The General Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Nov 5, 1964

149 N.L.R.B. 474 (N.L.R.B. 1964)

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
It is recommended that the complaint and amendment to the complaint be dis-
missed in their entirety.
The General Tire & Rubber Company, Chemical Plastics Divi-
sion and United Rubber , Cork, Linoleum & Plastics Workers
of America, AFL-CIO. Case No. 06-CA-1726. November 5,
1964
DECISION AND ORDER
On August 3, 1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
amended complaint and recommending dismissal of the amended
complaint in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the Respond-
ent filed a reply 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 Leedom, 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 Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings,' conclusions, and
recommendation of the Trial Examiner.
[The Board dismissed the amended complaint.]
'The General Counsel excepted to the credibility findings made by the Trial Examiner.
It Is the Board 's established policy , however , not to overrule a Trial Examiner ' s resolu-
tions with respect to credibility unless, as is not the case here , the clear preponderance of
all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M. Singer at Columbus,
Mississippi , on May 12 and 13, 1964, pursuant to charges and amended charges
filed on various dates between January 27 and April 3, 1964, and an amended
complaint issued April 6, 1964. The complaint, as amended , alleged that Respond-
ent (herein sometimes called the Company ) violated Section 8(a)(1) and (3) of
the Act. Respondent , in its answer , denied commission of the alleged unfair labor
practices . All parties appeared and were afforded full opportunity to be heard,
and to : examine and cross -examine witnesses . Briefs were received from General
Counsel and Respondent.
149 NLRB No. 53.
GENERAL TIRE & RUBBER ' CO., CHEMICAL PLASTICS DIV . 475
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT ; THE LABOR ORGANIZATION INVOLVED
Respondent , an Ohio corporation with its principal office located at Akron, Ohio,
is engaged in the manufacture and sale of plastic film at its plant at Columbus,
Mississippi , the only location here involved. Within the last 12 months , Respondent
purchased and received at its Columbus plant , directly from points outside Missis-
sippi , products valued in excess of $50,000. Within the same period , it sold and
shipped goods valued in excess of $50,000 directly to points outside of Missis-
sippi . I find' that at all times material herein Respondent has been engaged and is
engaged in commerce within the meaning of the Act.
The Charging Party, United Rubber, Cork, Linoleum & Plastics Workers of
America, AFL-CIO, is a labor organization within the meaning of the Act.
If. THE UNFAIR LABOR PRACTICES
A. Background
1. Respondent's operations
Respondent's new plant in Columbus began operations in the middle of October
1963. producing plastic materials for such items as shoes , automobile seat covers,
and dinette furniture . Initial operations-until sometime in January-were largely
experimental or test runs, designed to train newly hired personnel to operate
machines and equipment. By mid-December, Respondent operated three shifts, and
after January 1, 1964, engaged in substantial production for customers.
Leo Petree is production manager and Joseph A. Laterza is manager of industrial
relations at the plant. Both had worked for the Company many years, most
recently in Toledo whence they transferred to Columbus. Laterza hires plant person-
nel, keeps personnel records, takes care of housekeeping functions ,' and is in
charge of plant security. Working under Laterza is an office secretary, who
helps keep records, and four guards who patrol the plant during the three-shift
workday.
2. The Union's organizational campaign
Toward the end of December 1963, Ray Junkins, a union representative, began
an organizational campaign at the plant. The Union is the bargaining agent
at 12 other plants of the Company. Junkins contacted the employees at their
homes and by January 8 or 9 he had apparently made sufficient headway to
call a meeting for January 16.
The complaint alleges that Respondent closed down its operations and laid off
its employees on the night of January 16 through 17, and that on January 20
it discharged its employee, Samuel Junkin,2 in reprisal of the employees' union
activities. The complaint also alleges that Respondent, by its supervisors Laterza
and Thomas E. Kirk, coercively questioned employees. Respondent denies it com-
mitted any unfair labor practice and contends it is not responsible for the conduct
of Kirk.
B. The alleged Section 8(a) (1) violation
General Counsel in his brief (pp. 4 and 5) relies on only two incidents of
interrogation-one by Kirk and another by Laterza-,to establish violation of Section
8(a)(1) oftheAct.
