exercise of rights guaranteed by Section 7 of the Act. Blue
Flash Express, Inc. 109 NLRB 591.
D. The discharge
Robert G. Elliott, who was without previous industrial experience, was employed
on September 16, 1960, as a trainee banbury operator. He received periodic in-step
raises of 5 cents an hour each 2 weeks and was put on production (piece rates)
around November 20 at the end of his training period.
The banbury machines, which are used at two separate stages in the mixing of
raw rubber, are housed on two floors. Elliott and his helper Charles Glen Thomas,
worked on the second floor; their job involved placing in the hopper of the machine,
through a flap door, the ingredients called for by a formula or "spec" which was
furnished for each batch of rubber. After being mixed, the batch is dropped through
a chute onto the mill on the floor below, where the Millman, Ronald A. Morgan,
performed further operations. A second crew operated the other of the two ma-
chines. A speaking tube enabled the banbury operator and the Millman to com-
municate, when necessary, above the noise of the operation.
Elliott was discharged as he reported to work on March 22, after an inter-
view with Rehm, Cantwell, and Girard and after a series of incidents concern-
ing which the evidence is in sharp dispute. On the General Counsel's side the
evidence consisted mainly of the testimony of Elliott, Thomas, and Morgan, and
on the Respondent's side, of documentary evidence of a large number of "writeups"
from Elliott's personnel file (see section A, supra) concerning Elliott's job perform-
ance and attitude and of testimony by Shift Foremen Michalski and Qualk and
Floor Foreman Robison (the latter of whom was the immediate supervisor) con-
cerning those writeups and the incidents which they described.
Briefly stated, Elliott's testimony (corroborated substantially by Thomas and
Morgan) was that he was repeatedly recognized and complimented by Respondent's
foreman as being a good workman; that he made "top" production practically all
the time; that he never had a complaint about his work (though he was sometimes
corrected); that beginning shortly after the union meetings, he and Thomas were
repeatedly warned by their foreman, Robison, that the Company was out to get
them and that Robison was instructed to get at least one writeup per night on them.
Although both Elliott and Thomas related Robison's warnings to conversations con-
cerning the Union, Respondent's evidence put them in the light of bona fide repri-
mands concerning improper job performance and repeated failure to follow in-
structions, as disclosed by the complete series of "writeups" which were supported
and confirmed by the testimony of the foremen involved.
As I am convinced of the authenticity of the record against Elliott and as the
attempted corroboration of Elliott by Thomas and Morgan was largely impeached
by prior affidavits taken both by Board and by Respondent's counsel,4 I do not find
it necessary to summarize Elliott's testimony in detail since I credit it only where
4 Both Thomas and Morgan attempted to disavow their affidavits given to Respondent's
counsel, Thomas on the ground that he did not know he was under oath and that he was
afraid of his job, and Morgan on the ground that he did not feel obligated to tell the truth
under the circumstances. As the affidavits were taken by the attorney in Rehm's office
in the presence of the supervisors whose conduct was in question , it is questionable
whether an objective or completely truthful account could have been expected However,
Thomas admitted making corrections on his own initiative , and in their entirety the
affidavits furnished a basis for substantial impeachment on material and significant
matters. Furthermore , Thomas showed a disposition in testifying on direct to go even
beyond his affidavit to the Board in tracking Elliott, who preceded him to the stand See
section C, supra.
THE GENERAL TIRE & RUBBER COMPANY 1167
it is undenied or where it is reconcilable with the documentary and testimonial evi-
dence against him. Indeed, Elliott's testimony on cross-examination showed that
he was fully aware of most of the incidents which were charged against him.
