Goodyear Tire & Rubber Co.

36 GOODYEAR TIRE & RUBBER CO The Goodyear Tire and Rubber Company and United Rubber, Cork, Linoleum and Plastic Workers of America. Cases 16-CA-11335 and 16-RC-8611 30 November 1984 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 20 April 1984 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, The Good- year Tire and Rubber Company, San Angelo, The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings In the absence of exceptions, we adopt, pro forma, the judge's recom- mendation to overrule the Union's Objections 5. 9, and 10 We agree with the judge that Supervisor Hoover violated Sec 8(a)(1) of the Act by threatening an employee that if the Union won the election the Respondent would close, the Respondent could rehire employees at minimum wage, and the employees could lose their present level of bene- fits Member Hunter, who would dismiss the latter two violations because the General Counsel allegedly failed to show the "context" in which the latter two remarks were made, ignores the fact that these remarks were made in the same conversation, thus establishing that the latter two re- marks were made in the context of an unlawful threat of plant closure Member Hunter agrees with the judge's finding that Supervisor Hoover violated Sec 8(a)(1) of the Act by stating in the presence of an employee that the Respondent could close down the plant if employees voted for the Union, but finds the evidence insufficient to establish that Hoover threatened employees with loss of benefits, replacement, and re- hiring at the Federal minimum wage given the General Counsel's failure to show the context in which Hoover's other statements were made In so finding, Member Hunter notes that, contrary to the implication of his colleagues, the record fails to show that Hoover's plant closing remark was directed to the employee rather than to a fellow supervisor present in the same room In addition, while the employee recounted Hoover's remaining statements as if made in succession, it is clear, as found by the judge, that the employee's version "runs several topics to- gether," and fails to describe the specific topics addressed by Hoover's remarks or the transition from topic to topic Under the circumstances, Hoover's comments may be lawful or unlawful depending on the subject matter at issue As the record does not reveal the specific subject matter to which Hoover's remarks were directed, the General Counsel has failed to carry his burden of showing that Hoover's remarks would reasonably coerce employees in the exercise of rights under the Act Texas, its officer, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election held on 30 September 1983 in Case 16-RC--8611 is set aside and that the case is remanded to the Regional Director to conduct another election when he deems the circumstances permit the free choice of bargaining representative.2 , [Direction of Second Election omitted from pub- lication.] We agree with the judge that the Notice of Second Election should Include language in accord with the Board's decision in Lufkin Rule Co 147 NLRB 341 (1964) DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. These consolidated cases were tried before me in San Angelo, Texas, on January 23, 1984, pursuant to the No- vember 16, 1983 complaint issued by the General Coun- sel of the National Labor Relations Board through the Regional Director for Region 16 of the Board in Case 16-CA-11335, and the November 18, 1983 report on ob- jections, order consolidating cases, and notice of hearing issued by the Regional Director in Case 16-RC-8611. The complaint is based on a charge filed October 7, 1983, by United Rubber, Cork, Linoleum and Plastic Workers of America (Charging Party, Union, or URW) against The Goodyear Tire and Rubber Company (Re- spondent or Goodyear).' In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(1) of the Act by the con- duct of Plant Manager Richard J. Olsen and Shift Super- visor John H. Hoover On or about September 7, 9, and 13, Olsen allegedly threatened Respondent's employees with loss of benefits, plant closure, and subcontracting work then being performed by Goodyear's employees, in the event the Union was successful in its organizational attempt.2 Hoover, it is alleged, on or about September 15 orally threatened Respondent's employees with loss of benefits, plant closure, replacing them on their jobs and rehiring them at the Federal minimum wage in the event the Union was successful in its organizational attempt.3 By its answer Respondent admits certain factual mat- ters but denies violating the Act The petition was filed on August 18, 1983 That date opens the preelection "critical" period. Goodyear Tire & Rubber Co., 138 NLRB 453 (1962). Pursuant to a stipula- tion for certification upon consent election approved on September 1, an election by secret ballot was conducted on September 30, under the supervision of the Regional Director for the employees in the following unit stipulat- ed to be appropriate All dates are for 1983 unless otherwise indicated 2 Complaint par 7(a) 3 Complaint par 7(b) 273 NLRB No. 6 GOODYEAR TIRE & RUBBER CO 37 All drivers, mechanics, tire and test technicians, janitors and building/groundkeepers. employed by the Employer at its facility in San Angelo, Texas, but excluding all office