The Armstrong Rubber Co.

THE ARMSTRONG RUBBER CO. I The Armstrong Rubber Company, Southern Division and Thomas R. Huseman. Case 15-CA-4788 February 13, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS April 20, 1973, alleging a violation of Section 8(a)(1) and (3) of the Act. Respondent denied the commission of unfair labor practices and a hearing was held in Natchez, Mississippi, on May 30 and 31, 1973. Upon the entire record, including my observation of the demeanor of the witnesses and upon consideration of the briefs I make the following: Findings and Conclusions On July 31, 1973, Administrative Law Judge Paul L. Harper issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed as a brief in support of the Administra- tive Law Judge's Decision the brief filed earlier with the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions I of the Administrative Law Judge and to adopt his recommended Order.'' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, the Armstrong Rubber Company, Southern Division. Natchez, Mississippi, its officers. agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has requested oral argument I his request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 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 of the relevant evidence convinces us that the resolutions are incorrect. Standard Orr Wall Products, Inc, 91 NLRB 544. enfd 188 F.2d 362 (CA 3) We have carefully examined the record and find no basis for reversing his findings While we adopt his ultimate conclusion that Respondent violated Sec 8(a)(1) and (3) of the Act, we do not adopt his finding that on February 5, 1973. Huseman told Eidt, as well as his fellow workers, that Carpenter and Huseman had signed authorization cards and that the Union was planning to present them to the Company about February 8. 1973, inasmuch as Iluscman in fact testified that Eidt was absent on that occasion. DECISION STATLMENI OF THE CASE PAUL L. HARPER, Administrative Law Judge: Upon charges filed by Thomas R. Huseman, an individual, on March 7, 1973, the General Counsel issued a complaint on 1. JURISDICTION Respondent is engaged in the manufacture of automo- bile and truck tires at its plant located in Natchez, Mississippi. During the past 12 months, which period is representative of all times material herein, Respondent manufactured, sold, and shipped tires valued in excess of $50,000 to points located outside the State of Mississippi. It is undisputed and I find that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that the United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 303, AFL-CIO, herein called Union , is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. ill. THE UNFAIR LABOR PRACTICES The General Counsel alleges that Respondent terminat- ed the employment of Charging Party Thomas R. Huseman on or about February 7, 1973, effective February 16, 1973, and thereafter refused to reinstate him, because of his membership in and activities on behalf of the Union. At the hearing and in his brief counsel for the General Counsel contended that Respondent, after unlawfully terminating Huseman, refused to consider him for any future employment whatsoever, all because of his interest and activity in the Union. On the other hand Respondent contends Huseman was hired as a tire adjustor on a temporary basis specifically to reduce a backlog of unadjusted tires. Huseman was hired by Respondent on October 23, 1972, and was terminated as of February 16, 1973. There is no dispute but that Huseman was hired on a temporary basis. A subsidiary issue is drawn as to whether or not Huseman should have been retained to replace discharged tire adjustor Paul West and/or considered for other employ- ment by Respondent. The question presented is whether the termination of his temporary employment was acceler- ated because of his interest or activity in the Union or for the reasons asserted by Respondent, and additionally whether Respondent's refusal to consider Huseman as a replacement for West or for future employment was motivated by unlawful considerations or because of the various grounds asserted by Respondent. Huseman was hired by Respondent as a tire adjustor under the immediate supervision of Foreman Ernie Roberts. The tire adjustment department was under the overall supervision of Bob Husbands who was also in charge of the quality control department The tire 209 NLRB No. 3 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adjustment department was located in downtown Natchez, Mississippi, which is several miles from Respondent's main plant. Normally there were only a total of about six employees in this department under Roberts, three tire adjustors and three laborers. It was stipulated that approximately 1,275 employees are employed at the main plant of which about 950 are in the bargaining unit. It was further stipulated that Respondent's plant in Natchez has been unionized for about 30 years. The three laborers at the separate tire adjustment department were members of the Union and part of the bargaining unit. The three tire adjustors were not a part of the bargaining unit. About midway in his employment with Respondent Huseman became involved in conversations with other employees and his immediate supervisor Roberts about the desirability of union representation. Undisputed and credible evidence reveals he talked from time to time with employees Ken Carpenter, Earl Nichols, and Jake Eidt, and Supervisor Roberts. Eidt, the senior inspector and logically in line for supervision, testified he argued against union representation on the grounds it would not benefit a person in his position. Nichols, an employee for some 27 years, was one of the laborers in the bargaining unit. According to the credible testimony of Huseman, substan- tially corroborated by that of Eidt, sometime in January 1973 he and other employees discussed whether or not tire adjustment departments in other plants of Respondent were unionized and he expressed his view that he would like to make union wages. Huseman credibly testified there were several such conversations about the Union with Roberts. I find that Supervisor Roberts was well aware of Huseman's