Gates Rubber, Inc.

GATES RUBBER, INC. 739 Gates Rubber, Inc. and Local Union No. 670. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC. Case 26-CA-4154 October 16, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 31, 1972, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings,2 and conclusions' of the Adminis- trative Law Judge and to adopt his recommended Order,4 except as modified herein. 1. The Administrative Law Judge found, and we agree, that Respondent suspended, and thereafter dis- charged, employee Donald Copass, president of the Union, and chairman of the grievance committee, in violation of Section 8(a)(3) and (1) of the Act.' 2. The Administrative Law Judge also found, and we agree, that Respondent violated Section 8(a)(5) of the Act by refusing to recognize Copass as the Union's representative; by refusing to negotiate with Copass as chairman of the grievance committee; by refusing to negotiate with Copass on all matters rela- ting to the collective-bargaining agreement; and by refusing the Union's requests for information neces- sary to process grievances. Respondent admitted that it refused to deal with Copass as chairman of the grievance committee, but claimed it was not legally obligated to do so since Copass was no longer an employee, and that the chairman was required to be an employee by the terms of the agreed-upon griev- ance procedures .6 In refusing to accept Respondent's defense that the language of the agreed-upon griev- ance procedures supported its position, the Adminis- trative Law Judge interpreted the agreement in a manner contrary to Respondent's assertions, and found that the president of the Union was a mandato- ry member of the grievance committee and that only a stand-in for the president was required to be an employee. While we agree with the Administrative Law Judge's result that Respondent violated Section 8(a)(5) by refusing to deal with Copass as chairman of the grievance committee, we find it unnecessary to pass upon or adopt the Administrative Law Judge's interpretation of the agreed-upon grievance proce- dures. Instead, we find that Respondent acted at its peril in claiming that Copass could no longer act as chairman of the grievance committee under the terms of the agreement following his suspension and dis- charge. Since Copass was discharged in violation of the Act, it follows that he at all times remained in the status of an employee and, even assuming Respondent's interpretation of the agreement was correct, Respondent was obligated to negotiate with him as chairman of the grievance committee' ORDER i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. 3 The Respondent contends, inter alas, that it should be awarded costs and attorney fees because of the frivolous position taken by the Charging Party. In view of our disposition of this case , we find no merit in this contention. 4 The General Counsel has excepted to the Administrative Law Judge's failure to recommend a broad order which would restrain Respondent from in any other manner engaging in conduct violative of the Act. We find merit in this exception. As an unlawful discharge goes to the very heart of the Act, we shall modify the Administrative Law Judge' s recommended Order to include a broad cease-and-desist order and shall conform the notice accord- ingly. 3 Chairman Miller agrees with his colleagues that Respondent violated Section 8(axl) of the Act by suspending and later discharging Donald Co- pass for engaging in protected activity when he protested lack of union participation in the United Givers Fund campaign. However, Chairman Miller would find it unnecessary to reach the 8(a)(3) allegations . Resolution of that issue would in no event affect the remedy. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, Gates Rubber, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so mod- ified. 1. In paragraph 1(d) of the Administrative Law Judge's recommended Order, delete the words "In 6 The pertinent provisions of the grievance procedures considered by the Administrative Law Judge are set out in his Decision. 7 The General Counsel excepted to the Administrative Law Judge's dis- missal of an additional allegation of 8(aX5) violation While we do not accept the Administrative Law Judge 's reasons for dismissing that particular allega- tion, we deem it unnecessary to decide whether Respondent engaged in the alleged unlawful conduct . The additional allegation is similar to and encom- passed within the scope of the violations of Section 8(a)(5) of the Act which we have found and, if found, would, in any event, not enlarge the scope of our Order. 199 NLRB No. 108 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any like or related manner ... " and substitute in lieu thereof the words "In any other manner ...." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government cordance 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 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. The National Labor Relations Board having found, after a trial, that we violated Federal law by suspend- ing and firing Donald Copass, by not recognizing and negotiating with him as union president and chairman of the union grievance committee, and by not answer- ing the Union's requests for information needed to process a grievance: WE WILL offer Donald Copass full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent one, and pay him for earnings lost as a result of his suspension and termination, plus 6-percent inter- est. WE WILL, upon request, bargain collectively with Local Union No. 670, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, and recognize and negotiate with Donald Copass as the president and chair- man of the grievance committee of that Union, and WE WILL answer requests of that Union for information needed to process grievances and furnish such information. WE WILL NOT refuse to bargain collectively with that Union. WE WILL NOT suspend, discharge, or discrim- inate against any employee in order to discour- age membership in that Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Relations Act, as amended. GATES RUBBER, INC (Employer) Dated By (Representative) (Title) We will notify the above-named individual, if pre- sently 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 ac- TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Trial Examiner: This is a pro- ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended (herein called the Act), arising from charges filed November 1, 1971, by Local Union No. 670, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC (herein called the Union) against Gates Rubber, Inc. (herein called the Company or Respon- dent). Based on these charges a complaint issued December 10, 1971, alleging that the Company had committed unfair labor practices in violation of Section 8(a)(3), (5 ), and (1) of the Act. The Company filed an answer admitting some allegations of the complaint, denying others, and denying that it had committed unfair labor practices. The spring from which this litigation flows is the sus- pension and discharge of employee Donald Copass, the umon president. The complaint alleges that the Company acted for discriminatory reasons. The Company contends it had good cause. The complaint also alleges that after the termination the Company refused to recognize and deal with Copass as umon president and as chairman of its griev- ance committee, and