West American Rubber Co.

National Labor Relations Board - Board Decisions

Jan 8, 1973

201 N.L.R.B. 92 (N.L.R.B. 1973)

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
West American Rubber Co. and United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-
CIO. Case 21-CA-10540
January 8, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 29, 1972, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, West American
Rubber Co., Orange, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i The Administrative Law Judge found that the Respondent did not
violate Sec 8(a)(3) of the Act by terminating Howard Fox We agree, and
adopt his findings and conclusions with respect thereto. The Administrative
Law Judge further found that Respondent violated Sec 8(a)(1) and (5) by
engaging in certain conduct, and did not violate Sec. 8(a)(l) by engaging in
certain other conduct In the absence of exceptions thereto, we adopt pro
forma the findings of the Administrative Law Judge with respect to the
allegations of Sec 8(a)(I) and (5) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERROLD H . SHAPIRO , Trial Examiner : Upon a charge
filed by the Union on January 17, 1972, and amended on
April 24, 1972, the General Counsel of the National Labor
Relations Board , Region 21, issued a complaint, dated
April 25, 1972, against West American Rubber Co., herein
called the Respondent , alleging, as amended at the hearing,
that Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a)(l), (3), and (5) of the
National Labor Relations Act, as amended . The Respon-
dent filed an answer denying the commission of the alleged
unfair labor practices . A hearing was held on July 11 and
12, 1972.
Upon the entire record in the case and from my
observation of the demeanor of the witnesses , and having
considered the postheanng briefs , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
West American Rubber Co., a California corporation
with its principal place of business in Orange, California,
where it is engaged in the manufacture of rubber products,
annually sells and ships goods and products valued in
excess of $50,000 directly to customers located outside the
State of California. Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The Union, on August 3, 1971, was certified by the
Board as the exclusive collective-bargaining representative
of Respondent's employees in an appropriate bargaining
unit. By January 19721 the Company and Union had held
approximately 13 negotiation meetings without succeeding
to negotiate a contract. The General Counsel and Union
contend that in January Respondent engaged in certain
conduct which violated the Act. Briefly stated the issues
pleaded and litigated are as follows: (a) Whether employee
Howard Fox was discharged and, if so, was the discharge
motivated by his Union activity in violation of Section
8(a)(3) and (1) of the Act. (b) Whether in violation of
Section 8(a)(5) and (1) of the Act Respondent solicited and
aided its employees to resign from the Union and
threatened them with reprisals if they did not resign. (c)
Whether the Respondent violated Section 8(a)(1) of the
Act by interrogating employees about their Union activi-
ties ; by keeping employees' Union activities under surveil-
lance; by creating the impression that it was keeping
employees' union activities under surveillance; by threat-
ening employees with reprisals because of their union
activity; and by directing employees to stop engaging in
union activity while on Respondent 's premises.
Also at issue is the supervisory status of Calvin
Richardson, a leadman, who the General Counsel claims
engaged in some of the above-mentioned alleged unlawful
conduct.
i Unless specified otherwise , all dates refer to the year 1972
201 NLRB No. 12
WEST AMERICAN RUBBER 93
B. The Interference, Restraint, and Coercion and
Refusal To Bargain
1. The conduct attributed to Calvin Richardson;
Richardson's status as a statutory supervisor
Calvin Richardson at the time material to this case was
employed by Respondent on the first shift in the pressline
department , classified as a leadman . His immediate
supervisor was Lee Michels, the general foreman responsi-
ble for the operation of the pressline and stock prep
departments.
Richardson 's leadman classification is included in the
appropriate bargaining unit certified by the Board. Like
the other unit employees he is paid by the hour and
receives time and one-half for overtime.
There is no evidence that Richardson during the time
material had authority to hire, transfer, suspend, lay off,
recall, promote, discharge, or discipline other employees,
or adjust their grievances, or to effectively recommend
such action.
Regarding wage increases , the employees receive auto-
matic increases after their first 30 and 60 days of
employment and merit raises thereafter. Michels decides
when a merit increase is warranted. And, although Michels
discusses employees' work with Richardson , there is no
evidence that Michels follows Richardson's recommenda-
tions or that Richardson has effectively recommended that
employees receive merit wage increases.
Regarding the assignment of work or the direction of
employees the record establishes that the pressline depart-
ment has about 45 presses operated by about 18 operators
per shift. Either Michels or Richardson, usually Michels,
sets up the presses for the operators-ties a mold into the
press . It is Michels who schedules the work and it is
Richardson who assigns the press operators to the
scheduled jobs based upon their skill and experience.
Michels, however, when he observes an operator not
performing competently on an assigned job will direct that
he be given something else to do. In operating a press the
operator loads the raw material, all the time following
written instructions , and following 'these instructions
operates the press by pushing a button. As Richardson
testified at the hearing, "it is a pretty routine type of an
operation operating a press." When a new employee starts
to work in the department he is assigned by Richardson to
work with an experienced operator. Finally, if an operator
has trouble operating a press or is producing bad parts
Richardson corrects the problem.
In my view, the record as a whole establishes that any
direction or assignment of work to employees by Richard-
son is of a routine nature and compatible with the
functions generally attributed by the Board to a leadman.
The work performed by the employees in the pressline
2 Although Richardson has the authority to allow employees in his
department to leave work early in the case of an emergency , without first
seeking the approval of the foreman, this limited authority does not, in my
opinion , establish that he is a statutory supervisor especially where, as here,
there is no evidence establishing that this authority was exercised other than
sporadically if at all.