clerical employees, guards working leaders, and supervisors as defined in the Act The tally of ballots reflected that of approximately 235 eligible voters, all but 1 cast a ballot. None was chal- lenged, and there were no void ballots. Of the 234 valid votes counted, 86 votes were cast for the Union, and 148 were cast against it On October 7 the Union filed timely objections. In his November 18 report on objections, the Regional Director overruled some objections and consolidated others (1, 2, 5, 9; 10, and 12) for, hearing with the com- plaint allegations. Objections 1 and 2 are included within the complaint allegations Objection 5 (the portion not overruled) relates to an announcement by Goodyear that it was dropping a potential 7-day rotation schedule. Ob- jections 9 and 10 pertain to a party given by Goodyear the day of the election, and Objection 12 is that Good- year failed to comply with the requirements of Excelsior Underwear, 156 NLRB 1236 (1966), regarding timely sub- mission of a list of the names and addresses of eligible voters. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Union, and the Respondent, I make the following FINDINGS OF FACT I JURISDICTION Goodyear, an Ohio corporation with its principal office and headquarters located in Akron, Ohio, operates a proving grounds near San Angelo, Texas, where it is engaged in testing rubber products During the past 12 months Respondent purchased and received goods valued in excess- of $50,000 at its San Angelo, Texas fa- cility directly from points located outside the State of Texas. Respondent admits, and I find, that it is an em- ployer engaged in commerce within the .meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The record does not reflect the precise date the Union began its current campaign at Respondent's San Angelo proving grounds, but it seems clear that by May 1983 URW authorization cards were being distributed among employees. By his May 20 memo to the employees, Richard J. Olsen, manager of the proving grounds, ac- knowledged this fact and cautioned employees to ask themselves some questions before jumping on any band wagon (C.P Exh. 2) 4 As the'memo not only shows the background tone of the campaign, but also makes reference to the 7-day rota- tion schedule, the full text is set forth here Dear Fellow Employees. Our goal here at the Goodyear Proving Grounds is to provide a work place that all of us can be proud of Besides the excellent pay and benefits, we have all worked hard to build a team effort in solving and overcoming the daily challenges of operating a facility like ours. Unfortunately, sometimes in our efforts to build this team and improve the job security for all of us, we make mistakes, or our communication breaks down Two such examples involve the 30 minute "lap over" time and the seven day work schedule. Hope- fully, in the recent department meetings which Bill Vandiver and I attended, we have answered all the questions concerning these two items. However, if any questions still remain unanswered, please don't hesitate to discuss them with supervisors, Bill Van- diver, or myself We realize there is a union organizing card signing campaign underway, and before you jump on the "band-wagon" and sign a union organization card, ask yourself these questions. I) Can this union guarantee me that my wages and • benefits will go up? 2) Can this union guarantee me that my wages and benefits won't go down' 3) Can the union officials guarantee me that they will solve my problems on the job9 4) Can the union guarantee me a wage substitute equal to my present pay if they take us out on strike? The answer to each of these important questions is "NO." So let's not -get swept up into this union or- ganization drive because when you stop to think about it, you're better off without the union You don't have to worry about union dues and fines being taken from your paycheck You can speak for yourself when you have a problem You don't have to worry about losing your paycheck during a strike You can count on your job I know we have some problems in our plant Every plant does. But we've made progress, and we'll con- , tmue to . make more progress. As you know, we have had a lot of discussions on cost reductions for the Proving Grounds, and a union campaign cer- tainly is an added cost to the Proving Grounds op- eration. We don't need an outsider to come in here and drive a wedge between us We can settle our 4 Olsen testified without contradiction that the election of September ,30, 1983, was the fourth in 8 years at the San Angelo facility, and that the Excelsior list furnished for the previous election was submitted about April 1982 (Tr 84-85) 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD problems by ourselves, without the cost and disrup- tions a union would bring. Sincerely, Rich Olsen Manager Olsen testimonially explained that the 7-day rotation schedule for the drivers arose at a brainstorming meet- ing, held in March 1983 attended by a committee of su- pervisors and nonsupervisors (Tr 99-100). One of the ideas the committee generated for possibly improving ef- ficiency related to alternate work .schedules. One sugges- tion on this topic was to have a 6-day workweek, and the other idea was for a 7-day week. 5. A volunteer com- mittee was chosen to pursue the modified