that when he submitted a grievance because of these refusals, the Company rejected the griev- ance. The Company denies it has refused to recognize Co- pass as union president or deal with him as such or improperly rejected his grievance. But it admits that it has refused to negotiate with him as chairman of the grievance committee, its position being that he could not be so recog- nized after his employment ceased. The complaint also al- leges that the Company unlawfully withheld from the Union the contents of Copass' personnel file which were necessary in processing a grievance based on his suspension and discharge. The Company position is that it furnished no material from his file because nothing in it related to his suspension and discharge. In its posthearing brief Respondent moves for an award of attorney's fees and costs against the Union on the ground that this litigation is frivolous, citing Tzidee Products, Inc., 194 NLRB No. 198. The motion is denied. In my view, the litigation is not frivolous. The case was tried before me at Nashville , Tennessee, on February 14 through 18, 1972. At the conclusion of the GATES RUBBER, INC. evidence Respondent renewed an earlier motion to dismiss the complaint because of insufficient evidence to sustain a finding of a violation. Having reserved ruling, I now deny that motion except as noted hereinafter . As detailed below I find that the Company has violated Section 8(a)(3), (5), and (1) of the Act. Upon the entire record, my observation of the witness- es, and consideration of the briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS I THE EMPLOYER INVOLVED Respondent is a corporation with its principal corpo- rate offices at Denver, Colorado, and plants located in vari- ous States, including the plant (involved in this case) at Nashville, Tennessee, where it manufactures and sells auto- mobile and truck tires. From this plant, in which it employs approximately 500 persons , it annually ships to places out- side Tennessee products valued at over $50,000. It is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a local labor organization affiliated with the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, an International labor organiza- tion. Its membership (and until the termination of Copass, its officers) consisted entirely of employees at the Company's Nashville plant. It is a labor organization within the meaning of Section 2(5) of the Act. The unit of employ- ees which it represents includes all production and mainte- nance employees and millroom batch control employees at Respondent's Nashville, Tennessee, location, excluding all office-clerical employees, professional and technical em- ployees, technical compounders, watchmen, guards and su- pervisors as defined in the Act. This unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. The Union has been the exclusive representative of these employees since March 12, 1962, when the Board certified it. Following certification the Company and the Union executed a series of collective- bargaining agreements, the most recent effective for the period June 15, 1968, to June 14, 1971. In anticipation of the expiration of this agreement the Company and the Union began negotiations in April or May 1971 resulting about July 3 in agreement on new terms and conditions of employ- ment which are now in effect but which at the time of the hearing were not incorporated in a signed agreement. On June 15, with the expiration of the old agreement, the em- ployees went on strike. Although no contract was signed after the strike, the parties have followed the established grievance procedure agreed upon in the bargaining. Under this system the union representatives on the grievance com- mittee include the union president, a vice president, a stew- ard, and the aggrieved employee. III THE ALLEGED UNFAIR LABOR PRACTICES 741 A. Suspension and termination of Donald Copass 1. His employment and union positions Donald Copass, a tire builder, was employed by the Company from April 24, 1963, until his discharge on Octo- ber 18, 1971. His work record was good, he having received only one written reprimand, back in 1966, regarding an entry on his timecard. However, the Company removes all written reprimands from an employee's personnel file after 1 year if there has been no repetition . In terminating Copass the Company did not base its decision on the 1966 repri- mand or on any material contained in his personnel file. In October 1967 he became president of the Union, a position which he still holds, and to which he was reelected on October 2, 1971 (less than 2 weeks before his suspen- sion), for a third term running to October 1974. He is also the Union's business manager, chairman of its grievance committee, and has served as union treasurer, a member of its negotiating committee, a member of its executive board, and as a shift steward. 2. The United Givers campaign The parties agree that Copass was suspended on Octo- ber 13, 1971, and terminated on October 18. The decision to terminate him was made on October 13 by Plant Manag- er Lee Mitchell and other managerial personnel assisting him at the Nashville plant, subject to veto by higher man- agement in Denver . Pending final affirmation or rejection of this decision, Copass was suspended. Management decid- ed to suspend him because it was felt he had interfered with management plans to launch a United Givers campaign (hereinafter UGF), a purely management function, and that for this reason alone his termination was warranted. He was so advised at the time of suspension as well as by the denial of a grievance based thereon. The UGF campaign was an annual event at the Nash- ville plant. The purpose of such campaigns was, of course, to stimulate as many persons as possible to contribute as much money as possible . According to UGF and company officials, the most effective device in achieving optimum results was the authorization by employees of regular pay- roll deductions for the benefit of UGF. In the past the Company had cooperated in administering a payroll deduc- tion plan and was prepared to do so in this campaign. The kickoff for the current UGF campaign at the Com- pany was planned for October 13, 1971. Once in late Sep- tember and again in early October Charles Wright, personnel and labor relations manager at the Nashville plant, invited Copass to be cochairman with him of the UGF campaign. According to Wright, Copass flatly reject- ed these invitations. Just why he refused is not entirely clear. Copass' general attitude regarding UGF was that in the past the Union had not been brought sufficiently into the plan- ning and implementation of the campaigns , nor had it re- ceived adequate credit for assistance which it and its members gave UGF. He testified, "we have not been per- mitted to attend all the kickoff luncheons and progress re- 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ports to UGF. The only time the Company has solicited our help was when they wanted to collect the money, but they didn't want us to participate otherwise." When asked if he had discussed this with Company officials, he testified, "Yes, Mr. Wright asked me if I would be co-chairman of two departments for the purpose of collecting the money and I told him under the circumstances, I did not want to be co-chairman if we were not permitted to participate fully in this program." When asked the extent of union