Firestone Tire and Rubber Co.

National Labor Relations Board - Board Decisions

Oct 26, 1973

206 N.L.R.B. 614 (N.L.R.B. 1973)

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dayton Tire ,& Rubber Company, a Division of the
Firestone Tire and Rubber Company and United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC. Cases 16-CA-4524, 16-
CA-4628, 16-CA-4719, 16-CA-4745, 16-
CA-4842, and 16-RC-5903
October 26, 1973
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On March 26, 1973, Administrative Law Judge
George Turitz issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent each filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order to the extent consis-
tent herewith .3
i 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 Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record
and find no basis for reversing his findings.
Respondent has excepted to the Administrative Law Judge's finding that
Sam Gault, Respondent's department manager, testified that he did not
speak to Supervisor Hofman concerning exmployee Chambers' discharge on
Saturday afternoon , July 8, 1972. While the record reveals that Gault testified
that he did speak to Hofman-on the afternoon of July 8 concerning Cham-
bers, the relevant evidence concerning Chambers' discharge convinces us
that the Administrative Law Judge's credibility resolutions with respect
thereto are correct
2 In the absence of exceptions , we adoptproforma the Administrative Law
Judge's recommendations that the objections to the election conducted in
Case 16-RC-5903 be overruled.
3 A majority consisting of Members Jenkins and Kennedy, like the Adnun-
istrative Law Judge , finds that despite the unit inclusion of the similarly titled
management trainees at some other company plants , the management train-
ees in this case had, and exercised , the same authority as the first line
supervisors, who were concededly outside the unit; and leadmen Rice and
Earlywine, unlike leadman Garrison here and possibly similarly classified
leadmen at other company plants, were also supervisors because they respon-
sibly directed the work of employees.
Chairman Miller, contrary to his colleagues, would find the leadmen and
the management trainees to be nonsupervisory and thus eligible to vote. In
his view, both groups are borderline , and in such cases he would give great
weight to the practice of the parties at other locations . The record indicates
that these parties have consistently treated management trainees as bargain-
mg unit employees , and that at other locations they have been covered by
collective agreements and have participated in strikes by the unit in the same
manner as other rank-and-file employees . Under these circumstances it
seems unlikely to the Chairman that the trainees are regarded by either unit
employees or by the management as possessing genuine supervisory authori-
The General Counsel excepts to the Administrative
Law Judge's finding that Respondent's discharge of
Patrick Harrington was not in violation of Section
8(a)(3) and (1) of the Act 4 We find merit in this excep-
tions
As the Administrative Law Judge correctly found,
Harrington had an excellent work record. He was one
of the earliest active supporters of the Union, distri-
buting handbills on seven or eight occasions, wearing
a union T-shirt, and getting numerous union authori-
zation cards signed. His supervisor at one time told
Harrington that he was stupid for trying to organize
the plant, and that even if the Union succeeded the
employees would not gain anything.
On the 7 workdays from September 28 through
October 6, 1971, Harrington built a blackwall tire, the
correct code of which was L7HXU-B02. The correct
work description for the tire was F78-14-4-ply-BW.
However, Harrington, on each of the aforementioned
workdays, entered on his timecard the code L7HXU-
C02 and the description F78-14-4-ply-WW.' In spite
of Harrington's error, his timecard was approved by
his regular supervisor on September 28, 29, and 30
and on Friday, October 1.
Rudolph Ward took over as Harrington's supervi-
sor on October 3, 1971, and at the end of the shift on
October 4 Ward noticed the error on Harrington's
timecard. Instead of bringing the error to
Harrington's attention, Ward immediately brought
the timecard to Kenneth Wren, manager of the tire
ty during their training period. The evidence as to leadmen leaves us in the
typical quandary as to their supervisory status, which we often face as to this
category, and again the Chairman would give greater weight than his col-
leagues do to the evidence that like classifications in other plants have consis-
tently been regarded by both management and the union as bargaining unit
employees.
The Green Tire inspectors also present a troublesome issue, but the Chair-
man has concluded that while the Employer attempted to create a managerial
status for this group, it did not cloak them with sufficient clearly managerial
duties and responsibilities-as distinguished from status symbols in the way
of pay and emoluments-to definitely require their exclusion from the unit.
The Administrative Law Judge did not rule upon Respondent's belated
contention , which was raised at the second hearing, that Harrington 's hand-
written entries on his timecards for the penod from September 28 through
October 6 , 1971, were made to look more like a capital "V" instead of a "U."
As indicated in In. 17 of his Decision , the Administrative Law Judge found
that the entry on only one such timecard-the card for October 5-looks
more like a "V" than a "U."
We have independently examined the timecards in question and we con-
clude that Respondent's contention lacks merit.
s Chairman Miller dissents and would find this exception without merit.
The correct pay rate for a tire builder is determined by the methods and
tunestudy department, based upon the tire cord which the tire builder enters
on his timecard . A tire builder gets a higher pay rate for building whitewall
rather than blackwall tires . The code suffix B02 indicates blackwall and C02
indicates whitewall; the work description suffix BW also indicates blackwall,
while WW means whitewall. However, the methods and timestudy depart-
ment, in determining the correct pay rate for a tire builder, completely
disregards the code and work description suffix and determines the pay rate
solely by checking the code prefix Thus, since his pay was determined by
the code "L7HXU" alone (which indicates that a blackwall tire was built),
Hamngton's mistake of entering "CO2" rather than "B02," which was ig-
nored by methods and timestudy , could not have resulted in Harrington
receiving more pay than that to which he was entitled.
206 NLRB No. 72
DAYTON TIRE AND RUBBER CO. 615
building department, who then took the card to Gree-
ly Sanders, Respondent's personnel manager. Sanders
instructed Wren to check out Harrington's prior work
record and, in so doing, Wren found errors, on only
the timecards for September 28, 29, and 30 and Octo-
ber 1.
In spite of Harrington's mistakes, the methods and
timestudy department had entered the correct pay
rate, namely, 5.98 hours, on the timecards for Septem-
ber 28, 29, and 30.7 However, by October 4, the meth-
ods and timestudy department had not yet entered the
pay rate on Harrington's timecard for October 1.
On October 6, 1971, Sanders and Wren confronted
Harrington with the timecards for October 4, 5, and
6, only, and accused him of stealing from Respon-
dent. Harrington told Sanders and Wren that he must
have been asleep; that he usually built whitewall tires
while working on that particular machine, and he had
filled out his timecard relying on memory, thus mak-
ing an unintentional error. At this confrontation San-
ders noted that Harrington had no bad marks against
him and Wren told Sanders that Harrington was one
of Respondent's highest producers. In spite of this,
Harrington was discharged for stealing.
As noted, supra, Harrington's timecards for Sep-
tember 28, 29, and 30 were computed by the methods
and timestudy department with the correct standard
of 5.98 hours. However, the remaining timecards
show an incorrect standard of 6.73 hours.' The Ad-
ministrative Law Judge inferred that Sanders and
Wren caused or permitted the incorrect figures to be
entered on these timecards for the purpose of misrep-
resenting the probable or possible consequences of
Harrington's wrong entries. However, the Adminis-
trative Law Judge found that Respondent was not
unreasonable, or lacking in good faith, by failing to be
convinced that Harrington was not attempting to
steal from Respondent. We disagree.
We cannot understand why, if Respondent be-
lieved that Harrington was attempting to steal, it went
to such elaborate lengths to effectuate Harrington's
discharge. The Administrative Law Judge correctly
points out that Wren and Sanders obviously knew
that the pay rate was based upon the tire code prefix
L7HXU alone and that Harrington was not confront-
ed with the timecards of September 28, 29, and 30 for
he could have then pointed out to Respondent that his
mistakes had not, and could not, have caused the
methods and timestudy department to enter a higher
standard than he had actually earned.
Contrary to the Administrative Law Judge, we do
not find it so difficult to accept Harrington's actions
r See fn. 6.
8 The pay rate for a whitewall tire.
as an honest error, especially in light of his excellent
record with Respondent, and the fact that his. harm-
less error was approved by his regular supervisor for,
the days of September 28, 29, 30 and October 1. The
Administrative Law Judge points out that the ques-
tion is whether Respondent's motivation for
Harrington's discharge was Respondent's belief that
Harrington had attempted to cheat. Certainly, if Re-
spondent believed that Harrington was attempting to
steal, it had the evidence it needed on Harrington's
timecards -for September 28, 29, 30 and October 1.
Respondent's actions thereafter indicate that it did
not believe that Harrington was attempting to steal,
but only that, he was making a harmless error which
could be used to Respondent's advantage in ridding
itself of an ardent union supporter. Thus, Respondent
caused or permitted incorrect time standards to be
entered on those timecards which had not yet been
annotated by the methods and timestudy department
in an attempt to make a case against Harrington.
Under these circumstances, we find that the reason
for Respondent's discharge of Harrington was clearly
pretextual, and that the discharge was a violation of
Section 8(a)(3) and (1) of the Act.9
THE REMEDY
In order to effectuate the policies of the Act, it is
here found necessary that Respondent: (1) cease and
desist from the unfair labor practices found and from
like or related unfair labor practices; and (2) take
certain affirmative action, including reinstating Pat-
rick Harrington to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make Harrington whole for any loss of
earnings suffered by reason of the discrimination
against him plus interest at 6 percent per annum, com-
puted on a quarterly basis, as prescribed in F. W
Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, The
Dayton Tire & Rubber Company, a Division of The
Firestone Tire and Rubber Company, Oklahoma
City, Oklahoma, its officers, agents, successors, and
9 In light of our findings herein, the challenge to Harrington's ballot in the
representation election is hereby overruled and it shall be directed that his
ballot be opened and counted.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for pargaraph 2(a):
"(a) Offer Chris Chambers, Paul Greenwood, and
Patrick Harrington immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions without preju-
dice to their seniority or. other rights and privileges."
2. Substitute the following for paragraph 2(c):
"(c) Make Chris Chambers, Paul Greenwood, Paul
Grammont, and Patrick Harrington whole in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining with the Employer, the Regional
Director for Region 16 shall, pursuant to the Board's
Rules and Regulations, within 10 days from the date
of this Direction open and count the ballots cast by
the employees listed below and thereafter cause to be
served on the parties a second revised tally of ballots
including therein the count of the ballots mentioned
below. Thereafter, the Regional Director shall issue
the appropriate certification in accordance with the
Board's Rules and Regulations.
Marcus Barnes David M. Jilge
Carl Coats Herb Keller
Claude Dennis Murphy Kirklin
Marshall Dunnam J. Mosley
Gerome Eberhardt Delbert Patterson
Thomas Farris Leo Skaggs
Paul Fay Robert D. Walker
J. L. Hunter Lemley West
James Bridgiford Dwight Chastain
James Darden Robert Frick
Thomas Griffith Cecil Hicks
William Johnson Jim Rooney
Neal Garrison Patrick Harrington
reinstatement to their former jobs without preju-
dice to their seniority and other rights' and privi-
leges.
WE WILL offer Paul, Grammont assignment to
tire building machine No. A-7.
WE WILL pay backpay to Paul Grammont, Paul
Greenwood, Chris Chambers, and Patrick Har-
rington as provided in the Board Order.
WE WILL expunge from our personnel records,
department records, and all other records the ab-
senteeism reports on Stanley Allred and Bert
Verel, dated June 7 and 8, 1972, and all refer-
ences to said reports in our records.
WE WILL NOT discharge you or discriminate
against you in the assignment of work or in any
other manner because you join or assist United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, or any other labor or-
ganization, or engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or because you
testify at hearings of the NLRB.
WE WILL NOT poll or interrogate you as to your
union desires, sympathies, or activities, under
such circumstances, or in such a manner, as to
constitute coercion.
WE WILL NOT create the impression that we
have engaged in surveillance of your union or
other concerted activities.
WE WILL NOT make unfavorable absenteeism
reports or threaten, warn, or discipline you in any
other manner based upon absence necessitated
by your testifying at NLRB hearings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights to self-organization, to bargain col-
lectively through representatives of your own
choosing, and to engage in other concerted activ-
ities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any or all such activities, except insofar as these
rights- might be affected by a contract with the
labor organization, if validly made in conformity
with Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Paul Greenwood, Chris Cham- Dated By
bers, -and Patrick Harrington immediate and full,
THE DAYTON TIRE & RUB-
BER COMPANY, A DIVISION
OF THE FIRESTONE TIRE AND
RUBBER COMPANY
(Employer)
(Representative} (Title)
DAYTON TIRE AND RUBBER CO. ' 617
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may, be directed to the
Board's Office, Federal Office Building, Rm. 8-A-24,
819 Taylor Street, Fort Worth, Texas 76102, Tele-
phone 817-334-2938.
DECISION
STATEMENT OF THE CASE
GEORGE Tuitnz, Administrative Law Judge: Upon a peti-
tion filed on February 11, 1972, by United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO-CLC
(the Union), and pursuant to a Stipulation for Certification
Upon Consent Election executed on March 8, 1972, by the
Union and by The Dayton Tire & Rubber Company, a
Division of The Firestone Tire and Rubber Company (Re-
spondent and, at times, the Company) and approved on
March 10, 1972, by the Regional Director of the National
Labor Relations Board (the Board) for Region 16, the Re-
gional Director conducted an election on April 12, 1972.