3 The Union was certified in the following appropriate unit
All production and maintenance employees , including shipping and
receiving employees , leadmen , truck drivers and quality control
department is of a routine and repetitious nature requiring
for the most part little training. The record shows that the
work is executed in accordance with written instructions
prepared in advance for each job that comes into the
department. It is true that Richardson assigns the work,
but the record shows that he does so according to the
employee's skills and experience and in accordance with a
daily work schedule which Richardson merely carries out.
Under these circumstances , to assign work, to check the
quality of work, or to assist employees generally with their
work problems, in my opinion, requires no more use of
independent judgment or responsible direction than that of
the usual leadman functions in such matters . It appears
that both the Employer and Union recognized this when
they agreed that those employees like Richardson classified
as "leadman" were included in the appropriate certified
bargaining unit. In short, I am convinced and find that the
evidence does not establish that Richardson responsibly
assigns and directs the work in the pressline department,
nor does it establish that he exercises the use of independ-
ent judgment in performing his job.2 Finally, the record
does not indicate that his working conditions differed
substantially from those of the other employees.
On the basis of the foregoing, therefore, and on the
record as a whole, I find, that Richardson is not a
supervisor as defined in the Act and accordingly shall
recommend that those portions of the complaint alleging
that Respondent violated the Act because of Richardson's
conduct be dismissed.
2. The aid, assistance , and encouragement to
employees to withdraw from the Union
The Union was certified by the Board on August 3, 1971,
as the exclusive bargaining representative of the Respon-
dent's employees in an appropriate unit3 which in January
consisted of about 240 employees. To indicate their
support and allegiance to the Union a number of
employees signed what I will refer to as union cards. These
cards, each entitled "Identification Card," were signed by a
representative of the Union and certified that the signatory
employees had signed a "Union membership application
card" or "other authorization form" authorizing the Union
to bargain with Respondent on terms and conditions of
employment. The Union and a substantial number of the
employees believed that when an employee was issued a
union card it indicated that he had been accepted into the
Union as a member. It is undisputed that, between January
10 and January 25, 76 unit employees resigned from the
Union by means of telegram; 57 on January 10; 13 on
January 11; 2 on January 12; and 4 between January 18
and January 25. It is also undisputed that the language
contained in the telegrams was drafted by Respondent,4
the telegrams were prepared by Respondent, delivered to
inspectors ; excluding office and plant clerical employees, research and
development department employees , die makers , technical and profes-
sional employees , guards, watchmen, and supervisors as defined in the
Act.
4 The telegrams, addressed to the Union with the name of the employee,
contained the identical language "Please use this telegram as your
notification of resignation of my membership in this union My resignation
is effective and final as of this date."
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the telegraph office by Respondent, and paid for by
Respondent.
The General Counsel in presenting this portion of his
case called as witnesses employees Peter Cooper, Jr., David
Michels, Chloe Rose, Arthur Stewart, Joseph Stauffer, and
Mario Alfaro, all of whom with the exception of Cooper
were still employed by Respondent at the time of the
hearing. They all impressed me as credible witnesses who
were making a sincere effort to recall the events .5 Unless
stated otherwise, I have credited their testimony which
presents the following picture of the events surrounding the
employees' resignation telegrams.
On Monday morning, January 10, General Foreman
Michels called together the employees employed in the
stock prep department, told them the Union was going to
strike the Company and that employees holding union
cards who wanted to cross the picket line would be fined
by the Union, and if they wanted to avoid paying such
fines they could go to the Company's front office with
either Michels or one of the other foremen and sign a
telegram resigning from the Union. The same morning
Michels also spoke to the employees in the trim depart-
ment. He stated that the Union was going to strike, that
employees who wanted to resign from the Union could
turn in their union cards and sign resignation telegrams,
and if necessary they had permission to leave the plant to
go home and get their union cards.
Immediately following Michels' remarks of January 10
to the stock prep department employees, the department's
foreman, Laurence Brown, a statutory supervisor, asked
employee Stauffer if he wanted to go with Brown to turn in
his union card. Stauffer replied that before deciding he
wanted to talk it over with his wife. Brown asked Stauffer
to let him know what he decided.
On January 11 David Michels, an employee of the stock
prep department and the brother of General Foreman Lee
Michels, following his brother's instructions, went to him
with his union card and was escorted by his brother to the
front office where he gave his card to a secretary who
prepared his resignation telegram, handed it to him for
signature, and Michels signed it .6
On the morning of January 10 foreman Edward
Piatkowski, a statutory supervisor, approached employee
Stewart at his place of work and, as put by Stewart:
[Piatkowski] asked me if I want to work or didn't I
want to work and I said yes. I have got a family to take
care. He asked me if I was holding a Union card and I
said yes. So he told me to go on home and get it and
come back, bring it back to the plant.?
S General Counsel also called employee Beverly Newport whose
testimony is unconvincing in so far as she indicated that General Foreman
Lee Michels told the employees of the trim department on January 10 that
their jobs would be secure if they signed telegrams resigning from the
Union. Michels generally denied making any comments of this nature His
denial is corroborated by employee Rose who also testified as to the
remarks made by Michels to the trim department employees . Under the
circumstances I have not relied on this portion of Newport's testimony
6 The above remarks and conduct attributed to General Foreman
Michels are based on the credible testimony of witnesses called by the
General Counsel . The greater part of Michels' testimony is not at odds with
what has been attributed to him . He testified that on January 10 he spoke to
several groups of employees explaining to them that some employees were
interested in getting out of the Union , that employees could get out of the
Union by signing a telegram , that they could send such a telegram from the
Stewart, without suffering any loss in pay, left the plant
and went home where he got his and his wife's union cards.