workweek topic (Tr. 100). Olsen testified that the matter seemed to languish, so when Bill Vandiver arrived in about May as the new personnel manager, Olsen assigned him the task of getting the volunteer committees together and bring- ing forth decisions for them (Tr. 100-101) Olsen testified that after Vandiver held his first meeting with the work- week committee; Vandiver reported that the committee recommended that the subject be dropped (Tr. 101). Haston Fields, a driver called as a witness by. the URW, testified that he expressed his disapproval of the work schedule changes, to Vandiver at the meeting, that the topic was tabled, and the members were told 'that Van- diver would look into it further (Tr. 78-80). Thereafter, Fields testified, a notice was posted on the bulletin board that the idea for a modified workweek had been dropped (Tr. 80). No copy of the bulletin board notice was of- fered in evidence. Olsen testified that on receiving Van- diver's report in mid-May he decided to drop the matter and informed supervision of -his decision (Tr. 109). He testified that he mentioned the subject in a "25th hour" speech he gave to employees on Wednesday, September 28 (Tr. 92, 99, 109).6 The record fails to reflect what campaign events tran- spired in June and July, but apparently in early August the URW mailed or distributed a legal-size report to the employees ending with a notice of a meeting to be held at a Holiday Inn on Saturday, August 13 (R. Exh. 11) Four of the paragraphs are particularly relevant in this description of the background. They read. Many of you have told us that certain members of management have made statements that once you win your election and begin to bargain, "You will start from scratch," "with a blank sheet of paper." This is utter NONSENSE! , NOTHING could be further from the truth. IT IS AGAINST THE LAW FOR THE COMPANY TO TAKE AWAY OR TO THREATEN TO TAKE AWAY ANY OF THE EXISTING BENEFITS THAT YOU NOW HAVE. When you have your legal right to bargain by win- ning your election, you will be in the same position 5 As the record reflects, drivers work on three different shifts around the clock 6 Olsen's speech of September 28, 1983, held 2 days before the elec- tion, is covered in more detail later as an established Local Union negotiating 'a new agreement. You will put the wages that you now have, including, all other benefits, into a written agreement and then make the other improvements that you feel are needed Remember . . without a written agreement signed by the Union (YOU) and the company (Goodyear), YOU HAVE NOTH- ING!! Management has demonstrated to you time and again that without a contract they CAN take AWAY benefits, do away with your COLA (cost of living allowance) and change rules, to say nothing about your sick leave benefit, which has been turned' into a state of confusion. They harass you and bully you without a reason. Ask yourselves. WHERE CAN I GO FOR HELP? NOWHERE NOW . . But with a UNION under the U.R.W. you will have all the resources for help with 'your problems at your disposal. • We understand that some RUMORS are -being cir- culated at the grounds that the company made some statements about closing the'.plant if you- are suc- cessful in forming your UNION. Let me assure you that IT IS AGAINST THE LAW FOR THE COMPANY THROUGH ANY OF ITS OFFI- CIALS TO THREATEN TO CLOSE THE GROUNDS SIMPLY BECAUSE -YOU CHOSE TO ORGANIZE!!! We doubt that the company would be foolish enough to make such threats. This sparked a reply from Olsen who testified that a number of employees gave copies of the URW's Holiday Inn notice to supervision (Tr 89) Olsen's letter of August 9, mailed to the employees' homes, reads (R. Exh. '2): Dear Fellow Employees. After reading the letter the union mailed to employ- ees' homes recently, I'm sure the same basic ques- tion came to your mind as it did mine—what is the real goal of the statements they made about threat- ening to reduce benefits, harassing and bullying em- - ployees, sick leave being in a state of confusion, and statements about plant closure? Certainly those comments were not made by any member of man- agement. Nor is management responsible for any rumors such as those alluded to in the union's letter. As you know, many unions attempt to convince employees that they are somewhat being abused and need the union's protection. The union's letter seems to me to be just an. effort to create need where none exists. Surely you do not need to take anyone's word (from management or the union) about working conditions at the Goodyear Proving Grounds. You are quite capable of evaluating the place where you work every day and I'm confident that your judg- ment will be a wise one. 