The tally of ballots disclosed that of valid votes counted 321
were cast for and 322 against the Union, and that there were
45 challenged ballots, a number sufficient to affect the re-
sults of the election. On April 18, 1972, the Union filed and
served timely objections to conduct affecting the results of
the election.
On October 12,197 1, January 26, March 21, and April 14,
1972, the Union filed charges against Respondent in Cases
16-CA-4524, 16-CA-4628, 16-CA-4719, and 16-
CA-4745, respectively, which charges were served on those
same dates upon Respondent. On May 19, 1972, the Gener-
al Counsel of the Board, through the Regional Director,
issued an order consolidating cases, consolidated complaint
and notice of hearing in said four cases, which were duly
served upon Respondent.
On May 24, 1972, the Regional Director issued a report
on challenges and objections, order consolidating cases, and
notice of hearing, in which he approved the Union's with-
drawal of certain objections, found that the issues raised by
the remaining objections and by the challenges could best
be resolved through a hearing, and consolidated the repre-
sentation case with the complaint cases for purposes of
hearing, ruling, and decision by a Trial Examiner.'
On May 25, 1972, Respondent filed its answer to the
consolidated Complaint, denying all allegations of unfair
labor practices.
A consolidated hearing was held before me at Oklahoma
City, Oklahoma, on June 5 through 8, 1972. The General
Counsel, Respondent and the Union were represented at
the hearing by counsel and filed briefs with me.
Thereafter, upon charges filed by the Union in Case 16-
I Effective August 19, 1972, the title, "Trial Examiner," was changed to
"Administrative -Law Judge."
CA-4842 on July 5 and 19, and August 18, 1972, and re-
spectively served on those same days upon Respondent, the
Regional Director, on August 31, 1972, issued a new com-
plaint and notice of hearing which was duly served upon
Respondent. Respondent filed an answer in which it denied
all allegations of unfair labor practices.
On September 18, 1972, on motion by counsel for the
General Counsel, I issued an order reopening the hearing in
the earlier consolidated cases and consolidating them with
Case 16-CA-4842. On my own motion my order further
directed that at the reopened hearing I would receive certain
additional evidence which related to the discharge of Pat-
rick Harrington which had been litigated at the earlier hear-
ing.
The consolidated hearing as reopened and on the new
complaint was held before me at Oklahoma City on October
17, 18, and 19, 1972, with all parties represented by counsel.
After the close of the hearing, in the company of all counsel
and the Respondent's personnel manager, I visited
Respondent's plant. The parties have filed additional briefs
with me.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT-EMPLOYER
Respondent is an Ohio corporation having its principal
place of business in Dayton, Ohio, and having a plant in
Oklahoma City, Oklahoma, where it is engaged in the man-
ufacture and distribution of tires. In the course of its opera-
tions at the Oklahoma City plant, Respondent annually sells
and distributes products valued at in excess of $50,000 di-
rectly to customers located in States of the United States
other than the State of Oklahoma. I find that Respondent
is an employer engaged in commerce within the meaning of
Section 2(2),(6), and (7) of the National Labor Relations
Act, as amended (the Act).
11. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
III THE APPROPRIATE UNIT
A. The Stipulation
The description of the appropriate collective bargaining
unit in the stipulation was as follows:
Included : All production and warehouse employees in
the employer's plant at 2500 South Counci l Road, Ok-
lahoma City.
Excluded: General-office-clerical and plant office cleri-
cal employees, professional employees, technical em-
payees, laboratory employees, classifiers, guards,,
watchmen and supervisors as defined in the- Act.
X618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time the Stipulation for Certification was executed,
the Company and the Union also executed a memorandum
reading as follows:
MEMORANDUM
This understanding supplements the stipulation for
certification upon consent election entered into on
March 8, 1972 in Case No. 16-RC-5903.
It is understood that the green tire inspectors are
neither included in nor excluded from the stipulated
bargaining unit and that the green tire inspectors will
be allowed to vote challenged ballots, subject to later
determination by the Board as to whether they should
be included or excluded, if their ballots are determina-
tive of the election.
At the hearing all parties agreed that the intent of the mem-
orandum was that the green-tire inspectors were to vote
subject to challenge, and that their unit placement would be
decided as a unit question in connection with such chal-
lenges. The Union contends that they should be included,
the Company that they should be excluded.
B. The Evidence as to the
Green-Tire Inspectors
The first step in the actual manufacture of tires, called tire
building, is carried on in department 130. The department
has 67 tire-building machines arranged in 5 lines, or rows,
called modules, of 12 each, and 2 lines of 4 and 3 machines
respectively. Conveyor belts run between rows. A green-tire
inspector is assigned to each row of machines. The tire
builder assembles the various component materials on his
tire-building machine in accordance with the specifications
with which has been furnished. What he makes is a cylindri-
cal object which more resembles a bottomless barrel than
the tire with which we are familiar. He places the green tire
on the conveyor belt serving him, which carries it to the
green-tire inspector assigned to that row of machines. The
green-tire inspector picks up the tire and inspects each end
and the complete inner and outer surfaces. If the tire is not
satisfactory, he marks the defective points on the tire and
places it on a conveyor which carries it away. The line
supervisor eventually instructs the tire builder who made
the tire to pick it up and remedy the defects, which must be
done before the end of the shift. If the green-tire inspector
notices that a tire builder makes a particular error as many
as three times running, he goes to the tire builder and calls
this to his attention; and if necessary he tells him how to
correct the error. If the tire, which usually weighs between
20 and 29 pounds, is satisfactory, the green-tire inspector
lifts it and places it on a press which splices the various
threads together. The press ejects the tire onto a conveyor
which carves it to the nearby "doper," which coats the tire
inside out with a substance to prevent adherence to the
mold in the curing process. The "doped" tire is ejected onto
a conveyor belt which carries it out of the tire-building
department to the curing room where it is given the basic
familiar form seen on the highways. Next the tire undergoes
inspection by the final inspectors. These employees are in-
terested primarily in the appearance of the tires. The green-
tire inspectors, on the other hand, while concerned with
some shortcomings that might affect appearance, are con-
cerned primarily with structural defects affecting the
strength and durability of the tire.
To some extent a green-tire inspector's judgment is sub-
jective. Grammont testified, "And there is a lot of mistakes
that you don't have to fix. I mean, nobody can build a
perfect tire." Most tire builders are on piece rates, so that
all time spent by them correcting defects is, in effect, un-
compensated. The green-tire inspectors are rotated weekly
from line to line. They are not under the supervision of the
line supervisors but report directly to the same shift foreman
to whom the line supervisors report.
Like management personnel, office clerical employees,
and other excluded categories, the green-tire inspectors are
salaried, whereas, apart from them, all unit employees are
hourly paid. All salaried personnel, including the green-tire
inspectors, use separate parking facilities, and their fringe
benefits-medical benefits, pension, disability insurance,
life insurance, salary continuation plan, vacation, prescrip-
tion-drug benefits, stock purchase plan, severance pay, and
survivor benefit plan-differ from those accorded the hour-
ly-paid employees. In addition they do not receive the-night-
shift differential which hourly-paid employees receive, and
they have different lunch periods. Respondent made the
green-tire inspectors salaried for the specific purpose of
making them feel more allied with management than with
the production and maintenance employees. Wren testified:
Well, you remove the inspector from the bargaining
unit, so to speak-I will retract that-from the clock
card operation, and as a result of the fact that he is part
of management you actually get a better job from the
man himself because he is removed from the operation.
Concluding Findings as to
the Appropriate Unit
Respondent's position that these employees be excluded
from the unit is not based on any contention that they are
supervisors, but on the contention that their interests are
more closely allied with those of management than with
those of the hourly employees in the production and main-
tenance unit. In support of its contention Respondent relies
on the identity of their fringe benefits with those of manage-
ment, and on the fact that their decisions can have a direct
adverse affect on a tire builder's earnings.
The Board normally includes inspectors in production
and maintenance units. The green-tire inspectors are a part
of the tire-building department, function in the same work
area as the tire builders, work in close conjunction with
them, even perform part of the actual production in the
narrow sense, they operate the splicing press, a physically
strenuous task,' and they are subject to the supervision of
2 Most of the tires weigh 20 to 29 pounds, and each qualified tire builder
is required to produce over 100 tires per day. A green-tire inspector serving
10 tire builders would thus lift well over 10 tons daily onto the splicing
machine.
DAYTON TIRE AND RUBBER CO. 619
the same shift and departmental foremen as the other em-
ployees in the department. The fact that their decisions may
adversely affect tire builders' earnings is not a sufficient
reason to exclude them from the unit. See Kiekhaefer Corpo-
ration, 119 NLRB 1097, 1098. Nor is the fact that they are
salaried and have-fringe benefits different from those of the
hourly-paid employees and the same as those of manage-
ment personnel a sufficient reason for their exclusion. See
The M. B. Farrin Lumber Co., 117 NLRB 575, 577.
I shall recommend that the green-tire inspectors be in-
cluded in the unit and that the unit description be amended
accordingly.
IV. THE CHALLENGES
The eligibility date was the payroll period ending March
4, 1972, and the time of the election was 5 to 7 a.m. and
12:30 to 5:30 p.m. on April 12, 1972.
A. The Green-Tire Inspectors
i
The following voters, all green-tire inspectors, were chal-
lenged because Respondent had not included them in the
eligibility list. As I have found that the green -tire inspectors
are included in the unit , I recommend that the challenges
be overruled and the ballots counted:
Marcus Barnes
Carl Coats
Claude Dennis
Marshall Dunnam
Gerome Eberhardt
Thomas Farris
Paul Fay
J. L. Hunter
David M. Jilge
Herb Keller
Murphy Kirklin
J. Mosley
Delbert Patterson
Leo Skaggs
Robert E. Walker
Lemley West
B. Voters Challenged as Supervisors
1. The 12 admitted management trainees
A number of voters challenged by the Union as supervi-
sors were management trainees, also referred to as supervi-
sory trainees. The Company contends that they are eligible
and it established that at two other plants of the Company
where the Union is the recognized bargaining agent man-
agement trainees are deemed to be within the production
and maintenance unit.
The management trainees participate in the Company's
management training program, which includes 40 hours of
classroom work, homework, and 6 to 9 months of on-the-job
training. The class work normally precedes the on-the-job
training, but since the plant is relatively new, a shortage of
supervisors often results in management traninees perform-
ing as such on the job before completing the classroom
work. Management traninees remain hourly paid but they
receive 10 percent above their rank-and-file wage. They do
no manual work and, upon becoming management trainees,
change their mode of dress accordingly, in most cases don-
ning neckties. They also eat lunch with the salaried supervi-
sors, and they have the use of the management parking lot.
Participants in the program are selected by management,
and Kinder, a foreman, testified that none of his manage-
ment trainees was ever taken out of the program. However,
some management trainees have reverted to their rank-and-
file jobs. -
The on-the-job training consists of acting as first line
supervisors, with exactly the same functions and authority
over employees as salaried first line supervisors. The latter
are concededly outside the unit. The management trainees
are presented to the employees by higher management as
their "supervisors," and the, Company emphasizes to the
employees that they are required to follow the orders of
management trainees exactly as they do the orders of sala-
ried supervisors. The management trainees assign work to
employees, train new employees, inspect work, and see to it
that the employees do their work. Kinder, a foreman, testi-
fied that he decides whether to recommend a management
trainee for salaried supervisor on the basis, among other
things, of how he handles his men. Sanders, the Company's
personnel manager, testified that the employees would see
no change in duties or functions when a management trai-
nee became a salaried supervisor.
Concluding Findings as to
the Management Traniees
The handling of men referred to by Kinder plainly re-
quires the exercise judgment and discretion and the man-
agement trainees have supervisory authority while in that
status. The only question is whether the status is so tempo-
rary and their expectation of returning to their bargaining
unit jobs so great that their interests lie with those of the unit
employees rather than with those of management. Cf. Burke
Division of Brunswick Corporation, 177 NLRB 67, where an
employee was told that he was being temporarily assigned
to extraunit duties so that the employer could catch up on
past-due orders. The Company's management trainees' su-
pervisory status is not a temporary one but is probationary.
As they are selected by management for the program, they
presumably are individuals with good potential. There is no
basis in the record for finding any reasonable expectation
that they will revert to rank-and-file status.
I find that management trainees were supervisors, ineligi-
ble to vote in the election.
The Company conceded that 12 challenged voters were
management trainees, namely:
Patrick Bahajak Robert Foreman
Roland Barnett Harold Fossett
Gene Benjamin T. E. Hembree
David Bramlett D. W. McKnight
Gary Cooper A. J. Mueggenborg
Jim Dixon Darro Oclarey
Dixon and Oclarey were rank-and-file employees on the
eligibility date but management trainees on the date of the
election ; the other 10 were management trainess on both
dates .3 I shall recommend that the challenges to these 12
3 The Company included the management trainees on the Excelsior list it
submitted but omitted Robert Foreman The omission was inadvertent.