Though there were suspicious circumstances suggestive of a discriminatory motiva-
tion, later to be adverted to, the case turns largely on the record of Elliott's job
performance, which was received without objection and which is set forth in Ap-
pendix A, hereto attached and made a part of this report. That record, which was
fully confirmed and authenticated by the testimony of Michalski, Robison, and
Qualk, itself constitutes, I find, a reasonably accurate summary of the evidence con-
cerning Elliott's conduct and of the efforts made by his supervisors to effect im-
provement. Briefly, what it showed was that Respondent's supervisors had been
concerned for some months with Elliott's performance and attitude and that in
the last week of his employment Elliott was guilty of repeated disregard of instruc-
tions and of other acts of misconduct. The key to Elliott's attitude toward his
job and his supervisors was contained in a routine progress report which Robison
made in November (see Appendix A) and which can here be profitably repeated:
His progress has been o.k. but Elliott told me he was used to working inde-
pendently and thought he might have trouble taking orders from us. This
independent attitude might give us trouble so I'll talk to him and try and
straighten him out.
That Robison failed in his efforts was apparent from the remainder of Elliott's
work record; and though the evidence does not so directly establish, the inference
is plainly warranted that Robison's inability to accomplish more with Elliott
stemmed from the fact that they were young men of the same age who became
close personal friends and who played basketball together. But it is the fact of
Elliott's attitude toward his job, not the reason for it, which is material, and on
that score the written record and the confirmatory testimony of Respondent's wit-
nesses is conclusive.
We consider briefly certain facets of the evidence which lend some color to the
General Counsel's contention that the discharge was motivated by Elliott's union
activities . It is found initially, by reason of the interrogations as found in section
C, supra, including also the conversations between Robison, Elliott, and Thomas,
that Respondent knew that Elliott was among the employees who were participating
in the union activities. And though I also find that Robison thereafter repeatedly
warned Elliott and Thomas that they were to be careful to avoid mistakes because
they were being watched or checked by other foremen, I credit Robison's testimony
that those warnings were related to deficiencies in their job performance and not
to any union activities. Indeed, testimony by Elliott and Thomas concerning a dis-
cussion which they overheard of a proposed shift change between Qualk and Robison
squared plainly with Robison's testimony that he objected solely because he feared a
trade with Qualk (who had the reputation of being a perfectionist and a stickler
for accuracy) would lead to discharges among his crew unless they performed
properly.5
Similarly devoid of a discriminatory implication was Elliott's testimony, substan-
tially admitted by Michalski, concerning a conversation between them the night
before Elliott's discharge. Michalski inquired of Elliott how he liked his job. Elliott
commented favorably, but added that the only company which paid better was
Modine's ( a union plant at Paducah ). Michalski responded , "I expect , by God,
that you better get you a job down there then."
What is of more consequence toward inferring a discriminatory motivation is the
fast step-up in the number and frequency of the writeups against Elliott which began
immediately after the union meetings. Thus, only six writeups had been made in the
first 5 months of Elliott's employment, whereas beginning on February 27, nine
writeups were made in the space of 3 weeks. That circumstance plainly lends
considerable color to the General Counsel's claim that Robison's warnings were
in fact related to the union activities and certainly gives rise to a strong suspicion that
Respondent may have.been building a "paper" record to support a discharge which
was to be in fact discriminatorily motivated. But aside from the fact that suspicion
is not proof and that the General Counsel must establish his case by a preponderance
of the evidence on the record as a whole, there are considerations which cut across
and weaken that suspicion.
One short and simple explanation is the fact that more incidents occurred. Fur-
thermore, they reflected the same type of attitude and job performance as had been
5 The actual trade with Qualk was made after Elliott's discharge There is no basis for
the surmise implicit in'the Elliott-Thomas testimony that the change was proposed as a
step in a plan to have Qualk fire Elliott
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclosed by Elliott's earlier record, and-but for the factor of frequency-one which
seemed safely predictable from it. See particularly Robison's progress report,
quoted above, and Michalski's report of January 11, set forth in Appendix A, where
the latter strongly condemned Elliott's attitude.6 Indeed, it might be inferred that
Elliott's normally independent attitude and disposition became more pronounced
because of the organizational activities in which he was engaged and that such
circumstance accounted for the frequency of the incidents in which he disregarded
warnings and instructions. However, participation, or even leadership, in organiza-
tional activities cannot justify or excuse the continued flouting of instructions or of
managerial authority.