1. Thomas E. Kirk
(a) Junkin, the alleged, discriminatee, testified that oil ,January 16, Kirk, the
alleged guard supervisor, engaged him in conversation about the union meeting
scheduled to be held that afternoon.' After telling Junkin that he had been
watching him since,he had started to work and that he felt "like you are an
honest fellow," Kirk remarked that "maybe you can help me just a little bit"
and asked. him where he, was going -that evening. When Junkin said he was
going home, Kirk asked, "Have you heard anything about a meeting this eve-
.
1 The Company dots-not actually employ janitorial help. Janitorial service is con-
tracted out,. It being Laterza's responsibility that- such work Is performed properly. , •
2 Samuel Junkin is not related to Ray,Junkins, the Union's, organizer. .
8 The union meeting, held around 3:30 p in , was attended by 20 or 25 employees.
476 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD }
ping," to which Junkin. replied that he had "heard some talk about" it. Kirk
then asked who had told him about the meeting , and Junkin said he would
"rather not tell." Kirk persisted , "Who is the leader of this." Again Junkin
said he would rather not ?tell. Kirk then remarked, "Don't you think you owe
the Company anything?" Junkin retorted that he owed the 'Company "a good
day's work when I come to work." Kirk said, "Yes, but don't you want to be
loyal to the Company?" Junkin replied that he felt he was loyal and had not
missed an hour's work. Kirk commented that there were other ways to be loyal
and that "you don't want to stay in that wrapping part back there the rest of
your life, do you?" When Junkin acknowledged he would like a better job, Kirk
said that although he could not promise him anything, "you will come 'out better
if you stick with the Company" and again asked who it was that had told him
about the meeting and who "the leader" was, but Junkin again said he would
rather not tell and would "rather remain neutral." Kirk ended the conversation
by telling him not to tell anybody what had been said.
Since Respondent did not call Kirk as a witness, Junkin's described testimony
is uncontradicted and I credit it. There is no question-and Respondent apparently
agrees-that Kirk's questioning was coercive. 'Respondent's sole contention is that
Kirk was not a supervisory employee for whose conduct it is chargeable, a conten-
tion challenged by General Counsel. I now turn to this issue.
(b) Kirk is one of the four guards employed by Respondent at the plant. Each
of the three shifts is covered by a guard. Kirk relieves the other three guards
on their offdays. In addition, he instructs plant personnel on fire prevention, dem-
onstrating fire equipment to groups of employees.4
As already indicated, Laterza is in charge of plant security and, admittedly,
has overall supervision over the guards. The undisputed evidence establishes that
Laterza issues all orders and directions to the guards; Kirk does not assign or
direct the work of the guards. It was Laterza who prepared the rosters assigning
guards to the various shifts. While the guards, including Kirk, have at times
"swapped" shifts, this practice was authorized by Laterza so long as the shift
was covered and the "trade" was reported to him. It is undisputed that Kirk
has no power to hire or fire employees; only Laterza hires and fires the guards.5
The creditable evidence further establishes that Kirk lacks authority to, and did
not in fact, discipline employees. The record discloses at least two incidents in
which Laterza specifically rebuked Kirk (an apparently highly aggresive individ-
ual) for wrongfully assuming such authority. One incident involved guard John-
son, who complained to Laterza that Kirk had threatened to discipline him for
a sloppy paint job; Laterza's testimony concerning this is uncontroverted. The
other incident involved guard Partridge who asked Laterza about a rumor that
Kirk was going to discharge him; Partridge explained that he would rather
-quit than be fired. Laterza reassured Partridge that he would not be fired (Par-
tridge still works for the Company). Laterza later summoned Burks to his office
to determine if he was the source of the rumor, which Burks denied.6 Significantly,
it was Laterza, and not Kirk, who investigated the matter and it was to Laterza
that the two guards turned to determine whether they would be disciplined.
The foregoing facts would appear to constitute a strong showing that Kirk
was not a supervisory employee or agent of Respondent. There are of course
here, as in other cases posing the question of supervisory status, countervailing
s Respondent uses highly inflammable equipment in connection with some of its opera-
tions. General Counsel's witness, Junkin, testified that Kirk had "lectured" and "in-
struct[ed] us about safety" approximately once a month.
B Isom Burks, a General Counsel witness, testified that Kirk was present when Laterza
interviewed him for a guard position but he admitted that it was Laterza who hired him.