participa- tion desired, he stated, "We wanted to participate by attend- ing the kickoff luncheons, the progress report luncheons; then to have our committee to be equally recognized with the Company as being a responsible group of people that had the interest of the community and not just contacted for the purpose of collecting the money and not receiving any credit." He testified he advised Wright of this position prior to his suspension, but did not indicate precisely what he said, or when. I infer from Wright's testimony that they spoke only briefly about Copass as a possible cochairman. Considering the importance of the campaign and the func- tion of both men in plant labor-management relations, it is inexplicable that they did not pursue the matter further before proceeding on separate courses. At any rate, plan- ning for the campaign in the plant remained exclusively in the hands of management, specifically Wright, and Copass resented this one-sided arrangement. To start off the campaign Wright arranged a meeting on October 13 in the plant conference room of selected management personnel whom it was hoped would work in the campaign. At Wright's request UGF headquarters sent out a volunteer worker, James Webb, to address the group. They also provided a UGF promotional film, together with projection equipment, to be shown to this group. It was Wright's plan (which was not conveyed to the employees or the Union) to then set up the projector in the plant cafeteria on a 24-hour basis so that all employees who cared to could view it. UGF designated one of its officials, Edwin Bryan, to bring the film and equipment into the plant on October 13 and show it to the assembled group. Bryan, for several years a full time employee of UGF but previously a representative of the Communications Workers of America, was respon- sible for UGF's liaison with labor in Nashville. Bryan de- scribed his mission as that of the go-between from UGF agencies to the unions to create a better atmosphere for giving and to enhance knowledge of, and participation in, the UGF agencies. On the evening before he was to show the film he telephoned Copass at home advising him that he was to show the film to Gates employees the next morning and would like to talk with Copass upon his arrival. According to Copass, he told Bryan he was not aware the film was to be shown and that he had no objection to Bryan showing it. According to Bryan, whom I credit, Copass also said he did not know what the Union's position was on UGF this year, that the Union was having some problems being rec- ognized for its work in the campaign. About 7 the following morning (October 13) produc- tion manager John Smith approached Copass at his work station. In the conversation which ensued Copass told him that Bryan had called him at home to clear the showing of the film. Smith indicated surprise Bryan had called Copass about a film to be shown to management. Copass then explained that Bryan "was the labor representative with UGF" and that he (Copass) had considered stopping him from showing the film. Smith characterized this as petty. Copass agreed, but said he was tired of being bypassed on this matter of UGF; that the Union contributed all the money and got no credit for anything at all, and that he was pretty upset about it. Smith asked him not to do anything rash and he promised he would not. Also during the morning of October 13, Copass tele- phoned Wright inquiring if he was showing the UGF film to management people that morning, and if so, why he had not checked with Copass before scheduling the film. Wright declared it was not necessary to check with him because the meeting was strictly designed for management personnel. But he did confirm that the showing of the film was to be the kickoff of the plant UGF campaign. At the start of his shift that morning Copass had ob- tained advance permission from his foreman to leave his work to make telephone calls and to take care of other union business. Somewhat later he went to the front of the plant, made some telephone calls, and observed Bryan entering the plant. He met Bryan at the front door. Bryan asked if Copass was going to see the film. Copass replied that he was not, that Wright had informed him it was to be shown only to office personnel. Bryan observed that if only office peo- ple were to see the film he did not have any business being there. Bryan testified that in this conversation Copass did not threaten to boycott the UGF campaign nor did he tell him that the Union would take adverse action if he showed the film. After talking with Copass he proceeded into the plant to confer with management. Because of his conversation with Copass at the front door Bryan decided it would be better if he did not show the film to the assembled management group. He conveyed his views to company management and to Webb, indicating there would be a problem with the Union if he did. Webb testified that Bryan reported Copass' view that there had been insufficient union involvement in planning the UGF campaign. Bryan indicated his willingness to leave the film and to set up the projector. It was jointly decided, in the circumstances, not to show the film. Webb addressed the meeting briefly, after which it was adjourned and further programming of the UGF campaign was postponed to some future time. Frustration of the kickoff meeting was embarrassing and upsetting to management, particularly to Wright and to Plant Manger Lee Mitchell. As noted earlier, Copass was fired because he caused this development. Specifically, ac- cording to Wright, the Company took action against him because he informed Bryan the film showing was for divi- sion and department managers only, asked him not to show it to such a group of managers because union people were not involved in the showing, and suggested the possibility that he (Copass) and the Union might boycott the campaign if Bryan went ahead with the showing to management, and because Bryan agreed with him. In this litigation the company position is that the UGF meeting of October 13 was a purely management event of no concern to Copass or the Union. Consequently, his inter- GATES RUBBER, INC. 743 vention was an unjustified interference with a purely man- agement function. Actually management's attitude had not been so purist because Wright had earlier invited the union president to participate as a cochairman of the campaign. Moreover, it is patent that for the campaign to be successful the bulk of the contributors must necessarily have been bargaining unit employees represented by the Union. Fur- ther, the specific object of the campaign was to persuade as many of these employees as possible to authorize the Com- pany to deduct from their pay regular contributions to UGF. Thus, the campaign would have a direct bearing on the net take-home pay of unit employees, a normal subject of union concern, apart from any desire of union officials to garner kudos for participating in the campaign. In these circumstances, for the union president to take a position involved the Union in a dispute with manage- ment. When Copass left his work station on the morning of October 13 for the purpose, among others, of meeting Bryan, he was excused to perform union business . His influ- encing of Bryan on a matter of interest to the employees and the Union, and in protest of what he considered the inad- equate roll allowed the