'No workplace, including ours, is perfect—and that would continue to be the case if a union were to GOODYEAR TIRE & RUBBER CO 39 enter the picture On the other hand, I can assure you that your management team will continue to work with you, aS we have in the past; io address ourselves to the real needs of both the business and its employees. Richard Olsen, Manager Proving Grounds • As earlier noted, the URW filed its petition on August 18, and the election agreement, approved by the Acting Regional Director on September 1, scheduled an election date of Friday, September 30 Hours set for the election were 5:45 to 6:45 a.m., and 1 45 to 2:45 p.m. (C P Exh. 4.) By a "special invitation" flyer, the URW invited em- ployees to attend a picnic to be held at nearby Lake Nas- worthy on Saturday, September 24 (R Exh. 3). Presum- ably the leaflet was distributed within a week or so before the picnic. Apparently between then and the picnic the URW distributed another flyer. This one also undated, bears the headline title of "MORE THAN WAGES." (R. Exh 4.) Two paragraphs which refer to the subcontracting issue read All things stand right now, the company has the right to sub contract your work or even hire new employees to do the same work for less pay and benefits. They don't need your agreement to do these things. Once you are organized however, the issue of sub contracting becomes a subject for negotiations, and you can take the steps you feel are necessary to protect your jobs Don't you think it would be better to have the legal right to deal with these problems, rather than to live with the threat always hanging over your head? If Respondent made a specific written reply to the URW's undated flyer, it is not mentioned in the evi- dence 7 As we prepare to turn to the allegations, it may be helpful to note Olsen's uncontradicted testimony that he left the plant shortly after lunch on Wednesday, Septem- ber 7, for the airport where he boarded a plane and flew to the corporate headquarters at Akron, Ohio. After at- tending meetings there on Thursday and Friday he ar- rived back in San Angelo about 8 p.m. on Friday, Sep- tember 9, but did not go to the plant until Monday morning, September 12 (Tr.111-112). 8 On Tuesday, Sep- tember 13, Olsen attended a Chamber of Commerce breakfast in San Angelo and arrived for work about -9 a.m. (Tr. 114). ▪Attached to. the Regional Director's November 18, 1983 report on objections are several documents. Including three letters from Olsen to employees The letters are dated August 24, 1983. September 14, 1983, and September 23. 1983 They discuss campaign Issues None was offered as an independent exhibit in this proceeding No party contends that the letters are of any particular relevance to our issues here o Respondent did not offer in evidence a copy of Olsen's air travel ticket, motel receipt, or any other documentary evidence concerning the trip B. Manager Olsen's Breaktune Remarks 1. The testimony As earlier noted, paragraph 7(a) of the complaint al- leges (with emphasis added) that "On or about September 7, 9, and 13, R. J Olsen orally threatened" Respondent's employees "with loss of benefits, plant closure, and sub- contracting work then being performed" by Respond- ent's employees in the event the URW was successful in organizing. Called by. the General Counsel as witnesses in support of this allegation were drivers H L. Braz'iel and Billy F Brown Employed 29 years at Respondent's San Angelo Proving Grounds, Braziel testified that he was working the second shift, 6 a m to 2 •30 p.m., in September (Tr 13-14). He testified that at either the 8:20 or 10-35 morn- ing break about Tuesday, September 13, 8 , Shift Foreman Earl Kennedy made some remarks to about 25 to 30 em- ployees in the lunchroom (Tr 15). Braziel testified with- out contradiction that it was normal for the foreman to hold meetings with employees at breaks (Tr. 19).10 Olsen was present and seated in the reverse position on a chair (Tr. 20). Kennedy discussed several topics, unspecified by Braziel, and then remarked that a rumor had been circulating that union cards were being distrib- uted to hold another election (Tr 19) At that point, ac- cording to Brame], Olsen spoke up by saying, "If this place goes union, I'll close the goddamn gates."" Point- ing first to himself and then to the employees, Olsen stated that he had a job "tomorrow," but "what about you?" Olsen added that Respondent could farm the work out to outsiders for about a third of what Goodyear was paying the drivers, and that the employees had more to lose than to gain by going union (Tr 16, 20-21) Braziel testified that, although Olsen made further remarks; he could not describe them because at that point in the meeting Braziel bowed his head while considering these "thanks" of Goodyear for working half his life at all hours in all kinds of weather conditions (Tr. 21, 24). Bra- ziel described the "thanks" as his perception of Good- year's indifference to his long service, "that it didn't make a damn if I had a paycheck coming next week or if my job was terminated tomorrow or whether the elec- tion was over" Driver R. T. Allard also testified that he was working the second shift in September (Tr. 50). According to Allard, about September 9, at a morning break, Olsen spoke for some 5 to 6 minutes to 25 or 30 employees gathered in the lunchroom (Tr. 50, 58) 72 Allard testified 9 On cross-examination 0m/el admitted that he could not fix the exact date and placed the event as occurring sometime between September 7 and 15 (Tr 17, 23) Olsen testified that there is only one break before and one break after the lunch period '° Kennedy did not testify Braziel testified, without contradiction, that Olsen frequently used profanity (Tr 22) i2 name of any foreman present is not given in the record Al- though Allard testified in response to a question about September 9, I note that his own phrasing describes the meeting as being 2 to 3 