620
ballots be sustained.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Bridgiford and James Ferguson
James Bridgiford, who was challenged by the Union as a
supervisor, was employed in the tire-building department.
He suffered a back injury and was absent from work for
some months prior to the election. Before his injury he had
from time to time acted as supervisor-whether as a man-
agement trainee 4 or on simple temporary assignment as a
line supervisor is not clear-but his last work before his
extended absence was as a rank-and-file tire builder. Wren,
the manager of the tire-building department, telephoned
Bridgiford and told him to come to work and vote. Bridgi-
ford voted then reported to work on the 3 o'clock shift.
Physically unfit to work as a tire builder, he was put to work
as a management trainee.'
As a production employee of the Company on the eligi-
bility date absent only because of illness and not thereafter
separated from the unit, Bridgiford was plainly an eligible
voter at least up to the day of the election. Whether or not
Wren, in his telephone call, told him that he would be made
management trainee when he reported for work, Bridgiford
did not enter upon his duties as such until after the polls had
opened and he had in fact voted. During part of the day,
therefore, he was still an eligible voter. The Board has held
that it will not fractionalize days and that an employee
discharged on the day of an election, but before the polls
opened, was eligible to vote. Choc-Ola Bottlers, Inc., 192
NLRB 1247. The same principle seems applicable to Bridgi-
ford. I therefore find that he was eligible to vote and shall
recommend that the challenge to his ballot be overruled.
James Ferguson was a management trainee from Febru-
ary 21, 1972, through March 18, 1972. Thereafter he was
reassigned to his former unit job of bias cutter machine
helper, a function he was performing on the date of the
election. Since Ferguson was a management trainee, a su-
pervisory position, on March 4, 1972, he was not employed
within the unit on the eligibility date. It is immaterial that
he was thereafter reassigned to his unit job. I'therefore find
that he was ineligible to vote and shall recommend that the
challenge to his ballot be sustained.
3. Former temporary supervisors
Dwight Chastain worked as a replacement supervisor for
limited periods on various occasions, including'an occasion
around February 1972 and one after May 15, 1972. On the
eligibility and election dates he was classified as a tuber
booker serviceman, a bargaining-unit job.
James Darden worked as 4 relief supervisor during the
week beginning April 3, 1972, and on May 6, J972. On the
eligibility date and the election date he was a bladder and
serial changer, a unit job.
a Foreman Kinder testified that Bndgifnr f had been a management train-
eeror to January 1972.
Sanders, the Company's personnel manager , termed Bridgiford's assign-
mdnt `relief supervisor." However the Company's eounsel several times dur-
iug the hearing stated that ;$ridgiford' was made a management trainee after
voting.
Robert Frick worked as a supervisor from August 23
through September 30, 1971.On the eligibility date and the
election date he was a tuber operator, a unit job.
Thomas Griffith worked as a supervisor from February' 3
through 15, 1972. On the eligibility date and the election
date he was a tuber operator, a unit job.
Cecil Hicks worked as a supervisor from July 11 to Au-
gust 21, 1971. On the election and eligibility dates he was
a painter-doper, a unit job.
William Johnson worked as a supervisor from February 3
through 15, 1972. On the eligibility and election dates he
was a tuber operator, a unit job.
James Rooney worked as a supervisor from January 24
through February 18, 1972. On the election and eligibility
dates he was a bias machine operator, a unit job.
There is no evidence that any of these seven individuals
worked as supervisors except to the extent already stated.
As they were employed within the unit on the eligibility date
and the date of the election,6 I find that they were eligible
to vote in the election and shall recommend that the chal-
lenges to their ballots be overruled.
4. Robert Voss
Voss was challenged by the Union as a salaried supervi-
sor. He was classified as a management trainee but on Octo-
ber 4, 1971, he was assigned to be a probationary classifier,7
and he was still working as such on the eligibility date and
on the date of the election. Classifiers recorded the defects
found by the green-tire inspectors and sent the defective
tires on to the retrim men for correction. If the retrim man
did not know what to do, he got instructions from the classi-
fier and was required to follow such instructions. Classifiers
were salaried and were specifically excluded from the unit.
However, Voss was still hourly paid, since he was on proba-
tion.
As both management trainees and classifiers were exclud-
ed from the unit, Voss was excluded irrespective of which
job he is deemed to have held. The only possible question
is whether, assuming that he is deemed a classifier and not
a supervisor for purposes of deciding his eligibility, the chal-
lenge must be overruled because made on the wrong
ground. The Company was fully aware that classifiers were
ineligible, and its own evidence established that Voss,was
working in that excluded position. Distinguish International
Ladies' Garment Workers Union, AFL-CIO v. N.L.R.B., 339
F.2d 116 (C.A. 2, 1964), denying enforcement in relevant
part and remanding 142 NLRB 353. In that case the exclu-
sion of four voters, Cohn, Reuter, Wells, and Dubrow, was
not apparent on the face of the unit description and, more-
over, no hearing had been held with respect to those individ-
uals. The court held that in those circumstances the
employer had not had sufficient notice and, therefore, not
sufficient opportunity, to show that the nonsupervisoryem-
bThere is no showing that the major , or even a substantial, part of their
work during the year was supervisory. Cf. Westinghouse Electric Corporation,
163 NLRB 722, 727.
7In its brief Respondent states that this was a temporary assignment. The
evidence establishes, however, that it was a probationary assignment, r.e.,
th t if'Voss completed his probation satisfactorily he would remain a classics
er.
DAYTON TIRE AND RUBBER CO. 621
ployees challenged as supervisors were within the unit not-
withstanding other reason set forth by the Board in its Deci-
sion. The court, at page 124, conceded that ". . . a party
should not be penalized for oversight at the time of filing the
challenge and the Regional Director should be able to dis-
cover new and' unspecified grounds of ineligibility , if they
exist... .
As the Company was not prejudiced by the wrong state-
ment of the ground of challenge and the matter was fully
litigated, I find-that Voss was ineligible to vote and shall
recommend that the challenge to his ballot be sustained.
5. Leadmen
C. L. Earlywine and Arlean Rice, who were challenged by
the Union as supervisors , were leadmen in the waste control
department . Rice worked on the 3 to 11 shift and Earlywine
on the 11 to 7 shift, each along with two other men classified
as fabric reworkers . The 7 to 3 shift had four men, one of
whom was Ralph Fish , who supervised the entire depart-
ment.8 Earlywine and Rice did manual work along with the
other men in the department ; Fish did not. Rice and Early-
wine received instructions from, and reported to, Fish, and
they kept record of the material processed. They received 23
cents per hour in addition to the $3.30 per hour which was
the rate for fabric reworkers. They entered the two rates
separately on their timecards and indicated on the cards
that the 23 cents was for "working supervisor."
The department received rolls of fabric which, because
they had been miscut , mismatched, misscheduled, or in
some other manner mishandled, could not be used by the
tire builders and therefore had to be recut to the proper
width and bias by a fabric reworker. The parts that could
not thus be salvaged became scrap. The department was
provided with a list of the types of fabric needed and of the
required measurements , depending on what tires were
scheduled for production. The fabric reworkers, guided by
these lists, selected rolls of fabric to rework. However, the
leadmen frequently instructed them in this respect and at
times ordered them to work on other rolls than the ones they
had selected . If the list called for a fabric not on hand but
a leadman thought an available fabric might be substituted
satisfactorily, he would request authorization for the substi-
tution.
The leadmen, on the basis of the width and bias pre-
scribed, made computations with respect to each roll to
ascertain how the roll could be cut with the minimum waste
of fabric, and then instructed the men how the roll was to
be trimmed. The men could sometimes make this decision
themselves but usually it was made by the leadmen. They
kept close watch over how the men were doing their work
and would frequently come to their tables and measure
what had been cut and the angle of the cut. When work was
being done wrong, the leadmen gave the necessary instruc-
tions to correct it. They made out absentee reports which
were forwarded to the personnel department , and when the
medical department confirmed that an employee was ill,
they issued the necessary instructions to the guards to allow
8 With the possible exception of Fish , whose classification does not appear
clearly in the record , there was no leadman on the 7 to 3 shift.
him to pass through the gate during the shift.
I find that in instructing the fabric reworkers how the rolls
were to be cut and in keeping constant watch over them and
correcting their work the leadmen were required to use inde-
pendent judgment. I therefore find that Rice and Earlywine
responsibly directed employees in their work and were su-
pervisors and ineligible to vote in the election . I shall recom-
mend that the challenges to their ballots be sustained.
Neal Garrison, whom the Union challenged as a supervi-
sor, was leadman in the die shop , which was part of the
technical services department . He was classified as a tool
and die maker and was hourly paid. He worked on the day
shift along with one other man. The evening and night shifts
each had only one man in the die shop. Garrison received
daily the schedule of dies to be produced during the next 24
hours and assigned the work to himself and the other three
men in the die shop . He also did the necessary paperwork.
As the record contains no evidence that the assignment of
work to the various tool and die makers , including himself,
required the use of independent judgment , I find that Garri-
son did not responsibly direct employees in their work and
was not a supervisor . I find that he was eligible to vote in
the election and shall recommend that the challenge to his
ballot be overruled.
C. Voters on Assignment to Nonunit Jobs
Earl F. Biggs and Stanley M. Davis were challenged by the
Union as salaried employees excluded from the unit .9 Biggs'
permanent classification was windup man, Davis ' process
inventory trucker, both hourly paid unit jobs. In August
1971 the Company began preparations to computerize its
production scheduling . It assigned certain regular schedul-
ers, a job specifically excluded from the unit, to learn to
program the material for the computers. To replace the
regular schedulers Briggs and Davis were assigned to that
work on August 25, 1971, and, along with some others, were
still so engaged at the time of the first hearing. Sanders
testified that the Company hoped the computerizing would
be ready by some time in August 1972, at which time some
of the employees then doing scheduling would have to be
assigned to other work. He stated that he could not say what
would happen then to Briggs and Davis because, while
"somebody's" scheduling would come to an end when the
computers were placed in operation, promotions, and other
changes would also take place. There is no evidence that
Biggs or Davis was at any time placed on salary and I
assume that they remained hourly paid.
As a general proposition the Board holds, as stated by the
Company in its brief, that unit employees temporarily as-
signed outside the unit are eligible to vote. In Huntley-Van
Buren Company, 122 NLRB 957, cited by the Company, the
Board stated that the challenged voter in that case ". . . will
shortly return to his ... job in the unit ...... and stated,
further: "We have ... recognized the obvious fact that the
interests of such an employee continue to remain with his
permanent job..... In the other case cited by the Compa-
ny, McDonald Printing Company, 81 NLRB 481, a decision
9 The Company's counsel stated at the hearing that , with the possible
exception of green-tire inspectors , all unit employees were hourly paid.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and direction of election, the Board included in the unit an I recommend that the challenges to the ballots of the
employee newly hired for the unit but temporarily working following voters be overruled and that the ballots be opened
outside the unit; out the Board specifically directed that he
was to be ineligible if he was not transferred to unit work
before the eligibility date. I am unaware of any instance
where the Board has held employees eligible notwithstand-
ing their transfer out of the unit for as long as was rea-
sonably to he anticipated in the case of Davis and Biggs.10
In addition, in view of Sanders' testimony that he did not
know what they would do when computerization was ready,
it cannot be found probable that they will ever revert to unit
work. Cf. Burke Division pf Brunswick Corporation, supra,
177 NLRB 67.
I find Biggs and Davis ineligible and shall recommend
that the challenges to their ballots be sustained.
Billy Smith was also challenged by the Union as a salaried
employee excluded from the unit. Smith's permanent classi-
fication was warehouseman, a unit job on or about January
23, 1972, he was "temporarily" assigned to work as a pro-
duction programer, a classification concededly outside the
unit, and he was still so assigned at the time of the first
hearing. Counsel for the Company stated that the transfer
was occasioned by an event on January 23, but the record
does not show what the event was. Neither does the record
disclose when, or under what circumstances, or even wheth-
er, Smith would be transferred back to his unit job. As
Smith was performing nonunit work for an extended period,
including the eligibility and election dates, and since there
is no evidence showing that he will probably return to unit
work, I find that he was ineligible to vote and shall recom-
mend that the challenge to his ballot be sustained.
Marcus Barnes
Carl Coats
Claude Dennis
Marshall Dunnam
Gerome Eberhardt
Thomas Farris
Paul Fay
J. L. Hunter
James Bridgiford
James Darden
Thomas Griffith
William Johnson
Neal Garrison
David M. Jilge
Herb Keller
Murphy Kirklin
J. Mosley
Delbert Patterson
Leo Skaggs
Robert D. Walker
Lemley West
Dwight Chastain
Robert Frick
Cecil Hicks
Jim Rooney
D. Patrick Harrington
Respondent challenged Harrington as not employed on
the eligibility date or the date of the election. He was dis-
charged on October 6, 1971, and the first complaint alleged
that his discharge was discriminatory. As I have later in this
Decision dismissed that allegation, I shall recommend that
the challenge to his ballot be sustained.