To some extent the frequency of writeups was due to the fact (as the evidence
showed) that Respondent tightened its supervisory reins. And though it might be
inferred that it did so in anticipation of a letdown in efficiency during the organiza-
tional activities, Elliott and Thomas were repeatedly warned by Robison that they
were being checked and to be more careful to avoid mistakes. Furthermore, a more
reasonable inference, insofar as Elliott himself was concerned, was that it was due
to Michalski's strong reaction to Elliott's attitude, evident as early as January 11.
When neither he nor Robison was able to accomplish anything and when, despite
repeated warnings, Elliott's performance worsened rather than improved, it cannot
be found that any discriminatory motivation attached to his discharge.
The discharge interview supplied nothing which would warrant a different con-
clusion, nor did Elliott's subsequent conversations with Cantwell and Robison. El-
liott's testimony concerning the actual discharge was refuted by Rehm and Cantwell,
whose testimony I credit, and I credit similarly the testimony of Cantwell and Robi-
son, respectively, over the uncorroborated testimony of Elliott concerning his later
conversations with them. Though Robison endeavored, vis-a-vis Elliott, to disclaim
knowledge of, and responsibility for any part in, the discharge, he was obviously
affected both by Elliott's emotional state at the time and by their close friendship.
Finally, Respondent points to the following facts which are also relevant under
the circumstances in this case as tending to negative a discriminatory motivation:
All of Respondent's numerous plants are organized except two. Though as early
as December Respondent expected that organizational activities were imminent, there
was no evidence or suggestion of discrimination against known union members
or adherents, either among the electricians or among other employees who at-
tended the union meetings, including, for example, Thomas Elliott, at whose home
the first meeting was held. Walter Thompson, who attended the February 25
meeting and who was interrogated by Foreman Plant about it, was recalled to work
after a layoff.
There remains for consideration an item of discrimination and interference claimed
to result from a change around February 27 in Respondent's alleged former practice
of permitting employees to shower during worktime. That alleged violation was
tied to two of the incidents in which Elliott was charged with violating Respondent's
work rule, contained in its operating policies which Cantwell reviewed with all new
employees (see section A, supra), that, "Employees shall not leave their jobs before
the end of their scheduled shift." See Michalski's writeups of February 27 and
March 17, Appendix A. Credibility issues concerning those writeups and the in-
cidents involved have been resolved above against the testimony of Elliott, Thomas,
and Morgan. The writeups and the credited testimony of Michalski and Robison
leave without foundation the General Counsel's claim that Respondent effected a
change in its working rules on February 27 because of the organizational activities.
I therefore conclude and find that the General Counsel has failed to establish by
a preponderance of the evidence on the record as a whole that Elliott's discharge was
discriminatorily motivated and that the alleged change in the work rule was made
with intent to interfere with or to discriminate because of the organizational activities.
I shall therefore recommend dismissal of those allegations.
M. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action , of the type conventionally ordered in such cases, which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. In view of the limited nature and extent of the unfair labor
6 Pertinent also was Qualk's testimony that Elliott was capable of being a good employee
if he wanted to, and that he was a hard worker, but too speedy, sacrificing quality for
speed. Robison similarly described Elliott as a hard and capable worker, but one who
was independent and who liked to cut corners to get his work done faster.
THE GENERAL TIRE & RUBBER COMPANY 1169
practices found herein , and in the absence of a showing that engagement in other
types of unfair labor practices is reasonably to be anticipated from Respondent's
past conduct , I shall recommend a limited cease and desist order.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a) (1).
3. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent 's business as set forth in section I , above , have a close, inti-
mate, and substantial relation to trade
,
traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
4. Respondent did not engage in unfair labor practices proscribed by Section
8(a)(3) and ( 1) of the Act by discharging Robert G. Elliott or by making the
alleged change in the work rule concerning washup time.
[Recommendations omitted from publication.]
APPENDIX A
SUMMARY OF REPORTS IN ELLIOTT 'S PERSONNEL FILE
On October 12, 1960, Robison reported that Elliott put the wrong compound into
certain batches , resulting in a loss of 902 pounds of burnt stock.
On October 26, Qualk reported that Elliott 's use of the wrong compound resulted
in six defective batches.
Robison reported to Girard in November at the time of Elliott's final stepup raise,
that:
His progress has been O .K. but Elliott told me he was used to working inde-
pendently and thought he might have trouble taking orders from us. This
independent attitude might give us trouble so I'll talk to him and try and
straighten him out.
On December 1, Qualk reported that on November 15 Elliott mixed four batches
of MS-30 which were high in gravity.
On January 11, Michalski reported:
On this date while I was observing the banbury operations on the 2nd floor,
Robert Elliott , banbury operator , dropped a batch of MK-42 that stuck in the
banbury chute. The millman , R. Morgan #3004 called up to Elliott to inform
him that the batch was stuck . Elliott's reply was, "the hell with it, it will
come down with the next one." I immediately got the floor foreman and had
him explain to this man the consequences involved when a batch sticks. The
answer that Elliott gave Morgan reflects his attitude towards his job and his lack
of concern for good workmanship . He not only took the risk of ruining the
stock, but also of damaging the machine . Since this man has been operating
the banbury for only a short period of time, I can 't understand how he could
develop such a poor attitude on a matter as important as this.
On February 20, Robison reported:
R. Elliott was warned again to use the banbury scraper. Every specification
formula calls to scrape the ram. This shows disregard for our mixing formulas
and will cause us to lose time by sticking rams. Elliott has already stuck a ram
on a batch of MK-40.
On February 27, Michalski reported:
On the above date, while I was talking to Dave Robison , floor foreman, and
telling him to have an employee to do a certain job, R. Elliott #3001 interfered
with the conversation and proceeded to tell me why this certain employee
would not be able to do the task about which I was speaking . However, I was
referring to one employee ( Edward Gibson ) and R . Elliott mistakenly assumed
630849-62-vol. 134-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I was referring to Charles Thomas. Nevertheless, it is not Elliott's job to deter-
mine who can do a certain job and when it will be able to be done.
It is my opinion that this man has a very poor attitude and is undesirable as
a General Tire employee.
On February 27, Michalski reported:
On the above date R. Elliott #3001 left his dep't, and was in the shower
room prior to quitting time. This violation of operating rules occurred just two
days after I instructed Dave Robison to remind his men (one of whom is
Elliott) that they are to remain in their dep't for the entire schedule time of
their shift. I told Elliott again today (2-27-61) that his shift does not end
until 12:00 Mid and he would be expected to remain in the dep't until this time.
This man does not appear to be able to follow instructions, or care about adher-
ing to company policies.
On March 1, Robison reported:
R. Elliott was seen by me throwing Code 592 and boxes used to weigh it
up at C. Thomas. This is what I consider "horseplay," but it could end up in a
serious accident. I cautioned Elliott of disregard of safety and waste of mate-
rial besides dirtying up the area. I also told him we are here to work and
not play.
On March 6, Robison reported:
R. Elliott is putting compound for MV-73 on flapdoor before the timer allows
the gate to close. This lets some of the compound fall through to the mill.
I have reminded him time after time about this incorrect procedure. Elliott
said doing this lets crepe slide in easier. That's o.k. but he should wait until
gate is shut and not contaminate batch on the mill. This is evidence of poor
workmanship and he won't take advice.