interest and activity in the Union prior to his termination. It is well established that such knowledge of a supervisor is imputed to the employer. Protective Coating Inc., 170 NLRB 647. On February 5, 1973, Huseman and Carpenter signed authorization cards at the union hall. Before signing his card Huseman mentioned his intention to do so to the three laborers in his department. The union hall was then located about 75 to 100 yards from the main plant. After signing the authorization card Huseman credibly testified he told his fellow workers, including Eidt, that Carpenter and he had signed authorization cards and that the Union was planning to present them to the Company about February 8, 1973. On February 7 Huseman received his termination notice to be effective on February 16, 1973. As stated above there were only six or seven employees working in the tire adjustment department. This small department was separated from the Company's main plant by distance of several miles. Roberts, the immediate supervisor of the department, worked in close proximity to the six or seven employees. He kept overall supervisor, Husbands, informed about the productivity and perform- ance of all departmental employees. Otherwise Husbands had little contact with these employees. During lunch and other break periods these few employees would engage in casual conversations at or near their work stations. In December 1972 and January 1973 Huseman and Carpenter engaged Supervisor Roberts in several conversations concerning the feasibility of union representation for the three or four tire adjustors. Thus, Supervisor Roberts was aware of Huseman's interest and activity in the Union prior to his termination . Roberts and Husbands denied knowing Huseman had signed a union card before his discharge on February 7, 1973. As noted above he spoke to several employees before and after he signed the card. It is inconceivable that Roberts did not learn this fact before Huseman's termination and I find, contrary to his denial, that he did know and that as a result of reporting this information to Husbands, as well as the conversations with Huseman about union working conditions, that Huseman's termination from a temporary assignment was at least accelerated to a date prior to an undetermined date it would have occurred but for Huseman's union activities.' In any event I find that his termination was made at a time and in a manner calculated to frustrate his efforts to organize the tire adjustors.2 Respondent's contention that February 7 was selected for Huseman's termination because it was then determined the erstwhile backlog of unadjusted tires had dwindled to desired proportions is without merit . Huseman was given no advanced notice whatever for his discharge in the middle of a workweek even though the effective date of discharge was extended from Wednesday, February 9, to Friday, February 16, because "it was too harsh." Furthermore, Respondent's own records belie its conten- tion in this respect. Thus, at the end of the week preceding January 14, 1973, the backlog had dwindled to 90 tires; January 21, to 128: two separate weeks in which the backlog was lower than during the week Huseman was terminated. It is significant of course that during the workweeks preceding January 14 and 21 Huseman had not yet signed a union card . It is even more significant that the very week in which he did sign a card authorizing union representation is the very week Respondent selected to terminate his employment. Moreover, the day following his termination Huseman sought out Senior Personnel Admin- istrator Jim Farley to discuss his employment status with the Company. When asked about the possibility of being recalled Farley stated to him that he "heard that I (Huseman) was unsatisfied with my job; that I wanted to be in the Union with my friends." Farley placed this conversation several days later with Huseman and denied making the remark attributed to him by Huseman. He did however recall a similar remark being made to him by department supervisor Roberts sometime about the middle of the second month of Huseman's employment. Accord- ing to Farley's testimony, he was inquiring about the supervisors' general impression of Huseman's work where- upon Roberts replied that Huseman had voiced an objection to being located downtown away from the main plant where his friends worked. I find this testimony to be unreliable. It is in direct contradiction to Respondent's contention that Huseman was a "loner." Huseman impressed me as a forthright witness having excellent recall about many details of events in question. Farley's demeanor on the other hand gave the impression that his testimony was strained and contrived in large part, i Wiese Plew Welding Co., 123 NLRB 616; Dubin-Haskell Lining Corp, 2 Sun Hardware Co, Inc, 173 N LRB 973 154 NLRB 641. THE ARMSTRONG RUBBER CO. 3 recalling only details which he thought most favorable to Respondent's position. I fully credit Huseman's testimony and find that Farley made the statements attributed to him by Huseman. I further conclude and find that such statements revealed Respondent's knowledge of Huse- man's interest and activity in the Union as well as its hostility to such activity. This is so despite Respondent's longstanding contractual relations with the Union concern- ing "production" employees. The record evidence makes it clear that Respondent was and remains quite jealous of its nonbargaining unit employees. Practically all nonunit employees are classified as "office employees," an exclud- ed category under the contract. This was so with other departments until organized by the Union and placed under the contract. For example, the quality control unit, organized and now within the bargaining unit, was classified as "office employees" prior thereto. So also with "schedulers" or "expediters." At the time of the hearing negotiations were still being conducted to represent these employees as a result of an election about June 1972. Moreover Union President Hedglin testified on cross- examination to a question by Respondent's counsel about the relationship between Respondent and Union that "I don't know the nature of what you