Union, was protected activity under the Act. See Red Top, Inc., 185 NLRB No. 138 ; Socony Mobil Oil Co., 153 NLRB 1244, enfd. as modified 357 F.2d 662 (C.A. 2); N.L.R.B. v. Peter Cailler Kohler Swiss Choc- olate Co., 130 F.2d 503 (C.A. 2). The fact that his interven- tion was unacceptable, and the results thereof embarrassing, to management is beside the point . Protected activity is not defined by what management thinks is desirable. As shown by the testimony of Wright, the Company was first of all motivated to suspend and later discharge Copass because he protested the film showing to manage- ment without involving union people, and, according to the Company, enforced his protest by threatening a union boy- cott of the campaign . But when he was terminated on Octo- ber 18 he was handed a letter stating the reasons for discharge as follows: (1) Your overall record of anticompany attitude and behavior culminating in an incident of unjustified and unwarranted interference with strictly manage- ment business, (2) Obtaining time away from regular job under false pretenses to create incident referred to above. I view the second ground stated as a legalistic afterthought. He had permission to be away for telephone calls and union business. Whether he engaged in false pretenses turns on whether he was performing union business . I find he was. This had nothing to do with his work. Nor did it involve any interruption or interference with production. Because his intervention was a protected activity and it was the reason he was suspended and fired, it is clear he was suspended and fired because he engaged in protected activity. This discrimination on its face discourages mem- bership in the Union and is an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. Motive is not in dispute here. The Company intended to discourage the conduct Copass engaged in. If, as I find, it was protected activity, the Company committed an unfair labor practice in suspending and firing him. N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 228-229; N.L.R.B. v. Peter Cailler Koh- ler Swiss Chocolate Co., supra. In support of its contention that Copass was interfering with a purely management function Respondent cites, among other cases, Pathe Laboratories, Inc., 141 NLRB 1290, where a union steward ordered employees to alter long established work practices which he considered con- trary to the collective-bargaining agreement. When these orders were countermanded by a supervisor, a quarrel re- sulted. The steward was then discharged for insubordina- tion and for threatening the supervisor. It is this last aspect which distinguishes Pathee from the present case. Here the UGF incident for which Copass was discharged involved no conduct such as insubordination or threats to a supervisor. He was discriminated against only because he engaged in what management considered to be its exclusive preroga- tive. Although the facts in Pathe are close to the present case, the differences noted warrant a different result. 3. Other alleged misconduct of Copass Although his conduct with respect to the UGF cam- paign was the reason Copass was suspended and fired, be- tween his suspension on October 13 and termination on October 18 while company headquarters in Denver was considering whether to veto or affirm the Nashville decision to terminate, Nashville management, at the suggestion of Denver, enlarged its investigation of his past conduct for the purpose of marshalling additional derogatory data to sup- port a discharge. Although there was no such derogatory information in his personnel file, this investigation turned up what management claims is derogatory information, including the items detailed hereinafter. None of this was told him at the time of suspension or discharge; he learned the details at the unfair labor practice hearing. a. Threats Sometime in 1968, according to John Spalding who was then an official in the company's industrial relations department, Copass, while representing an employee at a grievance hearing, became angry and shook his finger in Spalding's face, threatening him that he had better not cross his path outside the plant. It is questionable how seriously Spalding took the threat because at times after this incident he and Copass saw each other socially. Some hearsay evi- dence also indicates that another incident occurred in Feb- ruary 1971 when Copass similarly threatened a supervisor named Pat Boyle. He was not disciplined for either incident. A former supervisor, Horace Drake, also testified he had reprimanded Copass in 1968 for threatening another employee with loss of his job because he was circulating a petition impugning the validity of a strike vote, but that Copass was not otherwise disciplined. b. Other misconduct at grievance hearings On some other occasions Copass had become angry or used strong language while meeting with management re- garding employee grievances. For example, sometime in 1970 he was himself a grievant on the question of his being excused from work for union business. At the grievance hearing he used intemperate language. On another occasion 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in February 1971 an employee named Wilkinson, who was discharged for sleeping on the job , was called to the person- nel office and fired. Both he and Copass, who accompanied him, were angered by this development. Copass called the management officials present all bastards . No action was taken against him for this. c. Time studies Copass would not cooperate. Instead he asserted that if there was a drug problem, unit employees were not involved but rather supervisors. Management considered his reaction another indication of an uncooperative attitude. Copass de- nied he refused to cooperate. He said he pressed an investi- gation on his own and that he had a further discussion about the problem with Production Manager Smith. I credit Co- pass. Incentive rates for various jobs in the plant were con- stantly being reassessed and adjusted by timestudy engi- neers. Following management timestudy of a particular job, the practice was to automatically adjust the incentive rate in accordance with the results of the study. Up to that point the Union had no part in the adjustment process. Under Copass the Union protested most, if not all, adjustments in incentive rates. Under established practice and contract procedures a joint company-union timestudy was then called for. Arrangements for these joint studies were usually delayed because, among other reasons, the Union used timestudy engineers from its International who were not always available. In 1971 during such a rate dispute Copass informed the Company he was giving a 60-day strike notice which he was going to continue to hold over management's head. The contract, in certain circumstances, allowed strikes in protest of incentive rates. Copass frequently de- clared his intention to protest every company change in incentive rates. Respondent was unhappy about the delays in the adjustment of incentive rates and uneasy over the continual strike threat. In April 1970, when the Union and the Company were conducting a joint timestudy of a tire building machine, Copass was present as a union observer but not as a partici- pant in the study. During the study he went to the back of the machine and set the brake on the machine, which had the effect of increasing the time consumed in the