On March 15, Robison reported:
R. Elliott has been told to weigh up oils by using oil scales. He ran MK-
35-(3), MK-42-(20) and MS-30-(4) without using oil scale. I cautioned him
on this and he failed to make the change on every batch.
On March 15, Robison reported:
R. Elliott was using air hose on banbury wrong. The correct procedure was
explained to him. I have caught him spraying dust down speaking tube. I
have explained the result of this unsafe act.
On March 16, Michalski reported:
Dave Robison, Floor Foreman, reported to me today that R. Elliott #3001
was not using the oil scale to weigh up ingredients for a batch in spite of the
fact that he warned him several times yesterday as a result of his failure to do
this yesterday. He reports that he has warned him again today, but that he is
having trouble making Elliott follow these instructions. Elliott is fully aware
that this is the proper way to do this job and his failure to do it today is not
only in violation of the standard practice but is also in direct disregard of the
instructions Robison gave him yesterday. I told Robison that if he had any
other instances of this to bring it to my attention immediately at the time it
occurred.
On March 17, Michalski reported:
R. Elliott-was seen by me hitting a gaylord containing synthetic rubber
with one of the new band breaking tools. This tool has a sharp edge and each
time it hit, it mixed carboard with synthetic. The tool was damaged since the
crack slide-in was pounded together. I told Elliott that this was in violation
of instructions and that by violating instructions he also was taking a chance
of causing injury to himself and to others near him. This sort of contamination
of synthetic rubber creates a very serious production problem. Elliott offered
no excuse.
Michalski also reported on March 17:
On 3/16/61 R. Elliott, No. 3001, left his dep't before the end of the sched-
uled shift. He has been previously told he must stay in his department on this
particular shift until 12:00 Midnight. In spite of this he left yesterday at 7
min. to 12. I spoke to him about this and told him if he continued to disregard
operating policies we would have no choice but to let him go.
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1171
On March 20 , Michalski recommended to Girard that Elliott be discharged:
Over a period of the past several months R. Elliott , banbury operator, has
been careless in his work habits and attitude . During the past week on four
separate occasions it was necessary to reprimand Elliott about his improper
performance . The incident of not weighing his oil for his batches is one of
pure negligence and a repeated offense after verbal warning. The same day it
was necessary to reprimand him about his improper use of the air hose, and to
point out to him how unsafe this act was. On the next day Elliott directly dis-
regarded the previous days warning about weighing oil for his batches. That
same night he left his work station early in violation of operating rules. You
will note that on the 17th it was necessary to reprimand him for negligence in
his manner of handling a container of synthetic.
It seems to me and Dave that we have done everything in our power to get
this man to do his job right and to have a proper attitude . It has been
necessary under these circumstances for supervision to watch this man all of
the time and we just don't have the time to do this . Something needs to be
done to correct this situation and I recommend that we let him go.
On March 21 , Girard replied:
I discussed with Mr. Cantwell your recommendation that Robert Elliott be
separated in light of his record today. He concurs and will join me in a recom-
mendation to Rehm in the morning. Unless you hear from me to the contrary
have the guard tell Elliott to report to Mr . Rehm office when he come to work
Wednesday.
Leggett 's Department Store of Princeton , West Virginia, Inc.
and United Store Employees Union , Local 347, Retail , Whole-
sale & Department Store Union, AFL-CIO. Case No. 9-CA-
2278. December 12, 1961
DECISION AND ORDER
On July 19, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions, and the entire record in this
1 The Respondent excepted to the Trial Examiner 's finding that it had "conceded" that
it was engaged in interstate commerce within the meaning of the Act. It is a corporation
doing business in Princeton , West Virginia , operates a retail clothing store, has gross
sales of more than $500,000 per year , and causes to be shipped to West Virginia from
other States more than $100,000 worth of goods annually . We find that the Employer
meets the jurisdictional standards set forth in Carolina Supplies and Cement Company,
122 NLRB 288, that we have legal jurisdiction , and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
134 NLRB No. 104.