He further admitted that Laterza, and not Kirk, later fired him because he was found
"sleeping on the job." Burks also testified that after he was hired Kirk took him to the
guardhouse, showed him the order book, and took him around the plant, pointing out
"some of the things that I would watch out for while in the plant area." In the light of
the entire record (including the fact that Kirk apparently was the senior guard , that he
was a wartime acquanitance of Burks, and that Kirk happened to be available to attend
to this routine chore), I do not attach any particular significance to this incident.
9 Up to this point, Laterza's account of the interview coincides with that of Burks.
Laterza testified that he made it clear to Burks that only he (Laterza) had the power to
fire guards . Burks made no reference to this point ; he testified Laterza told him that
he was to keep in confidence statements of this nature when made by Kirk. I credit
Laterza's version of the incident rather than Burks'.
GENERAL TIRE & RUBBER CO., CHEMICAL PLASTICS DIV. 477
factors. For example , the record shows that Kirk received $52 per month more
salary than the other guards -($350 per month instead of $298); but this may
well be accounted for by the fact that Kirk was the senior guard, that as relief
guard he was required to work on different shifts, and that he was vested with
extra (nonsupervisory) responsibility, namely fire prevention. Furthermore, the
credible evidence establishes that Kirk prepared or participated in the preparation
of monthly progress reports; but it is clear that it was Laterza who appraised
the guards' performance and it was only Laterza who had the power to discipline
or take action on the basis of these reports. (Cf. Plastics Industrial Products,
Inc., 139 NLRB 1066; Cabinets, Inc., Subsidiary of Air Control Products, Inc.,
130 NLRB 1378, 1379; Lampcraft Industries, Inc., and Leslie China,' Inc., 127
NLRB 94.)7 Finally, General Counsel introduced into the record a memorandum
(dated January 28, 1964), from Laterza to the "foremen and department heads"
notifying Kirk (among others) of an impending meeting; it is clear, however, that
the memorandum ( listing 14 names) includes two nonsupervisors-though ob-
viously key employees-in addition to Kirk,' one of them (Jenkins, the color
coordinator) having no employees under him.8
Based on all of the foregoing and the entire record, I find that the overwhelming
evidence establishes that Kirk was not a supervisor or agent of Respondent. At
best, Kirk was a valued key employee, but without the indicia of supervisory
status as enumerated in Section 2(11) of the Act, including the right to hire,
fire, transfer, reward, discipline, responsibly direct other employees, or effectively
to recommend such action.9 I further find that Kirk, by reason of his duties
and relationship to the Company, could not reasonably be regarded as a manage-
ment representative in a "strategic position to translate [to the employees] the
policies and desires of the management ." ( International Association of Machinists,
Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. N.L.R.B. 311 U.S. 72
79-80.) The fact that Kirk identified his interests with what he regarded to
be management's interests insofar as the Union was concerned, and that he acted
in what he regarded to be the interest of Respondent-but insofar as it appears
without Respondent's knowledge and consent-did not of itself establish him as
an agent of Respondent so as thereby to render Respondent responsible for his
conduct. Superior Tool & Die Co., supra, at 1386.
2. Joseph A. Laterza
Virgil Blalock, a General Counsel witness, testified that on January 29, 1964,
Laterza called him to the office. After telling Blalock "not to be alarmed" about
a time study which was to be made of his job, Laterza said that "the other
reason" for which he called him in the office "concerns this third man business."
Mentioning that he saw "some of the guys wearing buttons around the plant,"
7 Burks testified that in November 1963, in his progress evaluation interview with
Laterza (after 30 days on the job), Laterza informed him that he "had been marked down
[on] attitude" by Kirk. Burks responded that he had been "under the impression" that
Laterza was "our main boss, the immediate supervisor" and that Laterza would give "the
final rating." Laterza admitted conferring with Kirk regarding the 30-day progress re-
port but was equivocal as to who prepared it. I find that Kirk prepared the report but,
as Burks well understood, it was Laterza who evaluated it. (In this connection , it is sig-
nificant that Burks did not claim that Kirk at any time discussed, criticized, or repri-
manded him on attitude-action which Kirk would have been expected to take had he been
Burks' supervisor ) Burks quoted Laterza as stating in the same conversation that Kirk
"was the boss in the security guard" Under the circumstances (including the credible
testimony concerning Kirk's duties and functions and Laterza's rebukes to Kirk concern-
ing his attempts to discipline employees previously mentioned), I credit Laterza's denial
that he made such a statement.
