Eagle-Picher Co.

National Labor Relations Board - Board Decisions

Jun 2, 1965

152 N.L.R.B. 1121 (N.L.R.B. 1965)

THE OHIO RUBBER COMPANY, ETC. 1121
that CRA's employees are entitled to perform the disputed work of
operating the mass-spectrometers. This determination is limited to
the particular controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute,
pursuant to Section 10 (k) of the Act :
1. Employees of CRA who are currently unrepresented are entitled
to operate the mass-spectrometer.
2. Steamfitters, Local 572, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, is not entitled by means proscribed by
Section 8(b) (4) (D) to force or require CRA to assign such operation
of the mass-spectrometer to employees engaged as pipefitters, who are
represented by it.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Steamfitters, Local 572, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, shall notify the Regional
Director for Region 26, in writing, whether or not it will refrain from
forcing or requiring CRA by means proscribed by Section 8 (b) (4) (D)
to assign the work in dispute to pipefitters rather than to employees
of CRA.
The Ohio Rubber Company, a Division of the Eagle-Picher Com-
pany and United Rubber , Cork, Linoleum and Plastic Workers
of America, AFL-CIO. Case No. 26-CA-1799. June 2, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Wellington A. Gillis issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended dis-
missal as to them. Thereafter, Respondent filed exceptions to the Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
152 NLRB No. 112.
789-730-66-vol. 152-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has revised the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent that they are consistent herewith.
The Trial Examiner found that Respondent violated Section 8(a)
(3) by refusing to reinstate Ruth Garner. Respondent excepted to this
finding, arguing that the General Counsel failed to meet his burden
of proof that its refusal to reinstate Ruth Garner was caused by her
union activities. We find merit in this exception.
Ruth Garner went on sick leave on September 6,1963. She remained
in periodic contact with Respondent, advising it of her condition and
collecting her insurance checks until the middle of December. On
February 4, 1964, Ragsdale, Respondent's personnel manager, became
aware of Garner's failure to pay her group health insurance premium
and attempted to telephone her, only to find that her telephone was no
longer in service. Ragsdale testified that he then removed Garner's
name from the seniority roster in accordance with company policy
related to employees in layoff status who do not keep the Company
informed of their present residence. The Trial Examiner accepted
Ragsdale's testimony on this point and found that Respondent had
removed Garner from the seniority list as of this time.
Garner had moved to a new location on February 1. She contacted
Ragsdale on February 24, upon receiving notification from the insur-
ance company of her group policy cancellation, and questioned
whether she could be reinstated in the group policy. Ragsdale advised
her that she could not be, but did not tell her of her removal from the
company seniority list.
On March 9, Respondent made out an eligibility list of employees for
the forthcoming union election and excluded Ruth Garner therefrom.
On March 19, Garner called Ragsdale to inform him that she had been
released by her doctor and could return to work. That same day she
had her first contact with the Union involved herein when she was
introduced to Smithart, its field representative. Thereafter, during
the last week of March, she assisted the union campaign on two or
three occasions by distributing handbills to employees as they entered
the plant. During this period she maintained contact with Ragsdale
seeking permission to return to work. Ragsdale gave her no definite
answer but informed her that he would have to call her doctor and that
would have to be examined by the company doctor.
On April 1; the Board conducted a representation election among
Respondent's production and maintenance employees which was won
by the Union. On the day following the election, Ragsdale advised
Garner that her name had been deleted from the seniority list in Febru-
THE OHIO RUBBER COMPANY, ETC. 1123
ary because she had moved without informing the Company of her
change of address and that her employment with Respondent at that
time.
Ragsdale testified that shortly after Ruth Garner had informed him
of her medical release he had discussed the earlier removal of her name
from the seniority list with Gebhardt, Respondent's personnel director
at its main plant. Gebhardt had agreed that in accordance with com-
pany policy Garner's name was properly removed from the seniority
list. Ragsdale asserted that he had delayed telling Garner about her
loss of standing for fear that the Union would use the termination for
propaganda purposes in the election campaign. Accordingly, he said
he withheld the information until after the election.