He returned to the plant, went to his wife's work station,
and together they went to the front office where they
handed their union cards to Samuel Oxenreider, Respon-
dent's vice president of manufacturing, who escorted them
to a secretary's office. Oxenreider handed the secretary the
union cards, the secretary prepared resignation telegrams,
Oxenreider gave the telegrams to Stewart and his wife,
asked them to read the telegrams, and showed them where
to sign. Both signed .8 Soon after this Stewart received
another card from the Union. During the latter part of
January, Piatkowski at work asked Stewart, "if [he] had a
Union card again" and when Stewart said "yes" Piatkow-
ski asked him what he intended to do with the card.
Stewart replied he had not decided.
On the morning of January 10 employee Peter Cooper,
Jr., an employee in the lathe department, was approached
at his work station by Foreman Louis Perry, a statutory
supervisor, who informed him that other employees were
resigning from the Union, that they were turning in their
Union cards and suggested that Cooper resign from the
Union stating that if Cooper did not turn in his union card
and the Union called a strike that he would be sorry
because he would be on the outside looking in .9
On January 10, in the morning, Foreman Keith Van
Houten, a statutory supervisor, spoke to a group of
Spanish-speaking employees, using an employee as an
interpreter. Van Houten told the employees that a number
of employees were turning in their union cards and told
them that if they wanted to they could turn in their union
cards at any time. Later that same day Mario Alfaro, one
of the employees in the group addressed by Van Houten,
was approached by Foreman Ronald Luthy, a statutory
supervisor, who, speaking through an employee interpreter,
asked Alfaro whether he was going to hand in his union
card. Alfaro asked whether his fellow employees intended
to hand in their cards. Luthy replied they would hand their
cards in during break time. That same day during a
"break", Alfaro with three other Spanish-speaking employ-
ees went to the front office where they handed their union
cards to Oxenreider, Respondent's vice president, who
gave the cards to a secretary. The secretary prepared the
employees' resignation telegrams and the employees signed
them in the presence of Oxenreider. Alfaro who has a
limited knowledge of English did not know what the
telegram said.
The foregoing is based upon the undenied and credible
testimony of employee Alfaro. He also testified to a speech
front office , that they could turn in their union cards at the same time they
sent the telegram , and that if necessary they had permission to leave work to
go home to get their union cards Finally, he testified that the resignation
telegrams were typed by the secretary to Respondent 's president
r The General Counsel apparently contends that Piatkowski' s remark to
Stewart constitutes a veiled threat of a loss of employment if he did not
resign from the Union . I disagree. It is my opinion and I so find that viewed
in its entire context , including the ambiguity of the statement , the evidence
is insufficient to establish such a threat.
a Stewart "thinks" the above events took place on January 15. However,
his resignation telegram and his wife s were prepared and transmitted on
January 10. Accordingly, I find he was mistaken as to the date
9 In my opinion this last comment, "he would be on the outside looking
in" is too ambiguous to constitute a threat of reprisal to be taken by the
company.
WEST AMERICAN RUBBER
by foreman Balonis to employees about turning in their
union cards . Balonis' conduct was not alleged in the
complaint as violative of the Act nor was it mentioned in
Alfaro's affidavit of January 26 submitted to the Board
which affidavit purports to set out all of the conversations
Alfaro was privy to, engaged in by foremen about the
Union. Alfaro also testified that Van Houten on January
10 stated it would be good if the employees handed in their
union cards "so we would not have any difficulties in the
factory with respect to work." This remark was not alleged
in the complaint as a threat violative of the Act. In his
Board affidavit Alfaro did not attribute this remark to Van
Houten and specifically stated that all of what Van Houten
said to him is as set out above . Under the circumstances I
have not relied on and have rejected Alfaro's testimony
pertaining to Balonis ' remarks and the threat attributed to
Van Houten.
To recapitulate , Respondent engaged in the following
conduct : Encouraged and solicited employees to turn their
union cards over to Respondent and to resign from the
Union; suggested that employees leave work to go home
and get their union cards on the Company 's time ; drafted
and prepared resignation telegrams for the employees to
send to the Union ; delivered these telegrams to Western
Union and paid for the telegrams.
In explaining Respondent's conduct , its vice president of
manufacturing, Samuel Oxenreider, testified that on
January 10 at about 9:30 a .m. an employee named Pete
Hill came to his office , asked how he could resign from the
Union , and asked Oxenreider to help him send "some-
thing" that could get him out of the Union . Oxenreider
complied . He wrote out some resignation language on a
piece of paper . But, according to Oxenreider, Hill asked for
more help , namely , he asked Oxenreider to "type a letter or
do something ." Oxenreider replied, "ok look while you are
in here my mail [mill?] is not running and here is what I
will do" , and with that Oxenreider got a book of blank
telegram forms , wrote out the telegram , took Hill to a
company typist and told her to prepare the telegram for
Hill. At this point , as Oxenreider testified , it "suddenly
dawned on him" that Hill, even though he had not
expressed any such thought , would want to leave the plant
during working time to send the telegram which would
interfere with Hill's work . To avoid this Oxenreider told
Hill that Respondent would see that the telegram was sent
by Western Union . Whereupon , Hill went back to work.
Within minutes , Oxenreider testified , he heard and
observed seven or eight employees "milling around" in the
hallway outside his office and when he asked them why
they were there , they replied , "we want to resign from the
Union." In explaining his next actions, Oxenreider testi-
fied , "so it seemed to me like the best idea [was] to do the
same thing we done with [Hill] and put them back out on
the [production line], which we did , and after that
[employees] just come up and fell in line and continued on.
