The Goodyear Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 12, 1969

174 N.L.R.B. 1132 (N.L.R.B. 1969)

1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Goodyear Tire & Rubber Company and United
Rubber , Cork , Linoleum and Plastic Workers of
America, AFL-CIO. Case 8-CA-4992
M arch 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 15, 1968, Trial Examiner Benjamin
B. Lipton issued his Decision in the above-entitled
proceeding, finding that 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 attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Decision and a supporting memorandum.' The
General Counsel did not file exceptions to the Trial
Examiner's Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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
Examiner's Decision, the exceptions and
memorandum, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the
following modification:
We agree with the Trial Examiner's findings that
Respondent violated Section 8(a)(1) of the Act by
its grant of wage increases to its nurse employees in
October 1967 and February 1968.' However, we do
not agree with the Trial Examiner's findings that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union or that,
in any event, a bargaining order is appropriate to
remedy the 8(a)(1) violations.
As the charge in this case was filed on April 8
and served on April 9, 1968, the limitations period
of Section 10(b) of the Act began on October 9,
1967. In order to find a violation of Section 8(a)(5),
'Respondent ' s request for oral argument is hereby denied because, in our
view , the record , the exceptions and memorandum adequately present the
issues and positions of the parties
in view thereof it is unnecessary to pass upon the Trial Examiner's
dismissal of certain Section 8(a)(1) allegations on grounds that under our
earlier decision (Goodyear Tire & Rubber Company, 170 NLRB No 79)
this matter was res judicata.
'It is also unnecessary to consider the validity of the Trial Examiner's
statement that, even assuming Respondent had formally approved the
February wage increase before notice of the election, it was incumbent
upon Respondent to withhold the announcement and grant of this increase
or even to justify the issuance of a bargaining order
as a remedy for the Section 8(a)(1) violations, it
must be established, at the least, that the Union
enjoyed majority status at the outset of the Section
10(b) period. The evidence relevant to majority
status in this case consists of signed authorization
cards, showing that as of April 17, 1967, the Union
had been designated bargaining agent by 16 of the
30 employees then in the unit. The record also
shows that there has been some turnover in the unit.
On these facts, we cannot find majority status
during the critical period, beginning on October 9,
1967. There is no basis for presuming that the card
majority of one existing in April 1967 continued
over the 6-month period beyond October 9. Nor are
there cognizable facts which would obviate a
showing of majority status at the time required for
the Trial Examiner's findings here. We therefore
must dismiss the complaint's allegation of an
unlawful refusal to bargain and delete the
recommended bargaining order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that Respondent,
The Goodyear Tire & Rubber Company, Akron,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order as so modified.
1. Delete paragraphs 1(b) and 2(a) from the Trial
Examiner's Recommended Order, and renumber the
remaining paragraphs accordingly.
2. Delete the second and fourth indented
paragraphs of the notice to the Trial Examiner's
Decision.
IT IS FURTHER ORDERED that the complaint's
allegation of an unlawful refusal to bargain be, and
it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner- This case was
heard on September 9 and 10, 1968, in Akron, Ohio, upon
a complaint by the General Counsel alleging that the
above-captioned Respondent' committed violations of
Section 8(a)(1) and (5) of the Act.' At the hearing, all
parties appeared and were afforded full opportunity to
present relevant evidence. Oral argument on the record
was waived, and after the close, comprehensive briefs were
submitted by the General Counsel and Respondent.