weeks before the election of September 30 (Tr -59) That time frame would be September 9, 1983 to September 16, 1983 It is unclear whether this meet- ing is the same or different from the one described by Braziel The Gen- eral Counsel makes no contention either way 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that on this occasion Olsen told employees that econom- ic conditions made it an extremely poor time to organize, that unemployment was very high, and that anyone em- ployed should be proud of it Olsen reminded employees that Goodyear already subcontracted some of the work at $7 an hour, and that such a figure was much cheaper than the amount it 'cost Goodyear for its own drivers. According to Allard, Olsen stated that he was the only one who had job security, and that if the gates were closed right then he still had a job and the employees would be the ones out in the cold. Olsen added that he felt he could almost guarantee that the gates would be shut if the employees organized, and that there was no possible way employees could be guaranteed that em- ployees would keep the benefits they presently enjoyed (Tr 51-52). Driver Billy F Brown apparently was working the third shift, 2 to 10:30 p m. in September. He testified that about 7 p.m on Wednesday, September 7, or Thursday, September 8," Shift Foreman Wilbur Brown (who did not testify) called a meeting at breaktime. After discuss- ing a few items, Brown "introduced" Olsen who made some remarks about the union campaign to the approxi- mately 25 employees present Olsen reminded everyone of the pending election, said he wanted everyone to vote, remarked that Goodyear did not want the Union, reminded them that Goodyear had been farming out some of the work, that it was cheaper to do so, that Goodyear could do so with all of it if the employees voted in the Union, and warned that the employees had more to lose than to gain by going union (Tr. 26, 28-29). At the time of the hearing, Olsen had been manager for 2-1/2 years He was present during the 1982 election campaign, and he testified that he was familiar with the documents of the first two election campaigns (Tr. 84). Olsen testified that Respondent's supervision has re- ceived extensive training in the campaigning regarding TIPS—an acronym meaning no threats, interrogation, promises, or spying (Tr 90). When asked if he ever utilized breaktime to deliver business messages to employees, Olsen testified, "Not to the best of my recollection" Other than making himself available in his office when employees would have ques- tions, Olsen has never, "to the best of my recollection," gone into the lunchroom and addressed a group of em- ployees on their break. Consistent with the position ex- pressed in his letter of August 9 (R Exh. 2), Olsen speci- ficially denies making the statements attributed to him (Tr. 88). The General Counsel requests that an adverse infer- ence be drawn from the failure of Shift Foreman Earl Kennedy to testify (Br. at 5). I shall not draw any infer- ences I note that the evidence of both sides could have been aided by additional weight. 13 Brown testified that he was positive It was a Wednesday or Thurs- day in "early" September (Tr 29) As a calendar shows, September 1, 1983, fell on a Thursday Thus, the first Wednesday and Thursday in September were September 7 and 8, and the second occurrence of such days fell on September 14 and 15 Respondent also contends that Braziel and Allard do not corroborate each other 2 Conclusions Notwithstanding certain discrepancies in the testimo- ny, I credit the General Counsel's witnesses. The de- meanor of each was satisfactory. This is particularly true as to Braziel whose deep and sincere emotion was obvi- ous as he described Olsen's words. Respondent contends that Braziers credibility particu- larly suffers from his testimony that Shift Foreman Ken- nedy stated that there was a Amor of union cards being distributed "to go union again," to have another election. Respondent argues that it is "incredulous" that in Sep- tember any foreman would have made such a comment since the election agreement had been approved on Sep- tember 1 (Br. at 24). Goodyear's argument would carry more weight if Kennedy had denied making such a remark. There is nothing inherently improbable about Braziers testimony, for it could well be that the URW continued to distribute cards even after September 1 as a locking-in psychology Respondent also contends that Braziel and Allard do not corroborate each other However, the General Counsel does not contend that they attended the same meeting, nor do they. Although the dates of the meetings they described are rather general, the time frame of early to mid-September allows several potential dates outside the days that Olsen was absent Finally, I note that Olsen did not unequivocally deny ever speaking to employees on their breaks in the lunch- room I do not credit his denial that he made these re- marks. In light of the foregoing, I find that Respondent, through Plant Manager Olsen, threatened employees as alleged in complaint paragraph 7(a) and that by so doing Goodyear violated Section 8(a)(1) of the Act. C. Supervisor Hoover's Remarks 1. The testimony About September 15, complaint paragraph 7(b) alleges, John Hoover (admitted to be a statutory supervisor) orally threatened Respondent's employees "with loss of benefits, plant closure, replacing them on their jobs, and rehiring them at the federal minimum wage in the event the Union was successful in its organizational attempts" Test driver Andrew I Anderson testified as the General Counsel's witness in support of this allegation, and Su- pervisor Hoover testified as Respondent's witness in denial. In September Anderson worked the third shift, 2 until 10.30 p m. At that time he was working in the supervi- sor's building as part of a voluntary 90-day program to familiarize employees, selected by seniority, with the work of the supervisors (Tr. 31, 42, 47) The building is nicknamed the Sugar Shack (Tr. 31). - Anderson testified that about Thursday, September 15, he was seated at a desk in the Sugar Shack, a small office with dimensions of about 8 feet by 10 feet, with Supervisors Hoover and Bill Wallace (Tr. 31, 43, 45, 48). The men were discussing various topics, and eventually they took up the union subject. At the hearing Anderson could not recall who raised it, but testified that he did GOODYEAR TIRE & RUBBER CO 41 not think he had done so (Tr. 44). Supervisor Hoover re- marked that, if the Union got in, Goodyear would close down the plant, the employees could lose more than they could gain, that "we could start with a blank sheet of paper," and that Goodyear could rehire employees at minimum wage or could hire new employees at mini- mum wage. Hoover added that employees could lose what benefits they then enjoyed (Tr 32) When asked on cross-examination whether Hoover was speaking to him or Supervisor Wallace, Anderson responded by observ- ing that the room was very small and the statements could have been made directly to him or for his benefit, but they were made. "I was bound to hear it." (Tr. 45)14 Supervisor Hoover testified that he listened to Ander- son's testimony, that he had been trained not to make any such remarks, and denied making the statements at- tributed to him by Anderson (Tr 68-69). Supervisor Wallace did not testify In the circumstances here, I draw an inference adverse to Goodyear's position from Respondent's failure to call Supervisor Wallace Instead of calling Wallace, Respondent called drivers Ray Fisher, James Hall, and Teddy J Holt who testified that they had never heard Hoover or any supervisor making threats of the nature attributed to Hoover. Such evidence, even if credited, is of extremely slight value. The material question is whether Hoover spoke in the Sugar Shack as described by Anderson Respondent does not contend that Fisher and Hall were present in the Sugar Shack Supervisor Wallace was, yet Respondent did not call him as a witness. That other employees never heard Hoover or other supervisors making threats on other occasions may have some remote relevance to the question of whether Hoover spoke in the Sugar Shack as alleged, but the weight of such evidence is so slight as to be just about without any probative value 2 Conclusions Anderson's demeanor in testifying was satisfactory, and I credit him It seems clear that his account of Hoo- ver's remarks runs several topics together A perfect re- construction of the remarks very likely would show more context and clarify the transition from topic to topic. On the surface it would seem inconsistent for Hoover to begin with a statement about the plant closing if the Union were selected, then shifting, without a tran- sition context, to what could happen in negotiations or as a result of unionization." But these are attributes of or- dinary human recollection. The law does not require em- ployees to possess tape recorder memories The plant closing threat is a clear violation of Section 8(a)(1). In a context explaining the negotiating process, a statement that employees "could" lose their present ben- efits might not be unlawful Here, how-lever, the tenor of 14 On redirect examination Anderson testified that Hoover was "more or less" pointed in his direction (Tr 48) That adds little, however, for the evidence does not describe the location of the three individuals in the small room in relation to each other i5 testimony about rehiring employees at the minimum wage supports a finding, which I make. that Hoover said Goodyear could reduce the wages of current employees to the Federal minimum in the event the employees voted in the Union Hoover's brief remarks is that Goodyear would penalize employees if they voted for the Union. I find that Re- spondent violated Section 8(a)(1) as alleged in complaint paragraph 7(b). IV. PETITIONER'S OBJECTIONS TO THE ELECTION A Introduction The URW's Objections 1 and 2 are covered by the evidence treated under complaint paragraphs 7(a) and (b), and I recommend that these objections be sustained Objections 5, 9-10, and 12 present additional issues. B Manager Olsen 's Speech of September 28, 1983 The portion of Objection 5 set for hearing relates to Plant Manager Olsen's speech of September 28 in which he made reference to the 7-day rotation schedule. The Union's contention regarding this topic seems to be that Respondent held up a decision on whether to change to a rotation schedule, and then announced that decision on September 28 in a manner calculated to persuade em- ployees that they did not need a union for management to listen to them The initial problem with the URW's position is that driver Haston Fields credibly testified that he observed a bulletin board memo announcing Goodyear's decision to drop-the rotation idea." Fields could not recall the date he saw the memo (Tr 80-81). It would seem to have been at least as far back as early to midsummer, howev- er. Driver Andrew I Anderson recalled that Olsen stated in his September 28 speech that the 7-day rotation idea was being shelved (Tr 34-35). I find Anderson's recollection of this point to be unreliable. Driver Ernest M. Aguero quoted Olsen as saying on September 28 that as the employees did not want the 7- day rotation schedule, "We dropped it." (Tr 65, emphasis added ) During cross-examination by the URW, Olsen testified that he mentioned the subject in his September 28 speech as an example of how employees and management can work together without need for a third party (Tr. 110)." As Olsen's decision previously had been posted on the bulletin board, and as Aguero's testimony of "dropped," indicating a decision made in the past, is con- sistent with Olsen's testimony, I shall recommend that Objection 5 be overruled in its entirety. C Goodyear's Election Party Olsen authorized supervisors to hold a party for em- ployees about 6 30 p.m on September 30, following the 16 Driver R T Allard recalled that the announcement came from Per- sonnel Manager Vandiver at some meeting held at some unspecified time (Tr 53) 17 When Respondent sought to Introduce written excerpts from the text of Olsen's September 29, 1983 speech, the URVV objected unless the entire written text be offered in order to show the full context and nature of the limited excerpts (Tr 94-97, 103) I sustained the objection A credibility issue was raised concerning whether Olsen referred to the ex- cerpted topics elsewhere in his speech The rule of completeness supports my ruling Fed R Evid 106 Moreover, Respondent did not offer to produce the entire text for the URW's inspection The excerpts are In- cluded in the rejected exhibit file as R Exhs 8 and 9 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close of the polls (Tr. 107, Olsen). The issues raised by Objections 9 and 10 are whether supervisors invited em- ployees before the polls closed and whether a map was posted by Respondent before the polls closed. Driver Anderson testified that he observed a map, showing directions to the San Angelo Boat Club at Lake Nasworthy, posted on the lunchroom bulletin board around 6 to 6:30 p.m. (Tr. 36-39; C.P Exh. 5.) Anderson testified that on September 30, at a time subsequent to Anderson's observing the map, Supervisor Hoover invit- ed him to the party and told him he would be paid for the time (Tr. 36, 39). Anderson testified that he voted about 2 p m. (Tr 40). This establishes no objectionable conduct inasmuch as all events occurred after the polls. closed. Driver Allard testified that he observed the map posted around 10:30 a.m. on election day (Tr. 55), and Driver Aguero testified that he observed it on the bulle- tin board about 12:30 p m. (Tr 66). Allard testified that "supervisor" J. D. Martin invited him to the party (Tr. 55), and Aguero testified that an unidentified "supervi- sor" likewise invited him (Tr. 66). There is no pleading, evidence, or stipulation establishing that Martin and the other "supervisor" are statutory supervisors or otherwise agents of Goodyear. Olsen testified that he did his best to assure that the bulletin boards were kept free of campaign literature (Tr. 86-87). That may well be, but it does not directly contra- dict the positive evidence that the map was in fact posted over several hours on election day. However, the fact that the map was posted does not show objectionable conduct by Goodyear. The map is unsigned, and there is no evidence that an agent of Goodyear posted it. I shall recommend that Objections 9 and 10 be overruled. D. The Excelsior List Objection Objection 12 is that Goodyear failed to submit the list of eligible voters and their addresses in a timely manner, and that the URW did not receive the list until Septem- ber 13. The parties stipulated that the URW received a copy of the list on Tuesday, September 13, 1983, at 9 a.m. (Tr. 81-82; C P. Exh 1.) 18 The URW contends that Re- spondent's failure to comply with the 7-day deadline es- tablished by the Board in Excelsior Underwear, 156 NLRB 1236 (1966), is objectionable as a matter of law As the Board recently noted, the Excelsior rule re- quires an employer, within 7 days after the approval of an election agreement, or after an order directing an election, to submit to the Regional Director a list of the names and addresses of the eligible voters. Such list is then forwarded to the union. Red Carpet Building Main- tenance Corp., 263 NLRB 1285 fn. 3 (1982). In this case, Goodyear furnished the list, dile no later than Thursday, September 8, a little over 4 days late—on the morning of 19 Olsen testified that there were only a few changes from the 1982 list with about 2 names being added and 10 names deleted which were not on the 1982 list (Tr 85-86) Such testimony is Irrelevant to the Issue of compliance with the obligation to furnish a list of names and addresses of the voters the fifth day after the due date. This gave -the URW 16 days' use of the list before election day. Correspondence between Goodyear and Region 16 reflects that Respond- ent deliberately delivered the list to the Union without regard to the 7-day requirement on the asserted_ basis that the only material time requirement is that the Union have the list for 10 days prior to the election (R. Exh. 5; C.P. Exh. 3). • The Board has found that a 1-day delay in delivery of the list to a - Regional Director constituted substantial compliance with Excelsior where it appeared that the delay wa s caused by the Postal Service, the Board's Re- gional Office, or factors other than a design by the em- ployer See, for example, Chance Collar Go, 265 NLRB 1213 (1982) Here, however, Respondent intentionally delayed delivery of the Excelsior list." I find Respond- ent did not substantially comply. with the Excelsior rule, and -that, by its , deliberate delay, Respondent committed objectionable conduct I therefore shall recommend that Objection 12 be sustained E. Summary of Findings Based on the findings Sustaining Objections 1, 2, and 12, I shall recommend that the election held September 30, 1983, be set aside, that the Regional Director conduct a _second election to determine the question of represen- tation, and that the Regional Director include in the notice of election the Lufkin Rule 2° paragraph set forth below: Notice To All Voters. The election conducted on September 30, 1983, was set aside because the National Labor Relations Board found that certain conduct of the Employer interfered with employees' exercise of a free and reasoned choice. Therefore, a new election will be held in accordance with the terms of this notice of election All eligible voters should understand that the National Labor Relations Act, as amended, gives them the right to cast their ballots as they see fit, and protects them in the exercise of this right, free from interference by any of the parties I further recommend that Objections 5, 9, and 10 be overruled. CONCLUSIONS OF LAW 1. Goodyear is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. The URW is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening its employees with loss of benefits, subcontracting of all work, plant closure, or reducing Wage rates to the Federal minimum in the event the em- 19 Region 16 also apparently received a copy of the list about Septem- ber 13. 1983 (C P Exh 1) 20 Lufkin Rule Co, 147 NLRB 341 (1964), Oklahoma City Collection District, 263 NLRB 79 (1982), Fisher-Haynes Corp, 262 NLRB 1274 (1982) GOODYEAR TIRE & RUBBER CO 43 ployees voted in the URW, Respondent has violated Section 8(a)(1) of the 'Act. 4. Goodyear's unlawful conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. By engaging in the-objectionable conduct described in part IV of this Decision, Respondent has interfered with its employees freedom of choice in the election conducted September 30, 1983. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist and take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and the entire record, I issue the following recommended" ORDER. The Respondent, The Goodyear Tire and Rubber Company, San Angelo, Texas, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with loss of benefits, subcontracting of all work, plant closure, or reducing wage rates to the Federal minimum in the event the em- ployees vote in the URW or any other labor organiza- tion. 2 2 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Pot at San Angelo, Texas Proving Ground copies of the attached notice marked "Appendix." 22 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- 21 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 22 The phrase "or any other labor organization" is appropriately In- cluded Riley-Beazrd, Inc. 259 NLRB 1339, 1372 fn 144 (1982), Elk Brand Mfg Co, 253 NLRB 1038 (1981) 23 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board ent to ensure that the notices are not altered, defaced, or covered by any other material (b) Notify, the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the election held Sep- tember 13, 1983, in Case 16-RC-8611 is set aside and the case is remanded to the Regional Director for the pur- pose of conducting a new election, and that the Lufkin Rule paragraph, quoted in part IV, E, of this decision, be included in the Notice of Second Election to be issued by the Regional Director, and that Objections 5, 9, and 10 are overruled APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence and cross-examine witnesses, the National Labor Relations Board has found that we vio-. lated the National Labor Relations Act, and the Board has ordered us to post this notice and to comply with its provisions The National Labor Relations Act gives you, as em- ployees, these rights. To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of you own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or pro- tection To refrain from the exercise of any or all such activities. Accordingly, we give you these assurances. WE WILL NOT threaten you with loss of benefits, sub- contracting of all work, plant closure, or reduction of wage rates to the Federal minimum in the event you vote in the United Rubber, Cork, Linoleum and Plastic Workers of America, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you with respect to your rights guaranteed by Section 7 of the National Labor Relations Act THE GOODYEAR TIRE AND RUBBER COM- PANY