Goodyear Tire & Rubber Co.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goodyear Tire & Rubber Company Highway Trans- portation Department and International Union, United Automobile , Aerospace & Agricultural Im- plement Workers of America, UAW. Case 10-CA- 8284 April 26, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On November 30, 1970, Trial Examiner John F. Funke issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He further recom- mended that other allegations in the complaint be dis- missed. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and supporting briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent with the following. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(1) of the Act by unlawfully threatening its employees with reprisals for engaging in protected union activity in the following manner and circumstances:' The Respondent is engaged in providing tire check- ing and changing services for the Greyhound Bus Lines at the latter's Atlanta, Georgia, garage. The Respon- dent's five employees at the Greyhound facility are under the direction and control of James F. Porter who, as the Trial Examiner found, is a supervisor within the meaning of the Act. Porter is responsible to E. D. Tracy, the Respondent's district field manager. In December 1970, the Respondent in order to ac- commodate the needs of Greyhound agreed to change the existing two-shift schedules and to initiate 24-hour coverage, providing for roughly 3 equal shifts, 7 days a week. On December 22, when he became aware of the ' The Respondent has not excepted to these findings. 190 NLRB No. 15 new work schedule, employee John Jennings com- plained to Porter, explaining the hardships of working the third shift. Richard Dobbs, another employee, joined the conversation and complained to Porter about the unilateral manner in which the Respondent had decided to alter working hours without consulting the employees. Receiving no satisfaction, Dobbs then told Porter that he was going to seek union representa- tion because the employees needed a union in order to "have a say-so as to what hours we would work." Porter, according to the credited and uncontradicted testimony of Dobbs and Jennings, then replied that if the employees selected a union to represent them the Respondent would require them to punch a timeclock and pay their own insurance. Also, Porter declared that with the advent of the Union, employees would no longer be permitted to make up work previously missed. We agree with the Trial Examiner that the Respondent thereby interfered with its employees' Sec- tion 7 rights in a manner proscribed by Section 8(a)(1) of the Act. The Trial Examiner further found that the Respond- ent did not violate Section 8(a)(3) and (1) of the Act by discharging Dobbs. The Charging Party and the Gen- eral Counsel have filed exceptions to this finding. We find merit in these exceptions. Approximately a month after the December 22, 1969, incident, discussed above, in which the Respond- ent threatened reprisals for engaging in protected ac- tivities, the Respondent once again had occasion to change the employees' working hours and shift assign- ments. On January 26, Dobbs was ordered by Porter to work from 10:30 p.m. to 6 a.m., the third shift. Once again Dobbs complained to Porter about the unilateral manner in which the work schedules were initiated and implemented and, as before, told Porter that the em- ployees needed union representation and that he "was going to try to get a union in that place." Dobbs further stated that he planned to take up the matter of shift changes with District Field Manager E. D. Tracy, Por- ter's superior. On the following day, Dobbs went to Tracy's office to make known his complaints concerning Porter's schedule changes, to which Tracy replied that that was Porter's business. When Dobbs mentioned that under the circumstances the employees needed a union, Tracy, in Dobbs' words, "said that his recollection [was] that I had some trouble with [a] union on one of my previous jobs." Dobbs acknowledged that he could be discharged for his union activities, but that he would not resign-as Tracy suggested-and would not aban- don his efforts because he "was going to try to make it better for the next guy that was hired there." Although he was present and was called to testify, Tracy did not deny the above statements attributed to him by Dobbs. GOODYEAR TIRE & RUBBER COMPANY Two days later, on January 29, Dobbs went to the Charging Party's office, contacted a union representa- tive, and procured from him several authorization cards and pamphlets. In the course of the next few days Dobbs discussed the Union with his fellow employees and obtained authorization card signatures from all but one of them and returned the cards to the union agent. As stated above, Dobbs was discharged on February 9, but he did not become aware of the discharge until February 11, his next scheduled workday, when Porter informed him that he no longer was employed by the Respondent. When Dobbs asked for an explanation, Porter replied that he had been discharged for "lack of cooperation." When asked for details, Porter answered "this is all I got" and produced an office mailogram, dated February 9, signed by Tracy and addressed to Porter stating, "[a]fter talking to you this morning we are in agreement with your thought that Mr. Dobbs should be discharged due to his lack of cooperation with you and with Greyhound supervisors and his atti- tude in general as regards his work." Porter added that but for his "attitude" Dobbs could have been the best man in the system and that "he hated to see it happen." The only direct evidence the Respondent offered concerning Dobbs' alleged deficiencies comes from Tracy who testified that in major part the discharge was occasioned by complaints from Greyhound supervi- sors. In this regard, Respondent produced a letter dated January 30, addressed to Porter from Greyhound Garage Superintendent J. W. Carter relating that Dobbs, at a time unspecified, was observed talking for an hour with Greyhound employees when he should have been changing tires on a bus