operation under study. He was observed by a management official who followed him and who then reset the brake to its nor- mal position. Copass was not reprimanded or disciplined or even told that he was observed. He denied he tampered with the machine, but I do not credit his denial. d. Warehouse incident About 6 months prior to the UGF incident in October 1971 Copass, without prior permission of the warehouse supervisor, had gone to the warehouse during working hours to investigate a grievance. In the process he interrupt- ed the work of warehouse employees. When the warehouse supervisor objected to this interference without having ob- tained prior permission from management, Copass replied in a manner indicating that he would ignore company rules. He was not disciplined because of the incident. e. The drug problem During the recent past management had reason to believe drugs were being distributed in the plant, but it was not known who was involved. Plant Manger Mitchell testi- fied he called Copass for the purpose of discussing a joint union-company approach to the problem. According to him f. Instructing employees to punch out during contract negotiations Another company complaint against Copass was that in July or August 1971, while the parties were engaged in contract negotiations which Copass felt were proceeding in unsatisfactory manner, he instructed plant employees to punch out prior to their quitting time. No one followed his instructions and there was no loss of production, but man- agement considered the incident indicative of his attitude. g. Alleged sabotage of construction equipment During 1971 contract negotiations the Company was having a cooling system constructed. The work was con- tracted out to a contractor who kept various equipment on the jobsite inside the chain link fence enclosing the plant facilities and, theoretically at least, under the surveillance of Respondent's 24-hour guard service. During part of this period Respondent's employees were on strike but the con- tractor and his employees continued to work. After the strike ended some unexplained damage occurred to the contractor's equipment. To Respondent's management it appeared to be sabotage and Plant Manager Mitchell in the course of negotiations sought the assistance of the,Union concerning the problem. According to Mitchell, Copass de- clined, asserting that no unit employees were involved and that instead the problems were the fault of the management and the contractor. Mitchell considered this a further exam- ple of his lack of a cooperative spirit. Copass denied the Union refused to cooperate. He testified they agreed to cooperate, stated that the Union did not condone destruc- tion of property, and, that if there was evidence, action should be taken against those responsible. I credit the more specific version of Copass. h. The company picnic A company picnic for all employees was an annual event. In connection with the 1971 picnic the personnel office invited, in addition to all company employees, the employees of Queen's Security Service and Queen's Janito- rial Service who provided those services to the Company. Many of these were blacks. They had continued to work during the 1971 strike. Wright testified that Copass discour- aged company employees from attending because they were invited, but Wright apparently had no direct knowledge of this. Wallace Fox, an employee of Respondent and a mem- ber of the Union, testified that in connection with the picnic Copass told him to tell various employees that some guests GATES RUBBER, INC. 745 had been invited who had crossed the Union's picket line and that Copass did not feel that union employees should have to socialize with them. Fox then talked to various employees, including Warren Brown, an acting steward, saying that Copass had told him to pass the word that they would not attend the picnic because Queen's employees would be present. Brown did not pass the word further. Copass agrees that he talked with Fox but according to him Fox wanted to circulate a petition to boycott the picnic and Copass told him no, that the Union would not take any position on the picnic. Both Copass and his wife and Brown attended the picnic. In fact attendance at the picnic by company employees was substantial and equivalent to at- tendance in prior years, even though Queen's employees also attended. The Company urges that Copass made an effort to break up the picnic and that this further indicates an uncooperative attitude on his part disqualifying him for employment. But no action was taken against him at the time. Moreover, although Fox was not cross-examined, his demeanor as a witness did not impress me. I credit the account of Copass. i. Conclusion regarding other alleged misconduct I conclude that these other incidents of so-called mis- conduct should cut no ice in this case. In the first place Copass was not fired because of them but because of the UGF incident. Some would not have been valid grounds for discharge. Many were exercises of protected activity. And in any case, the Company took no action at the time they occurred. If anything, company reliance on these earlier incidents supports the General Counsel's case in that they show the Company was fed up with Copass as a trouble- some union leader and was eager to be rid of him on that account. N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584 (C.A. 7);1 1 see also Klann Moving and Trucking Co. v. N.L.R.B., 411 F.2d 261 (C.A. 6). 4. Other evidence of motive in discharging Copass As noted earlier, Copass was reelected union president on October 2, 1971. There is no evidence in this record of employer interference in that election. But there is evidence of longstanding hope on the part of management that a change of officers would occur, as well as evidence that the Company might try to arrange such a change. During a negotiating session in 1968 company spokes- man William Newcomer, according to International Repre- sentative Prentis Lewis, told the union negotiators that it looked as though the Company would have to run some officers against the incumbent union officials so that the Company would have someone they could deal with. New- comer did not testify. But John Spaulding who was on the management negotiating committee at the time testified he did not hear him make such a comment. I credit Lewis because his recollection seems more specific. Again in April 1969, during a grievance hearing, Company Labor Rela- tions Manager Charles Munden informed union representa- tives that the incumbent union officers were going to have opposition in a future union election because the Company had to get rid of Copass in order to have someone the Company could deal with. I view these incidents in 1968 and 1969 as too isolated and remote in point of time to be given significant weight. , In May 1971 Wright suggested to William Black, an employee member of the union executive board and chair- man of its fair employment practice committee, that he run for the presidency. Black declined. Wright denied that he discussed the matter with Black, but I credit Black because his testimony was quite specific and his demeanor particu- larly forthright. In the summer of 1971 while the employees were on strike in support of contract demands, the Company's cor- porate manager for labor relations, Erwin Pierce, in a nego- tiating session threatened to leave the employees