The record discloses that Respondent conscientiously advised its
employees through the election campaign that it was their right to
belong, or not to belong, to a union, that no one's job would be adversely
affected because of his support for, or opposition to, any union, and
that, as the Trial Examiner found, Respondent had not committed
independent violations of Section 8 (a) (1).
The record also reveals that Garner had not been considered by the
Respondent to be a very desirable employee. Her attendance record
was poor. Her talents were limited to only one job whereas other
employees performing this job were called upon to perform other jobs
as well. Because of this latter limitation, her supervisor had recom-
mended in 1962, when she was laid off for lack of work, that she not
be recalled.
We find that the General Counsel did not sustain his burden of prov-
ing that Respondent either discharged Garner or refused her rein-
statement because of her union activity. In making this finding we
rely upon the fact that Respondent removed Garner's name from the
seniority list on February 4, before she had manifested any interest in
the Union. We do not consider Respondent's concealment of this fact
from Garner to be indicative of any hostility against her because of
her union sympathy as this concealment originated before she had
demonstrated any such sympathy. Respondent's attitude throughout
the campaign was not one of intimidating or coercing its employees
into withdrawing their support from the Union. Furthermore, on
April 2, when Respondent finally did advise Garner that her name had
been stricken from the seniority list and she would not be reinstated,
Respondent stood to gain nothing in terms of defeating the Union by
its refusal to reinstate Garner. Finally, there is no evidence that a job
vacancy existed for Garner at the .time she made application for rein-
statement. Accordingly, we shall dismiss those allegations of the com-
plaint respecting Respondent's refusal to reinstate Garner:
[The Board dismissed the complaint.]
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon an original charge, and first, second, and third amended charges, filed on
April' 16, May 11 and 21, and June 2, respectively, by United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, hereinafter referred to as the Union,
the General Counsel for the National Labor Relations Board, hereinafter referred
to as the Board, issued a complaint on June 4, 1964, against The Ohio Rubber Com-
pany, a Division of the Eagle-Picher Company, hereinafter referred to as the
Respondent or the Company, alleging violations of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat.
136), hereinafter referred to as the Act. The Respondent thereafter filed a timely
answer to the complaint denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was subsequently held in Fort Smith, Arkansas,
before Trial Examiner Wellington A. Gillis, at which all parties were represented by
counsel and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence pertinent to the issues, and to engage in
argument. A timely brief was subsequently filed by the Respondent.
Upon the entire record in this case and from my observation of the witnesses and
their demeanor on the witness stand, and upon substantial, reliable evidence "con-
sidered along with the consistency and inherent probability of testimony" (Universal
Camera Corporation v. N.L.R.B. 340 U.S. 474, 496), I make the following'
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation, maintaining a plant and place of business
at Fort Smith, Arkansas, where it is engaged in the manufacture of rubber products.
During the 12-month period immediately preceding the issuance of the complaint,
the Respondent purchased and received at its Fort Smith, Arkansas, plant, materials
valued in excess of $50,000 directly from points located outside the State of Arkansas,
and, during the same period, sold and shipped from said plant products valued in
excess of $50,000 directly to points located outside the State of Arkansas The
parties admit, and I find, that the Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
1. Whether the Respondent, through several of its supervisors, engaged in conduct
violative of Section 8(a)( I) of the Act.
2. Whether the Respondent, in refusing to reemploy Ruth Garner, violated Section
8(a)(3) of the Act.
B. The facts
1. The alleged 8(a)(1) conduct
Following an organizational campaign among Respondent's 170 employees during
the winter months, and representation petitions filed by the Union and the Respond-
ent on March 11 and 12, 1964, respectively,) a stipulation for a consent election was
executed on March 20 Thereafter, pursuant to an election held on April 1, the
Union was certified as the exclusive bargaining representative for the Respondent's
employees on April 9.
The complaint alleges that on February 21 three of Respondent's supervisors
engaged in surveillance of a union meeting, and that on four separate occasions prior
to the April 1 election a supervisor interrogated or threatened an employee in viola-
tion of Section 8(a) (1) of the Act.
'Cases Nos . 26-RC-2146 and 26-RM-162 Unless otherwise indicated, all datea here-
inafter set forth refer to 1964.
THE OHIO RUBBER COMPANY, ETC. 1125
a. Surveillance
The evidence as to this incident, most of which is undisputed, discloses that about
4:30 p.m., on Friday, February 21, toward the close of a union meeting attended by
some 12 to 15 employees at the Terry Motel, William Rodgers, the Respondent's
security chief, drove past the motel office and into the rear court of the motel,
slowly turned around, and drove away, having been observed by at least 1 of the
assembled employees. Approximately 15 minutes later, after all but one or two
of the employees had left the motel room but while some apparently were in the
process of driving away, Rodgers returned with John Ragsdale and Donald Bickel,
Respondent's personnel manager and manufacturing superintendent, respectively, in
the latter's automobile. As on the earlier occasion, the automobile carrying the
company officials pulled up in front of the motel, turned around, and left the area.
In each case the "company" automobile was in the area less than a minute.
The credible and undisputed evidence further reveals that this conduct was un-
authorized by the Respondent, and that immediately upon being informed of it,
Gordon Brott, Respondent's general manager, admonished each of the supervisors
who took part in the surveillance.2 On the following Monday, Brott called a meeting
of the Respondent's supervisory employees at which Brott duetted that this should
not happen again and instructed his supervisors not to question employees concerning
union matters. Brott then prepared and circulated among the Respondent's super-
visors and foremen for their signature a memorandum apprising them that the
surveillance of union meetings constituted an unfair labor practice and directing
them to stay away from any such activity in the future.3 By memorandum of this
same date, posted on all of the plant bulletin boards, Brott advised the Respondent's
employees that they had a right to belong to or not to belong to a union, and that
no employee's job would be affected because of his union activity.4
There is little question but that this is the type of employer conduct which the
Act forbids, and that surveillance of employee union activity strikes at the heart
of the right of employees to form, join, and assist labor organizations. On the other
hand, where, as here, the uncontradicted evidence reveals that such conduct was
totally unauthorized by an employer, and that, upon being apprised of it the employer
admonished those responsible and effectuated immediate measures to ensure that it
would not happen again, the Board has held, and properly so, that the employer
effectively repudiated such conduct.5 In view of the immediate steps taken by the
Respondent in this instance, I find that it may not be held responsible for the surveil-
lance activity on February 21, and will recommend that the complaint allegations
pertaining thereto be dismissed.
2 Although the Union had been organizing prior to this time, there is no evidence that
the Respondent had become aware of any overt union activity among its employees before
this occurrence
S This memorandum, dated February 24, and signed by the Respondent's 23 supervisors,
including Rodgers, Bickel, and Ragsdale, reads as follows
To All Supervisors and Foremen.
Surveillance or spying on union meetings is an unfair labor practice You are
advised that if you become aware that there is to be a union meeting or gathering at
any place off the company premises , you are to stay strictly away from such gathering
Furthermore, you are advised that it is improper to question any employee regard-
ing his or her attitude towards or activity in behalf of any union, and it is improper
to make, directly or indirectly, any promise of benefit, or any threat of reprisal be-
cause of an employee's activity in relation to unions
Gordon L. Brott,
General Manager.
' This memorandum reads as follows:
To Our Employees:
It has come to my attention that there may be some union organizing activity
among our employees. It Is the right of each individual to make his or her own
decision on this subject Each one has the right to belong, or not to belong, to a
union, and to assist, or to refrain from assisting, any union. On [sic] one's job
will be adversely affected, now or later, because of support for, or opposition to,
any union.
Gordon L. Brott,
General Manager.
cCosrnodync Manufacturing Company 150 NLRB 93
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Other alleged Section 8(a)(1) incidents
According to the unrefuted and credited testimony of employee Charles Belt, on
one occasion while he was driving his stocktruck in the plant on February 20, he
momentarily met up with Doyle Mayner, an industrial engineer and a close friend
of his, who was walking in the same direction as Belt. Before each went his own
way, Mayner asked Belt, who was wearing a union button, what Earl Tucker was
trying to do, "organize the whole plant by himself," to which Belt replied, "I guess
he is, I don't know."
Although Mayner was not called as a witness, and therefore did not testify, Belt
admitted that he had been a close friend of Mayner for years, that Belt had formerly
worked for Mayner's family, and that Mayner had been responsible for getting Belt
his job at the Respondent's plant Belt furthei admitted that Tucker was a sup-
porter of the Union, a fact that was widely known throughout the plant.
Under all of the circumstances, including the fact that no other statement or
conduct of any kind was attributed to Mayner, I am of the opinion, and so find,
that Mayner's remark to Belt on this occasion was nothing more than a passing
remark, casual in nature, and was not intended to register an informative reply from
Belt. Accordingly, I find that Mayner's remark does not constitute interrogation
within the meaning of Section 8(a) (1) of the Act
Employee Annie Estep, who had been active in soliciting union memberships,
testified that on one occasion during the first part of March, while she was working
in the molded goods department, her supervisor, Ancil Rains, walked by, stopped,
and asked her how she felt about the Union, to which she replied that she did not
know, and asked him how he felt about the Union. Rains replied that he was not for
it, that if he were, he would work for it. Rains denied having had this conversation
or any conversation with Estep concerning the Union. As against Rains, who testi-
fied in a frank and forthright manner, Estep was less than convincing in her response
to a number of questions put to her on cross-examination. Accordingly, I credit
Rains' denial that he questioned Estep concerning her union feelings.
On one other occasion in early March, while she was working in the mat depart-
ment, Gordon Brott walked over to Estep and told her that he had heard that she
was for the Union and wanted to know what she felt the Union could do for her.
There is no testimony indicating a reply by Estep, but, Estep admitted that in the
course of the conversation, Brott told her that it was her privilege to vote any way
she wanted in the forthcoming election While not condoning Brott's inquiry of
Estep as to her idea of the advantages offered by the Union, in view of the isolated
nature of the occurrence coupled with Brott's apprisal that Estep was privileged to
vote as she pleased, I find that this incident, by itself, does not warrant a finding of
an 8 (a) (1) violation
Sam Carr, a maintenance machinist employed by the Respondent, testified that
about the middle of March while he was working, he had several conversations with
his supervisor, Ray Stevenson, pertaining to the Union. On one such occasion
Stevenson asked him what the employees were gaining by having a union, and, upon
Carr's reply that they would have seniority rights and job classifications, Stevenson
stated that "he didn't think we could get any more money; that we would be paying
our dues for nothing." On a second occasion, according to Carr, Stevenson told
him that the Respondent did not promote union officials, that he knew the union
officials at Willoughby (Respondent's main plant) and they did not make a habit
of promoting them.
Stevenson credibly testified that during this period, the subject of the Union fre-
quently entered into conversations between Carr and himself, that usually it was
Carr who raised the subject. Stevenson denied that he made the statement attributed
to him by Carr concerning a policy of the Company not to promote union officials,
but freely admitted that on the first occasion alluded to by Carr, he asked Carr what
he hoped to gain from the Union, to which the latter replied, among other things,
that he expected to be able to contact supervisors, to bring grievances before manage-
ment through a regular grievance procedure, and that he expected about a 50-cent-
an-hour wage increase. Stevenson retorted that he did not "feel that the Union
would get him all these things because the Company had been as fair as they could
in the past and they had had raises about every year."
I credit Stevenson's denial of Carr's veiled threat attributed to him concerning an
alleged but unsupported policy of the Respondent toward employee union officials
at its organized Willoughby plant. Considering the context in which Stevenson
advanced his opinion concerning union benefits, specifically the fact that Carr often
initiated the Union into discussions with Stevenson, I am of the opinion, and so
find, that the instant conversation between the two was but a continuation of earlier
THE OHIO RUBBER COMPANY, ETC. 1127
ones and that Stevenson's comments on this occasion, which contain no threat of
reprisal or promise of benefit, constitute an uncoerced expression of his personal
views and, as such, are protected by Section 8(c) of the Act.6
2. The refusal to reemploy Ruth Garner
Ruth Garner, the alleged discriminatee, was first employed by the Respondent in
May 1962, and, with the exception of a 2-month layoff in November and December
of that year, performed cementing work in the molded goods department until Sep-
tember 6, 1963, when she broke her arm, went on sick leave, and was removed from
the company payroll. Because of healing complications, she remained under her
doctor's care until March 19, 1964, at which time she was released by her doctor for
regular work. Notwithstanding efforts by Garner, commencing on March 19, to be
reinstated to her regular employment, the Respondent did not accede to her requests,
and, on April 3, notified her that her termination had been made effective in
February.
The General Counsel contends that the Respondent's refusal to reinstate Garner
was motivated by her activity on behalf of the Union just prior to the April 1 elec-
tion.7 The Respondent, in denying the unlawful motivation attributed to it, asserts
that Garner was terminated on February 4 when her name was removed from the
company's group insurance plan and the employee seniority list because of her
failure to notify the Respondent of her having changed her residence address, which
termination predated not only Garner's union activity but in fact any known union
activity among the Respondent's employees.
The credible record evidence reveals that shortly after being placed on sick leave
on September 6, 1963, Gamer appeared at the plant weekly for the ensuing 13 weeks
to collect her checks provided for by the Company's accident insurance plan. During
this period, which ended around the middle of December, Garner also made monthly
payments at the plant on her Blue Cross and Blue Shield group insurance policy.
From time to time on these occasions, or by telephone, Garner informed Ragsdale of
the healing problems connected with her arm, including the necessity of a bone graft
on December 3, 1963. On February 4, while in the process of auditing the group
insurance billings, Ragsdale became aware of the fact that Garner had not paid
her February premium (which was due prior to the first of the month). Ragsdale
then attempted to telephone Garner in order to apprise her that without the premium
he would have to cancel her insurance. Upon receiving a recorded "no longer in
service" reply Ragsdale removed her name from the group insurance billing On
February 24, Garner, who had then received notice from Blue Cross that she had
been removed from the Company's group contract, called Ragsdale to apprise him
of her new residence (to which she had moved on February 1) and to inquire as to
the possibility of her being reinstated on the Company's group plan. Ragsdale told
her that he had deleted her name from the group billing which had been forwarded
to Blue Cross and that there was nothing that he could do about it, that she would
have to contact Blue Cross directly. During this conversation Ragsdale did not
mention anything about her having been terminated and Garner did not broach the
subject of returning to work.
Thereafter, upon being tendered a written release by her doctor on March 19,
Ragsdale told her that he would have to talk to her doctor and that she would have
to have a physical examination by the company doctor before she could return to
work. About a week later, after having made several additional inquiries of Rags-
dale, the latter told her that he had talked with her doctor, but that he would still
have to set up a physical examination for her. He also told her that a company
official from the home office was to arrive in Fort Smith in a few days to look over
her insurance and her records, and that he would want to see her doctor's release
slip. Ragsdale asked her to bring it out to the plant, and volunteered that she would
probably be put on probation for about 30 days to see if she could still do the work.
Subsequently, on April 1, the day of the union election, Garner, after having cast a
challenged ballot, attempted to see Ragsdale and was informed that he would not
see her that day, that she would have to come back the next day. Two days later,
on the afternoon of April 3, Garner called Ragsdale and, in reply to her inquiry as
8 Larry Paul Oldsmobile Co., Inc., 138 NLRB 697, 698.
7 The record discloses that Garner first became interested in the Union on March 19,
that on two, and possibly three, occasions between this date and April 1 she assisted
the union representative in handing out union pamphlets between shifts at the main
entrance to the Respondent's plant, and that she was so observed by at least two of
the Respondent's supervisors, including personnel manager John Ragsdale, the company
official responsible for her termination.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to when she might return to work and whether he had set up a physical for her, was
told by Ragsdale that "it had been decided the day before " that she had been
terminated back in February . When she inquired as to why she had been terminated,
Ragsdale would not give her a reason other than the fact that she had moved from
one address to another without having notified the Company.s
The position taken by the Respondent with respect to Garner, as testified to by
Ragsdale, is that Garner was removed from the seniority list, as well as from the
group billing, on February 4 when Ragsdale was unable to contact her, and that,
in view of this, upon receiving her request on March 19 to be put back to work, he
"just wanted to justify" what he had done by consulting Donald Gebhardt, the com-
pany's personnel director at the main plant, "to see what type of decision he would
render in a case like this," before acting upon Garner's request. Thereafter accord-
ing to Ragsdale, in addition to calling Garner's doctor, he talked with Gebhardt
within the next day or so upon the latter's visit to Fort Smith. In reply to Ragsdale's
hypothetical question as to the Company's position in an instance where an individual
had moved and the Company had been unable to contact him because of his failure
to advise of his change of address, Gebhardt told Ragsdale that such "was grounds
for termination." 9 Accordingly, bolstered by a higher authority's affirmation of his
February decision to remove Garner from the seniority list, Ragsdale , deciding to
wait until after the union election 2 weeks hence, told Garner on April 3 when she
called about going back to work that, in view of her failure to report her change in
address back in February, she was no longer an employee of the Company.
Conclusion
A perusal of the credible evidence pertaining to the Respondent's refusal to rein-
state Garner subsequent to March 19 does not weigh in favor of the position asserted
Respondent, and assuming, arguendo, that Garner was properly removed from the
seniority list and thus terminated in February,1° relieving the Respondent of any
legal responsibility at that point for rehiring Garner, and notwithstanding that her
request of March 19 for reemployment was made prior to her having engaged in
work was not communicated to her until after the April 1 election, some 2 weeks
later, during which time interval she openly engaged in union activity 11 In view
of other factors, coupled with Garner's failure to report her change in address in
February, allegedly considered by the Respondent as a basis for not allowing Garner
to return to work; i.e , poor attendance, unsatisfactory service, and a limited func-
tional work capacity, all of which necessarily related back to her previous employ-
ment and which, incidentally, did not preclude the Respondent from recalling her
after her 1962 layoff, it would seem that, had the Respondent for these reasons had
no thoughts of reemploying Garner on March 19, the Respondent would have so
indicated to her at that time.12 The fact further remains that after his telephone
The factual findings contained in the above paragraph are based upon the credited
testimony of Garner , the substance of which is either admitted or unrefuted by that of
Ragsdale Although Garner's testimony reflects some confusion on her part as to cer-
tain dates relating to her moving in February, I was generally impressed with her
demeanor on the witness stand and , with the exception of this portion of her testimony,
I believe her testimony to be truthful.
' The quoted portion is taken from the testimony of Gebhardt and is contrary to that
of Ragsdale , who testified that in giving Gebhardt the facts of Garner 's case without
mentioning her name , Gebhardt had replied that "the only conclusion that you could
draw would be that she terminated her employment when she failed to notify the Com-
pany in February of her change of address "
10 There is no question but that Garner's name was in fact removed from the seniority
list prior to March 9 when the Respondent forwarded to the Board a list of unit em-
ployees in connection with the representation proceeding , and that such fact was com-
municated to the union representative during the preelection conference on March 30.
"There is no evidence that any employee other than Garner participated in handing
out union pamphlets at the Respondent 's plant
i At no time were these additional reasons given to Garner , nor does Gebhardt
corroborate Ragsdale 's testimony to the effect that they were considered jointly by Rags-
dale and Gebhardt in arriving at their decision shortly after March 19. They , in fact,
appear to constitute a belated attempt by the Respondent to bolster its defense of the
discriminatory allegations . Nor would it appear that Garner's failure to report her
change of address in early February , relied upon by the Respondent as its main reason
for not reinstating Garner, constitute so serious an offense as to warrant the Respond-
ent's action, for such failure breaches no written rule of the Respondent , and, as Gebhardt
testified "His failure to do so places the responsibility on him and relieves us of any
responsibility for his conduct."
THE OHIO RUBBER COMPANY, ETC. 1129
conversation with Garner on March 19, Ragsdale called her doctor, who had already
released her for work, and ostensibly was satisfactorily apprised of her physical
condition. Finally, the veracity as well as the logic of Ragsdale's testimonial explan-
ation as to his reason for not telling Garner until after the April 1 election that she
had been terminated back in February and would not be reemployed leaves much
to be desired. Thus, admitting that he had talked with Garner during this 2-week
interval, and that he purposely stalled apprising her of his decision until after the
election, Ragsdale testified on the one hand that he did not have the heart to tell
her, and, on the other hand, that he did not think it would be in the best interest of
the Company at that time, that he did not want to give her a reason to have sym-
pathies with the Union or to tell the Union.
Thus, while I would not quarrel with the Respondent's decision to remove Garner
from the Company's employee roster following its inability to locate her in early
February, I seriously question its motive in relying upon Garnert's earlier failure to
notify as a basis for subsequently denying her employment. Based upon the record
as a whole, I am persuaded, and so find, that, but for Garner's open activity in dis-
tributing union literature at the plant gate during the latter part of March, Ragsdale,
upon ascertaining that Garner was physically fit, would not have refused to reinstate
her to her previous work with the Respondent.
Accordingly, I find that, in refusing to reemploy Garner, the Respondent was dis-
criminatorily motivated, and that, as of April 3, 1964, when she was advised of
the Respondent's decision, the Respondent violated Section 8(a)(3) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it is recommended that it cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the policies of the Act:
It having been found that the Respondent unlawfully refused to reemploy Ruth
Garner on April 3, 1964, and thereby violated Section 8(a) (3) and (1) of the Act,
it is recommended that the Respondent offer the above-named individual immediate
and full reinstatement to her former or substantially equivalent position, without
prejudice to any rights or privileges to which she is entitled, and make her whole
for any loss of earnings she may have suffered as a result of the discrimination against
her, by making payment to her of a sum of money equal to the amount she would
have earned from the date of the discrimination to the date of the offer of reinstate-
ment,13 less net earnings during said period, to be computed on a quarterly basis
in the manner established by the Board in F W. Woolworth Company, 90 NLRB
289, and shall include the payment of interest at the rate of 6 percent to be computed
in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB
716.14 In this regard, it is further recommended that the Respondent preserve and,
upon request, make available to the Board or its agents, for examination and copy-
ing, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records necessary to compute the amount of backpay.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Ohio Rubber Company, a Division of the Eagle-Picher Company, is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act
3. By discriminating in regard to the hire and tenure of employment of Ruth
Garner, thereby discouraging membership in, and activity on behalf of, the above-
named labor organization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
11 See A.P.W. Products Co, Inc., 137 NLRB 25.
14 See Reserve Supply Corporation of L.I, Inc. v. N.L.R.B., 317 F. 2d 785 (C.A. 2).
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Ideal Laundry and Dry Cleaning Co. and Dry Cleaning and
Laundry Workers , Local Union No. 304 , Laundry, Dry Cleaning
and Dye House Workers International Union . Case No. 07-CA-
1269. June 3, 1965
SUPPLEMENTAL DECISION AND ORDER
On February 25, 1963, the National Labor Relations Board issued its
Decision and Order in the above-entitled proceeding,' finding that the
Respondent had unlawfully refused to bargain with the Union as the
certified bargaining representative of the Respondent's employees in
a unit which the Board had found appropriate. On April 23, 1964,
the United States Court of Appeals for the Tenth Circuit vacated the
Board's Order and remanded the case to the Board for reconsideration
of the unit determination .2
Pursuant to the court's remand, a hearing was held before Trial
Examiner Fannie M. Boyl.s. On January 11, 1965, the Trial Examiner
issued her attached Supplemental Decision, concluding that the unit
set forth in the original representation proceeding was appropriate,
and recommending that the Board reaffirm its bargaining order.
Thereafter, the Respondent filed exceptions to the Supplemental Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.3 The Board has considered the entire
1140 NLRB 1412.
a N.L.R.B. v. Ideal Laundry and Dry Cleaning Company, 330 F. 2d 712.
8 We find , without merit, the Respondent's contention that it was precluded by the
Trial Examiner from introducing certain testimony regarding the salaried drivers whose
unit placement is in dispute . The Trial Examiner indicated , at the commencement of
the reopened hearing, that in her view the court's remand contemplated taking testimony
limited to the unit desires of certain employees ; immediately after the luncheon recess,
however, the Trial Examiner , apparently reversing this ruling, announced a willingness
to take any evidence that could possibly be construed as coming within the court's
remand . Although the Respondent chose to present some of its evidence as to the issue
of the unit placement of the disputed drivers by way of offers of proof , there is no show-
ing that the Trial Examiner prevented the Respondent from presenting relevant testi-
152 NLRB No. 117.