E. Recommendations as to the Challenges
I recommend that the challenges to the ballots of the
following voters be sustained and the ballots not counted:
Patrick Bahajak Robert Foreman
Roland Barnett Harold Fossett
Gene Benajmin Patrick Harrington
David Bramlett T. E. Hembree
Gary Cooper D. W. McKnight
Jim Dixon A. J. Mueggenborg
James Ferguson Darro Oclarey'
Earl F. Biggs Robert Voss
'Billy Smith Stanley M. Davis
Arlean Rice C. L. Earlywine
10 In Lamson Corporation, 100 NLRB 667, 668, the Board held that a
transfer into the unit for an indefinite period which rmght have lasted up to
a year made the transferees eligible
V. THE UNFAIR LABOR PRACTICES
The parties litigated a large number of issues as to alleged
threats of retaliation, promises of benefits, and interroga-
tion by Respondent, and as to its allegedly discriminatory
discharge and discipline of employees and assignment of
work place. Also at issue was the question of whether cer-
tain of these acts, plus Respondent's advising management
or supervisory trainees to vote, interfered with the employ-
ees' freedom of choice in the election and affected the re-
sults of the election.
A. The Discharge of Harrington
Harrington, in the top group of Respondent's tire build-
ers, was one of the earliest active supporters of the Union.
He distributed handbills on seven or eight occasions, was
one of the first two employees who wore a union T-shirt,
and was responsible for getting over 2 dozen union designa-
tion cards signed. His supervisor, Hollis, on one occasion
told him that he was stupid for trying to organize the plant,
and that even if the Union succeeded, the employees would
not gain anything.I I Harrington was discharged on October
6, 1971, for the stated reason that he deliberately falsified
his daily timecards for October 4, 5, and 6 to represent that
he built a tire for which the piece rate was higher than for
the one he had actually built.12
When a tire builder was assigned to build a tire, a mi-
nutely detailed specification sheet for the tire was placed on
his machine. Each tire had a code number consisting of a
five-character main part and a three-character suffix, which
was entered on the specification sheet. The five-character
main part was sufficient to identify the tire to which it was
assigned to the exclusion of all other tires and in all respects,
including the color of the side walls and the established
piece rate. The three-character suffix began with the letter
B or C. All blackwall tires had a suffix beginning with B;
1 The General Counsel stated that this evidence was offered only to prove
Respondent's knowledge of Harrington's union activity
1 Respondent expressed piece rates in terms of a standard number of
hours for producing 100 tires For example, a standard of 5.50 hours meant
that an employee received 5-1/2 hours' pay at his assigned hourly rate for
every 100 tires he built.
DAYTON TIRE AND RUBBER CO.
all colored-wall tires, usually white, had a suffix beginning
with C. The other two characters in the suffix were digits
which, in the codes in evidence, ran from 01 to 09.
Each day, after the end of his shift, the tire builder filled
out a timecard. The form had I1 columns across the top,
under 6 of which the tire builder made entries. These were
work place, operation number (2 columns), work descrip-
tion or production, units produced, and actual hours. Under
work place the tire builder entered the assigned number of
each machine on which he worked that day. Under opera-
tion number he entered in the first column the five-charac-
ter main part of the code number of each tire he built and
in the second the three-character suffix. Under work de-
scription or production he entered the sign of the tire,13 the
number of plies, and two letters indicating either black or
whitewall. Under units produced he showed the tire count.
The tire builder delivered his timecard to his line supervisor.,
After the supervisor checked the card for accuracy, he ap-
proved it and it was sent to the'methods and time study
department, where clerks entered the standard hours for
each tire listed on the card. They found the standard hours
on incentive standard sheets, which showed the operation
number, i.e., the code, including the suffix, the tire size, and
the standard hours. However, in order to ascertain the stan-
dard hours the clerk did not look beyond the five-character
main part of the code.
On the 7 workdays from September 28 through October
6, 1971, Harrington built a tire the code of which was
L7HXU-B02 and the correct work description for which
was F78-14-4-ply-BW. On all 7 days Harrington entered
as the code suffix C02, and as the work description, F78-
14-4-ply-WW. WW was the usual symbol for whitewall,
BW for blackwali. On ll eptember 28, 29, and 30, and on
Friday, October 1, his regular supervisor, Goodmiller, ap-
proved the cards and they were all ultimately forwarded to
the methods and time study department. On Sunday night
Ward took over the supervision of Goodmiller's line. On
Monday morning, October 4, he noticed the incorrect code
suffix and work description on Harrington's card and im-
mediately brought it to Wren, manager of the tire-building
department. Wren took the card to Sanders, and personnel
manager, who instructed him to find out what Harrington
had done previously. Wren checked Harrington's cards for
several weeks and ascertained that he had filled out four
cards the previous week with the same inaccuracies. Howev-
er, notwithstanding the "CO2" and "WW" written by Har-
rington, the methods and time study department had
entered the correct standard for the blackwall tire Harring-
ton had built, namely, 5.98 hours, on the cards for Septem-
ber 28, 29, and 30; and "earned hours" based on that
standard were entered. Harrington was watched 2 more
days, i.e., October 5 and 6, and it was noted that he made
the same inaccurate entries.
In the afternoon on October 6 Harrington was awakened
from his sleep and summoned back to the plant, Sanders
and Wren confronted Lhim with the cards for October 4, 5,
and 6,14 and accused him of stealing from the Company.
13 The first two characters of the code were tire size codes fixed by the
Department of Transportation . 49 CFR 574.10
1 I have credited Harnngton 's testimony that they showed him only these
623
Asked for an explanation, Harrington said he must have
been asleep. He told Sanders and Wren that previously he
had usually built whitewall tires when,working on that ma-
chine-Alpha 7-and he had filled out his card automati-
cally, relying on memory, and had made an unintentional
error. At the hearing Harrington testified that he filled out
the cards at 7:00 in the morning, after working all night.
During the discussion Sanders stated that Harrington had
no bad marks against him and Wren told Sanders that
Harrington was one of the highest producers. Harrington
was sent out of the office and after about 5 minutes was
called back in and discharged for stealing.
Shortly after Harrington's discharge Respondent posted
a notice in the tire-building department warning employees
that falsification of their timecards could result in discharge.
Concluding Findings as to
Harrington's Discharge
On October 4, when Wren, pursuant to Sanders' instruc-
tions, examined Harrington's cards for the previous week,
he observed that the methods and timestudy department
had entered the correct standard and earned hours for Sep-
tember 28, 29, and 30. However, the cards for October 1 and
4, as offered in evidence by Respondent, showed 6.73 hours
as the standard and Harrington's earned hours on that ba-
sis. The October 4 card was admittedly not sent by Ward
to the methods and timestudy department but was delivered
directly to Wren, who brought it to Sanders. It is therefore
plain that the 6.73 standard and the earned hours were
irregularly entered when Sanders and Wren knew that those
entires were incorrect. As to the October 1 card, the testimo-
ny of Marquardt, production records supervisor in the
methods and timestudy department, shows that normally it
would not have reached that department unitl Tuesday,
October 5. Since Wren got all cards of the previous week on
Monday and saw the correct standard hours entered on the
first three, I find that the 6.73 standard and the earned hours
were also entered on the October 1 card irregularly when
Sanders and Wren knew the figures were incorrect. In the
absence of any credible explanation,15 I must infer that
Sanders and Wren caused or permitted the incorrect figures
to be entered on both cards for the purpose of misrepresent-
mg the probable or possible consequences of Harrington's
wrong entries.
Respondent also went to great lengths at the hearing to
make it appear that Harrington's entering "WW" and
"CO2," if not detected by Ward, would have led to his being
paid the higher rate. Wren testified that the entry "WW"
meant more money for Harrington; and Sanders entered on
the cards for October 4, 5, and 6, "Paid as Black, NOT
WW." The record is clear that the employees were not paid
on the basis of entries, "blackwall" or "WW"; they were
paid on the basis of the five-character code. Wren, as man-
three cards. Sanders first testified that he had shown him the other four, but
he then admitted that he was uncertain Moreover, he wrote, "Reason for
termination. GR Sanders" on the three cards Harrington testified were exhib-
ited, and not on the other four.
15 Marquardt explained that the production records clerk read the codes
on the cards for October 1 and 4 as L7HXV and therefore entered the 6.73
standard. I do not credit Marquardt
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ager of the tire-building department, surely knew this; and
I infer that Sanders knew it too-that is why he did not
confront Harrington on October 6 with the cards he had for
the previous week which would have enabled Harrington to
point out that his "WW" and "CO2" had not misled the
methods and timestudy department into entering a higher
standard than he had earned. It also explains Sanders' pro-
fessed inability to recollect which cards he displayed in the
discharge interview.
The means resorted to by Sanders and Wren to make it
appear, contrary to the fact, that Harrington's wrong en-
tries, if not detected by Ward, would in all probability have
resulted in his being overpaid seriously impaired their credi-
bility. However, this lack of credibility is not -sufficient to
establish that they did not in fact believe that he had been
trying to cheat. Substantial extra steps were required in the
construction of whitewall tires, and the General Counsel
conceded that Harrington was fully aware that he was
building blackwalls. Moreover, most specification sheets
delivered to the tire builders, including the one for L7HXU
each covered two tires, a blackwall and another tire basical-
ly the same, but having a whitewall. The standard hours
were materially different, with the whitewall standard uni-
formly the higher.16 It is true that the record shows that
employees, filling out their cards at the end of their shift,
when they were tired and anxious to get home, did from
time to time make errors like Harrington 's or, in some cases,
in reverse. Nevertheless, 7 days in a row seems on its face
difficult to accept as an honest error, especially as to the
WW for BW, both suggestive abbreviations. Certainly, even
if I were convinced that it was not deliberate, I could not
find that Respondent was unreasonable, or lacking in good
faith, in failing to be so convinced. It should be noted also
that Harrington's explanation of his alleged aberration is
not convincing. While it is true that for extended periods,
including the 3 workdays immediately prior to his starting
on L7HXU, he built whitewalls exclusively when operating
Alpha 7, as recently as September 20 through 22 he built
and recorded correctly on his timecar4s 532 tires, including
520 blackwalls, of which 484 blackwalls were built on Alpha
7.
The question remains of whether Respondent's belief that
Harrington had attempted to cheat was the motivation for
his discharge. Many employers, discovering a young, able
employee in such a situation for the first time, would keep
him in the hope that, a warning and some counseling would
set him straight. However, that is far from universally true,
and there is no evidence suggesting that Respondent was of
such disposition. The General Counsel attempted to show
that a supervisor, one Coker, had cheated and had not been
disciplined. Coker did not cheat; he merely went round
making boasts of record production by his line which the
computer showed were not warranted. The fact that Re-
spondent may have welcomed the opportunity to get rid of
a union adherent does not establish that it would not have
discharged Harrington in any event because of the time-
I6 Harrmgton's daily production of L7HXU averaged about 158 tires. The
difference between pay for 158 tires at that standard and at the standard for
L7HXT, its whitewall equivalent, was about 1-1/2 hours at his base hourly
rate.
cards. See Klate Holt Company 161 NLRB 1606, 1612.
I find that the General Counsel has failed to meet his
burden of establishing by a preponderance of the evidence
that Respondent discharged Harrington because of his
union activities. I shall recommend dismissal of paragraph
8(a) of the first complaint.''
B. Other Coercive Acts up Jzo the Election
1. Prior to petition
(a) Sanders, the personnel manager, and West, the plant
manager, frequently held employee meetings in the plant.
Each meeting was attended by about 15 to 18 employees
drawn from various departments. Specific subjects were
covered but the employees often brough up unionization,
and their questions were answered.18
Wall testified that at a meeting on April 15, 1971, an
employee asked whether the July increase, which Respon-
dent had previously announced, would be granted if the
employees organized, and that Sanders replied that all bene-
fits they then had would be negotiable and they would have
to start over from scratch. He admitted that Sanders did not
say that existing benefits would be taken away or would
come to an end. Grammont testified that at one of the April
1971 meetings West said, in answer to a question, that if the
Union came in, the employees would not get a certain drug
prescription plan which "was coming up" and "the new
wages and everything. That they would have to be negotiat-
ed on." Greenwood testified that at a meeting about early
July 1971 requested by some of the employees Sanders stat-
ed that if the employees got a union all their benefits would
be negotiable.
A statement that bargaining begins from scratch, or that
everything is negotiable, is coercive when made in such a
context as to mean that the employer might abrogate ex-
isting benefits if the employees exercise their right to select
a bargaining representative. See Astronautics Corporation of
America, 164 NLRB 623. However, the statements testified
to by Grammont and Wall were made in response to ques-
tions about new conditions of employment which had been
promised but not actually established. They did not imply
that existing benefits would be withdrawn; they were point-
ed to new benefits as to which Respondent was, indeed,
obligated to bargain.19 As to Greenwood's testimony, it fails
17 At the second hearing Respondent contended that Harrington had mis-
represented more than the suffix and the description ; it contended that he
had written a V instead of a U in the main part of the code, so that he was
claiming to have built L7HXV-C02-W W instead of L7HXU 1302-11W. The
former was the correct code for a whitewall. In at least one instance-the
card for October 5-the character written by Harrington does look more like
a V than a U; others look to me more like a U than a V, and still others are
not visible because written over. As pointed out by the General Counsel, this
information was available at the time of the first hearing, but Sanders chose
to justify the discharge of Harrington on another theory I note that the
standard improperly entered by Respondent on Harrington's cards for Octo-
ber 1 and 4 was the standard for L7HXV-C02; and counsel for Respondent
did probe Harrington's possible familiarity with that code, but without suc-
cess I do not pass upon Respondent's belated contention.
18 Wall, an employee , testified that in at least one instance unionization
was a scheduled subject.
19 No claim is made that the wage increase was automatic.
DAYTON TIRE AND RUBBER CO. 625
to disclose the context in which Sanders made the statement
at issue. Standing by itself it was not coercive. I find that
-Respondent did not threaten employees with withdrawal of
existing benefits if the Union was successful and shall rec-
ommend dismissal of paragraphs 7(a) and (b) of the first
complaint. See Nutrena Mills, Division of Cargill Incorporat-
ed, 172 NLRB 183 (TXD).
(b) Grammont, who was known to management as an
active promoter of the Union, testified as follows: At the
end of July 1971, while he was at work, his supervisor,
Bratcher, approached him and asked him how his business
was. Grammont ignored the question at first, but when
Bratcher persistently repeated it several times, Grammont
finally asked if he was referring to the Union. Bratcher said
that he was, and added, "... You can't organize the plant
with one or two guys coming to a union meeting." Gram-
mont asked how he knew that, to which Bratcher replied
that he had ways of knowing. On another occasion Bratcher
commented to him,, ". . . I don't have to worry about you
union guys . . . all I have to do is go down to the belt and
start picking on your tires." Grammont testified, without
contradiction, that no one could build a "perfect" tire and
that many mistakes did not have to be fixed, but he admit-
ted that in fact Bratcher did not "pick on" his tires. Bratcher
denied making each of the statements attributed to him by
Grammont, but he did testify that on an occasion when he
was distributing timecards to his line, he asked Grammont,
by way of friendly greeting and not referring to the Union,
how he was doing, to which Grammont replied, "I've got a
card here. Would you like to sign one?" and that he de-
clined. He also admitted telling Grammont that he did not
think the employees needed a union. I found Grammont's
testimony as to these matters convincing and have credited
him over Bratcher. I find that Bratcher made the statements
referred to.
Bratcher's statement that he had ways of finding out how
many employees attended union meetings created the im-
pression that Respondent was keeping a close watch over,
and was engaged in surveillance of, the employees' organi-
zational activities. I find that Respondent thereby violated
Section 8(a)(1) of the Act. His statement that he could "pick
on" the tires built by union adherents was a plain threat that
Respondent would discriminate against them and reduce
their earnings by requiring them to do work which would
not be required of other employees. I find that Respondent
thereby further violated Section 8(a)(1) of the Act.
As Bratcher had no lawful reason for asking Grammont
questions about the Union''s organization campaign, and
coupled it with a statement creating the impression of sur-
veillance, his interrogation was coercive and violated Sec-
tion 8(a)(1). It is not material that Grammont, an unusually
capable employee, did not show that he felt coerced but
offered Bratcher a card to sign. The issue is not the effect
of the interrogation on the particular employee, but whether
it would reasonably tend to coerce employees. See Amalga-
mated Clothing Workers of America, AFL-CIO, Local 990
(Troy Textiles, Inc.), 174 NLRB 1148, footnote 1, enfd. 430
F.2d 966 (C.A. 5, 1970).
(c) On January 22, 1972, Larry Williams, a management
trainee then working as a supervisor in the warehouse,
called his group together and told them how proud he was
of their performance the night before. He then told them
that it was none of his business, but he was going to take
a poll to find out if the men wanted a union. He asked that
each place an unsigned note on his desk indicating "yes" or
"no." The men ignored the instruction. Williams then ap-
proached them individually, and asked them which way
they would vote in the election. Some refused to tell him;
Frazee told him he would vote yes. Williams asked his men
on 3 successive days to leave the note on his desk. On the
fourth day Buckner, the warehouse foreman, came in and
announced to the men that Williams was being sent back to
the floor because he had committed an unfair labor prac-
tice.
Williams' attempt to take a poll had no legitimate pur-
pose, and it did not comply with the requirements laid down
by the Board in Struksnes Construction Co., Inc., 165 NLRB
1062. His direct inquiry as to how employees intended to
vote was especially coercive: An employee's refusal to an-
swer a supervisor's question always carries the risk at least
that the supervisor might be less willing by reason of such
defiance to overlook some shortcoming of the employee.
Questioning employees about their voting intentions inter-
feres with the balloting secrecy which the Board seeks to
preserve, and therefore impedes the election processes. I
find that by Williams' attempt to poll the employees and by
his questioning the employees as to their voting intentions
Respondent violated Section 8(a)(1) of the Act.
2. Between petition and election
(a) In March 1972 Hembree, a management trainee in
the tire-building department, approached Randy Ferguson,
one of the men he was supervising, at his machine and asked
him what he thought about the Union and whether it would
help the Company if the Union got in. He also told Fergu-
son that, if the Union did not get in, the employees would
receive the 26-cents-per-hour wage increase they were sup-
posed to get in July, but that tire builders would not benefit
until they produced at least 120 percent of standard. About
April 1 Hembree again asked Ferguson what he thought of
the Union. Ferguson replied that he had had two experi-
ences with unions and that they provided "a pretty good
deal" and that he did not think it would hurt if one got into
Respondent's plant.
I find no implication in Hembree's statements, as testified
to by Ferguson, that the 26-cent increase would not be given
if the Union did win the election. As the increase had been
promised prior to the filing of the petition and the General
Counsel has made no contention that the announcement
was an unfair labor' practice, Hembree's statement that
Respondent's promise would be carried out if the Union
lost was not violative of the Act. I shall recommend dismiss-
al of paragraph 7(i) of the first complaint.
Hembree had no legitimate reason to ask the questions he
put to Ferguson, which at the time, 10 days before the
election, was tantamount to asking him how he intended to
vote. Moreover, he failed to assure Ferguson that he did not
have to answer and that in any event he would not be
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to reprisals because of what he said or did not say.
I find that by Hembree's interrogation of Ferguson Respon-
dent violated Section 8(a)(1) of the Act. See Blue Flash
C. Other Discrimination ; 8(a)(1)
Conduct After the Election
Express, Inc, 109 NLRB 591; Johnnie's Poultry Co., 146 1. Alleged discrimination related to
NLRB 770, enforcement denied 344 F.2d 617 (C.A. 8).
(b) On the day of the election Hipsher, a supervisor in the
final inspection department, spoke to each of his employees
shortly before releasing them to vote. One of them, Birch-
fird, testified as follows:
... he said, well, he said, if you are satisfied the way
the plant runs, I would prefer you to vote no. He said,
because if the Union don't come in, it may make it
rough on you men.
The General Counsel cites this testimony in support of para-
graph 7(k) of the complaint, which alleges that Hipsher
threatened an employee with more stringent conditions of
employment if the Union became collective-bargaining
agent. I find that the General Counsel has failed to prove
paragraph 7(k) of the first complaint and shall recommend
that it be dismissed. I also find that the remark testified to
by Birchfird did not interfere with the employee's free
choice in the election.
(c) Ferguson testified that in the middle of March 1972
Gollaher, his line supervisor, loaded material on his tire-
building machine for him in order to save Ferguson produc-
tion time. Ferguson was having difficulty meeting produc-
tion standards and, as discussed below, was eventually
terminated, allegedly for this reason. Gollaher remarked to
Ferguson that if the Union came in he would not be able
to help him that way.
Contractual clauses forbidding supervisors to do unit
work are common and are usually demanded by unions and
resisted by employers. In view of these facts, Gollaher's
remark on its face meant that the more stringent working
conditions he referred to would be imposed by the Union,
not Respondent. I therefore find that it was not coercive and
that it did not interfere with the employees' free choice in
the election. Accordingly, I shall recommend dismissal of
paragraph 7(h) of the first complaint.
(d) A day or so before the election, during a break, Jim
Sheavert, a supervisor in the tire-building department, was
engaged in conversation with a group of employees in the
break room, some of whom were wearing union T-shirts.
During the conversation he said, "Don't you guys realize
that if you organize that the people from Akron, Ohio are
just going to come, down,here and bump you out of your
job." Grammont, who was also present, argued against what
Sheavert said.
As the employees in Respondent's Akron plant were rep-
resented by the Union, Sheavert's statement meant that if
employees were laid off through such bumping, it would be
at the instigation of the Union, rather than of Respondent.
It therefore did not constitute a threat that Respondent
would lay employees off in retaliation for having selected
the Union to represent them. I shall recommend dismissal
of paragraph 7(j) of the first complaint.
accidents and work performance
a Cox's suspension
Cox, a forklift truck operator in the warehouse, started to
work for Respondent around June 1970. He was active on
behalf of the Union, wearing a union T-shirt and soliciting
signatures on designation cards. On one occasion, however,
when apologizing to Sanders, the personnel manager, for an
incorrect statement about his employment record which he
had made at a meeting, he told Sanders that he did not know
how he would vote in the election.
On March 14, 1972, just after he had placed a pallet up
high, Cox was in the process of letting the mast and forks
of his forklift truck down when an employee asked him to
move another pallet. Cox stopped lowering the mast to
speak to the man. He told him that he had something else
to do first and drove off, forgetting to lower his mast, which
was behind him as he drove. As he passed through a door-
way, the mast hit the top and did some damage to the wall.
Cox reported the accident and was suspended for 3 days by
Gault, the warehouse manager. Gault told him that the
reason for the suspension was not the cost of repairing the
wall, but to impress upon him that driving with the mast up
was a serious safety violation.
All forklift drivers were required to take a course in safety
and to familiarize themselves with Respondent's safety
rules. One rule was: "Keep truck forks close to floor when
traveling without load, to prevent injury or damage." An-
other was: "`Truck loads must be lowered before traveling.
Tilt load backward for bettei balance." Notwithstanding
Respondent's efforts forklift accidents were a daily occur-
rance. While they were usually minor, most injuries and
fatalities in Respondent's plants resulted from forklift acci-
dents. Respondent emphasized the requirement that acci-
dents be reported and usually no punishment was imposed.
However, in at least one-case recalled by Gault the driver
involved, Fossett, was suspended for 1 day. He had attempt-
ed to drive through a doorway not designated for forklift
traffic and too small to accommodate his vehicle.
Gault testified that driving with forks up was the more
serious negligence because the truck was then unstable. As
the trucks were stable enough to be maneuvered, even with
a heavy pallet of tires in the elevated position, I doubt that
empty forks in the elevated position and raised mast created
as serious a stability problem as Gault testified . It seems
more likely that the problem of lack of stability arose when
the elevated forks were bearing a load, and that without a
load the chief problem was lack of sufficient clearance, such
as had also been the case with Fossett's error. As Gault was
hostile to Cox 20 and impressed me unfavorably with respect
20 On one occasion, when Cox, who had a satisfactory attendance record,
failed to report an absence before the beginning of his shift, as required,
Gault told him that if it were up to him, Cox would be discharged . He also
told Moen, the personnel supervisor, that he had had Cox in his office to see
him previously about attendance, with the result that Moen imposed a sus-
i
DAYTON TIRE AND RUBBER CO.
to credibility, and as he had suspended Fossett only l day
for a similar error resulting in an accident , I am not con-
vinced that his action against Cox was free of discriminato-
ry motivation. However, as Gault's assessment of the two
accidents is not unreasonable, the General Counsel's bur-
den of proof as to difference of treatment was not met by
showing a 2-day difference in punishment meted out in
those two cases . I shall therefore recommend dismissal of
paragraph 8(c) of the first complaint.
b. Alfred's suspension
Allred started to work for Respondent in March 1970. He
was employed in the warehouse department as a forklift
truck operator. On two occasions when Hembree, his super-
visor, asked him what he thought about the Union, he said
that he had worked with unions before and that it would,not
hurt if the Union got into Respondent's plant. Allred testi-
fied for the General Counsel at the first hearing on June 6.
On June 28 Allred, who was on the 11 p.m. to 7 a.m. shift,
was driving his forklift down a main aisleway with a load
of tires in front. Safety rules required that, except when
placing and lifting pallets and when maneuvering, forklifts
were to be driven in reverse. The driver sat at the extreme
rear of the truck, so that he had nothing in front of him
when the rule was complied with . 21 Another warehouse em-
ployee, Hunter, came out of a side aisle and the two forklifts
collided. Hunter was driving in reverse, as required, but, as
forklifts could travel only as fast as a fast walk, I infer that
he did not stop and look before entering the main aisle, as
was also required by the rules . No one was injured and no
damage was done. Allred immediately reported the accident
to Condren, a supervisor , who questioned him and also
questioned Hunter. Condren filed a report with Buckner,
the warehouse foreman, apparently placing responsibility
for the accident on Allred and noting two violations, namely
driving forward and failing to sound horn.22 No report was
made on Hunter. Buckner spoke to Allred about the acci-
dent. When Allred gathered that the blame was being
placed on him, he became upset. Buckner said that he did
not have the right attitude concerning the accident and
therefore sent him home with instructions to report to the
acting warehouse manager in the morning, which Allred
did. In the morning on June 28 , after the shift he met with
Hilburn, then acting warehouse manager, Moen , the per-
sonnel supervisor, and the safety director. After some dis-
cussion he was told that nothing would be done then in
order not to jeopardize his pay for the coming July 4th
holiday. On July 10 Sanders , the personnel manager, after
getting reports from supervisory personnel, suspended All-
red for 2 days for violating safety procedures.
The probabilities are that if either Allred or Hunter had
complied with Respondent's safety rules-Allred with the
driver backward rule, or Hunter with the stop and look
pension on Cox, which, however, he immediately retracted when he found
out that Gault had misinformed him.
v The driver turned in his seat and looked over his shoulders when driving
in reverse.
22 I do not credit foreman Buckner's testimony that he thought Allred was
supposed to sound his horn. Respondent's rules contained no such require-
ment for a truck traveling down a main aisleway.
627
rule-no accident would have occurred. For this reason it
would appear that both drivers merited discipline. As Allred
was known to favor the Union, which Respondent opposed,
and had testified on behalf of the General Counsel, his
suspension, while Hunter was not even reprimanded or even
made the subject of a writeup, is suspicious. However, while
disciplining of employees for driving errors not resulting in
accidents was rare, it was within Respondent's policy. Look-
ing at the conduct of the two men from the point of view
of general practice rather than of the fact than an accident
had occurred, Respondent's judgment that Allred's viola-
tion was the more -serious of the two was reasonable. A
driver with his load behind had an advantage of 10 feet or
more 23 to catch sight of traffic emerging from another aisle.
In addition , while he could see a side aisle over or round his
load of tires when driving forward, as was testified, there is
no doubt that he would always have a less complicated and
more up to the second picture when he did not have to look
over or round his load. As I walked those aisles when view-
ing the premises, I felt safer seeing forklifts advancing with
the driver's eyes in the lead than I would have felt with him
in back of a load of tires. The rule was a salutary one,
worthy of emphasis.
I find that the General Counsel has failed to establish by
a preponderance of the evidence that Respondent, in sus-
pending Allred, was motivated by his union activity or by
his having testified for the General Counsel . I shall recom-
mend dismissal of paragraph 8(g) of the second complaint.
c. The discharge of Randy Ferguson
Ferguson was hired October 1, 1971, as a tire builder
trainee and was discharged on April 21, 1972. As already
found, in March 1972 Ferguson told Hembree, then his
supervisor, that he had worked with unions before and that
he thought it would not hurt if the Union got into
Respondent's plant.
Respondent had an incentive wage structure for tire
builders based upon what it fixed as "standard" production.
Trainees received a straight hourly rate within a range.
Upon attaining certain specified percentages of standard
and maintaining them for 4 consecutive days, they were
advanced to the appropriate higher hourly rate, until they
reached 100 percent or better of standard, when they were
placed on incentive . They were allowed specified maximum
times to advance from one rate to the next , failing which,
they were disqualified as tire builders. They were also dis-
qualified if they fell back from any level more than once.
As a trainee Ferguson was told by his supervisors that
they did not think he was progressing fast enough. He had
difficulty moving from the top trainee rate to incentive and
he asked his supervisor, Gollaher, what would happen if he
was disqualified , remarking that some of his friends had got
other jobs in the plant after disqualification. Ferguson testi-
fied that Gollaher told him that he would probably be
moved to some other job, since the Company had too much
invested in him just to let him go.
Ferguson eventually attained standard but failed to
23 I infer that Allred's forklift truck was about the same length as those
which I saw in operation when I viewed the premises , namely about 10 feet
overall , if not more . Palleted tires were stacked to a height of 5 feet
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintain it. On his second failure he was disqualified as a
tire builder . Sent to the personnel department , he asked
Moen if there were other openings and was told there were
none . Moen testified that he did not recall whether there
were other openings at the time , but that Ferguson had
received a poor recommendation from the tire -building de-
partment as to attendance and attitude and therefore was
not even considered for retention . Gollaher testified that
Ferguson 's attendance record was poor and Ferguson ad-
mitted that he had been warned about his attendance.
Ferguson testified that the reason for his difficulty in
maintaining production was that he was assigned too many
different tires to build . There is evidence tending to show
that a tire builder 's production suffered each time he
changed from one tire to another , and I assume that it
would have been possible deliberately to subject a tire build-
er to numerous changes for the specific purpose of achieving
his disqualification . However the General failed to prove
that Ferguson 's assignments were not within normal limits
for a tire builder of his capacity. The evidence that this
attendance was at least somewhat less than good is uncon-
tradicted.
I find that the General Counsel has failed to prove that
Respondent 's disqualification of Ferguson as a tire builder
or its refusal to give him other work was discriminatorily
motivated . I shall recommend dismissal of paragraph 8(a)
of the second complaint with respect to Ferguson.
d. Wall's wage progression
Wall was employed in the tire-building department since
the end of 1970. His shift foreman was Melvin Hollis. Hollis
bore resentment against Wall for having involved him in his
testimony at the first hearing . He recorded Wall's absence
at that time as unexecused . On October 16, Wall notified
Hollis that he could not report to work because he had to
testify at the second hearing. Hollis got angry and told Wall
that the absence would be unexcused , adding that his ab-
sence the first time had been unexcused. He told Wall that
he had had to go to the first hearing on account of Wall.
Upon Wall 's protest, Hollis consulted Sanders, who direct-
ed that the absence be excused and also had Wall's record
with respect to the earlier absence corrected.
Wall had been a tire builder but on May 8, 1972, pursuant
to bidding, he became a setup man in the tire-building de-
partment. Respondent had a starting rate for that job and
four 10-cent-per-hour increases to the full top rate. Glenn,
the chief instructor in the department told Wall that there
was no written procedure as to the increases and that wheth-
er a man got a particular increase was between the man and
his foreman. He said that in the past men normally received
the four 10-cent increases every 2 weeks for 8 weeks . Hollis
testified that the average time taken was 2-1/2 months. It
took Wall more than 3-1/2 months to receive all four in-
creases, and for most of them he had to press Hollis. At
times Hollis reported unfavorably to Kinder, the depart-
ment foreman , about Wall's work, and Kinder had Wall
come in to present his side.
The record does not show that the question of whether a
setup man had progressed to the point of deserving a step
increase could be ascertained on the basis of definitive ob-
ject standards. No doubt a degree of subjectivity entered
into the decision . Hollis bore animus towards Wall because
of his testifying at the first hearing, and, in addition, I did
not find Hollis a credible witness. For these reasons his
testimony as to his judgment of Wall's work might be open
to suspicion. However, the burden of proof is upon the
General Counsel and he has failed to establish that Hollis'
judgment was wrong , or even questionable . As the General
Counsel has failed to prove that Wall was treated differently
from others similarly qualified, I shall recommend dismissal
of paragraph 8(b) of the second complaint.
2. Alleged discrimination and
coercion related to absence
a. Respondent's description of
its absentee policy
Sanders, Respondent's personnel manager , testified that
Respondent had a continuing program of fighting absentee-
ism, including a definitive absentee policy, outlined on a 3
x 5 inch card furnished to each supervisor, covering up to
four absences in any 8 month period. He explained that the
first two absences called for "counseling" of the employee
by his immediate supervisor, the second "counseling" in-
cluding discussion of the employee's financial loss and the
Company's loss of production; the third absence called for
"counseling" by the supervisor or department manager, and
a memorandum in the employee's departmental folder; the
fourth absence required the department manager to send
the personnel department a resume listing each absence and
the ascribed reason . Absences in excess of four in such
period were handled on a case-by-case basis. He stated that
line management , even department managers , had no au-
thority to excuse employees from scheduled work, but mere-
ly reported to the personnel department the reason given by
the employee for his absence. Thus, if the personnel depart-
ment was suspicious as to the employee's alleged illness
requiring medical attention, it might have its industrial phy-
sician call the employee's physician; if no physician was
involved, a guard might go to the suspected employee's
house to wish him well if ill, or get him back to work if
malingering. He stated that the extent of an absence period
was not significant ; ".... it can be one minute to six
months, or any other, it's still one period of absence." He
also said that Respondent was concerned with excused and
unexcused absences equally, since both affected produc-
tion.
b. Verel's funeral leave pay
Verel testified at the first hearing and, as I have found
below, on or about June 8 he was reprimanded and subject-
ed to an adverse absenteeism report for that reason.
Verel worked on the night shift, which was from 11 p.m.
to 7 a.m. On Thursday night, September 28, when Verel
arrived at work, Buckner, the warehouse foreman, informed
him that a message had been received that Verel's father,
who lived in Tulsa, had died. Verel was excused from work
and went home. He returned to the plant the next day to
pick up his check and, while there, he asked Sanders, the
DAYTON TIRE AND RUBBER CO. 629
personnel manager, for permission to take Monday and
Tuesday off in order to be with his mother, who was alone
in Tulsa. Sanders granted permission but told Verel he
would receive funeral leave pay only for the Friday morning
shift, which began Thursday night, and not for the Saturday
morning shift. Verel protested that the whole shift was
scheduled to work on the Saturday morning shift, but San-
ders insisted that he was entitled to be paid only for the
Friday morning shift.
Throughout Verel's employment the employees had been
required to work virtually every Saturday. They were in-
formed of the requirement on Wednesday of each week.
Respondent's employees handbook contained the follow-
ing:
If you . . . are absent from work because of the death
of your parent ..., you shall be paid your usual earn-
ings for the necessary time lost from your regularly
scheduled work shift due to such death up to a maxi-
mum of three (3) consecutive calendar days, one of
which must be the day of the funeral.
Union's organizational campaign he wore a union T-shirt
and got several designation cards signed. I do not credit
Gault's denials and I find that he did know that Woodward
favored, and was active on behalf of, the Union.
In the first year of his employment Woodward amassed
a series of adverse reports in his personnel file, mostly for
absenteeism and tardiness, but also for attitude, workman-
ship, productivity, and for an accident. Among his unex-
cused absences were August 14, 1971, which resulted in an
adverse report to the personnel department, August 28, Au-
gust 30, and September 2, 1971, after which he was suspend-
ed for 3 days. The memorandum on his suspension, dated
September 8, noted that he had been warned of possible
discharge if he failed to improve. Respondent had a policy
of allowing an employee to remove from his file all adverse
reports covering areas as to which he had a perfect or satis-
factory record for 6 months. In November or December
1971 Woodward was permitted to remove his old absentee
reports from his file. He testified that one accident report
and the report on his 3-day suspension in September were
all that remained.
On February 9, 1972, Woodward and Cox, both ware-
house employees, were due to report for work in the ware-
house break room at 3 p.m. for the 3 to 11 shift. They
The normal weekly work schedule is five (5) consecu- completed some personal business in Okarche, a place
tive days. . . . The Standard work week is forty (40) about 45 miles from the plant, and started out for work. A
hours. The standard work week will start with the shift few minutes after starting their car broke down at a place
beginning nearest to Sunday midnight. . . . where no telephone was handy. Woodward testified that
* * s +
... Saturday work is sometimes necessary to meet
customer demand for our product. If Saturday work is
scheduled, employees are expected to report to work
when scheduled. Time and one-half will be paid for
time worked over eight (8) hours in any one work day,
or over forty (40) hours in one (1) work week.
While it is arguable that Saturday had become part of
Verel's "regularly scheduled work shift" within the meaning
of the funeral pay provision, it is at least equally arguable
that "regularly scheduled work shift" referred to a shift
within the "normal weekly work schedule" of 5 consecutive
days, and the "standard workweek" of 40 hours, which
began around Saturday midnight and thus did not include
Saturday. The fact that Gault, the warehouse manager, orig-
inally thought that Verel was entitled to funeral pay for
Saturday is not controlling; the General Counsel adduced
no evidence that any employee had ever been given funeral
leave pay for a Saturday.
I find that Respondent did not deny Verel funeral leave
pay because of his union activities or because he testified for
the General Counsel. I shall recommend dismissal of para-
graph 8(k) of the second complaint.
c. The discharge of Woodward
Woodward worked for Respondent since September 25,
1970; he was discharged on February 10, 1972, on the rec-
ommendation of Gault, the warehouse manager. During the
this happened at 2:15 or 2:30, more probably at 2:15, and
that they had started out from Okarche about 2 minutes
before. After a brief and unsuccessful attempt to get the car
started, Cox walked to a telephone and called the plant to
report that they could not come in to work. He made the call
at 3:10.
When Woodward reported to work the next day, he was
instructed to see Gault. Gault told him that he considered
the previous day's absence a "no report" and that because
of Woodward's bad record, which showed 16 absences since
he was hired, he was being discharged. Woodward protested
that his file had been cleared of past adverse reports, but
Gault insisted that he was considering his entire history.
Moen, the personnel supervisor, concurred with Gault, and
Woodward was discharged.
The General Counsel admits that Woodward had a bad,
possibly an "atrocious" record, but contends that his delin-
quencies had always been condoned until the Union's or-
ganizing campaign became "hot and heavy." He also
contends that Respondent misrepresented the actual situa-
tion in treating the February 9 absence as unreported.