I guess there was maybe 70, 80 people." Oxenreider
testified that at this point the plant was in "chaos" and
explained , "all you got to have is ten people up in the office
10 1 further find that Respondent was prompted to engage in this
unlawful conduct by its belief that the Union in the immediate future was
likely to call a strike and in support thereof seek the support of the unit
95
doing something that the other 240 don 't know and they
are looking and wondering and nobody is doing anything."
In order to let all of the employees know what was going
on so that production could resume , Oxenreider testified
he told various foremen that employees were at the front
office resigning from the Union , having telegrams prepared
and for the foremen to tell their employees what was
happening, and tell the employees , "if they want to resign
that it is all right with us. Do it but get back on the job and
if you are not going to resign , just keep working ." To sum
up, if Oxenreider is believed , then Respondent 's motive in
assisting the employees to resign from the Union was
twofold: (1) To assist employees who had independently
decided to withdraw their support from the Union and had
approached Respondent for help , and (2) to avoid
interference with production . I do not believe that this
portion of Oxenreider's testimony is credible . His demean-
or did not impress me when he gave this testimony. The
testimony was general , vague, and wholly uncorroborated
even where corroboration should have been available. That
the plant was in "chaos" and work was not being done is
completely lacking in specifics . None of the employees
who on their own allegedly asked Oxenreider for help were
called to corroborate Oxenreider . Finally , his assertion that
Respondent took it upon itself to type up and deliver the
telegrams so as to avoid an interference of production by
employees leaving the plant is especially suspect , since as
described in detail above , Respondent's supervisors admit-
tedly told employees they had permission to leave work
during working time for the purpose of going home to get
their union cards to turn into the Company for union
resignation purposes , conduct calculated to interfere with
production. I find, in short , Respondent's sole motive for
soliciting and assisting employees to resign from the Union
was to induce and assist them to repudiate the Union to
and that this conduct constituted interference , restraint,
and coercion within the meaning of Section 8(a)(1) of the
Act. Cf. N.LR.B. v. Deutsch Company, Metal Components
Division, 445 F .2d 902 (C.A. 9). In any event , even if
Respondent in assisting the employees to resign from the
Union had been motivated by a desire to aid a group of
employees who on their own had decided to withdraw
from the Union or had been otherwise done without any
evil intent, I believe that the manner in which Respondent
assisted the employees in resigning was violative of Section
8(aXl) for the reasons set out in the decision of the Board
in Cumberland Shoe Company, 160 NLRB 1256 , 1258-59.
The General Counsel urges that Respondent has further
unlawfully solicited employees to resign from the Union
through letters sent to employees on January 14 and
January 18 signed by its president and general manager,
Eisenberg. The letter of January 14, on the subject of
resignation , states in substance that the Company had been
informed that employees had been threatened because they
resigned from the Union , and had asked the Company
what they could do to protect themselves from these
threats . Continuing, the letter says that Section 7 of the Act
guarantees an employee the right to resign from a union
employees . Respondent was attempting to thwart a successful strike on the
part of the Union.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that if any employee is threatened because he resigned
from the Union that he should inform the Company which
would get the Board to protect the employee's rights under
the law. There is nothing in this language or in this letter
which constitutes interference, restraint, or coercion within
the meaning of Section 8(a)(1). The letter of January 18 is
another matter. This letter in pertinent part informed the
employees that the Union had advised the Company that
the Union before the end of the month would probably call
the employees out on strike over contract negotiations but,
that if the Umon calls a strike, the Company would
continue to operate and the employees if they wanted
could continue to work. The letter then continues in
pertinent part:
Some employees have come to us asking the following
questions:
Question: Can the Umon keep us from coming to work
or from crossing a picket line?
Answer: No... .
Question: Can the Union levy a fine against an
employee for crossing their picket line?
Answer: It depends. If an employee is NOT a member
of the Union, the Union CANNOT fine him or take
any other disciplinary measures against him. The only
way a Union gets control over an employee is for that
employee to join the Umon. If the employee is a Union
member, then the Union can tell him what to do-only
because he is a Union member. Unions can and do fine
their members for crossing picket lines.
Question: If I am a union member, how do I get out of
the Union?
Answer: The same way you got in-by application.
Merely send the Umon notice that as of a certain date
you resign from the Union. Keep a copy of the
telegram or letter you send to the Union so you can
prove your resignation... .
Question: Is there a time limit on when I can resign
membership in the Union?
Answer: No. But if you want to avoid the Umon fining
you for working during the strike or crossing the picket
line, you must resign before the strike starts and the
picket line is put up.
Question: Are employees who are members of the
Union required to resign their membership in the
Union to work for the Company?
Answer: NO. Any employee may be a member or not a
member of the Union, or he can engage in Union
activities or refrain from engaging in Union activities,
according to his own desires, and it will not affect his
job.
Eisenberg, who drafted the letter, testified that he wrote
the letter, in part, because:
... several people had inquired of me in my travels
around the plant as to how you can resign from the
Union and I felt that very few people understood the
mechanics involved and I felt that it should be
clarified.
I wanted the people to know that there had been
11 In this respect I note that it is undisputed that even after the letter of
January 18 Respondent was still continuing to prepare and transmit for the
some strike rumors and if they wanted to be free of any
fines of this union, that they just couldn't be a member.
When asked to name the employees who asked him how to
resign from the Union he could only recall the names of
two, neither of whom was called by Respondent to
corroborate Eisenberg's testimony. He testified that they
had asked him how to go about resigning "sometime
before" the mass resignations of January 10. Considering
Respondent's previous massive effort on January 10 to
educate and aid its employees in resigning from the Union
it is not credible that Eisenberg on January 18 believed
that Respondent 's employees needed further advice on
how to go about resigning , or that the employees who had
allegedly previously questioned him about the Union prior
to January 10 now needed additional advice. Under all of
these circumstances , including my impression that Eisen-
berg when he testified as to his reason for drafting this part
of the letter was not being candid, I am convinced and find
that in drafting the portion of the letter of January 18
explaining how employees could resign from the Union,
Eisenberg was not motivated by a desire to help employees
who on their own had decided to withdraw from the Union
but rather was motivated by a desire to assist employees to
repudiate the Union in an effort to prevent the Union from
successfully using the strike as a weapon to support its
bargaining demands . Under these circumstances, although
the letter of January 18 is not unlawful on its face, I am
convinced and find that the letter cannot be realistically
viewed by itself but must be viewed in the context in which
it was issued, as a part of and a continuation of
Respondent's program of unlawful assistance to employees
to resign from the Union which commenced on January
10.11 Accordingly, Respondent violated Section 8(aXI) of
the Act by distributing this letter to its employees.
To sum up, for the reasons previously set forth, I find
that Respondent by soliciting and assisting its employees
to resign from the Union has violated Section 8(aXl) of the
Act, and further find that since Respondent's conduct had
the foreseeable effect of obstructing the bargaining process
and was inconsistent with its duty to recognize and bargain
in good faith with the Union, that Respondent also
violated Section 8(a)(5) of the Act. Cf. Wahoo Packing
Company, 161 NLRB 174, and Wire Products Manufactur-
ing Corp., 198 NLRB No. 90.
3. Other interference , restraint, and coercion
On January 10, as I have described in detail earlier in
this Decision, Foreman Piatkowski asked employee Stew-
art if he was holding a union card and Foreman Luthy
asked employee Alfaro whether he was going to turn his
Union card into the Company. Also late in January,
Piatkowski asked Stewart if the Union had sent him
another union card and what Stewart intended to do with
the new card . The aforesaid questioning served no
legitimate purpose, and was unaccompanied by any
assurance that the questioning was not intended to
interfere with the employees' right to support the Union.
Additionally, the questioning took place in the context of
employees resignation telegrams to the Union.
WEST AMERICAN RUBBER
and was part of Respondent's unlawful solicitation and
assistance to employees to resign from the Union. Under
the circumstances, I find that the interrogation of employ-
ees by Piatkowski and Luthy reasonably tended to
interfere with, restrain, or coerce employees in the exercise
of their rights guaranteed by the Act, and by this conduct
Respondent violated Section 8(a)(l) of the Act.
Respondent's employees in the middle of the month
receive what is known as a "bonus check." On January 13
according to the credible testimony of employee Peter
Cooper, Jr., his foreman, Louis Perry, at his work station,
told him that, if the employees voted to strike, Respon-
dent's president, Eisenberg, possibly would not issue 'the
bonus checks.12 I find that this constituted a threat of
economic reprisal by Respondent directed to employees if
they engaged in union activities. By engaging in this
conduct, Respondent interfered with, restrained, and
coerced employees in the exercise of their statutory rights
and violated Section 8(a)(1) of the Act.
Employee Cooper also credibly testified that he and
Foreman Perry always ate lunch together and that during
the course of their luncheon conversations between
January 10 and March 15 Perry on several occasions asked
him for information, "related to the Union and the
negotiations." As put by Cooper he was asked "how the
meetings were going, if they had voted a strike or
anticipated a strong vote for the strike." Cooper, who was a
member of the Union's negotiation committee, replied that
he did not know. I find that the questioning of Cooper by
Perry about the Union's strike vote when considered in the
context of Perry's threat that employees would lose their
monthly bonus if they voted to strike, reasonably tended to
interfere with, restrain, and coerce employees in the
exercise of their statutory rights and constituted unlawful
interrogation in violation of Section 8(a)(1) of the Act.
On a date between January 12 and 14, employees Fox,
Perrin, and Sauvagean at the end of the first shift were
passing out union handbills at one of the exits to the
Company's parking lot. Also present, standing or sitting
aside of the plant about 30 feet away was Foreman
Piatkowski who observed the handbilling for a "good part"
of the time they handbilled. The three handbillers were
standing on the concrete driveway leading into the plant's
parking lot. On one or two or more occasions employee
Sauvagean stepped onto the asphalt parking lot at which
time Piatkowski told him to get his ass off the property or
he would have Sauvagean thrown in jail. The last time
Piatkowski made this remark, one of the handbillers, Fox,
testified he called Foreman Balonis over and asked Balonis
to tell Piatkowski to be quiet and that his remarks were not
called for. Balonis spoke to Piatkowski and to quote Fox:
"that was the end of that." Fox further testified that in
response to Piatkowski's remarks Sauvagean did not move
from the company property since he had a right to be
there.13 Other than this one instance there is no evidence
that anyone from the Company for any period of time ever
watched employees handbilling for the Union or directed
employees who were handbilling to keep off the Compa-
ny's parking lot. Nor, is it established that Piatkowski by
12 Perry who in general denied making the statements attributed to him
by Cooper did not impress me as a trustworthy witness.
97
his conduct interfered with the handbilling. Finally, it is
undisputed that employees thereafter handbilled on several
occasions at this location without interference. It is not
contended that company supervisors unlawfully watched
this subsequent handbilling or refused to allow the
employees to handbill on the parking lot.
It is the General Counsel's contention that Respondent
violated Section 8(a)(1) of the Act because Piatkowski kept
the union activity of the handbillers under surveillance,
directed an employee not to handbill on the company
parking lot, and threatened him with reprisals if he
continued to handbill on company property. I disagree.
Regarding the charge of surveillance, I find the General
Counsel failed to establish by a preponderance of the
evidence that when Piatkowski on one occasion chose to
watch the handbillers he was motivated by a desire to keep
employees' union activity under surveillance. Employees
who choose to engage in their union activities out in the
open at the employer's premises have no cause to complain
that management observes them. Regarding the charge
that Respondent threatened employees with reprisals if
they passed out handbills on the company parking lot, I
find that in the circumstances of this case Piatkowski's
remark to Sauvagean did not reasonably tend to interfere
with, restrain, or coerce employees in the exercise of their
statutory rights to pass out literature on the Company's
parking lot. It was an isolated bit of conduct ignored by the
employees and which ceased as soon as one of the
handbillers voiced an objection.
C. The Discharge of Howard Fox
The findings in this section of the Decision are based
upon the testimony of Respondent's witnesses, Broughton,
Eisenberg, Michels, Oxenreider, and Richardson, all of
whom when testifying about this portion of the case
impressed me as making an honest effort to accurately
describe the relevant events and conversations. In addition,
their account of the events were in most important
instances internally consistent and largely in agreement
with one another, and did not demonstrate evasiveness or
inadequate memory on the part of the witnesses. On the
other hand, I was not impressed by witnesses Cooke and
Fox and have not credited their testimony where it
conflicts with the testimony of the above-named persons.
Fox initiated the Union's successful organizational
campaign. Respondent knew that he had played a very
active role in the campaign and also knew that he was "the
Union organizer." General Counsel contends that the
Company discharged Fox because of his activities on
behalf of the Union. Respondent urges that Fox, in effect,
voluntarily terminated his employment.
Following a secret ballot representation election held on
June 2, 1971, the Union was certified by the Board on
August 3, 1971, as the exclusive bargaining representative
of Respondent's employees. Fox with about four other
employees thereafter served on the Union's negotiation
committee.
At the time of the events in this case Fox had been
13 The foregoing is based on a composite of the undenied testimony of
employees Fox, Perrin , and Sauvagean.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Company for approximately 5 years and
was employed in the pressline department, first shift.
Briefly stated , his job was mainly to install and clean
molds . Fox worked on what are known as the "first
articles" ; namely , new jobs received by the company which
necessitate the development and use of new molds. Fox
helped develop the new molds . He prepared them for
production, developing procedures for the production
employees to follow. The person in charge of the
department was Lee Michels, general foreman, who
personally supervised the work connected with the devel-
opment of new molds.
On Friday January 7, Michels asked Fox to work the
following day. The last time Fox worked on Saturday he
found that there was not a full day's work so with Michels'
permission left work early. On January 7 Fox, in response
to Michels ' request to work overtime , answered that he
would be happy to work only if there was a decent
workload . Michels informed him that three molds known
as no hub molds which needed development had arrived,
and there was also a Vitron slab mold he wanted Fox to
run, explaining that Vitron stock was very expensive and
he did not want to turn this mold over to production to
operate . On Saturday morning Fox operated the press with
the Vitron slab mold, developed one of the no hub molds,
was satisfied with the way it performed, and turned it over
to production . The two remaining no hub molds did not
arrive , so Fox had no more assigned work to perform. All
he was doing was operating the press with the Vitron slab
mold. About noontime Fox went to Richardson, the
department leadman, and told him he was out of work,
that he was just operating the press with the Vitron mold,
that this gave him nothing to do, and asked if Richardson
could put someone on the press . Richardson said "yes,"
whereupon Fox stated that since there was nothing for him
to do he was going home and for Richardson to tell
Michels . Richardson agreed , and told Fox to go ahead and
leave . Shortly after Fox had already left , Michels who
earlier had left the plant on business , returned and found
that the no hub mold, the new mold which Fox had
developed for production, was not functioning correctly; it
was "extra heavy"-" it was hanging up ." Michels went to
Richardson and asked where Fox was, stating that he
should be working on this mold. Richardson explained that
Fox had asked him if he could go home, and that he had
told Fox yes if he had done his work . 14 Since this new mold
was scheduled to be used by production the next day,
Sunday, it was necessary for Michels to stay late that day
to complete the job of developing the mold . Michels was
not happy with this development. When Richardson told
him that Fox had left , Michels declared that there was
plenty of work for Fox to do,15 specifically that he could
have stayed and helped other employees make boxes up,
that there was always something to do . Michels stated to
Richardson and to other persons, "I don't need anybody
that works for me that I have got to go out and do his job."
As Michels testified , "It made me mad at that time to
figure I had a man to do this job and he decided that his
job was done that day and had told the leadman it was
done." Michels removed Fox 's timecard from the rack and
placed it on his desk intending to talk with Fox about what
had happened.
On Monday, January 10, Fox could not start work
because he found his timecard missing and had to wait for
Michels to arrive at the plant. Fox asked Michels if he had
been terminated . Michels said no, he only wanted to talk to
Fox about his conduct on Saturday , that there was a lot of
work to do and he did not appreciate Fox's leaving work
early. Michels told Fox that his timecard had been
removed because Michels wanted to talk with him 'before
he started work, explaining that from past experience this
seemed an effective way to make employees understand
what Michels expected and needed from them . He told
Fox to go back to work and he would write him in on the
timecard as being present at 7 a.m. At this point, to quote
Michels:
[Fox] said that he wanted to go talk to somebody. He
had been humiliated . He said he had been terminated
or fired . Again I repeated I would like him to go back
in and go to work ....[Fox] said he [was] going to go
talk to somebody. I said, [Fox] I can't force you to go
to work, but . . . if you want to go in and go back to
work, fine and dandy. And [Fox] walked out and went
to his car... .
Michels did not know what to do about Fox's refusal to
work. To compound his uncertainty, Fox during the course
of their conversation had indicated that he was a member
of the Union 's negotiating committee-which Michels
knew-and that this position protected his job . Michels
turned over Fox 's timecard to his superior , Samuel
Oxenreider, the Company's vice president in charge of
production, and explained what had taken place.
In the meantime Fox contacted the Union 's business
representative, Albert Blanton, and informed him of what
had taken place . Blanton phoned the company controller,
Frank Broughton, one of the Company's two bargaining
negotiators, and, as put by Blanton, asked him about the
"status" of Fox. Broughton who earlier had been informed
that Fox had walked off the job told Blanton he did not
know Fox's status but that he understood that Fox had
walked off the job or refused a job assignment.
The same morning, January 10, Fox phoned Michels at
the plant and asked him if he could return to work. Michels
replied that he could not give him an answer since Fox had
walked out and Michels had turned over his timecard to
Oxenreider.
The next day, January 11, Fox spoke to Broughton over
the phone , and asked if he had been terminated . Brough-
ton stated that the personnel office had no termination
notice for him but that they were wondering why he
walked off the job and advised Fox to talk to Oxenreider.
Fox replied that he had earlier phoned Oxenreider who
had not answered his page . Broughton pointed out that
Oxenreider a lot of times was out in the plant and could
not answer his page . The conversation ended with
Broughton trying to persuade Fox to let him transfer the
call to Oxenreider, and with Fox stating that he did not
14 Richardson did not know whether Fox had completed his assignments ' Respondent's production employees were apparently at that time
because Michels had assigned the work . working a 7-day week.
WEST AMERICAN RUBBER
want to talk with Oxenreider at that time , but would leave
things sit for a few days and see what happened.
To recapitulate, I find that on Saturday, January 8, Fox
left work early without the permission of his supervisor,
Michels, that Michels, motivated solely by this conduct,
removed Fox's timecard with the idea of warning him that
this type of conduct was not tolerable, that Fox on January
10 feeling humiliated by this treatment left work and the
next day refused to talk with the Company's vice president
in charge of production about returning to work. I further
find that Respondent on January 11 had not arrived at a
decision regarding Fox's status as an employee, in
particular whether to discharge Fox. In arriving at this
conclusion, I have considered the testimony of employees
Cooke and Sauvagean that on January 10 or 11 they were
told by leadman Richardson that Fox had been fired and
the testimony of employee Stauffer that a similar remark
was made to him by Foreman Brown. This testimony does
not refute Michels' credible testimony that he did not
discharge or notify Fox he was discharged. It is entirely
consistent with Michels' testimony that Fox's conduct on
January 8 made him mad and that he told Richardson and
others that he did not need employees like Fox if he had to
do their jobs . Because Michels by words and conduct
(removing the timecard) gave the impression to Fox and
others that he had fired Fox does not, however, in the
circumstances of this case, establish that in fact Fox was
terminated.
The General Counsel contends that on January 12 at the
end of a scheduled negotiation meeting Respondent
notified Fox that he was discharged. Respondent urges
that Fox on January 12 was asked by the Company to
return to work by the end of the day and failed to do so,
thereby voluntarily terminating his employment. Assuming
that the evidence supports the position of the General
Counsel, I cannot find that the record preponderates in
favor of a finding that it was Fox's union activities that
prompted Respondent to discharge him. I am persuaded
that the reason for Fox's discharge was that he left the
plant and refused to work on Monday, January 10.
Although the delay in informing Fox of his discharge from
January 10 to January 12 is a suspicious circumstance. I
am not willing to substitute suspicion for proof. A
reasonable inference for this delayjust as reasonable as
an inference of unlawful motivation-is that the Company
was concerned over the fact that by discharging Fox, one
of the leading union adherents, it would be subject to
charges by the Union that the discharge was motivated by
his union activities. In this connection, I note that
employee Perrin testified that on Monday, January 10,
Controller Broughton, in response to Perrin's inquiry about
Fox's status, stated to him that because of Fox's union
activities Broughton personally would check into what had
taken place because "he wanted to make sure everything
was on the up and up." Also, while the concurrence of the
discharge with Respondent's conduct described earlier in
this Decision, of soliciting and assisting employees to
resign from the Union , gives rise to suspicion, it does not
16 Such a connection is not established by the ambiguous statement
attributed by Union Representative Blanton to Company Negotiator
Becker made during negotiations on January 12; namely, that Becker "kind
99
amount to evidence of an unlawful motive capable of
overcoming the valid reason for Fox's discharge. Plainly,
an employer may discharge an employee for leaving and
refusing to work. I realize that an employer may not seize
upon such conduct to use as a pretext to justify a discharge
motivated by its animus toward the Union. Here however,
Respondent's man in charge of production, Oxenreider,
testified without contradiction that walking off the job was
a dischargeable offense and that the Company in the past
has in fact discharged employees for engaging in such
conduct. In addition, the record does not show a
reasonable inference of casual connection between the
Respondent's conduct designed to weaken the Union's
ability to wage a successful strike and Fox's discharge.16
There is no evidence that Respondent has exhibited the
type of hostility toward the unionization of its plant which
would indicate that it was prepared to discharge employees
for the purpose of discouraging union activity. Quite the
contrary, Respondent consented to a Board representation
election, did not engage in an unlawful antiunion cam-
paign in an effort to defeat the Union's organizational
campaign , and in particular is not charged with discrimi-
nating against either Fox or other prounion employees in
an effort to defeat the Union's organizational campaign.
Under all of the circumstances, I reach the conclusion that
even if Respondent on January 12 notified Fox he was
discharged that the discharge was not unlawful. I am
motivated by the factors set out above, but primarily that
Fox's act of leaving the plant and refusing to work was a
serious and substantial act of misconduct. The Company
may well have welcomed the excuse to discharge Fox and
the delay in the discharge reveals its awareness that the
legality of the discharge was open to question, but on
balance I conclude that Fox's objectionable conduct
caused his discharge and would have done so in the
absence of any union activity.
The foregoing is premised upon the contention of the
General Counsel that at the conclusion of the negotiation
meeting held on January 12 that Company Negotiator
Henry Becker notified the Union's negotiators, including
Fox, that Fox's employment had been terminated by the
Company-to quote Union Representative Blanton, Beck-
er stated: "Fox walked off the job. He no longer works for
the company and if he comes into the plant, the police will
be called .... " Blanton's testimony was substantially
corroborated by employee negotiators Fox, Cooke, Perrin,
and Hulsey . Blanton as well as Perrin and Hulsey who
were still in the Company's employ at the time of the
hearing gave me the impression that they were making a
sincere effort to testify truthfully and give an accurate
recollection of what took place at the end of the
negotiation meeting . However, equally impressive was the
demeanor of the Company's negotiators Becker and
Broughton, who testified in substance that based upon the
instructions of the Company's president, Eisenberg, that
Becker told the union negotiators at the close of the
meeting that Fox had until the end of the day to report
back to the plant and if he did not do so he would be, in
of laughed and says Fox dropped out of the Union so everybody is
dropping out "
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect, terminated from the Company's employment.
Eisenberg, who also impressed me as a credible witness,
corroborated Becker and Broughton's testimony. While
quantitatively the General Counsel's version has the edge, I
do not regard this factor as requiring acceptance of the
General Counsel's version of the facts where as here
Respondent's witnesses appear credible and I am present-
ed with no rational basis for preferring or attaching more
weight to the General Counsel's position. Under the
circumstances I conclude that the General Counsel has not
established by a preponderance of the evidence that
Respondent at the negotiating meeting of January 12
notified Fox that he was discharged. Cf. Blue Flash Express
Inc., 109 NLRB 591, 592.
IV. THE REMEDY
Pursuant to Section 10(b) of the Act, as amended, I
recommend that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found,
and in any like or related conduct , and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the
following:
CONCLUSIONS OF LAW
1. West American Rubber Co. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. United Rubber, Cork, Linoleum & Plastic Workers
of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By soliciting and assisting employees to resign from
the Union, by interrogating employees about their union
membership, activities, and sympathies and about the
union activities of their fellow employees, by threatening
employees with the loss of existing benefits of employment
if they engaged in a strike in support of the Union's
bargaining demands, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.17
(4) By soliciting and assisting employees to resign from
the Union for the purpose of weakening the Union, the
collective-bargaining representative of its employees, with
the foreseeable effect of obstructing the bargaining process,
17 In concluding that Respondent by the conduct of its supervisors has
violated Sec . 8(a)(l) of the Act , I have considered its contention that by
virtue of President Eisenberg 's letter to the employees of January 18 the
Company successfully disavowed the unlawful conduct attributed to its
supervisors . This letter which among other things informed the employees
that they were free to support or not support the Union without fear of
economic reprisals by Respondent was not sufficient to dissipate or disavow
any of the previous unlawful conduct directed toward the company's
employees . For, "it is well settled that statements of neutrality , couched in
general language, without any specific reference to, or repudiation of, the
poor unlawful conduct of the employer 's supervisory personnel do not erase
such prior unlawful conduct ." A P. Green Fire Brick Co. v. N.LR.B, 326
F 2d 910,914 (C.A. 8)
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Respondent has refused to bargain in good faith with the
Union in violation of Section 8(a)(5) of the Act.
(5) The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
(6) Respondent has not otherwise violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 18
ORDER
Respondent, West American Rubber Co., Orange,
California, its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Soliciting and assisting employees to resign from the
Union.
(b) Interrogating employees about their union member-
ship, activities, and sympathies and about the union
activities of other employees.
(c) Threatening employees with the loss of existing
benefits of employment if they engaged in a strike in
support of the Union's bargaining demands.
(d) Refusing to bargain with the Union by soliciting and
assisting employees to resign from the Union with the
intent to weaken the Union, the collective-bargaining
representative of its employees.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain in good faith with the Union as the exclusive
representative of its production and maintenance employ-
ees.
(b) Post at its plant in Orange, California, copies of the
attached notice marked "Appendix." 19 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by an authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places , including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced or covered
by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.20
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 21, in writing , within 20 days
from the date of this Order , what steps the Respondent has taken to comply
WEST AMERICAN RUBBER 101
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent
violated the Act otherwise than as found herein.
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions ,, the National
Labor Relations Board has found that we have violated the
National Labor Relations Act, as amended, and has
ordered us to post this notice.
WE WILL NOT solicit and assist you to resign from
United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO.
WE WILL NOT interrogate you about your member-
ship in the above-named Union or about your activities
or your fellow employees' activities on behalf of this
Union.
WE WILL NOT threaten you with the loss of existing
benefits of employment if you engage in a strike in
support of the above-named Union's bargaining
demands.
WE WILL NOT refuse to bargain in good faith with the
above-named Union by soliciting and assisting you to
resign from this Union with the intent to weaken the
Union, your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed to employees by Section 7 of the Act.
WE WILL bargain in good faith with the above-
named Union as the exclusive representative of our
employees in the appropriate bargaining unit.
WEST AMERICAN RUBBER
Co.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Eastern Columbia Building,
849 South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.