which was eventually removed from the schedule, and that the Respondent should take "whatever action necessary to correct" this situation. Although asked at several points in his tes- timony, Carter could not recall when this incident oc- curred. On the other hand, Dobbs testified that he was aware that sometime before his January 26 discussion with Porter about forming a union, discussed above, Carter had some complaint about his work and was writing a memo to Porter, but that Porter assured him that the whole matter had been settled. From the record it appears that the Respondent itself had no complaints with Dobbs' work performance and as grounds for the discharge relied almost wholly upon Carter's letter to Porter about a matter which, accord- ing to Dobbs' uncontradicted testimony, "had been taken care of' by Porter at least 2 weeks before the discharge. Aside from Carter's letter, Tracy admitted that the Respondent had only `=minor" complaints about Dobbs. Indeed, Dobbs testified that except for one incident shortly after transferring to the Respon- 85 dent's Atlanta facility he had never been reprimanded before being notified of his discharge.' Moreover, the circumstances surrounding the man- ner in which the discharge was handled require careful scrutiny. Tracy testified that whenever Greyhound had complaints about the Respondent's employees the mat- ter was referred to Porter who in turn discussed the matter with the employee involved in an effort to "get it straightened out." Furthermore, Tracy made it clear that when disciplinary action as serious as discharge was contemplated it was part of Porter's duties as a supervisor to speak to the employee involved and "he usually smoothe[d] out the problems." Therefore, as Porter did not testify and as Tracy had no further recollection on the matter, the record contains no evi- dence that, consistent with its usual practice, Dobbs was informed of alleged derelictions unless it is as- sumed, as Dobbs testified, that the Respondent through Porter had called Dobbs' attention to a complaint Carter had made but which was "taken care of' by Porter several weeks before the termination. Unlike the Trial Examiner, we find that the evidence, considered in its totality, presents a strong prima facie case to support the allegations in the complaint. As detailed above, Dobbs took an active part in presenting to the Respondent employees' dissatisfaction with the newly initiated work schedules and on three separate occasions advised the Respondent that the employees needed a union to represent them and that he person- ally would attempt to form one. At the outset, the Respondent sought to discourage such an effort by threats of economic reprisal. Nevertheless, Dobbs per- sisted and became the major proponent for unioniza- tion of the employees. Within a few days after contact- ing the Union, distributing authorization cards, soliciting support for the Union, and returning to the Union cards signed by a majority of the employees, Dobbs was terminated in a manner we must conclude constituted further evidence of the Respondent's un- lawful motivation. Thus, even if we assume that the letter of complaint written by Carter was not already settled weeks before Dobbs' termination, the Respond- ent, in acting upon that complaint and imposing disci- plinary action, failed to do so in accord with its estab- lished practice of notifying the employee of his derelictions, extending to him an opportunity to defend himself and attempting to settle differences especially where, as in Dobbs' situation, disciplinary discharge was contemplated. ' There was another incident occurring 3 weeks before the discharge where Carter apparently complained about Dobbs' failure to service a Grey- hound bus while it was being spray painted in the garage, but, as Dobbs explained, he had informed Porter of the circumstances and the fact that he was nauseated by the paint fumes and was told by Porter that he could leave work early. Carter did not deny that Dobbs' absence on January 22 was excused. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon a consideration of all the evidence presented, we find that the General Counsel has made out a prima facie case which imposed upon the Respondent the duty of going forward with the evidence and giving an adequate explanation of the discharge. The Respondent offered insufficient evidence to dissipate the unfavora- ble inferences to be drawn from the General Counsel's evidence.' Accordingly, we find that the Respondent's discharge of Dobbs on February 9, 1970, was moti- vated not by the reasons stated but by its hostility to his union activities as the prime union proponent as alleged in the complaint, and that the Respondent thereby vi- olated Section 8(a)(3) and (1) of the Act. 3. By telling its employees that they would have to punch a timeclock, pay for their own insurance, and would not be able to make up for lost time if the Union came in, Respondent violated Section 8(a)(1) of the Act. 4. By discriminatorily discharging Richard Dobbs, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. ORDER THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in addition to those found by the Trial Examiner , we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Unlike the Trial Examiner, we have found that the Respondent discharged Richard Dobbs in violation of Section 8(a)(3) and (1) of the Act. Accordingly, we shall order that Dobbs be offered immediate and full reinstatement to his former position or, if that position no longer exists , to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and be made whole for any loss of pay suff- ered by reason of the discrimination against him. Loss of pay shall be computed as prescribed in F W. Wool- worth Company, 90 NLRB 289, and interest on such backpay shall be computed at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. We shall also order that the Respondent make available to the Board , upon request, payroll and other records in order to facilitate the checking of the amounts of backpay due. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. ' As noted in the Trial Examiner 's Decision , Porter was present through- out the proceeding but was not called as a witness and no reason for his failure to testify was offered . As Porter was in a position to refute much of Dobbs ' testimony, if it were inaccurate, we may under the circumstances infer that the testimony would be unfavorable to the defense of the Respon- dent's discharge of Dobbs. Monahan Ford Corporation of Flushing, 173 NLRB No. 37; United Mineral & Chemical Corporation, 155 NLRB 1390. Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Goodyear Tire & Rubber Company Highway Transportation De- partment, Atlanta, Georgia, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees they would have to punch a timeclock, pay their own insurance, and would not be able to make up for lost time if the Union came in. (b) Discouraging membership in International Un- ion, United Automobile, Aerospace & Agricultural Im- plement Workers of America, UAW, or any other la- bor organization, by discharging or otherwise discriminating against employees in regard to their hire or tenure of employment or any other condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form , join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Richard Dobbs immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Forces, in accord- ance with the Selective Service Act and the Universal Military Training and Service Act. (c) Make whole the above-named employee, in the manner set forth in the section herein entitled "The Remedy," for any loss of pay and benefits he may have GOODYEAR TIRE & RUBBER COMPANY suffered by reason of the Respondent's discrimination against him. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and other data necessary to give effect to the backpay requirement. (e) Post at its places of business in Atlanta, Georgia, including the tire shop operated by it in the Greyhound terminal, copies of the attached notice marked "Ap- pendix."' Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. In the event that this 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our employees that they will have to punch a timeclock if the Union comes in. WE WILL NOT tell our employees they will have to pay for their insurance if the Union comes in. WE WILL NOT tell our employees they will not be able to make up for time lost if the Union comes in. WE WILL NOT discourage membership in Inter- national Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, or any other labor organization of our em- ployees, nor will we in any other manner discrimi- nate against them with respect to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of their rights to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activi- 87 ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to Richard Dobbs immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position , without prejudice to his seni- ority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. GOODYEAR TIRE & RUBBER COMPANY HIGHWAY TRANSPORTATION DEPARTMENT (Employer) Dated By (Representative) (Title) We will notify immediately the above-named in- dividual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street NE., Atlanta, Georgia 30308, Telephone 404- 526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge filed April 13, 1970, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein UAW, against Goodyear Tire & Rubber Com- pany, herein the Respondent, the General Counsel issued complaint alleging Respondent violated Section 8(a)(1) and (3) of the Act by threatening its employees with reprisals if the UAW was successful and by discharging Richard O. Dobbs because of his membership in and activity on behalf of the UAW. The answer of Respondent denied the commission of any unfair labor practices. This proceeding with the General Counsel and the Re- spondent represented, was heard by me at Atlanta, Georgia, on October 26, 1970. At the conclusion of the hearing the parties were given leave to file briefs. No briefs were received. Upon the entire record in this case and from my observa- tion of the witnesses while testifying, I make the following: 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and I find the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The UAW is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES 1. Violations of Section 8(a)(1) Richard O. Dobbs, a former employee of Respondent and the alleged discriminatee in the case, testified that in Decem- ber 1969, he went to his supervisor, J. M. Porter, and com- plained about shift changes. At this time Porter was one of five employees working at the Greyhound garage for Good- year where they were engaged in changing tires on the Grey- hound buses. Porter was in charge of this group. Dobbs told Porter the employees needed a union and was told by Porter that if they had a union they would have to punch a time- clock, pay their own insurance, and could not make up a day lost because they were out. This testimony was corroborated by that of John B. Jennings, a former employee who had been employed by the Respondent at that time and who overheard the conversation. Porter did not testify.' 2. Violations of Section 8(a)(3) Dobbs testified that he was the sole pusher for the UAW at the Greyhound shop and that he first contacted the Al- liance for Labor Action and tried to get cards signed by the other employees at coffeebreak.' He also contacted a Mr. Chamlee of the UAW, who gave him authorization cards and testified that four of the five employees signed the cards. After his conversation with Porter in December Dobbs complained again on January 26 about schedule changes and told Porter he was going to see E.D. Tracy, district field manager for Respondent, whose office was on the other side of town. He complained to Tracy about shift changes and told him they needed a union to let them know when they were going to work. Tracy told him Porter was running the Greyhound operation and that he had nothing to do with it. On February 11 Dobbs reported for work at 1 p.m. and was met by Porter who said he wanted to speak to him. Porter then told him that as of last Monday (February 9) he did not work