out on strike until the Union's October election in order to give the Company time in which to elect a slate of officers that it could deal with.' The above-described evidence casts suspicion on com- pany motive in terminating Copass. It is not, however, enough to sustain a finding that the asserted grounds for discharge were pretextual. As noted earlier, motive is not really at issue here. The evidence is overwhelming that Co- pass was discharged because of his conduct regarding the UGF campaign. In my view the case turns on whether that was valid cause or protected activity. B. Alleged Refusals To Bargain 1. The alleged refusal to recognize and negotiate with Copass The complaint alleges that since October 20, 1971, the Company has refused to recognize Copass as the Union's representative, or to negotiate with him as chairman of the union grievance committee, or to negotiate with him as the Union's representative in all matters relating to the collec- tive-bargaining agreement. The Company admits that, as alleged, it refused to negotiate with him as chairman of the union grievance committee . I so find. But it denies it refused to recognize him as the Union's chosen representative or refused to negotiate with him in matters dealing with the collective-bargaining agreement. The evidence shows beyond question that from Octo- ber 20 on, the Company not only refused to negotiate with him in the handling of grievances, but generally would not deal with him or allow him on company premises for the purpose of conducting union business. Wright stated just that on October 20, and made similar statements on No- vember 1 and 2. On November 16, in stating its position to the Board's Regional Office, the Company wrote, "We stand ready and willing to meet with any other representa- tive of the union on any matter which is a proper subject for collective bargaining." While sound administrative policy 1 This finding is based on the collective testimony of Union Vice President William Thompson, negotiating committee member Bobby Ezell , and Co- pass. Pierce testified he did not tell the Union that the Company would attempt to affect the outcome of the election. In view of the contradicting testimony of the other witnesses who corroborate each other , I do not credit Pierce. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may argue against evidentiary use of such statements of position, this one forms part of the record here and it does serve to clarify the Company's posture. On December 2 Copass wrote to Wright seeking to process two grievances (his own), suggesting in furtherance thereof a meeting at some neutral location. In reply Wright wrote to him on December 16 in part as follows, "While we agree that under the applicable federal law, the employees may elect whom- soever they chose as officers, if in accordance with their by-laws and constitution, it does not necessarily follow that we are obligated to deal with any given individual by virtue of that election. We have been advised that the law recog- nizes that special circumstances may exist which operate to relieve that burden. We believe those circumstances exist in our case. In any event, that issue as well as the issue of your allegedly discriminatory discharge will, as we understand it, be litigated before the National Labor Relations Board on or about January 31, 1972. Until these questions are litigat- ed and resolved, we must maintain our position as stated herein. In conclusion, we stand ready to bargain with Local 670 through any employee representative or international official except yourself ...:' Thus, the Company was unwilling to deal with Copass for any purpose, and I find that, as alleged, it refused to deal with him not only regarding grievances but refused to recog- nize him as the Union's representative generally, including for matters relating to the collective -bargaining agreement. This broad posture remained unchanged until early February 1972 when the Company relented somewhat. At that time Copass sought a meeting for the purpose of signing a new collective-bargaining agreement, indicating that he would participate. On February 4, Wright responded, in part, in these words, "The Company would agree that you should be present at any meeting held for the purpose of discussing and signing the contract since you were the chief negotiator for the Union." At the hearing herein the Com- pany stated its willingness then and for the future to recog- nize and negotiate with Copass as the union representative in contract negotiations. But this willingness apparently re- mains limited to matters directly relating to contract nego- tiations and does not extend to other dealings. With respect to its admitted refusal to deal with Copass as chairman of the union grievance committee, the Compa- ny relies on its interpretation of the agreed upon grievance procedures which it contends require that members of the grievance committee be employees of the Company. It rea- sons that it need not deal with Copass since he no longer is an employee. As I read the agreed-upon procedures, however, they do not support the company interpretation. They certainly are not a clear and unmistakable waiver of the right to use a nonemployee as a representative. See Perkins Machine Co., 141 NLRB 98, 102. The pertinent provisions are as follows: SECTION 2. The Plant Grievance Committee shall consist of representatives chosen by the Company and representatives chosen by the Union. The Union representatives shall consist of the President, Vice Pres- ident, Chief Steward or Shift Steward and the agg- rieved party. SECTION 3. The President and Vice President of Local No. 670 URCLPWA, or their authorized repre- sentatives, employees of the Company, shall be fur- nished a pass permitting them to enter all departments of the Plant for the purpose of handling or investigating grievances. Upon entering the department , they will contact the foreman and arrange to investigate the grievance in such a manner that will not cause any undue interruption of production. SECTION 5. International Executive Officers of the Union or their district and field representatives duly authorized to represent the International Union will be permitted to attend meetings between the Griev- ance Committee and Management ... The above-quoted section 2 is plainly mandatory in its definition of the makeup of the union grievance committee, and the president of the Union is one of those named. The Company argues that section 3 quoted above limits, the committee makeup to company employees. But that is a misreading. The only fair reading of section 2 with section 3 is that they permit the president and vice president of the Union to send authorized representatives in their stead if these stand-ms are employees of the Company. The Company makes an additional point that it was justified in excluding Copass from grievance hearings be- cause the agreed-upon grievance procedures forbid any un- due interruption of production. The Company claims that Copass' history shows he is a threat in this regard. This defense also lacks merit. Whatever else may be said of Co- pass' conduct, the evidence does not establish that his pres- ence at a grievance hearing would unduly interrupt production. And in any case, whatever difficulties the Com- pany may have had with him in past grievance matters, it took no action when the events occurred similar to