8 Laterza testified that the purpose of this meeting was to discuss "procedures for safety
and for fire protection" and that Kirk attended in his capacity as lecturer on fire preven-
tion. He further testified that he conducted three such meetings to discuss safety, house-
keeping, and accident prevention, but Kirk did not attend all of them.
9 Cf. Superior Tool & Die Co., 132 NLRB 1373, 1385-1386; The Little Rock Down-
towner, Inc., 145 NLRB 1286; The William J. Burns International Detective Agency, Inc.,
138 NLRB 447, 448; Poultry Enterpri8e8, v. N.L.R.B., 216 F. 2d 798 (C.A. 5) ;
N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F. 2d 235 , 239 (C.A. 4), cert.
denied 359 U.S. 911.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laterza said, "All I want and all that the Company wants of you is for you
to just give us a chance." According to Blalock, Laterza also asked how he
felt "about the third man business." .
Laterza conceded that in the course of the interview, he told Blalock that he
saw the union buttons; that this led him to believe that the Union was attempting
to organize the plant; and that since the plant was "so new," the Company felt
"we should wait and give the organization a chance." He denied asking Blalock
how "he stood on the union issue."
I credit Blalock's account of the interview which in all but one significant
respect-the question concerning Blalock's attitude "about the third man business"
or the Union-coincides with that of Laterza. However, in view of the isolated
nature of Laterza's questioning of Blalock-as hereafter found, Respondent did
not engage in other unfair labor practices-I find the questioning noncoercive,
and, in any event, too minor in character to warrant the issuance of a remedial
order. See Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 196, 198;
Lenox Plastics of P. R., Inc., 128 NLRB 42, 44; The Great Atlantic & Pacific Tea
Company, Inc., 129 NLRB 757, 760; Becker & Sons, Inc., 145 NLRB 1788. Cf.
Vernon Steel Products Co., Inc., d/b/a The Newburgh Steel Company, and
Imperial Steel Products Co., Inc., 146 NLRB 1115?0
C. The alleged Section 8(a)(3) violations
1. The "shutdown"
As already noted, General Counsel contends that Respondent temporarily shut
down its plant on Thursday night, January 16, shortly after the employees held
their first union meeting, and that it then permanently discharged Samuel Junkin,
a union employee, on Monday, January 20, in reprisal for union activities.
Production Manager Petree testified that the plant was closed down because
the plastic- being run through the calender on January 16 was coming out off
color." He explained that the plant had encountered difficulties matching colors
for a blue metallic item for Ero, a manufacturer of seat covers for Sears Roebuck;
that the color matching department, which was limited as to number of available
personnel and level of training of those available, had been trying without success
all day (January 16) to match colors for this rather large order; 12 that the
colors still had not been matched when he left the plant that day; that at 9
p.m. he learned that the second shift had been unable to correct the color situation
in the calender and, contrary to his wishes, was ready to run the item off color; 13
and that he thereupon ordered the calender stopped until he came to the plant
later that night. Petree further testified that when he arrived at the plant he
found that "we were just fighting a losing battle"; that the color matchers did
not have colors matched for other orders; and that the blenders (machines where
the, ingredients are mixed before going to the calender) were full of com-
1o As already noted, General Counsel claims that only the two incidents heretofore dis-
cussed (the Kirk-Burks and Laterza-Blalock incidents) were coercive interrogations viola-
tive of Section 8(a) (1). However, employee Burks testified as to yet another incident
(allegedly in late December or early January) which, if credited, might well constitute
unlawful interrogation According to Burks, first Kirk and then Laterza pressed him to
disclose the identity of an employee who had asked Burks whether he had heard anything
about the Union ; Burks also quoted Laterza as requesting him to report any similar union
talk. Based on the comparative demeanor of Burks and Laterza and the inherent prob-
abilities of the situation, I credit Laterza's denial that he discussed any union activity
with Burks. I cannot believe that Burks who, according to his own testimony, displayed
extreme reluctance to disclose the identity of the employee involved in the incident would-
in the face of such reluctance-have been requested to inform upon the union activities of
other employees.
u The calender is a huge piece of equipment, occupying three levels in the plant, through
which all material must be processed. As Laterza put it, the calender "is the heart of
our production . . . . [Elverything starts at the calender."
lz As noted at the outset of this Decision, Respondent's Columbus plant was a new plant
and it was not until after January 1 that the Company began to work on customer
orders on a regular basis, the operations until that time having been largely experimental
and designed to train ; personnel ,
13 Running the material off color would have required an extra operation through the
printing machine to correct the color, additional expense which Petree indicated he sought
to avoid.