As to the latter contention, the General Counsel underes-
timates the importance to Respondent of employees report-
ing an absence before the beginning of a shift. Work
assignments were planned on the basis of the expected crew.
If an absence report was made before the beginning of the
shift, a man from the previous shift could be held over
temporarily, if necessary, until a replacement for the absen-
tee could be found, and the work of the department thus not
held up. So far as efficiency of production was concerned,
a late report was at times of little more use than no report.
Moreover, Woodward and Cox really gave themselves no
chance to arrive on time and must have known before leav-
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Okarche that they would be late. I am far from con-
vinced that they actually left Okarche at 2:13; Woodward
in effect admitted that it might have been as late as 2:28. In
any event, even 47 minutes for a 45-mile trip, plus time for
parking in a full parking lot, plus time to walk to the break
room to report, was optimistic, to say the least.
The General Counsel relies primarily upon Respondent's
past practice of condoning Woodward's delinquencies and
the fact that Woodward's files had been cleared. This con-
tention amounts to the proposition that, while Woodward
gave Respondent reasonable cause for discharge, by
Respondent's standards as established by past practice and
the clearing of his file, his work attendance was tolerable
and was claimed to be intolerable only as a pretext to con-
ceal the fact that Respondent got rid of him in order to
reduce the ranks of union supporters.
While the evidence is uncontradicted that Woodward's
file was cleared in November or December 1971, as de-
scribed by him, the record does not explain satisfactorily
how that came about. He himself testified, and the General
Counsel states in his brief, that such clearing was possible
if an employee had a perfect record for 6 months; but
Woodward's August delinquencies were well within 6
months of the time his file was cleared. In any event even
after the clearing the suspension memorandum remained.
That memorandum referred to three unexcused absences in
August and September, as well as to his poor record in the
past; and it noted a warning to him that he would eventually
lose his job if his record did not improve.
Discharges for absenteeism were not unknown; since the
plant opened Respondent discharged 75 other employees
for that reason. Woodward's current file did refer to a bad
past record on absenteeism and possible discharge if there
was no improvement. The General Counsel has not estab-
lished that it was contrary to Respondent's practice to take
an employee's entire employment history into consideration
at least where the current file contained such a warning.
Gault, looking at the current file, could reasonably have
come to the conclusion that Woodward's was a hopeless
case. I find that the General Counsel has failed to establish
by a preponderance of the evidence that Respondent's dis-
charge of Woodward was discriminatory. I shall recom-
mend dismissal of paragraph 8(b) of the original complaint.
d. The discharge of Chambers
(1) Chambers' employment history
and union activity
Chambers, a warehouse employee, was hired August 21,
1970, and was discharged on July 10, 1972, by Russell
Moen, personnel supervisor, who told him that the Compa-
ny had not made the decision to discharge him but that
Chambers had himself made the decision when he chose to
steal from the Company.
During his probationary period Chambers was uniformly
rated "good," the highest of four possible ratings, in each of
10 categories all four times he was rated, except that once
he was rated "satisfactory" for "attendance and tardiness."
Each report contained a favorable commentary on Cham-
bers by his supervisor. A week before his discharge Richard
Kennedy, Chambers' supervisor during the period May 29
through June 5, 1972, sent a glowing letter of recommenda-
tion of Chambers to the personnel manager for his work on
a job which the supervisor characterized as "the most im-
portant job in a warehouseman's classification." 24
On March 10, 1972, Chambers was suspended 1 day and
placed on 6 months' probation because of absenteeism. He
was warned to be careful to get advance permission if it
became necessary for him to stay away from work and was
also told that any unexcused absence would subject him to
possible discharge. Employees were aware that Respondent
considered lateness an absence. From the start of his proba-
tion to July 6 Chambers was absent several times but he
complied meticulously with company procedures and all the
absences were excused.
Chambers wore a union T-shirt from the beginning of the
union campaign, attended union meetings, wore a union
button, displayed a union sticker on his car, and got 15 to
20 designation cards signed. He voiced his prounion opin-
ions to supervisors. On Friday, June 30, Chambers asked
Moen and Dasovitch, the safety director, for a meeting
between management and the employees in the department.
After some consideration Moen came into the department
and told Chambers that the meeting would be held that
afternoon. 5 At the meeting Chambers and other employees
complained that union adherents were being discriminated
against and that certain nonunion employees were being
shown favoritism.
(2) Chambers' lateness on July 7 and 8
Respondent kept track of the employees' worktime by
what it termed an honor system. Under this system employ-
ees filled out their own timecards showing the number of
hours they had worked, while supervisors logged the time of
late arrivals and checked and approved the cards at the end
of the shift. Pay was computed by tenths of an hour, i.e.,
6-minute periods. Respondent disregarded fractional peri-
ods of absence up to 3 minutes and considered 4, 5, or 6
minutes a full tenth of an hour. However, the employees
were not instructed how to record tenths of an hour. When
that became necessary, the supervisor told them what to put
on the timecard.
On July 7 Chambers arrived on the plant grounds with
little time to spare. Respondent's rules required that at start-
ing time employees were to be at their work stations, which
for warehouse employees meant the employees' break room,
where work assignments were distributed. This was about a
quarter of a mile from the parking area. Chambers ran into
difficulty finding a parking space, with the result that he
24 Claunch, who succeeded Kennedy as Chambers' supervisor, testified
that Chambers was only an average worker. However, this was contradicted
by his own letter in which he stated that Chambers had been doing "an
outstanding job." Although finally written after Chambers' discharge,
Claunch admitted that he had started the letter before the discharge, with the
intention of sending it to the personnel department.
25 Chambers mistakenly recalled the date of the meeting as Friday, July
7, and Moen, in his July 10 memorandum on Chambers' exit interview twice
referred to it as July 7. However, Chambers testified that it was the same day
as the meeting which was held on Allred's accident, which the record shows
was June 29 or 30. Respondent's witnesses testified that the meeting was on
June 30.
DAYTON TIRE AND RUBBER CO. 631
reported for work 4 minutes late by the break room clock 26
Hofman, the supervisor , looked at the clock , smiled at
Chambers, and noted the time of Chambers ' arrival in the
log he kept for that purpose. He gave Chambers his work
assignment and Chambers went to work immediately. The
next day, Saturday, Chambers arrived in the break room 5
minutes late.27 Hofman remarked , "Hey, 2 days in a row."
He gave Chambers his work assignment immediately and
Chambers went to work.
Ignoring his lateness , Chambers filled out his cards at the
end of the shift for 8 full hours both days and they were
reviewed by Hofman and approved by Wallis, the shift
supervisor , along with the others. However , Hofman wrote
a memorandum to Gault, the warehouse manager, reporting
the two latenesses.
Gault, who recommended Chambers ' discharge , testified
as follows: He was not in the plant on Friday afternoon but
was there on Saturday from about 9 or 10 in the morning
to 5 or 5:30 in the afternoon . He did not see Hofman Satur-
day afternoon , but Hofman left the two timecards in his
office with a hand-written note stating that Chambers had
been late 2 days in succession and commenting that Cham-
bers was on probation for absenteeism . On Monday morn-
ing he saw Hofman, who asked him if he had received the
note with the cards . He said that he had and told Hofman,
"just to be sure that what he was telling was so and to get
the cards, have the timecards."
In his memorandum to Sanders recommending Cham-
bers' termination Gault wrote , in part:
On Saturday , July 8, 1972, Jay Hofman , supervisor in
department No. 791 called to my attention that Chris
had been late for work 2 days in succession . In check-
ing his folder on Monday morning, I saw that he was
placed on 6 months probation by the personnel depart-
ment this year for excessive absenteeism. It clearly stat-
ed in this letter that any more unexcused absences
would probably lead to termination . Also, I intercepted
his timecards for the 2 days in question and noticed
Chris had made them out for 8 hours each day... .
misrepresentation be turned over to the department manag-
er. Gault was not in the plant at the time, and so he simply
held the card . On Saturday morning he spoke to Gault in
the plant but said nothing about the Friday timecard until
after 3 p .m., at which time he handed Gault both cards. He
told Gault that Chambers had been late 4 and 5 minutes
those days and showed him where he had filled his time-
cards out for a full 8 hours both days . Gault cautioned him
to be sure that his facts were right . Hofman denied Gault's
testimony that he had left the cards and a note in Gault's
office and insisted that he handed him the cards on Satur-
day afternoon and written the note on Monday.
(3) Chambers' discharge interviews
On Monday, July 10, Chambers was summoned to
Gault's office, where they discussed the two latenesses and
the timecards . Pointing to a passage in the employee's hand-
book, he accused Chambers of stealmg .29 He brushed aside,
as not the issue , Chambers' protest that he often worked 5
or 10 minutes beyond quitting time without pay and that he
had letters of commendation , denied Chambers' accusa-
tions of favoritism towards employees not involved with the
Union, and told Chambers that he would recommend his
discharge.
Gault took Chambers to see Moen. Moen referred briefly
to Chambers' absentee record, to which Chambers replied
that since his probation he had followed company proce-
dure strictly and had received permission whenever com-
pelled to miss work . Most of the meeting was devoted to a
discussion of the July 7 and 8 lateness and the timecards.
Chambers told Moen that the misrepresentation of his time
had been insignificant and that no one had ever said any-
thing when he was 5 or 10 minutes late getting off the clock.
He admitted that if a mechanic billed a customer for unper-
formed services , that would be theft , whereupon Moen said
that Chambers' timecard was a bill to the Company for
services . Chambers said that he was really being discharged
because of the recent meeting he had instigated, which
Moen denied . Moen read to Chambers the same passage in
the employee's handbook that Gault had referred to, which
was as follows:
Gault testified that prior to Chambers' discharge there
had been no instance of an employee being discharged be-
cause of false reporting of time on his timecard. He did
recall such an instance in September 1972,28 when an em-
ployee who had been 15 minutes late entered 8 hours on his
card.
Hofman testified as follows: In accordance with his cus-
tom, he reviewed the Friday timecards for the shift right
after 3 p.m. and turned them in to the payroll department.
However, he held back Chambers' card because he discov-
ered that he had reported 8 instead of 7.9 hours and compa-
ny procedure required that a timecard containing
26 Clocks in the plant were apt to vary in time by a mmute , and Chambers
testified that another clock showed him only 3 minutes late
27 I do not credit Chambers ' testimony that he had difficulty finding a
parking space on Saturday. Most departments did not have full shifts that
da ,.
s This was shortly after issuance of the complaint alleging that Chambers'
discharge was discriminatory.
THEFT-Don't under any circumstances , take or at-
tempt to take Company property or the property of
others. The value of the theft makes little difference in
determining discipline. A false production tally is con-
sidered the same as a theft.
Chambers protested that his card had been approved by his
supervisor, to which Moen replied that Respondent had an
honor system and Chambers had already falsified when the
supervisor got the card . He told Chambers he was dis-
charged, saying, ". . . Chris, you don 't leave me any alter-
native. I have to follow company policy."
Moen testified that he had discharged Chambers not only
for the falsification of his timecard, but also for absentee-
ism. He stated that the effect of an unexcused absence while
29 When Chambers asked him if he was being called a thief , Gault replied,
"Yes. As far as I'm concerned that's what you were doing . You were stealing
from the Company."
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on probation was "the man would terminate himself"; and
he agreed that if Chambers had filled out the timecard
correctly, "he would have terminated himself because of his
absenteeism." Chambers' "Removal Notice" stated as the
reason for his discharge, "Excessive absenteeism & theft on
reporting timecard." It recommended against his rehire, giv-
ing as the reason, "Undesirable."
(4) Concluding findings as to Chambers' discharge
As Gault testified that he found the cards and note in his
office on Saturday and did not speak to Hofman that af-
ternoon, whereas Hofman testified that he did not leave the
material in Gault's office but spoke to him on Saturday
afternoon, at which time he handed over only the cards, it
is plain that Respondent is concealing the actual preparato-
ry procedures that culminated in Chambers' discharge. This
conclusion is strengthened by Gault's memorandum, in
which a third version of those procedures was presented,
namely that Gault was the one who had "intercepted" the
timecards and who had "noticed" that they had been made
out for 8 hours each day. The import of Gault's memoran-
dum is that Hofman reported two latenesses and nothing
more; and it contradicts Hofman's testimony that he held
up the cards because company procedure required that
timecards containing misrepresentation be turned over to
Gault. I do not credit Gault or Hofman. As the cards were
reviewed by Hofman and then approved by the shift super-
visor and I have discredited Gault and Hofman's testimony
that Hofman held up the cards, I infer that they were rou-
tinely forwarded to the payroll department for payment for
the full time entered. This would be consistent with the
statement in Gault's memorandum that he "intercepted"
the cards. Moreover, as the supervisors had to instruct the
employees what to enter when tenths of an hour were in-
volved, and Hofman did not so instruct Chambers, I infer
that so far as the employees' pay was concerned it was the
practice to overlook lateness as slight as Chambers'. Signifi-
cantly, Hofman's note to Gault did not allude to the time-
cards.
In any event as a matter of common usage and thinking
it is an exaggeration to characterize Chambers' act as theft.