what they now claim is warranted. I do not think an employer with good faith may horde minor disagreements of the past, as a squirrel hordes nuts, for convenient use later. In the circumstances, I find that fear of undue interruption of production was not the reason Copass was excluded from grievance hearings. Considering the above, I conclude that the Company had no valid basis for not dealing with Copass as a member of the union grievance committee or for not recognizing him as the president of the Union or not dealing with him in all matters relating to a collective-bargaining agreement. In acting as it did in all these regards it has refused to bargain collectively with the representatives of its employees con- trary to the requirements of Section 8(a)(5) and (1) of the Act and has thereby committed and is committing unfair labor practices. Signal Manufacturing Co., 150 NLRB 1162. In urging a contrary conclusion the Company cites Corrugated Container Co., 180 NLRB 663. In that case the employer fired an employee, the union president, for insub- ordination and thereafter, when he sought to process his own grievance, refused to meet with him on the ground that the collective-bargaining agreement limited handling of grievances to stewards. Although that case is much like the present one, it is factually distinguishable in that there, un- GATES RUBBER, INC. like the present case, the union president had been flagrant- ly insubordinate, thereby giving the employer clear cause for discharge. There is a further difference in degree in that it is more apparent in the present matter that the activity for which the employee was discharged was protected activity. I also find that General Electric v. N.L.R.B., 388 F.2d 213 (C.A. 6) relied on by Respondent is distinguishable from the present case. There the union president was dis- charged for threatening physical violence. His discharge was not questioned, but when the union thereafter sought to use him as a consultant in discussions at the plant dealing with new rate structures, the employer refused to allow him in production areas of the plant on the ground he might lead other employees to cease work and might interfere with production. These special circumstances do not exist in the present case. The Company here further urges that the refusal to bargain aspects of the present matter should not be enter- tained because Board adjudication of the discharge of Co- pass is sought in the 8(a)(3) case. The Company cites Corrugated Container, supra, which stands for this proposi- tion. It seems to me, however, that that precedent is not applicable here because the refusal to bargain established by this record is broader than would be disposed of by a determination that Copass either was or was not discrimina- torily discharged. In Corrugated Container disposition of the 8(a)(3) case for practical purposes disposed of the 8(a)(5) case. Because that would not necessarily be so here, the Company's argument in this regard should not prevail. 2. The alleged refusal to furnish information The complaint alleges, and the answer denies, that since October 15, 1971, the Company has refused to furnish to the Union the contents of Copass' personnel file which are necessary to process a grievance. It is clear from the record that Copass filed grievances on October 18 and 25 based on his suspension and dis- charge. On October 20 Lewis orally requested, and on Octo- ber 28 Copass requested in writing, the contents of Copass' personnel file, and on November 3 Lewis, also in writing, requested all records pertaining to his alleged anti-Compa- ny attitude, a reason given by the Company for his termina- tion. The information was requested to assist in handling his grievances. The Company did not hand over the contents of his personnel file. Its position is that the file contains no infor- mation relevant to the processing of grievances based on his suspension and termination. But prior to the hearing herein it never informed Copass or the Union that his file con- tained no relevant material. According to the Company, if the file had contained any relevant information it would have been glad to turn such over to Copass and the Union. On past occasions the Company had satisfied union re- quests for information to assist in processing grievances by selecting and handing over relevant material. The record evidence in this regard is sparse, hardly warranting a finding that the past practice of the parties was to leave the selection of relevant data exclusively to the Company. The position of the General Counsel and Union is that the Union was 747 entitled to see whatever was in the personnel file and to determine on its own what , if anything, was relevant or material to the processing of the grievance. The question is almost academic . All the evidence indi- cates there was nothing in the file which would have helped in the grievance . The file was not subpoened for use at the unfair labor practice hearing. It was available at the hearing for examination but was not used. But until the hearing the Company never advised Copass or the Union that the file was barren. If Respondent had told the Union it could not have relevant information from the personnel file, it would have violated the Act. See Perkins Machine Co., 141 NLRB 98. I find it was equally obligated to at least respond if it had no information . Failure to do so violated Section 8(a)(5) and (1) of the Act. In the circumstances I deem it unnecessary to decide whether such duty required a turn-over of the entire personnel file. 3. The alleged rejection of Copass' grievance The complaint alleges, and the answer denies , that on November 4, 1971, the Company rejected a grievance filed on behalf of Copass concerning the Company's refusal to negotiate with him concerning grievances and refusing to recognize him as president of the Union. As found earlier herein the Company did refuse to negotiate with him concerning grievances and in general refused to deal with him although he was president of the Union. On November 3, Copass filed two grievances including one-alleging that the Company had on November 1 violated the collective-bargaining agreement when it would not al- low him as president of the Union and chairman of the plant grievance committee to attend scheduled meetings for pro- cessing grievances of other employees . The next day, No- vember 4, Wright rejected these grievances on the ground that under the agreed-upon procedures Copass had no right to file grievances because he was no longer an employee. I find that the facts in this regard are as alleged in the com- plaint. The company defense is that management was perfect- ly willing to process the grievances and only requested that they not be duplicitous. This is founded on the circumstance that on November 3 Union Steward James Tyler had filed two other grievances on the same basis as Copass, namely, Company refusal on October 29 and November 1 to allow Copass to attend grievance meetings. On November 4 Wright also rejected both of these on the ground that they needlessly duplicated each other. He indicated he would entertain one of the Tyler grievances if it were resubmitted. Either of these would have dealt with the same subject as Copass' grievances, but not the right of a discharged em- ployee to file one. Duplication was not the reason the Co- pass grievances were rejected. Wright was unwilling