GENERAL TIRE , & RUBBER CO ., CHEMICAL' PLASTICS. DIV. 479
pound. Petree concluded that with the calender "stalled because, it was off `color
and . the blenders full, and nothing else matched to go on the calender
I did not see how we could continue," and he decided to shut down overnight
to survey the situation the next day.
On Laterza's advice, Petree and one of his foremen then telephoned the third-shift
personnel (who were to begin work at 11 p m.) and the shifts who were to
report the next day, and notified them not to report on Friday. Those who could
not be contacted and reported were to be paid 4 hours reporting pay.
After looking into the situation with the head of the technical department on
Friday, Petree concluded that there was, after all, some work (other than work
on the Ero order) which the printers could run on the printing machine and
he called in the printers and one or two shipping employees. The first-shift printers
started coming in around noon, the second- and third-shift printers worked their
full shifts. The color matching employees also came in and worked through the
weekend in order to establish a backlog of orders for which colors had been
matched. In all, about 15 employees worked and about 35 employees (21 of
them calender employees) did not work that Friday. The plant resumed full pro-
duction on Monday, January 20.
2. The discharge of Junkin
Samuel Junkin was hired as a wrapper' in the inspection department on Decem-
ber 2, 1963, and worked in this capacity under the supervision of Foreman Ken Fet-
terman until discharged 7 weeks later, on January 20, 1964. At the time of his
discharge he was still a probationary employee. (Respondent's employees are pro-
bationary employees the first 90 days of employment.)
Junkin first learned of the Union's organizational drive on January- 15. As
related, the following day Kirk, one of Respondent's guards, questioned him about
the Union and asked about the organizational : drive; Junkin declined to reveal
the requested information, stating he would rather remain neutral Junkin was
1 of the 20 or 25 employees who attended the union meeting that afternoon
(January 16) and signed a union card there.
Like most of Respondent's employees, Junket did not work the next day, Friday,
January 17-the day on which Respondent curtailed production and operations. He
worked the following Monday when the plant resumed full production. That
day, just before his shift ended, he was called into Laterza's office and discharged.
Junkin testified that Laterza told him in the terminal interview that he was
being laid off because of slackness in work; that when he protested that he had
been working longer than some other employees, Laterza replied that he had
too many men in the embossing department and intended to transfer some of
them to the inspection department; and that when he remarked that he had been
with the Company longer than some of the embossers, Laterza answered that
it was easier to train a wrapper than an embosser. Junkin then stated, "I' just
don't feel like that is the reason you are laying me off," adding, "Are you
sure it's not because I wouldn't talk?" 14 According to Junkin, Laterza disclaimed
knowing what Junket had in mind, indicated he himself did not know that Junket
would be laid off until that morning,-and insisted that he was being separated
for the reasons given (lack of work) and also because he left his machine "a
whole lot." Junkin admitted leaving his work area occasionally but stated that
this was on instruction from Foreman Fetterman who had asked him to help
other employees in the inspection department during his spare time.
Laterza testified that on Friday morning, January 1.7, while surveying the work
situation which necessitated the shutdown the previous evening, he and Plant Man-
ager Petree decided that because of the scarcity of embossing work in the past
3 months it would be necessary to dispense with six embossers 15 Petree told
Laterza that he "hated" to lose the embossers because of their special training,
and it was then decided to retain as many of them as possible. It happened
that two embossers had already given notices to quit and that two others were
out indefinitely for illness or injury; reducing to two the number to be laid off. La-
terza testified that after considering the matter over the weekend, he selected
Chism and Junkin for layoff on Monday' morning, January 20-the former because
he.hai1'physical problems and could not do an adequate job, and the latter '(Junket)
because ofk his; probationary status, the reports he received from Foreman Fetterman
14 An obvious reference to`Junkin's refusal to supply'information'about the Union when
solicited by Kirk (sio-pra).' , . : ^ •',` . . '
15 Laterza's testimony on this point was. corroborated by.Petree. ,, , '
480 DECISIONS OF NATIONAL LABOR RELATIONS.BOARD
about his poor attitude toward his job, and the fact that he had the least seniority
among the wrappers.16 Junkin was replaced by Carey Mayfield, one of the un-
needed embossers. According to Laterza, Mayfield was a superior employee and
a college graduate with good potential for advancement.17
Laterza testified that at the time of the discharge he had no knowledge of
union activity at the plant, having first learned of such activity 2 or 3 days
later when employees were first seen wearing union buttons at the plant. He
also denied knowledge of guard Kirk's conversation with Junkin on January 16.
The record shows, and I find, that Respondent has, since the discharge of Junkin,
transferred and promoted several employees observed by company officials wearing
union buttons.
Respondent has hired several production employees, skilled and unskilled, since
January 20. (Junkin's wrapping job was unskilled.) Respondent has not hired
any new wrappers; two wrappers are now doing the work formerly done by
three. Junkin has not been recalled for any job. Laterza testified that he has
not rehired Junkin because of his poor record and because, subsequent to Junkin's
layoff, complaints had been received from two customers about incorrect wrapping
for which, it was suspected, Junkin was responsible.
3. Conclusions respecting the alleged Section 8 (a) (3) violations
It is elementary that an inference that a discharge or shutdown was motivated
by union activity must be based upon evidence, direct or circumstantial, not upon
mere suspicion, and that the burden of proving improper motive is upon General
Counsel. Knowledge by an employer of the laid-off or discharged employees'
union activities is a vital element in proof of a violation of Section 8(a)(3). "Ab-
sent knowledge of union activity, the Company could not have been motivated
in the layoff by antiunion animus." Beaver Valley Canning Company v. N.L.R.B.,
332 F. 2d 429 (C.A. 8). See also The Great Atlantic & Pacific Tea Company,
Inc., 129 NLRB 757, 759.
Based on the entire record, I am constrained to conclude that General Counsel
failed to establish that the brief January 16-17 "shutdown" and the January 20
discharge of Junkin were discriminatorily motivated. There is no credible evidence
that Respondent in general , or Plant Manager Petree (who decided to close the
plant ) or Manager of Industrial Relations Laterza (who selected Junkin for dis-
charge), were hostile toward the Union.'s Nor upon the record presented would
inference of knowledge by Respondent's officials of the employees' union activity
be justified. General Counsel's position concerning Respondent's animus and knowl-
edge must necessarily rest upon guard Kirk's awareness of and hostility toward
the Union. However, as already found, Kirk was not a supervisor or agent of
Respondent for whose conduct Respondent is answerable.1° Nor can I infer that
Kirk's antiunion activity had been instigated, abetted, or approved by Respondent
prior to the "shutdown" and discharge. For all that appears, Kirk, a highly
aggressive individual, acted on his own to promote what he supposed to be
a company interest, in an attempt to curry favor or establish himself more solidly
with the Company.
In reaching the conclusion that General Counsel failed to establish discriminatory
motivation, I have not overlooked the apparent coincidence of the "shutdown"
and discharge with union activity in the plant. Cf. N.L.R.B. v. American Compress
Warehouse, Div. of Frost-Whited Co., Inc., 321, F. 2d 547 (C.A. 5); Beaver Valley
'8 Respondent employed three wrappers, one on each shift. Junkin worked on the 7 a.m.
to 3 p m. day shift, and was lowest in seniority.
17 At the time of the hearing Mayfield had already been promoted to the position of
leadman in the scrap department.
18 As already noted, Respondent recognizes and deals with the Union at 12 other plants.
The record shows, as already found, only one isolated instance of interrogation of one
employee by Laterza, which can hardly be said to betray antiunion hostility. In addition,
the evidence establishes that Respondent has retained and promoted to better positions
known union employees.
is Moreover, it should be noted that even if Kirk were a supervisor, there is no evidence
that he played any role whatsoever in the decision to "shut down" and discharge . ,, Kirk
did not supervise, nor even work with, the employees affected by Respondent's actions.
Absent evidence linking the actions to antiunion motivation , the record would not support
a finding of unlawful company conduct . Cf. Metal Prooesaora' Union, Local No. 16, APL-
CIO (foray, Inc., Intervenor) v. N.L.R.B., 337 F. 2d 114 (C.A.D.C.) ; N.L.R.B. V. Overnite
Transportation Co., 308 F . 2d 284, 297 (CA. 4).