mean by good relations. I would say, yes, we have had fair relations." On redirect examination Hedglin testified: Q. Would you describe the labor relations policy concerning the labor relations of the unorganized sections of the plant? A. Oh, the company-I guess they have that right because they have fought us on every case we try to bring into the bargaining unit, not just the administra- tion there now, but the administration in the past. They fought us on every unit. They have got a right. And we have got a right to try to get them. Based on the above considerations I find that Charging Party Huseman was terminated from temporary employ- ment with Respondent on February 7, 1973, because of his interest and activity in the Union, in violation of Section 8(a)(1) and (3) of the Act. There remains the question of whether or not, but for his union interest and activity, Huseman's temporary employ- ment would have been made permanent, either as a replacement for tire adjustor West, who was discharged before Huseman, or in some other capacity for which he was qualified. At the time Huseman was being considered for employ- ment in October 1972 he was employed on another full- time job with another employer. It is therefore understand- able that Huseman was cautious about accepting a temporary job without any assurances of future opportuni- ty with Armstrong. He credibly testified that Senior Personnel Administrator Farley, at the time Huseman was being interviewed for employment, told him that although the tire adjustment job was temporary. the Company was having problems with one of the three permanent tire adjustors, Paul West; that West had been almost continu- ously absent from work and if he continued in this manner he would be discharged; and suggested that Huseman would be considered his logical replacement. He further told Huseman that if West rehabilitated himself and continued with the Company and Huseman's temporary assignment was completed that he would be placed on another job in the plant. Huseman testified Farley assured him "if I was laid off that he would place me somewhere in the plant. And he didn't say that he might; he said -definitely that he would." Farley was called by counsel for the General Counsel as an adverse witness. Contrary to Huseman's demeanor, which was forthright and convinc- ing, Farley's demeanor as noted above can only be characterized as one of subjectively attempting to support Respondent's position rather than objectively attempting to accurately recall factual situations. Farley admitted the difference in "office" work and "production" work was governed by the contract between Respondent and Union and "office" referred to employees in nonunit jobs not under the contract and "production" to employees under the contract. He testified he considered Huseman "more qualified" for "office" work than for "production" jobs. It was clear however from uncontradicted testimony that the tire adjustors physically handled automobile and truck tires much in the same manner the laborers handled them. Moreover, Farley's testimony that he was concerned about Huseman's physical condition in considering him for "production" work is strained beyond credulity. Huseman testified candidly that some 7 or so years ago he had bone spurs removed from his feet but had had no trouble since then. He was required to take and pass a physical exam before being employed by Armstrong. At the hearing Huseman gave the appearance of a strong young man (5 ft. I I in. in height and about 190 lbs.) of utmost good health. Moreover Farley admitted Huseman was physically qualified for the job of tire adjustor and furthermore that Huseman's only health problem he knew about was the bone spurs which had been surgically corrected about 7 years prior to the hearing. Of the approximately 18 to 20 jobs filled during the 3-month interval from Huseman's termination to date of hearing it was clear from Farley's own testimony that Huseman's skills as tire adjustor were similar to at least some of jobs filled by applicants who had never before worked for Respondent. There were other reasons asserted by Farley, as well as other of Respondent's witnesses, for not considering Huseman a good applicant for future employment with Respondent. For example, Farley testified that before he hired Huseman he had received about 50 telephone calls from him over a period of 18 months and still other calls by other people on behalf of Huseman . Huseman admitted making one or two calls a month to Respondent's officials about employment prospects. Respondent's position that Huseman thus made a nuisance of himself and therefore established still another reason for downgrading him as an applicant for future employment is again merely pretextual for the real reason for Respondent's current relationship with Huseman. Huseman's immediate supervisor, Roberts, testified regarding Huseman's performance on the job as follows: "Well, as far as the job he was doing it was satisfactory with me." Respondent's records reflect that Huseman's production was above average and there were no com- plaints whatever about his work performance. Quality Control Manager Husbands testified he had overall 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervision of the tire adjustors, Supervisor Roberts reporting directly to him. He further testified he was responsible for filling out Respondent' s exit interview rating on Huseman (Resp. Exh. 7). It is worthy of note the form is dated February 19, 1973, after Husbands admitted- ly learned of Huseman's union connections. It is also significant to note that Husbands marked Huseman "average" on "absentee record," "accident record," and "punctuality," notwithstanding an apparent perfect per- formance by Huseman in these categories. Likewise Husbands graded Huseman as "average" in such categor- ies as "productiveness" and "quality" notwithstanding Roberts' contrary testimony. It seems especially significant to note Husbands grade of Huseman as "poor" in the category of "cooperativeness." No evidence was submitted by Respondent to support this obvious downgrading of Huseman in the obvious attempt to establish a pretext for not reemploying him after learning of his union proclivity. Industrial Relations Manager Parks testified in similar vein to that of Farley. Parks testified that he first became familiar with Huseman several years before Huseman was hired; that Charles Byrnes, then in the position now held by Farley, gave him "a rundown" on the problems he encountered (with Huseman) and the reasons for not hiring him at that time. These included the bone spur problem previously discussed; "the constant pestering that Mr. Huseman did"-suggesting perhaps more than lust physi- cal problems. He testified "I am not a psychiatrist . . . but this shows me some problems that a man has." Parks further testified, incredibly, as did Farley, that it was only pressure from top management that brought about the temporary employment of Huseman. Wherever Parks' testimony differs from that of Huseman I discredit it. Respondent contended that Huseman was not consid- ered as a replacement for West because of its commitment to EEOC to increase its percentage of black employees in all job categories. It introduced voluminous records in support of this contention, revealing some 50 or more outstanding EEOC grievances against the Company. Thus Respondent argues it had decided to replace West, who is black, with another black, prior to even hiring Huseman who is white. Of course this contention can be examined from two points of view. One view is, as Respondent contends, that Respondent was sincerely concerned about its commitment to EEOC. A second view is, however, just as plausible, that Respondent had an application on file with Respondent in June 1972. The question naturally apses, why wasn't White hired to replace West in December 1972 if Respondent has been genuinely con- cerned with its EEOC commitment; or why didn't it hire White in October 1972 instead of Huseman. It seems all too convenient that this concern did not become manifest until after Huseman became involved in union activities. I find Respondent's contention that it replaced West with White and not Huseman because of its EEOC commitment to be unconvincing and pretextual of the real reason, viz., Huseman's interest and activity in the Union. There is much testimony in the record concerning 9 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 Huseman's qualifications to perform otherjobs in Respon- dent's plant. Although, ostensibly, Huseman is qualified for future employment with Respondent, it is clear from all the evidence on this record that Respondent has no intention of considering Huseman for any job at any time in the future. I have found that Respondent accelerated the termina- tion of Huseman's temporary assignment as a tire adjustor because of Huseman's interest and activity in the Union in violation of Section 8(a)(1) and (3) of the Act. I further find that but for his union interest and activity Huseman would have continued to be employed with Respondent, either as West's replacement or in some other capacity, and that Respondent's asserted reasons for not so considering Huseman for such employment to the effect that he had made a nuisance of himself in endeavoring to obtain employment; that he was a "loner" and didn't get along well with other employees; and that he had physical and/or psycological problems; are simply to camouflage Respondent's desire not to reemploy the known leader who was making an effort to obtain union representation for the unorganized tire adjustors. I find such conduct to be in violation of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By accelerating the termination of Thomas R. Huseman's temporary employment and not continuing his employment either as a replacement of Paul West or in some other capacity because of his union or concerted activity, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating and making whole Thomas R. Huseman, in order to effectuate the policies and purposes of the Act. All backpay computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings, conclusions, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, The Armstrong Rubber Company, South- ern Division, Natchez, Mississippi, its officers, agents. successors, and assigns, shall: 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. THE ARMSTRONG RUBBER CO. 5 1. Cease and desist from: (a) Terminating employees for reason of membership and activities on behalf of United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 303, AFL-CIO, or any other union. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Thomas R. Huseman immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Thomas R. Huseman whole, as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Natchez, Mississippi, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of Respondent, 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. (d) Notify the Regional Director for Region 15, in writing within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 4 In the event the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agnecy of the United States Government After a trial at which all parties had the opportunity to present evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and advise you as follows: The Act gives all the employees these rights: To engage in self-organization; To form, join, or help unions; To bargain collectively through a representative of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL reinstate and make whole Thomas Huse- man for his earnings lost since February 16, 1973. WE WILL NOT in any other manner discriminate against employees for union reasons or because they exercise their rights under the Labor Management Relations Act. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. All our employees are free to join or remain members of United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 303, AFL-CIO, or any other union, or not to join or remain members unless such membership is required under a lawful contract under the Labor Manage- ment Relations Act. Dated By THE ARMSTRONG RUBBER COMPANY, SOUTHERN DIVISION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Plaza Tower, Suite 2700, 1001 Howard Avenue, New Orleans Louisiana 70113, Telephone 504-527-6361.