Upon consideration of the entire record in the case,
including the briefs, and from my observation of the
witnesses on the stand, I make the following:
'Respondent 's name is shown as corrected at the hearing
'The complaint was issued on July 12, 1968, based upon the Union's
charge filed-on April 9, 1968
174 NLRB No. 167
THE GOODYEAR TIRE & RUBBER CO. 1133
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, is engaged in the
manufacture and sale of rubber products at and from
various plants in the United States Only certain plants in
Akron, Ohio, are the subject of this proceeding
Respondent annually ships from its Akron plants directly
in interstate commerce products valued in excess of
$50,000 It is admitted, and I find, that Respondent is
engaged in commerce within the meaning of the Act
Ii. THE LABOR ORGANIZATION INVOLVED
United Rubber , Cork, Linoleum and Plastic Workers
of America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. Essential Issues and Contentions
For the purposes of background, the General Counsel
cites Respondent's conduct found unlawful in a prior
proceeding (170 NLRB No. 79), and specifically alleges in
issue herein that Respondent violated Section 8(a)(1) by
continuing the same course of conduct in (a) granting
additional wage increases in October 1967 and in
February 1968 to nurses in the appropriate bargaining
unit, and (b) continuing to maintain and enforce certain
provisions in retirement, annuity, and group insurance
plans, which exclude from participation salaried
employees, including nurses, who become members of a
recognized collective-bargaining unit It is further alleged
that, by reason of signed authorization cards, the Union in
fact represented the majority of the nurses in the
appropriate unit when it requested and was refused
recognition by Respondent, and that thereafter
Respondent engaged in serious unfair labor practices for
the purpose of destroying the Union's majority and
evading its obligation to bargain with the Union -
thereby violating Section 8(a)(5) General Counsel relies
upon lead cases' which hold, in net effect, that a union
which loses an election may nevertheless seek relief in the
form of a bargaining order, where it appears that the
employer has, by substantial unfair labor practices,
prevented the employees' free choice in the election and
unlawfully dissipated the Union's majority status based
upon prior authorization cards
Respondent denies the commission of the alleged unfair
labor practices, and contends specifically (a) that the wage
increases in October 1967 and February 1968 were not
intended to influence the nurses to vote against the Union
but were granted, in accordance with Respondent's long
existing policy, "to keep the historical relationship
between the salaries of the company nurses and the nurses
in the local hospitals and other industries," (b) that
litigation herein of the issue of Respondent's pension and
insurance plans is barred in view of Respondent's pending
appeal of the Board's prior decision before the U S Court
of Appeals for the Sixth Circuit, and by reason of the
6-month limitation provision in Section 10(b) of the Act;
and (c) that Respondent had an honest doubt that the
representation claim of the Union had any foundation.
At the present hearing, it was made clear that the
respective parties do not seek, and the Trial Examiner
would not permit, relitigation of the issues resolved by the
'Joy Silk Mills, Inc v NLRB , 185 F 2d 732 (C A D C ), cert denied
341 U S 914, Bernet Foam Products Co, Inc , 146 NLRB 1277, and
Irving Air Chute Co , 149 NLRB 627, enfd 350 F 2d 176 (C A 2)
Board in the prior unfair labor practice case However,
Respondent presented evidence concerning wage
considerations during the time period involved in the prior
case on the basis that such evidence constituted necessary
background to establish its defense of general policy
justification for the October 1967 and February 1968 wage
raises, here directly in issue
So far as pertinent, management personnel are as
follows Nelson G. Ball, vice president of industrial
relations; Dr C. A. Johnson, medical director, in charge
of all nurses of Respondent, Dr Kissell, medical director,
in charge of nurses at Goodyear Aerospace Corporation,
and subordinate to Dr Johnson, Helen T , Redman,
superintendent of nurses; William Parke, manager of
salaried job evaluation within the administrative
engineering department
B Background and Prior Board Proceedings
By letter dated April 17, 1967,' the Union made
demand upon Respondent for recognition and bargaining
in a unit of all registered nurses employed by Respondent
in Akron, Ohio, and offered to prove majority status on
the basis of signed authorization cards to be verified by an
impartial person Respondent did not reply to the Union's
demand On April 24, the Union filed with the Board a
petition for certification However, the election proceeding
was suspended in view of an unfair labor practice charge
against Respondent filed by the Union on April 23 (Case
8-CA-4584)
In the prior complaint case, a hearing was held oil
August 5 and 16, the Trial Examiner's Decision issued on
November 5, and the Board's Decision affirming the Trial
Examiner was rendered on March 20 (170 NLRB No.
79) The Board found that Respondent violated Section
8(a)(I), specifically affecting the nurses, in substance as
follows (1) on March 20, coercive interrogation by
Superintendent Redman In late March, April, and May,
coercive interrogation and threats of reprisal to discourage
union activity by Medical Director Dr Johnson. (2)
About March 15, the announcement and grant of a wage
raise, effective February 16. In August, the announcement
and grant of a wage raise, effective July 16, "to the extent
it exceeded the normal offsetting comparability with the
increase obtained by the P & M unit" in union bargaining
negotiations On August 1, the announcement and grant
of a $100 uniform allowance (3) The maintenance and
enforcement of a noncontributory retirement plan, a
contributory retirement annuity plan, and a group
insurance plan, all of which expressly exclude from
participation otherwise eligible salaried employees who are
represented by a collective-bargaining agent
On January 29, the Union filed a "Request to Proceed"
in Case 8-RC-6743, and Respondent was so notified. On
February 5, a Stipulation for Certification Upon Consent
Election was executed by the parties On February 15, a
Board election was held, as scheduled, in which 28 eligible
nurses cast 14 ballots for and 13 against the Union, and
one ballot was challenged On February 21, the Union
filed objections to the election On April 4, the Regional
Director issued his Report of Challenged Ballot and
Objections, and on June 21, the Board adopted the
Regional Director's findings and recommendations S In
final effect, the challenged ballot was counted, resulting in
a vote of 14 to 14. certain objections were sustained, the
election was set aside, and a new election was directed to
'All dates are sequentially in 1967 or 1968, unless otherwise shown
'Respondent filed no exceptions
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be held at an appropriate time. More specifically, the
conduct of Respondent found objectionable consisted of
the "salary adjustments " made in October 1967, the
general wage increases granted effective February 1, and
the conduct within the critical preelection (i e , after April
24, 1967) which the Board found in Case 8-CA-4584 as
violative of Section 8(a)(I), supra 6 On July 16, the Board
ordered dismissal of the election petition in view of the
issuance of the instant complaint alleging a refusal to
bargain violation.
C Subsequent Events, Respondent's Conduct In
Issue
1. Continuation of pension and insurance plans
General Counsel alleges as a specific violation the
continued existence of the separate retirement, annuity,
and group insurance plans containing clauses which
restrict from participation any salaried employees who are
union-represented In the prior case, the Board found, in
substance and effect, that these restrictive clauses were
destructive of the employees' sell-organizational rights and
unlawful, particularly on the evidence that the nurses were
warned and threatened by Respondent they would be
excluded from the plans if they organized At the instant
hearing, the extent of the evidence consists of a stipulation
that the same plans have continued in effect without
amendment or change through the present
Plainly, the issue which is raised here is no different in
any material respect from that which was fully litigated in
the previous proceeding Not for the reasons argued by
Respondent, but on the ground of res judicata, the
complaint allegation of an independent violation is
dismissed ' However, the earlier findings of the Board
with respect to the pension and insurance plans, as well as
the wage increases and other unfair labor practices, are
properly considered background evidence relevant in the
present case in shedding light on Respondent's
motivations, and generally form the setting against which
Respondent's further violations alleged herein must be
evaluated '
2 The October 1967 wage increase
Respondent historically granted to the nonrepresented
salaried employees, including nurses, a general increase to
maintain comparability with the represented hourly paid
employees after union contract negotiations, usually in the
summer of each year
It was stipulated that, about October 15, Respondent
granted to 22 of the 31 nurses "salary adjustment"
'In the representation proceeding , Respondent contended (as it does
here ) that the 1967 and 1968 wage increases in question were justified on
the basis of a continuing policy to conduct periodic market surveys and in
reliance thereon to maintain comparability in the pay structure of nurses
and other salaried personnel This position , after discussion in detail, was
rejected in the Regional Director ' s Report which stated , inter alia "The
slight history of prior salary adjustments for its nurses which was
submitted by the employer fails entirely to justify the adding of increase
upon increase after January 28, the date on which the Board found the
employer became aware of its nurses ' organizational activities
'E g, Monroe Feed Store , 112 NLRB 1336
'See Wcx Corporation , 140 NLRB 924, 926, enfd in pertinent part 309
F 2d 826 (C A 4), Paramount Cap Mfg Co v N L R B. 260 F 2d 109,
113 (C A 8), N L R B v Reed & Prince Manufacturing Company, 205
F 2d 131, 139 (C A 1), cert denied 346 U S 887, E V Prentice Machine
Works , Inc, 120 NLRB 1691
increases in varying amounts but averaging about $26 per
month 9 Concerning these increases, the testimony of 4
nurses'° called by the General Counsel was undisputed
Nurse Gray was informed by her supervisor that "it was a
salary adjustment, because the old nurses were
complaining their salaries were not as high as some of the
younger nurses " She had never been given a salary
adjustment before in 12 1/2 years of service with
Respondent Nurse Fahrenback was similarly told it was a
salary adjustment and she had not previously received
such an increase. The two other nurses were given no
explanation before or after the increase All four witnesses
had received merit increases in the past, which were so
explained and identified Despite the stipulation, supra,
Respondent at the hearing asserted the position and
unsuccessfully sought to establish through each of these
witnesses that these were merit increases granted in
October 1967
3. The February 1968 wage increase
As previously noted, the earlier complaint proceeding,
which held up processing the election petition, was heard
on August 16, and the Trial Examiner's decision adverse
to Respondent was issued on November 27 On January
29, the Union filed with the Board a "request to proceed,"
in which in effect it indicated its willingness to go to an
election despite the lack of final disposition and remedy in
the complaint case. Respondent's counsel stated that a
Board agent orally informed him of the Union's request
on the date it was formally filed On January 31,
Respondent wrote to the Board's regional office
confirming an oral agreement of the same day to have a
stipulated election among the nurses conducted on
February 15 On January 31, Parke sent a memorandum
to Dr Johnson and Vice President Ball containing
recommendations, inter alia , that the nurses be granted
general increases of $50 a month effective February 1, and
that they be excluded from the general increase of $26 per
month which "will be granted all other salaried employees
in July 1968," i e , after the annual contract negotiations"
affecting the hourly paid employees= Also on January 31,
a memorandum to the manager of salary administration
from Dr Johnson, with Vice President Ball's appended
signature , authorized the $50 a month salary increase for
the nurses effective February 1 About February 5,
particular nurses were advised by Dr Johnson of the
general wage raise, with the sole explanation that they
would be getting the "increase now instead of in the
summer with the production workers as usual "
On February 6, Vice President Ball made a preelection
speech to the assembled nurses, with subordinate
supervisors in attendance He told them that Respondent
was one of the largest companies without a union for its
salaried employees, and he did not feel the salaried
employees needed a union to represent them; that their
salaries were far better than those of the nurses in the
Akron hospitals, and the same if not better than those
paid by other large companies in the area, and that they
received better fringe benefits than Respondent's
production employees, and far better than the nurses in
'In two instances disclosed the nurses received $14 and $6 50,
respectively
"Barbara Ann Carr, Jeanne Margaret Gray, Ruth M Ebenhart, and
Caroline Fahrenback
"These negotiations did not commence until April
"Parke ' s testimony in explanation of this memorandum will be discussed
infra
THE GOODYEAR TIRE & RUBBER CO. 1135
the local hospitals He then urged them to vote against the
Union in the forthcoming election.
On February 14, because they were working on late
shifts, at least 13 of the nurses were given their checks
reflecting the $50 increase; the remaining nurses were paid
the next day, which was the regular payday and also the
date of the Board election As earlier shown, the ultimate
result of the election was a tie vote, and the election was
set aside on the basis of Respondent's objectionable
conduct. In July, the nurses were in fact omitted from the
general pay raise given to the other salaried employees.
One of Respondent's defenses is that the decision to
grant the raises - for legitimate business reasons - was
made before it had knowledge of the pending election, or
of the Union's "request to proceed " Vice President Ball
testified only briefly for Respondent and was not
questioned on the subject of these raises, the overall
medical director, Dr Johnson, was not called as a witness,
and in essence, Respondent relied solely upon Parke, the
"salaried job evaluation" manager, in adducing testimony
respecting the issue of the wage raises " Parke stated he
was aware there was going to be an election when he
made his recommendation for the February general
increase
Parke testified that Vice President Ball has final
authority concerning wage raises for nurses, among
others He indicated that he himself regularly participates
to some extent in salary determinations with respect to
general increases and salary adjustments, he submits a
written recommendation in every case, and then Ball
responds by approval or disapproval in writing. As for Dr.
Johnson, he participates along with Parke in the
"meetings." Elsewhere Parke testified he did not
participate in the October 1967 "salary adjustment" for
nurses, and Dr. Johnson made that decision In the earlier
complaint case, the Board's decision discusses in some
detail Dr. Johnson's testimony on procedure in effecting
wage raises for nurses There Dr. Johnson stated that
"administrative engineering" does not approve raises, "it
is simply worked out with them," and that "it was
necessary for him to fill out a card, preposing the pay
raises, and have it approved by" Ball.
Parke explained that his functions are to conduct salary
surveys in the community and across the nation and to
make recommendations to management, for the purpose
of conforming with the "market" the salary ranges and
salaries of most salaried employees of Respondent. In
evidence, two color charts prepared by Parke purport to
show (a) from March 1964 through July 1, 1968, the
salary ranges and average salaries of Respondent's nurses
as compared with those nurses employed in the Akron
area at three city hospitals and at two large industrial
competitors,1° (Resp. Exh. No. 4), and (b) from
September 1966 through February 1968, general increases
granted nurses by Respondent and by the Akron hospitals
(Resp. Exh No 5)
Respondent's counsel stated that the purpose of the
charts is to show that the salary treatment of the nurses in
1967 and 1968 was no different from that which had been
the consistent practice since 1964, and that in granting the
"In the prior complaint proceeding, it appears from the Board decision
that Parke did not testify and that Dr Johnson principally presented the
testimony for Respondent concerning the wage raises there in question
Parke ' s area of competence admittedly does not embrace all nurses in the
unit he has a counterpart, answerable to Dr Johnson, who performs the
same functions on behalf of a contingent of unit nurses at Goodyear
Aerospace Corporation
""Firestone and Goodrich "
wage increases of October 1967 and February 1968,
Respondent was "merely following a pattern which they
had followed for years of being even with other industrial
nurses in the area and slightly ahead of the nurses in the
hospitals in the area." In describing Respondent Exhibit
No. 5, Parke testified that "we wanted to dramatize the
fact that it was the hospitals and the hospitals alone that
starting in late 1966 and through 1968 granted
unprecedented across-the-board increases to their nurses,"
and that it was these increases which prompted
Respondent's salary action as reflected in that exhibit.
Generally, it is apparent that the charts on their face do
not substantiate the contentions of Respondent.
Parke stated that the charts were prepared just prior to
and for the purpose of the present hearing, that they were
based upon information exchanged regularly with
companies and hospitals over a long period of years, and
that some of the data were gained from verbal
conversations with these sources. The average salaries
shown on the charts were obtained by totaling all salaries
in effect at a given time and dividing the sum by the
number of nurses, even though all such nurses may not
have participated in particularly pay raises The charts do
not encompass all Respondent's nurses in the appropriate
unit, in that the nurses at Goodyear Aerospace
Corporation were excluded. In Respondent Exhibit No. 4,
Parke ostensibly used as the basis for comparison the
particular times when Respondent obtained the
information from the other employers, rather than the
more significant dates when Respondent's general
increases were granted. In broad effect, the chart reflects
highly selective and scattered data For example, the
average salaries of the nurses at the two industrial
companies are shown only as of March 1964, March 1966,
April and July 1967, and July 1968. Other entries on
Resp. Exh. No. 4 raise questions which are not clarified
The chart shows that the average salary of Respondent's
nurses was $464 in July 1964, $474 in June 1965, $469 in
March 1966, and $489 in October 1966, inclusive of merit
increases in the interim, while the average for nurses at
one Akron hospital increased from $385 in July 1964 to
$489 in October 1966. Illustratively, Respondent's average
rose $12 from February to July 1968 purely on merit
increases
Gross infirmities in Respondent's position are
demonstrated in the overall evidence. (1) Most
significantly, Parke conceded that only one general
increase was granted the nurses each year extending back
from 1967, and this was the regular summer increase
given all salaried employees predicated upon the results of
the Union's contract negotiations covering the hourly paid
employees (2) Admittedly, and as found by the Board, in
the prior case Respondent advanced no such contention
that the wage increases there involved were justified on the
basis of a consistent practice of maintaining comparability
with the nurses in the Akron hospitals Indeed, in that
case the defense presented by Dr Johnson was predicated
upon the existence of a "pay plan" in which the nurses
were to be granted wages increases at four stages in 1967.
(3) The charts themselves reveal that, prior to the
February 1968 general raise, Respondent did not conduct
its market surveys with precision and did not effectuate
salary changes with any cognizable time sequence related
to such surveys Even a broad policy of maintaining
comparability with the local market would leave
Respondent with appreciable discretion in the timing of a
general wage increase; and in fact the real practice had
been to defer action until after the mid-year contract
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations for the hourly paid employees Apart from
these regular annual raises, no showing was made to
establish any advance commitment or pattern upon which
the employees could reasonably rely in receiving general
raises or salary adjustments, particularly those in October
1967 and February 1968 In my appraisal of the evidence,
Respondent's asserted policy is no more than the usual
experience of a large employing enterprise which is
constantly engaged in some sort of review of employee
wages and conditions against the competing forces of the
market 's
As earlier shown, the October 1967 salary adjustments
were made without the participation of Parke or the use
of his market surveys. Concerning the February 1968
raise, Parke testified that he reached a decision, following
a telephone call on January 22 to Respondent's attorney,
to recommend "a matching across-the-board increase to
our nurses to equal that granted by the local area
hospitals " Parke stated that he was advised by the
attorney to proceed with any increase which was felt
justified, irrespective of the current litigation 16 In Parke's
memorandum of January 31 to Dr Johnson and Vice
President Ball, supra, he indicated that the Akron
hospitals will grant an increase of $50 per month to all
experience nurses effective about February 1, and "based
on the discussion of this subject in Mr. Ball's office on
January 26," he recommended that Respondent's nurses
be granted a salary increase of $50 a month effective
February 1. Parke further testified that in a discussion on
January 26, Ball orally gave his approval for such a pay
raise. The position sought to be established is that
Respondent's decision was fixed prior to any actual
knowledge that an election was in the offing," and that
Respondent was therefore justified in announcing and
granting the raise after the arrangements were made to
hold the election on February 15 I cannot accept Parke's
flat testimonial conclusion that approval of the wage raise
was effected by such a verbal means, with no company
record thereof, and without corroboration from any
source. Elsewhere he described as the customary
procedure that "in every case" he would submit a written
recommendation and receive written approval or
disapproval from Ball 18 As already noted, on the same
day, January 31, that Parke submitted his written
recommendation, a memorandum was issued authorizing
the $50 wage increase effective February I This action
was taken by Respondent, with obvious alacrity, in full
realization of the scheduled election two weeks hence 19
Dr Johnson proceeded to convey to individual nurses the
news of this further and unexpected raise, explained as a
substitution for the raise they would normally receive in
the summer (although Parke's recommendation referred to
their exclusion from a $26 raise to be granted in July)
Then Ball in his speech on February 6, fully exploited the
new increase by telling the nurses that their salaries and
benefits were now "far better" than those of the area
hospitals nurses, while urging them to reject the Union in
the pending election
"E g , Crescent Art Linen Co et al. 158 NLRB 447, 452, enfd in
pertinent part , 387 F 2d 751 (C A 2), Western Saw Manufacturers, Inc,
155 NLRB 1323, Modern Plating Corporation , 150 NLRB 1150
"The circumstances of Parke consulting counsel in this instance were not
explored
"Cf Gal Tex Hotel Corporation d/b/a Admiral Semmes Hotel and
Hotel , 164 NLRB No 70
"No prior instance was shown where by general increase was granted
based upon such recommendation by Parke and approval by Ball in
writing
Contrary to Respondent's stated position, the February
1968 raise was scarcely shown as a consonant with the
salary treatment of nurses prior to the advent of the
Union in 1967 This was the first time the nurses were
omitted entirely from the usual increases when they were
accorded to all salaried employees in mid-year And this
was the fifth increment of a general type to the nurses in
the period of a year since the nurses evinced
organizational interest.
Even if it be assumed that the raise was formally
approved by Ball on January 26, such a decision was not
irrevocable, and it was unquestionably incumbent upon
Respondent to withhold the announcement and grant
thereof when, within 3 days, it was apprised of the
Union's request to proceed with an election However, as
already found, all effective actions of Respondent relating
to the wage raise were taken with complete -awareness of
the scheduled election.
Conclusion on the Wage Increases
Ignoring the Union's recognition request, Respondent
had succeeded by unlawful means in preventing an
election on the petition filed on April 24, 1967. Here, it
can only be concluded that it was again acting with
deliberate intent to destroy the conditions for a fair
election on February 15, 1968, in pursuance of its general
opposition to the unionization of its salaried employees;
That wage increases are a most effective weapon of
employee coercion and of thwarting a Union's
representation claim cannot be gainsaid 30 As alleged in
the present complaint, it is found that Respondent's
continued use of the wage increase technique, in October
1967 and February 1968, while a question of
representation was pending, substantially interfered with
and restrained the nurses in their freedom of choice of
bargaining representative guaranteed in the Act, in
violation of Section 8(a)(1)
D The Refusal to Bargain
The appropriate bargaining unit of all nurses employed
by Respondent in Akron, Ohio, was admitted by
Respondent at the hearing. By stipulation , evidence was
received that 16 authorization cards on behalf of the
Union were signed by nurses on various dates from April
4 through 16, 1967, and that these signatories were among
the total of 30 nurses in the appropriate unit employed on
April 17, 1967 21 As previously shown, on April 17, the
Union sent Respondent a formal recognition and
bargaining demand together with an offer of an impartial
card check to prove its majority . Respondent made no
reply, or otherwise expressed any doubt of the Union's
claimed majority representation. Thereafter, the Union's
petition for an election filed on April 24 was suspended in
view of an unfair labor practice complaint, subsequently
found meritorious as earlier described. Respondent's
failure to respond and the course of conduct which it
pursued were justifiably regarded by the Union as a
refusal of its recognition demand and offer of majority
proof, and demonstrated the futility of further demands
"Compare Respondent 's conduct in the prior case wherein the nurses
were first advised of a purported "pay plan" for 1967 and then told that
Respondent would not proceed with the plan because of the possibility of
an unfair labor practice charge
39E g, N L R B v Exchange Parts Co. 375 U S 405
"Since such date, 3 nurses were removed from the payroll on September
30, 1967, January 16 and 31 , 1968, and new nurses were hired on May 15
and October 17, 1967, and February 26, 1968
THE GOODYEAR TIRE & RUBBER CO. 1137
Particularly in light of the pending representation question
before the Board, the Union's recognition request was a
continuing one
The unlawful wage increases in October 1967 and
February 1968 assume flagrant proportions," more
specifically when viewed against the background and
record of the prior proceedings. These are serious unfair
labor practices, considering their substance, timing, and
purpose, and are clearly incompatible with Respondent's
present assertion that it denied the Union's demands
because it harbored a good-faith doubt of the Union's
majority. Rather, it must be inferred that Respondent's
refusal to recognize the Union was motivated by a
rejection of the collective bargaining principle (as to its
salaried employees) and by a desire to gain time in which
to destroy the Union's representation status. As I find
that Respondent has purposefully prevented for an
extended period the opportunity for a fair election among
the nurses, and indeed has rendered impossible the holding
of such an election free of the substantial coercion upon
these employees, the authorization cards remain as the
only reliable method to ascertain the true desires of the
nurses in the selection of a bargaining representative. To
hold otherwise would permit Respondent to achieve the
objective and reap the benefits of its own wrongdoing.
Accordingly, it is concluded on the basis of the Union's
unquestioned card majority that it was the statutory
representative in the appropriate unit of nurses when it
requested recognition on April 17, 1967, and at all times
thereafter, and that Respondent engaged in a refusal to
bargain in violation of Section 8(a)(5), as alleged
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's violations of Section 8(a)(1) Only such an
order could restore as nearly as possible the situation
which would have obtained but for Respondent's unfair
labor practices."
CONCLUSIONS OF LAW
I 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 By announcing and granting general wage increases
and salary adjustments in October 1967 and February
1968 to discourage membership in the Union during a
pending question of representation, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act
4. Since April 17, 1967, the Union has been the
exclusive representative of all employees in the following
appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
All nurses employed by Respondent in Akron, Ohio,
excluding office clerical employees, guards and
supervisors as defined in the Act, and all other
employees
5 By refusing to bargain collectively with the Union as
the statutory representative of its employees in the
aforementioned appropriate unit, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, 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 commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully refused
to bargain with the Union as the exclusive representative
of its employees in an appropriate unit. It will therefore
be recommended that Respondent, upon request, bargain
collectively with the Union, and in the event that an
understanding is reached, embody such understanding in a
signed agreement. In the present circumstances, even
absent a finding of a Section 8(a)(5) violation, a
bargaining order would be appropriate to remedy
"As to the "substantiality" of wage increases in Bernel Foam or Joy
Sdk situations , see, for example , C & G Electric, Inc, 172 NLRB No 91,
The Bartley Company, 170 NLRB No. 80 . And to be distinguished, Aaron
Brothers Company of California, 158 NLRB 1077; Hammond A Irving
Incorporated , 154 NLRB 1071, Wilder Mfg Co, Inc, 173 NLRB No. 30.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this case, it is
recommended that Respondent, Goodyear Tire & Rubber
Company, Akron, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from:
(a) Announcing and granting wage increases, salary
adjustments, or other benefits to its employees to
discourage their membership in or support of United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, or any other labor organization
(b) Refusing to bargain collectively with the
above-named labor organization as the exclusive
representative of all Respondent's employees in the
appropriate unit described hereinabove.
(c) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action designed to
effectuate the policies of the Act-
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all the employees in the aforementioned
"E g , N L R B v. Delight Bakery, Inc, 353 F 2d 344 (C A 6), Irving
Air Chute Co, 149 NLRB 627, enfd 350 F 2d 176 (C A 2), Piasecki
Aircraft Corp v N L R B, 280 F.2d 575 (C A 3), cert denied 364 U S
933, Editorial "El Impartial", Inc v N L R B , 278 F 2d 184 (C A. 1),
Summit Mining Corporation v N L R B, 260 F 2d 894 (C A 3),
N L R B v Joe Caldarera , d/b/a Falstaff Distributing Company, 209
F 2d 265 (C A 8), D H Holmes Company v NLRB , 179 F 2d 876
(C A 5), Bannon Mills, Inc, 146 NLRB 611
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit, and embody in a signed agreement any
understanding reached.
(b) Post at its plant and hospitals in and around Akron,
Ohio, copies of the attached notice marked "Appendix "24
Copies of said notice, on forms provided by the Regional
Director for Region 8, shall, after being duly signed by
Respondent, be posted immediately upon receipt thereof,
in conspicuous places and be maintained for a period of
60 consecutive days. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Trial
Examiner's Decision and Recommended Order, what steps
Respondent has taken to comply herewith."
"If this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner " in the notice If the Board ' s Order
is enforced by a decree of a United States Court of Appeals , the notice
will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order "
"If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 8, in
writing , within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 announce or grant wage increases,
salary adjustments, or other benefits to our employees
to discourage membership in, or support of, United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, or any other labor organization.
WE WILL NOT refuse to bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the appropriate
bargaining unit described below
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form labor
organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
any other activities for the purpose of collective
bargaining or other mutual aid or protection, or refrain
from any or all such activities, except to the extent that
such rights may be affected by an agreement which
requires membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the appropriate
bargaining unit with respect to rates of pay, wages,
hours of employment and other conditions of
employment, and if any understanding is reached,
embody such understanding in a signed agreement. The
bargaining unit is
All nurses employed in Akron, Ohio, excluding office
clerical employees, guards, and supervisors as defined
in the Act, and all other employees
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization of their choice, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act, as amended
Dated By
THE GOODYEAR TIRE &
RUBBER COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 1695 Federal
Office Building 1240 East 9th Street, Cleveland, Ohio
44199, Telephone 522-3725