there anymore and, when asked for a reason, was told it was because of Dobbs' attitude toward Greyhound officials. He then showed Dobbs a copy of a piece of writing which read, according to Dobbs, "In regards to your request that Richard O. Dobbs be discharged, it is hereby granted." It was signed by E. D. Tracy. That summarizes his discharge inter- view. Prior to this discharge (the date is not fixed) Dobbs testified that Porter told him that Jon W. Carter, superintendent for Greyhound, was going to write a letter to Goodyear, presum- ably complaining of Dobbs' work, but that he (Porter) had taken care of it. Dobbs never saw this letter nor was any other explanation given him. ' I find Porter a supervisor within the meaning of the Act. He was the sole person in charge of the Greyhound operation. According to Jennings, Porter trained him in the job, was in charge of shipping and receiving, checked his time slip, scheduled the work, and gave him permission to take time off when he requested it. This testimony was corroborated by Dobbs who also tes- tified that Porter was the one that handled their grievances. 2 Dobbs testified that he went to the Alliance on January 29. Dobbs testified to one run-in with Carter. On January 22 the shop was being spray painted and the fumes were bother- ing Dobbs who reported it to Porter. Porter told him to go home and he did, suffering from nausea. The next day Carter asked him why he had refused to work and Dobbs told him he had not refused to work but that the fumes made him sick and the shop was unsafe at the time. Carter then told him he had heard Dobbs was not getting along with other people at Greyhound and that the next time he would bar him from Greyhound property. Dobbs told him to put it in writing, which ended the conversation. For the Respondent, Tracy testified that Dobbs was dis- charged in February because they had had several complaints from foremen working for Carter concerning Dobbs and had received a letter from Carter on January 30 complaining of him.' At that time Goodyear had a man in training for the tire shop and it was felt that its relations with Greyhound were deteriorating because of Dobbs. It was determined to fire Dobbs at this time but to hold him until the trainee completed his training. John Carter testified concerning the events leading to the letter of January 30 and its attachment' as follows: A. Well, it was complaints that I was receiving from my supervisors about this employee, which they had documented and handed in to me. One thing, I mean stopping employees from working was one of the main things that I was concerned about; and then on one occasion I observed the employee when he was outside talking outside and had the tire room, for which he was responsible for, tied up. We had a bus come in on a schedule that we had to pull because he had not com- pleted the job he was on, and which I think he could have done during the time he was talking. This is the main thing that I came across. 3. Conclusions as to Section 8(a)(1) Since Porter did not appear as a witness' and Dobbs gave every indication of being a credible witness, I credit his tes- timony as to conversation with Porter on or about December 26, 1969. In that conversation Porter told him that if the Union came in they would have to punch a timeclock, pay for their own insurance, and would not be able to make up for time lost. Each of these statements I regard as a threat of reprisal against the employees for selecting a union to repre- sent them and a violation of Section 8(a)(1). 4. Conclusions as to Section 8(a)(3) The simplest conclusion to be drawn from the record in this case is that no firm conclusion may be drawn. The evi- dence is equally scant to support a discriminatory motive or to support a lawful discharge for cause. The credible tes- timony of Dobbs is that he was a good employee for a period since October 1967. In December 1969, he complained to Porter about shift changes and mentioned the need for a union, a complaint and a need he mentioned again to Tracy on January 27. On February 9 he was discharged allegedly because of complaints received from Carter of Greyhound, complaints supported by the testimony of Carter. It is not for the exam- iner or the Board to measure the gravity of the penalty against that of the offense. With little else for guidance I would find that the General Counsel has not sustained his burden of ' Resp. Exh. 2. ' The attachments were excluded as hearsay. ' Porter was present in the hearing room during the hearing. GOODYEAR TIRE & RUBBER COMPANY 89 proof, a finding which finds some support in the following factors: (a) There is no evidence of animus or hostility on the part of Respondent toward the Union.' (b) The unit w4s microscopic in size compared to the over- all operations of the Respondent and therefore void of impact upon its overall labor policy. (c) The discharge was provoked, not by Porter, who was aware of Dobbs' prounion sentiments, but by the complaints of a third party not presumably interested in Dobbs' senti- ments but only in the job performance on the part of Re- spondent and its tire shop employees. In short I find Respondent did not violate Section 8(a)(3) and (1) of the Act by its discharge of Dobbs. 6 The remarks of Porter, a minor supervisor, found to have been in viola- tion of the Act were directed to what he thought would be the unfavorable consequences of unionization There was no expression of antiunion com- pany policy and the opinion appears to have been a personal one. IV THE REMEDY Having found Respondent engaged in certain unfair labor practices it will be recommended that it cease and desist from the same and take certain affirmative action necessary to effectuate the policies of the Act. Upon the foregoing findings I make the following: CONCLUSIONS OF LAW 1. By telling its employees that they would have to punch a timeclock, pay for their own insurance, and would not be able to make up for lost time if the Union came in, Respond- ent violated Section 8(a)(1) of the Act. 2. Respondent did not violate Section 8 (a)(3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]