GENERAL TIRE & RUBBER CO., 'CHEMICAL PLASTICS DIV . 481
Canning Company v. N.L.R.B., 332 F. 2d 429 (C.A. 8). Nor have I ignored Gen-
eral Counsel's demonstration of contradictions and -inadequacies in Respondent's ex-
planations for the "shutdown" 20 and discharge.21 Although these do, indeed, raise
a suspicion that Respondent's actions may have been discriminatorily motivated,
suspicion is not proof. The evidence must do more than create a suspicion of
the fact sought to be established. "Higher standards than this are required in
order for such evidence to attain the stature of `substantial' evidence." Gross
Telecasting, Inc., 129 NLRB 490, 502. See also Lo-K Foods, Inc., 134 NLRB
956, 957.22 Although the absence of valid or plausible explanations for a layoff
or discharge may buttress a finding (based on other affirmative evidence of discrim-
inatory motivation) that the action is unlawful, this factor is not in itself sufficient
to sustain a violation of Section 8(a)(3). See N.L.R.B. v. Montgomery Ward
& Co., 157 F. 2d 486, 490 (C.A. 8); N.L.R.B. v. Griggs Equipment, Inc.,
307 F. 2d 275, 278 (C.A. 5). For an "employee may be discharged . . . for
a good reason, a poor reason, or no reason at all, so long as the terms of
the statute are not violated." N.L.R.B. v. Condenser Corporation of America,
128 F. 2d 67, 75 (C.A. 3); N.L.R.B. v. Transport Cleanings, Inc., 311 F. 2d
519, 523 (C.A. 5).
Considering the record as a whole-particularly the absence of credible and
probative evidence demonstrating knowledge of the- employees' union activities
and union animus and motivation, on Respondent's part-I conclude that General
Counsel has failed to establish that the Company's brief January 16-17 plant "shut-
down" and its January 20 discharge and subsequent refusal to recall Junkin were
discriminatorily motivated in violation of Section 8 (a) (3) and (1) of the Act.
CONCLUSIONS OF LAW
1. 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. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER -
Upon the basis of the foregoing findings of fact and conclusions of law,
and upon the entire record in the case, it is recommended that the complaint
be dismissed.
20 Thus, Plant Manager Petree's explanation that the plastic material was processed
through the calender in a particular color on January 16 in order to avoid an extra
operation through the printing machine appears to be inconsistent with his testimony (on
cross-examination) in which he, in effect, conceded that the material would have had to
go through a second operation through this very machine because the metallic particles in
the color compound had been omitted. Furthermore, while it appears that only approxi-
mately 21 employees were directly affected by the calender situation, Respondent decided
to close the entire plant and lay off employees also engaged in other operations.
21 Thus, although Fetterman, Junkin's supervisor,, emphasized that Junkin's failure to
properly cut the cores of rolls he wrapped, was his primary dereliction (the others in-
cluded alleged failure to clean his work area and frequent absences from his machines),
none of the three reprimands, inserted in Junkin's personnel file, made references to this
particular dereliction ; it should be noted, however, that the- 30-day progress report on
Junkin's work performance signed by Fetterman (and approved by the latter's superior
January 13-2 days before Junkin's identification with the Union) does characterize
Junkin's work as "poor" and indicates that he "frequently leaves job." In addition, I
have serious doubt about the credibility of Fetterman's testimony (contradicted by
Junkin) that he had discussed the claimed shortcomings with Junkin. Furthermore,
there is evidence that Respondent had retained in Its employ other employees previously
reprimanded for poor work. Finally, although Respondent advances as one of its reasons
for refusing to recall Junkin, a written complaint received from a customer complaining
about the wrapping of certain rolls, Fetterman admitted he could not identify the work in
question as that of Junkin and that his conclusion that Junkin was responsible therefor
was based on sheer suspicion.
= Cf. N.L.R.B. v. Dalton Brick & Tile Corp., 301 F. 2d 886, 897 (C.A. 5). "[A]s we
have so often held In the run-of-the-mill Section 8(a)'(3) discriminatory discharge cases,
a violation rests upon the motive of the employer in making the discharge not upon what
it appears to have been either to the victim or to the Union."
770-076-65-vol. 149-32