to process them on any basis because he lacked employee status. The question is whether that was a valid basis to reject a grievance . Respondent does not address itself to that question. Wright based his rejection of the Copass grievance on the terms of the agreed-upon grievance procedures which he 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construed as requiring that the grievant be an employee. Copass filed this grievance as an individual employee. It did not deal with his own termination. On November 1, apart from any residual rights he may have had to obtain a rever- sal of his own discharge, he clearly was no longer an em- ployee. The agreed-upon grievance procedures, by their terms, were available to "any employee or group of employ- ees having a problem." As an individual he did not then qualify, and he did not purport to file the grievance for others who did. As I construe the agreed-upon procedures, Wright correctly rejected the grievances. Accordingly, the allegation of the complaint based upon that rejection should be dismissed, and I grant Respondent's motion to dismiss in that regard. C. Availability of Arbitration The grievance procedures agreed upon between the parties provide for arbitration of certain grievances not set- tled in the preliminary steps. Some issues in this case involv- ing interpretation of those agreed-upon grievance procedures might have been disposed of by arbitration. These include (a) whether the makeup of the union griev- ance committee is limited to employees of the Company, and (b) whether a discharged employee such as Copass has standing to file a grievance on matters other than his own discharge. The Union did not seek arbitration but instead filed unfair labor practice charges. The Company did not plead a deferral-to-arbitration defense in its answer. See Montgomery Ward & Co., 195 NLRB No. 136. At the hear- ing herein the General Counsel and the Union took the position that none of the issues were arbitral. The Company took the position that although it might earlier have been interested in arbitration, it no longer was. Although some questions presented here might have been arbitrated, others involve construction of the Act rath- er than merely interpretation of an agreement. To separate out the issues susceptible of arbitration would, it seems to me, fragment disposition of what is a single overall problem. Given these circumstances and the positions of the parties, noted above, I conclude that deferral to arbitration in the manner indicated in Collyer Insulated Wire, 192 NLRB No. 150, is not appropriate. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States. Those found to be unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and are unfair labor practices within the meaning of Section 8(a)(3), (5), and (1), and 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent violated Section 8(a)(3), (5), and (1) of the Act, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I recommend that Respondent offer to Donald Copass immediate, full, and unconditional reinstatement to his for- mer employment, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of earnings suffered by reason of the discrimination against him by paying him a sum of money equal to the amount he would have earned from the date of his suspension on October 13, 1971, to the date Respondent offers him reinstatement, less his net earnings during that period in accordance with the, Board's formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716, and that it make records available to the Board agents in connection with compliance therewith. Having found that Respondent has refused to bargain collectively with the Union I recommend that it cease and desist therefrom. However, because of the long established bargaining relationship between the parties, and because Respondent has not questioned its duty to recognize and bargain with the Union, an Order requiring Respondent to generally recognize and bargain with the Union is not war- ranted. See The Standard Oil Company (Ohio), 174 NLRB 177, fn. 1. Respondent should be required to recognize and negotiate with the Union's chosen representatives, includ- ing Donald Copass as president of the Union or as chair- man of its grievance committee, or any other representative chosen by the Union. In addition Respondent should be required upon request from the Union for information nec- essary for use in processing grievances, to respond to such requests, and to furnish such information. I further recommend that Respondent post appropriate notices. 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: ORDER2 Respondent, Gates Rubber, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local Union No. 670, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC, or in any other labor organiza- tion of its employees, by suspending, discharging, or in any other manner discriminating against any employee in re- gard to hire or tenure of employment or any term or condi- tion of employment. (b) Refusing to bargain collectively with the Union named above by refusing to recognize and negotiate with its chosen representatives, including Donald Copass as presi- dent of the Union or as chairman of its grievance commit- 2 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions and recommended Order herein shall, as provided in Section 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. GATES RUBBER, INC. tee, or any other representative chosen by the Union. (c) Refusing to bargain collectively with the above- mentioned Union by not responding to requests of the above-named Union for information necessary in pro- cessing grievances or by not furnishing such information when requested. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Offer Donald Copass immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights , privileges, or working conditions, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the section hereto entitled "The Reme- dy-" (b) Notify immediately Donald Copass , 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. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Upon request bargain collectively with the above- 749 named Union by recognizing and negotiating with its cho- sen representatives including Donald Copass as president and as chairman of its grievance committee. (e) Bargain collectively with the above-named Union by responding to its requests for information necessary in the processing grievances and by furnishing such informa- tion when requested. (f) Post at its premises in Nashville, Tennessee copies of the attached notice marked "Appendix."3 Copies of the notice on forms provided by the Regional Director for Re- gion 26, after being duly signed by Respondent's represent- ative, 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 Respondent to insure that said notices are not altered, defaced or covered by any other material. (g) Notify the Regional Director for Region 26, in writ- ing, within 20 days of the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.4 It is further ordered that the complaint be dismissed msofar as it alleges violations of the Act not specifically found herein. 3 In the event that the Board's Order is enforced by a judgement of the 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." 4 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 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith."