United States Rubber Co.

National Labor Relations Board - Board Decisions

Aug 26, 1966

160 N.L.R.B. 661 (N.L.R.B. 1966)

UNITED STATES RUBBER CO MPANY 661
For these reasons, we are constrained to adhere to our initial deter-
mination that all full-time and regular part-time employees of
Respondent employed at its Peabody store, excluding casual employ-
ees, guards, and supervisors as defined in the Act, constitute an
appropriate bargaining unit herein. We wish further to note that a
single-store unit in a retail chain operation may not fairly be char-
acterized as an arbitrary and piecemeal grouping; for, it generally
constitutes the basic appropriate unit for chainstore employees, and
is equivalent to the "plant unit," which is presumptively appropriate
under Section 9(b) of the Act. Thus, we have consistently upheld
the appropriateness of such a unit where sought .25 This is not to say,
however, that these unit determinations give rise to an absolute rule
that the single-store unit constitutes the appropriate basis for col-
lective bargaining in every chain operation. But, having held in the
instant case that the Peabody store possesses sufficient attributes of
autonomy to be presumptively appropriate and that said presump-
tion has not been rebutted herein, it is unnecessary, for purposes of
this case, for us to explore the degree of integration necessary to
require a more comprehensive grouping as the minimal appropriate
btoganung unit. Instead, that question will lie left to future consid-
eration on a ca e-by-c.ise basis. Accordingly, we reaffirm our pre-
vious findings that Respondent engaged in unfair labor practices by,
inter alia, failing to recognize and bargain with the Union as major-
ity representative of employees in that unit.
SUPPLEMENTAL ORDER
In view of the foregoing , and on the basis of the record as a
whole, the National Labor Relations Board reaffirms its Order of
February a, 1965 [150 NLRB 1523], in this proceeding.
^ See, e g , Pz zmi ose Super Mar/,et of Salem. Inc . 148 NLRB 610, 613-617, enfd by First
Circuit, unreported. cert denied 382 II S 830 li'znn-Dzsre ,-Mores. Inc 143 NLRB, 848,
860-861, enfd 341 F2d 750 (CA 5) , Il[crncr Lumber and Hozdaz,arc Company, 145 NLRII
1024, 1025-26, enfd 345 F 2d 770 (C A\ 9) The 37 I, Hudson Co , 155 NLRI, 1345 , Sun
Druq Co . Inc , 147 NLRB 669, enfd 359 F 2d 408 (C A 3)
United States Rubber Company and United Rubber, Cork, Lino-
leum and Plastic Workers of America, AFL-CIO. Case 23-CA-
2147. August 26.196C
DECISION AND ORDER
On May 12, 1966, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled case, finding that the Respondent had not
engaged in and was not engaging in certain unfair labor practices
160 NLRB No. 64.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as alleged in the complaint, and recommended that the complaint be
dismissed in its entirety, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision together with a supporting brief and
Respondent filed a brief in support thereof.
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 [Members Fanning, Brown, and Zagoria].
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 briefs, and the entire rec-
ord in this case, and hereby adopts the findings, conclusions, and
recommendation of the Trial Examiner.
[The Board dismissed the complaint.]
1 Although disagreeing with several of the Trial Examiner 's evidentiary rulings and also
rejecting certain of his extraneous comments concerning the appropriateness of the pro-
ceeding, we find no resulting prejudicial error in the circumstances of this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed September 1, 1965, and an amended charge filed Septem-
ber 30, 1965, by United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, herein the Union, against United States Rubber Company, herein the
Company or the Respondent , the General Counsel issued a complaint alleging
Respondent violated Section 8(a) (1), (3 ), and (4) of the Act. The answer denied
the commission of any unfair labor practices.'
This proceeding, with all parties represented , was heard before Trial Examiner
John F. Funke at Laredo, Texas, on January 18, 19 , and 20 and March 15, 1966.
At the conclusion of the hearing the parties were given leave to file briefs and
briefs were received from the General Counsel and Respondent on April 27.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation with plants in Michigan , Wisconsin,
Alabama, and California , where it is engaged in the manufacture , sale, and distribu-
tion of tires and related rubber products . In connection with its tire business
Respondent operates a testing facility at Laredo, Texas, which is involved in this
proceeding . Respondent has delivered goods valued in excess of $50 ,000 to its
Laredo facility during a representative 12-month period from places outside the
State of Texas . Respondent is engaged in commerce within the meaning of the Act.
1 At the opening of the hearing the Respondent moved to dismiss the complaint upon
the ground that there had been no proper Investigation of the charge in accordance with
the Board 's Rules and Regulations and Statements of Procedure . This motion had been
denied prior to the hearing by Associate Chief Trial Examiner Schneider and was again
denied by me on the ground that the proper procedure was not a renewal of the motion but
an appeal from the Associate Chief Trial Examiner 's ruling to the Board
UNITED STATES RUBBER COMPANY 663
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background
In September 1963, Respondent opened its tire-testing track, known as the Prov-
ing Ground, at Laredo, Texas, under the supervision of Maurice G. Williams. The
Proving Ground was a part of Respondent's Developing Department and its purpose
was to test new tires and tubes, including passenger tires, heavy truck tires, farm
tractor tires, bicycle and motorcycle tires and industrial solids. The high speed track
at Laredo was a 5-mile perfect circle, 52 feet wide, with a 3-foot safety margin at
the top and a 1-foot safety margin at the bottom. It was divided into four 12-foot
lanes and designed for speeds from 60 to 100 miles per hour. The tests were gen-
erally run at 60, 80, and 90 miles per hour. Tests were also run on the public
highway and Williams testified that it would be reasonable to estimate that over a
given period 50 percent of the tests would be highway tests and 50 percent would
be track tests. Drivers were divided into class "A," "B," and "C" but the divisions
were based on experience, not on the speed of the tests nor on the skill of the driver.
While in theory it appears that there were functional distinctions between the opera-
tions of the drivers in practice there was interchange. In fact at the time of the
hearing there was only one class "A" driver at Laredo.
In the summer of 1964 the Union started organizing the employees at Laredo
and on November 6, 1964, an election was held by the Regional Director of Region
23 which was won by the Union 55 to 42, with three ballots challenged. (Case
23-CA-2307.) Respondent filed objections to the election and on January 15, 1965,
the Regional Director issued a Supplemental Decision overruling the objections and
certifying the Union as the exclusive bargaining agent of the employees in the unit
found appropriate. On April 5, 1965, the Union filed a charge against the Company
alleging a refusal to bargain in violation of Section 8(a) (5) of the Act. The General
Counsel issued complaint on April 16, 1965, and. amendments thereto on April 28
and May 7, 1965. Thereafter the General Counsel filed a motion for judgment on
the pleadings, which motion was granted by Trial Examiner Kessel on October 14,
1965, and affirmed by the Board on December 3, 1965. This proceeding is presently
pending before the Court of Appeals for the Fifth Circuit.
Prior to the filing of the charge in the above case the Union filed charges against
the Company on October 5, 1964, amended November 17, alleging the Company
violated Section 8(a)(1) and (3) of the Act. On August 20, 1965, Trial Examiner
Fannie M. Boyls issued a decision finding Respondent had violated Section 8(a)(1)
and (3) of the Act. This decision was affirmed by the Board in United States Rub-
ber Company, 155 NLRB 556, a decision which is likewise on appeal before the
Fifth Circuit. I have taken official notice of both decisions and of the appeals
thereto.
B. The evidence
The testimony herein has been reduced to such as might have relevance to the
allegations of the complaint and to the defenses thereto.
Guillermo Ponce, Jr., was first employed by the Company in November 1963, as
a test driver and was selected as one of the three co-chairmen of the Union in
August 1964. In January 1965, he appeared as a witness against the Company in
Cases 23-CA-1922 and 1944, reported in 155 NLRB 556. In January he was changed
from the second shift to the morning shift, working from 4:30 a.m. to 1 p.m. and
at this time he registered for a night course at Laredo High School. On July 9,
1965, he was changed back to the evening shift, 3:30 to 11:30 p.m., a few days
after he had completed his night course. He asked why he had been changed, com-
plained to Manager Williams and told him he wanted to continue night school.
Williams told him to work the shift or go to school. Ponce then registered for the
morning session at high school.
I find that the record does not support the allegation that the change in shifts
was due to Ponce's union activity. Paragraph 8(d) of the complaint should be dis-
missed for a similar 'review of the record has been made with respect to the shift
changes made on the same date affecting Gonzales Molina, Silvano Guverra, Jr.,
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Sabas Guajardo, Jr., and I find no evidence of a discriminatory motive. There
is no evidence , apart from the personal considerations affecting Ponce, that the
second shift was more desirable than the first shift . In making this finding I have
considered the testimony of Molina that sometime in October , Zimmerman, an
admitted supervisor, told him that Ponce and Sabas Guajardo, Jr., had been put on
the high speed track "so they can watch them." 2
A few days after his transfer Ponce received a reprimand from Williams for the
deflation marks on his tires and sometime later in July he was reprimanded for poor
tach charts . It was apparently immediately after receiving these two reprimands that
Ponce was told that he was among five employees qualified for supervisory positions
at Laredo . According to Ponce, this offer was made by Charles Wilson , in charge of
the Company 's testing program, in the office of Plant Manager Williams in the
presence of Williams and Jack Mason , a supervisor . In the course of the conversa-
tion Wilson told Ponce that the only difference between him and Williams was that
he (Ponce ) was in love with the Union . Ponce then explained his feelings toward
the Union and Wilson told him he did not want to talk about the Union but that
Ponce's position with the Union showed he had leadership ability. After Ponce's
testimony with respect to this conversation he was asked by the General Counsel
if he recalled anything about a choice he would have to make.3 Ponce answered:
Q. Do you recall anything being said about a choice you would have to
make?
A. Yes. Mr. Wilson stated that the Union was not bad , that he had been a
union man , that he had friends that were with the Union, but there comes a
time in a man ' s life when he must decide to better himself, he must leave the
Union to get a better position with management ; he stated that you cannot
stay always with the Union , that if the Company offers you a better job and
you are qualified for it , why shouldn 't you accept that position if you have the
qualifications , you can further yourself better and earn more money.
Wilson also offered to arrange it so Ponce could continue to work and attend school
but Ponce rejected the offer?
In November 1965, Ponce was reprimanded for checking the lugs on his test car
after making three laps on the track . (The lugs were supposed to be checked before
entering the track and it was the contention of the Company that it was not neces-
sary to stop the run for rechecking .) Ponce admitted stopping but contended it was
a precautionary measure. Later Supervisor Viduarri again caught Ponce checking
his lugs on the track and, after an argument , reported this to Williams . Ponce was
suspended for 3 days for poor performance and for continually arguing with his
superiors.
Gonzalo Molina was employed by the Company as a test driver since November
1963, and was a member of the organizing committee and the executive board of
the Union . It was stipulated that Molina was subpenaed to appear at the Board
hearing held in January 1965, and that the Company knew he was a member of
the organizing committee . Molina testified that he received two reprimands on
March 19, 1965, and was suspended for 3 days. The first complaint was that
Molina had been driving his car in a restricted area and had shifted into reverse
-This was not alleged as a violation of Section 8(a) (1) but to establish the Respond-
ent's attitude toward these drivers There are, however, many reasons why a company
might want to watch its employees other than the fact that they were prominent in union
activity This shift change did not occur until 8 months after the election and if surveil-
lance of the drivers was necessary because of their union activity iecognition of that
necessity was certainly belated.
a This question was obviously leading and improper since theie was nothing to show
that Ponce's recollection had been exhausted He had been testifying fieely and without
difficulty as to the conversation, as the record will show, but none of his testimony up
to this point had been at all damaging to Respondent.
+Footnote 10 of the General Counsel's brief may be inadvertently misleading when it
states that after his rejection of the offer Ponce was kept on the second shift in "spite of
his expressed desire for the first shift so he could continue his education " Ponce's own
testimony, elicited only on cross-examination, was that he had registered for his course
at the Laredo High School morning session He was continuing his education and there
is nothing to indicate that at this time he preferred night to morning sessions or that
the Company was retaliating against him by refusing to change his shift
UNITED STATES RUBBER COMPANY 665
without coming to a full stop; the second was that he had taken his hand off the
wheel while driving on the high speed track.5 Later, and the date is not fixed,
Molina was suspended for driving without his shoulder strap, an admitted violation
of company rules. There was testimony that supervisors frequently rode without
straps 6 and that anyone riding with the driver rode without a strap since only the
driver's seat had straps. In July 1965 Molina was again suspended for 5 working
days for not turning in his inflation ticket, thus ruining the test. Molina's excuse
was that he had forgotten to transcribe the inflation record to his trip ticket.
Molina protested that the punishment was too severe, that other drivers had com-
mitted more serious errors and had not been punished and that Williams was put-
ting pressure on the union men. Molins stated Williams admitted this, but the
admission is denied by Williams. Prior to this suspension Molina had received
warnings for running poor tach charts and for exceeding his stipulated speed.
Molina testified that in October 1965 he was talking to another driver, Marino
Salinas, in the lunchroom discussing the suspension of Ponce and discrimination
against union drivers when Robert Zimmerman joined the conversation. Zimmerman
told them that they were wasting their time trying to put the Union in, that the
Company had enough money to appeal the cases and that by the time the Union
came in the Company would have broken them down or have fired them. This was
denied by Zimmerman but in any event it has not been alleged as a violation in
the complaint.?
Silvario Guerra, Jr., was employed by the Company as a test driver in October
1963; was a member of the organizing committee for the Union and was subpened
to appear at the hearing before the Board in January 1965. In July of 1965 he had
an argument with Zimmerman in the lunchroom for taking 2 minutes too much
time for lunch and he accused Zimmerman of being drunk. The next day he was
called to Williams' office together with Sabas Guarjardo. In .the presence of other
supervisors Williams told them he had had too many complaints against them and
that they were to take orders from their supervisors. There followed a totally
irrelevant argument between the drivers and Williams.
There is nothing in Guerra's testimony to indicate that he was suspended for 3
days as alleged in paragraph 8(f) of the complaint. He testified that he was not
allowed to work on one Saturday but he also testified that he had worked 40 hours
in that week. Paragraph 8(f) insofar as it relates to Guerra is not sustained by the
testimony of the witness.°
Sabas Guajardo, Jr., was employed as a test driver in October 1963, was a mem-
ber of the organizing committee of the Union and acted as an observer for the
Union at the election held in November 1964. In February 1965, a date outside the
10(b) limitation, Guajardo was demoted from a class "A" driver to class "C."
In March 1965, Guajardo was assigned a high-speed run (in excess of 90 miles
per hour) and refused to accept the assignment on the ground that he was no longer
a high-speed driver. He was told to run or quit and he made the run.
In June 1965, Guajardo blew a tire when he hit the gas ramp and 2 days later he
was called to Williams' office and suspended for 3 days.
In July 1965, another driver, Gustavo Rodriguez was hospitalized as a result of
an accident and Guajardo told Kelly he did not want to drive the pickup trucks.
He was told to quit or drive. Later he was called to Williams' office with Guerra
5 While the company rules required drivers to keep both hands on the wheel while driv-
ing. the Company permitted the drivers to smoke while driving As Supervisor Kelly testi-
fied, "the rule had its limitations " This charge illustrates some of the absurdities into
which this case has been plunged The General Counsel in his brief states that no docu-
mentary evidence of either of these violations was offered It is difficult to understand
what documentary evidence could have been offered unless the Company had photographs
of the incidents, evidence which it would not normally be expected to have and which,
if it did have, would probably be the subject of further charge of harassment.
"As anyone who has served in the Armed Forces knows, rank has its privileges and
is not reluctant to exploit them.
v The record of Zimmerman's testimony refers to the employee as Mario Salinas, an in-
advertent error. The case presented extreme difficulties for the reporter and the record is
a tribute to her skill
6 On cross-examination Guerra stated, with respect to the Saturday work, "All of them
worked except I and some. of them." Later he testified that he had never received a
written disciplinary suspension during the time he worked for U S. Rubber
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where both were reprimanded, supra, for talking back to supervisors 9 Guajarda
testified that during this discussion he told Williams that he was putting the pressure
on the "guys on the union side" and that Williams answered, "Right."
On or about August 17, 1965, Guajardo lost a wheel on his car while driving,
on the test track and was later suspended for 5 working days. Guajardo claimed
that he had checked the lugs on his wheels before starting the run. Williams claimed
that if the lugs had been properly checked he could not have lost the wheel.
Respondent established that Guajardo had received many reprimands for violat-
ing company rules as a driver. (Respondent's Exhibits 13, 14, 15, 16, and 17.)
Guajardo testified that he had received so many reprimands he could not remember
the number.
Guajardo testified to an incident which occurred in the lunchroom in April 1965.
According to Guajardo he was talking baseball with other drivers when Lee Mar-
lin, a supervisor, thought he was discussing the Union and told him to talk busi-
ness on his own time.'° Marlin testified that he was checking the drivers out at
4:30 a.m. and that Guajardo was holding them by arguing about the Union. He
told Guajardo to do it on his own time.
The supervisors: Eight supervisors testified for the Respondent but for the most
part their testimony related to the reasons why the employees were reprimanded
or suspended. I find it unnecessary to review this testimony in detail for the sub-
jective state of mind of the supervisors contributes little to the resolution of the
issues.
Plant Manager Williams denied that he had admitted to either Molina or Guar-
jardo that he was putting pressure on the union members or that a union would
never come into the Proving Ground?1 I credit Williams for he was a frank and
candid witness and the same cannot be said for Molina, Guajardo, and Guerra.
Each of these in testifying patently posturized each bit of testimony so that it
would further his own and the Union's cause. Williams was neither a stupid nor
readily excitable man and there existed no reason why he should volunteer such
damaging statements. The Respondent had already been found guilty of unfair
labor practices at the Proving Ground and it is unlikely, at the least, that he would
engage in such a gratuitous violation of the Act.
Supervisor Harlan Kelly testified that on either the day Rodriguez had his acci-
dent while driving a pickup 12 or the day after Guajardo came to his office, told
him he was not going to resign and asked if he was going to put something on top
of the weights on the pickup trucks to keep them from falling off. Kelly told
Guajardo he would drive the pickup or go home. Guajardo drove the pickup. Kelly
denied that he told Guarjardo not to speak to other employees about this conver.
sation or that he so instructed any other employee. Kelly was a credible witness.
The remaining testimony of the supervisors was, in general, directed to corrob-
orating the misdeeds of the drivers for which they received either reprimands or
suspensions.
C. Conclusions
1. As to violations of Section 8(a)(1)
The complaint in paragraph 7 alleges 13 separate violations of Section 8(a)(1)
and they will be treated in order:
1. As to paragraph 7(a) I find no evidence to sustain this allegation and the
General Counsel does not refer to it in his brief.
2. As to 7(b) I do not find that Williams' statement that the Company did not
recognize a union at Laredo constituted a violation of the Act. It was a simple
statement of fact. I have not credited the testimony that Williams said there would
never be a union at Laredo.
9 This meeting was called after Guerra's argument with Zimmerman
10 Gualardo told Marlin he was not talking about the Union. Marlin told him he had
orders to send him home for talking on company time The testimony of neither witness
is clear as to exactly what was said or meant. Guajardo's propensity for arguing with
supervisors seems well established by the record.
n Williams admitted telling employees that the Company did not recognize the Union,
a fact already conclusively established If Williams were to be truthful there was nothing
else he could say.
22 The pickup turned over and Rodriguez was taken to the hospital.
UNITED STATES RUBBER COMPANY 667
3. Paragraph 7(c) does not allege a violation of the Act as drafted.
4. Paragraph 7(d) was dismissed at the hearing.
5. Paragraph 7(e) presumably refers to Supervisor Marlin's order to Guajardo
to stop talking on company time. This occurred in the lunchroom just prior to
4:30 a.m. when Marlin was checking out the drivers for the first shift and wanted
quiet. Marlin admitted that he thought Guajardo was talking for the Union but
also stated he did not care what Guajardo was talking about. Assuming Guajardo's
version is correct and that he was talking baseball and was threatened with being
sent home I consider this incident too trivial for the making of any finding. It is
another instance of the dredging for incidents which was engaged in by both sides
in this case.
6. As to paragraph 7(f) Williams did threaten Ponce with suspension for
allegedly deflating tires contrary to instructions but Ponce's own testimony does not
indicate that union activity played any part in this activity. Ponce was president of
the Local 758 but that gave him no immunity against reprimand. To the extent that
the incident is comprehensible it cannot be said that the reprimand was undeserved.
7. The testimony offered to support paragraph 7(g) has not been credited.
8. Paragraph 7(h) refers, presumably, to Zimmerman's reprimand of Guerra for
overstaying his lunch period. There is no evidence that Guerra was singled out
for special treatment although Guerra singled Zimmerman out for what might be
called special treatment by telling him he was drunk. It seems unusual, except that
it follows the pattern of the case, that the General Counsel should make any con-
tention of a violation of the Act on an incident as trivial as this. Though Zimmer-
man's duties are nowhere clearly defined it appears that he acted as timekeeper
and that among his duties was that of getting the men to work on time. I reject
the contention that he should have defaulted in this duty in the case of union
members.
9. Paragraphs 7(j) and (k) apparently refer to the same incident, which occurred
on the day when Rodriguez overturned his pickup and was injured while driving
on the morning shift. When Guajardo reported on the afternoon shift and learned
of the accident he went to Supervisor Fuller and asked him "what peoples are
going to run today." When Fuller told him the runs would be made, Guajardo went
to Williams' office and talked to Kelly. He told Kelly the pickups were dangerous
and said he did not want to run. Kelly then told him to run or quit. Guajardo
then went to the lunchroom where he discussed the situation with the other
drivers.
The next day he was called to Williams' office with Guerra. After reprimanding
Guerra for his argument with Zimmerman, Williams asked Guarjardo about his
complaint concerning safety devices. There is nothing in Guajardo's testimony 13
to indicate that he was reprimanded or threatened with suspension because of his
conversation with the other drivers in the lunchroom. There is nothing, in fact, to
establish that either Williams or any other supervisor knew of this conversation.
13 Guajardo's testimony respecting safety reads :
Q. What happened next?
A. Besides that, he said, "What is this I hear you talking about some safety devices,
the Company better get us some roll bars and safety devices
Q. Who said that?
A. Mr. Williams.
He said, "How come you are saying we better buy these and put them on the
vehicles"" Mr. Williams did. He said, "Why did you say that?"
I said, "Because we are driving them Your boy was running the pick-up that was
in the accident just a couple of days before."
Q. What happened next?
A Well, he told me-
Q. Don't say "he." Use the last name.
A. Mr. Williams told me, "That doesn't concern you."
Q. What happened after that?
A. I said, "Safety concerns every driver because we risk our lives out there
He said, "Like I told you before, you mind your own business. You come to work
and shut up."
He said, "I been hearing a lot of complaints about you. Next time I am going to
give you a week or two off without pay and you will be suspended or dismissed "
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The threat of suspension was made because of the complaints received against
him. Guajardo's union activity played no part in this interview nor, when he pro-
tested to Fuller and Kelly, was he acting in concert with others since he went to
each on his own and before his discussion in the lunchroom. The General Coun-
sel has not urged this incident as a violation in his brief so it may be assumed he
has abandoned the contention of violation as indeed he should.
10. Ponce's testimony, which is the entire testimony relating to paragraph
7(1), has been fully set forth, supra. Neither Williams nor Wilson (who did not
appear at the hearing) gave any testimony with respect to the job offer to Ponce.
The question presented is whether this offer of a promotion was for the purpose
of inducing Ponce to leave the Union and was conditioned upon such leaving. If
so it was a clear violation of Section 8 (a) (1). The issue is a close one and could
certainly be resolved in favor of the General Counsel in view of the reprimands
given Ponce so shortly before the offer and Ponce's presidency of Local 758 and
activity on behalf of the Union. This is certainly susceptible to the inference that
the offer was made to get Ponce out of the Union.
The easy answer may not, however, always be the right answer. I distinguish
this case from those cited by the General Counsel.14 In this case Ponce was offered
the opportunity to train as supervisor without any conditions attached. It was, how-
e' er, pointed out to him, that this involved leaving the Union. Technically this was
correct in the, sense that the Union could no longer represent him. It is also true
that if he was moved up to the position of manager at Laredo it was unlikely that
he would continue actively in the Union. (Ponce testified that this was a possibility
suggested to him.) I have also considered that mention was made of the fact that
Ponce was dedicated to the Union and might not want to accept the offer but this
might, on Ponce's testimony, have been suggested out of deference to Ponce's feel-
ing toward the Union. I draw a distinction admittedly tenuous, between this kind
of offer and that given employee Batdorf in Bannon Mills. There Batdorf was told
she was a natural leader and that if she could lead the employees in the "right
direction" and if she would switch sides she would be given a supervisor's job.
Ponce was not asked to switch sides or to abandon his loyalty to the Union. In
Baldwin County employee Boone was told by a supervisor that rather than see him
fired (for union activity) he would promote him to foreman. Here again the only
motive for the promotion was to induce the employee to abandon the union. In
Boot-Ster Manufacturing Company, Inc., 149 NLRB 933, an employee was offered
a possible position as supervisor because the president of the company would like
to see him on his side. I found that the purpose was to foster the employee' s incli-
nation in favor of the Respondent in the campaign to change the employees' minds.
Unlike these cases I do not find that the offer to Ponce was conditional on his
switching sides or to induce him to abandon his union activity; he was simply told
that he could have the job but that it would affect his union membership and
activity. I would think that an employer was entitled to tell a prospective super-
visor that this was necessarily so since inevitably his first allegiance would be to
the company. One of the prime objectives of the Taft-Hartley Act was to insure
this priority and had Ponce continued in the presidency of Local 758 after his
promotion the Company might well have been guilty of an 8(a) (2) violation under
the Nassau & Suffolk rule.15
I find no violation of the Act in the offer to Ponce.
11. Paragraph 7(m) relates to an incident which I cannot identify in the record
nor do I find references to it in the General Counsel's brief. Kelly denied making
any such threat to any employee, a denial which must be accepted.
2. As to violations of Section 8(a)(3)
Paragraph 8(d) of the complaint has been dismissed for lack of evidence, supra,
leaving only the suspensions for consideration. Three drivers suffered suspensions,is
although Ponce's suspension is not alleged as a violation nor urged in the General
14 Mangel Stores Corporation, 149 NLRB 124, Baldwin County Electric Membership
Corporation, 145 NLRB 1316; Bannon Mills, Inc., 146 NLRB 611, 629
is Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174, Aft Clemens Metal
Products Company, 126 NLRB 1297. Cf. Banner Yarn Dyeing Corporation, 139 NLRB 1018.
'@I have found that Guerra was not suspended for 1 day as he claimed at the hearing.
UNITED STATES RUBBER COMPANY 669
Counsel's brief.17 In each case the accidents or violation of the rules were admitted
except that Molina denied that he put his vehicle into reverse before coming to a
full stop. Various excuses were offered, i.e., Molina said that other drivers, particu-
larly supervisors, drove without their shoulder harness and that he failed to submit
his inflation report through inadvertent error, Guajardo that another driver had
blown a tire at the gas island and had not been suspended and that he had checked
his lugs before making the run on which he lost a wheel; 18 Ponce that he checked
his lugs while making his run as a precautionary measure.
I do not know how any Trial Examiner could determine whether these suspen-
sions were merited nor do I think it is his proper function to make such a deter-
mination. Certainly the record before me does not establish by a fair preponderance
of the evidence that the suspensions and warnings were a part of a policy of
harassment, as the General-Counsel claims, in reprisal for union activity. Such a
suspicion may be justified since all were officers, in a sense, in the Union but other
union officers received neither warnings nor suspensions. Apart fiom this, I find
clear evidence of insolence closely approaching insubordination in the attitude of
these drivers toward their supervisors. This record, read in its totality, reveals justi-
fication for personal hostility toward these drivers on the part of supervisors and it
may well be that they were overzealous in issuing punishment.19 In the absence of
some evidence other than the prior violations of the Act on the part of Respondent-
and the violation of Section 8(a)(5) was what is known as a technical violation-
that the suspensions were motivated by union animus this zeal, while it might be
unjust, is not unlawful.
What the General Counsel is doing here, and I think this an important aspect of
the case, is to ask the Board to sit as a permanent arbitrator and to rule upon the
merits of each and every disciplinary action taken by the Company. It is not clear
that such an obligation was imposed upon the Board or was within the contempla-
tion of the Congress when it enacted Section 8(a) of the Act. It would place an
intolerable burden upon the Board if it were required to substitute its judgment
for that of management wherever disciplinary action is taken against union mem-
bers. The Board cannot as a practical matter police every plant in the country where
discord exists between management and labor for incidents as insubstantial as those
litigated here and where the evidence of discriminatory motive is so meager.
Granted that hostility toward the Union has been established and that the Respond-
ent has committed unfair labor practices in prior cases, that alone is insufficient
to support a finding of discrimination. To hold otherwise would establish a plenary
immunity against discipline for union members in every company which has been
found guilty of unfair labor practices however unrelated to the instant charge. This
would encompass almost every plant in the country subject to the jurisdiction of the
Board. I do not find that such a policy, apart from the fact that it would find no
support in the courts, would effectuate the purposes of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engager in commerce and the Union is a labor
organization within the meaning of the Act.
2. Respondent has not engaged in unfair labor practices in violation of Section.
8(a)(1), (3), and (4) of the Act.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
11 Reference is made to this incident since there is no assurance that it may not later
be urged before the Board as a matter "fully litigated "
is This is not susceptible of proof Four other drivers lost wheels while driving, three
of whom were warned and one of whom received a 1-day suspension. Only one of these had
a record of prior warnings Guajardo, on the other hand, had received so many warnings
or reprimands he could not remember them ( The Company computed 14 )
19I have previously stated that charging Molina with an infraction of the rules, for
waving to another driver was absurd.