The amount involved was trivial-Respondent did not
bother to deduct it from his pay-and the allegedly larce-
nous intent was based on the fact that Chambers was 4
minutes and 5 minutes late rather than 3. Moreover, he had
actually put in worktime for 25 percent of the "stolen"
wages, to say nothing of his superior work performance and
the fact that at times, to finish up a task, he continued to
work 5 or 10 minutes after the end of his shift without pay.
Apparently in recognition of these facts, Respondent
reached for support for its accusation in the handbook
statement, "A false production tally is considered the same
as a theft." As used in the handbook, production tally meant
a counting of units produced, and it is a distortion of com-
mon meaning to interpret it to refer to the measurement of
a single stretch of time.30 Respondent, of course, was not
30 Wren, the manager of the tire-building department , testified in another
connection that a notice he posted as a "refresher" of this handbook policy
applied only to his department, since it was the only one with an incentive
limited to grounds for discharge as expounded in the hand-
book; but its reliance on it in discharging Chambers demon-
strates that it did not consider his act a theft within the
ordinary concept of that word.
Chambers' removal notice also stated absenteeism as the
reason for his discharge; and Moen testified that if Cham-
bers had reported his time accurately, he would have been
automatically terminated-"terminated himself" was the
expression used by Moen-since he was on probation.
However, Chambers' absenteeism received only perfuncto-
ry treatment in Moen's interview; whatever was said was
not deemed by Moen to be worth including in his record of
the interview. Moreover, if Respondent had considered the
two slight latenesses while on probation adequate grounds
for discharge, it is difficult to believe that it would have gone
to the length of including "theft" in its records on the basis
of what Chambers had done.
I do not credit Gault's testimony as to his reasons for
recommending Chambers' discharge, or Moen's testimony
as to why he discharged Chambers. I find that Respondent
did not consider Chambers' latenesses while on probation
or his reporting of 8 instead of 7.9 hours to be a sufficient
cause for his discharge in accordance with its usual practice.
I further find that Respondent seized upon Chambers' late-
ness and the timecards as a pretext to conceal its true motive
in discharging him, namely his activities on behalf of the
Union and his leadership in bringing about the June 30
meeting . I further find that Respondent's discharge of
Chambers was discriminatory and was violative of Section
8(a)(3) of the Act.
e. The discharge of Greenwood
(1) Greenwood's absence because of the hearing
Greenwood worked in the calendaring department on the
11 p.m. to 7 a.m. shift. He worked the night of June 4 to 5
and was in the hearing room all day on Monday, June 5,
under subpena by the General Counsel, but he was not
called to testify. Monday evening he called McKinney, his
supervisor. He told McKinney that he would not be in to
work that night and, since he had not yet testified, would
probably not be in the following night either. McKinney
said, "I don't know about that." McKinney tried to check
with John Fedro, the department manager, but, unable to
reach him, called Greenwood back and said, "I couldn't get
a hold of John, so we'll let things stand as they are." On June
6 Greenwood completed his testimony by about 11:15 and
was excused from his subpena by the General Counsel dur-
ing the luncheon recess. He did not report for work that
night nor did he call in.31
On the morning of June 8 Greenwood was called to a
conference with Moen, McKinney, and Fedro. Asked to
explain his June 7 absence and his failure to report, Green-
wood said that the Board representative had told him the
absences would be excused. Moen pointed out that he had
wage.
Sanders, the personnel manager, testified that if an employee on the t 1
to 7 shift testified between 8 and 9 in the morning, he would be expected to
come in to work, but not if he testified as late as 1:00. However, he would
have to report his absence before the shift started.
DAYTON TIRE AND RUBBER CO.
reported only one night's absence and not the-other. Green-
wood replied that he thought that he was covered since
"they knew where I was" and McKinney had said, "We'll
let it stand just like it is." Moen said the second night's
absence was borderline as to whether it was excused or
unexcused. In response to Greenwood's direct question he
said, "Well, it's not excused, but it's not unexcused." Moen
wrote the following record of the discussion and placed it
in Greenwood's file:
Date 6/8/72 - 7:45 a.m. From R. C. Moen
At the above date and time and at the request of Jim
McKinney and John Fedro, Paul was brought to my
office for the purpose of discussing his most recent
absence of June 7, 1972 which was a "no report." When
asked the reason for this he replied that he was under
the understanding that his most recent absences would
be excused that, in effect, the NLRB representative
told him they would be excused. Due to the fact that
there seemed to be much confusion about this particu-
lar instance, I cautioned Paul against any further peri-
ods of absences. I told him that his no report was
unexcused if we knew nothing of his absence or reason
we could therefore not excuse him. Furthermore, I told
him that his absence as a result of his subpoena to the
NLRB hearings certainly would be excused if it neces-
sitated his presence the whole day. I cited some exam-
ples of unexcused absences and told Paul that the next
instance of an unexcused absenteeism he would be sent
to my office for suspension and probation.
(2) Greenwood's absence June 29-30
On June 29 Greenwood came home and found that his
wife was leaving him. She had dressed the children and
packed and was taking them to Kansas. After an unsuccess-
ful effort to dissuade her, he telephoned the plant that he
could not come in to work that night because of marital
problems. He spoke first to Shed, his supervisor, at about 7
p.m., and then, at about 10 p.m. to Fedro, the department
manager. Fedro told him that, with his poor attendance
record, he could not excuse him for the shift. However,
when Greenwood told him that his -wife was packed and
ready to leave for Kansas with their children, he told Green-
wood he would allow him 2 hours. Greenwood said he
would try but did not know if he could straighten the matter
out in 2 hours. Greenwood did not report for work that
night nor did he call again. He was next due to work the
night of July 4 to 5 but was directed not to come in to work
but to see Moen in the morning. Fedro told him that he was
temporarily suspended, pending investigation of his ab-
sence on the night of June 29 to 30.
(3) Greenwood's discharge
On July 5 Greenwood was interviewed by Sanders, not
Moen. Fedro was present. Sanders asked why he had been
absent on the 29th and Greenwood told him. Sanders asked
why Greenwood had not reported his second day's absence
633
at the time of the hearing. Greenwood told Sanders about
his call to McKinney the night of June 5. Sanders asked him
if he had told Moen that Waldrip, counsel for the General
Counsel had said he would be excused. Greenwood con-
firmed that, and he asserted that Waldrip had indeed ex-
cused him from work. Sanders said that he could not believe
that, since Waldrip had no such authority. When Green-
wood insisted that Waldrip had excused him, Sanders
asked:
Paul, if you were in my place and you had an employee
such as yourself with an attendance record like you
have, established since you've been to work out here
and you found an employee to be lying to you regard-
ing his attendance, how would you handle that employ-
ee?
Greenwood replied: "If I were in your place, Mr. Sanders,
and had an employee with a bad attendance record and
found him to be lying, I would terminate him immediately."
Sanders had the exchange repeated and then said:
In that case, Paul, if I find out you're lying regarding
this no report incident surrounding your appearance at
the hearings, you would terminate yourself.
Greenwood replied, "That's correct."
After Greenwood had left his office, Sanders asked Wal-
drip if he had told Greenwood he did not have to report his
absence. Waldrip replied that he normally instructed subpe-
naed employees to report where they are to be and the
reason. Sanders thereupon gave instructions that Green-
wood be discharged and that was done.
Asked by Waldrip whether he had made the decision to
terminate Greenwood, Sanders testified:
Yes, it was an agreement between Paul and I. In fact,
in conformance with what he had stated in answer to
the question, that if we found that you had not excused
him, that we should terminate him.
He also stated:
When he left my office, his position with the company,
in the final analysis, together with the rest of his rec-
ords, was hinging on whether Mr. Waldrip had actually
excused him from work on the 7th. This did not indi-
cate that his attendance record would be acceptable,
but I was confident . . . after he made this agreement,
that the Counsel for the General Counsel had not ex-
cused him, per se, for June the 7th.
On September 1, 1971, Sanders received and noted the
following memorandum from McKinney, then an instruc-
tor trainee in the calendering department:
On August 27, 1971, the first shift on the four roll
Calender set a new production record of 32,590 yards
of quality fabric in an eight hour shift. This same team
ran 32,318 yards of quality fabric on Aug. 26, 1971, for
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a total of 64,908 yards in sixteen hours.
Although these excellent runs were attained by great
team effort, I feel Mr. Greenwood should be com-
mended for his outstanding individual effort in setting
this new record.
I take great pride in working with this outstanding
Calender team.
Sanders testified that he could not state whether Green-
wood was a good employee with respect to work perfor-
mance.
(4) Concluding findings as to Greenwood
Greenwood's failure properly to report his 2nd day's ab-
sence at the time of the first hearing was disposed of by
Moen on June 8. Moen, while recognizing that "there
seemed to be much confusion about this particular in-
stance," did not excuse Greenwood, but warned him that
his next unexcused absence would result in suspension and
probation.
As the circumstances surrounding Greenwood's unex-
cused absence on June 29 were not aggravating-if any-
thing, his family crisis was a mitigating
circumstance-Sanders was not in a position to discharge
Greenwood for something Moen had said would result only
in suspension and probation. To get rid of Greenwood,
therefore, Sanders revived the June 8 absence and exploited
the confusion which Moen had recognized had been pre-
sent. Confident, as a result of his experience with Board
agents, that Greenwood had read into Waldrip's advice
more than had in fact been said, he enticed Greenwood into
making the "agreement" on the basis of which Greenwood
found himself discharged. It was evident that Greenwood
was not "lying"-else he would hardly have made the
"agreement"-and I am convinced that Sanders knew this.
According to Sanders' testimony he was playing games with
Greenwood and discharged him when he lost. Sanders was
not a credible witness, and I do not credit his testimony that
he discharged Greenwood because of the "agreement." I
find that he used the device as a pretext to conceal the fact
that he was getting rid of a union adherent who had testified
for the General Counsel. I find that Greenwood's discharge
was discriminatory and violative of Section 8(a)(3) and (4)
of the Act.
The second complaint alleges in paragraph 7(b) that San-
ders' discharge interview of Greenwood was coercive inter-
rogation concerning his attendance and testifying at the
hearing. As the interrogation was directed exclusively to the
question of Greenwood's failure to report his second ab-
sence, I find this allegation without merit and shall recom-
mend that it be dismissed.
f. The alleged coercive warnings
to Allred, Verel, and Frazee
Allred, Verel, and Frazee testified on behalf of the Gener-
al Counsel at the first hearing on June 6, 1972. All three
were warehouse employees on the II p.m. to 7 a.m. shift
and, after proper report, remained away from work either
the night before or the night after they testified.
(1) The absentee reports
Allred returned to work the night of June 7 to 8. Condren,
his supervisor, showed him a memorandum dated June 7
which he had addressed to Sanders. Allred refused to sign
it. Condren forwarded the memorandum to the personnel
department. It read:
Subject-Report to Personnel on Absenteeism of Stan-
ley Allred Clock # 1803.
Employee called the plant to report that he was to
appear in court on 6/7/72 and that he could not make
it to work on that day.
Listing of absences for 1972:
1/18 8 hours sick
2/23 4 " late
3/28 1.5 " late
4/23 6 " late
4/26 8 " sick
4/27 8 " sick
4/29 8 " sick
5/10 8 " sick
5/11 8 " sick
6/7 8 personal
Stan has in the past been counseled about absentee-
ism. . . . Employee read and refused to sign.
In due course the memorandum reached Sanders, who sent
it on to Moen with the notation: "Russ: He is developing
a bad Record."
Verel worked the night of June 7 to 8 without incident.
The next night Condren showed him a memorandum, dated
June 8, which he had written to Sanders. Verel refused to
sign it. Condren forwarded the memorandum to the person-
nel department. It read:
Subject-Report to Personnel on Bert Verel, Clock
# 1767
Employee called the plant to report that he was to
appear in court on 6/7/72 and that he would not be
able to make it to work.
Listing of absences for 1972:
1/10/72 8 hours
2/3 8 "
2/11 8
2/14 8
2/21 8
2/22 8
3/6 8
4/3 8
5/20 8
5/25
11
6/7 8 32
... Employee read and refused to sign.
32 Other company records showed the following with respect to these ab-
sences : January 10, February 3, and February 11 (3 hours), personal sick-
ness; February 14, wife getting out of hospital; February 21-22, personal
sickness-had doctor's statement ; March 6, personal sickness ; April 3, May
20, and May 25 (6.3 hours), family sickness; June 8, excused.
DAYTON TIRE AND RUBBER CO. 635
Sanders received the memorandum and sent it on to Moen
with the notation : "Russ-Hasn't he been suspended-
GRS." Sanders explained the notation as follows: On the
last report 'to the personnel department from the warehouse
he had written a note, to Moen to do something about
Verel's absences ; his present notation simply asked whether
a suspension had been imposed but omitted from the June
8 report.
Frazee was shown no memorandum relating to his ab-
sence because of the hearing.
Concluding findings as to
the absentee reports '
The tone of the two reports was plainly critical. This
showed itself in the heading of Allred's report, "Report to
Personnel on Absenteeism of Stanley Allred Clock #
1803"; in the statement in that report, " Stan has in the past
been counseled on absenteeism ";-and in the listing in both
reports of the employees' absences going back 8 months.
This last factor was particularly critical in the case of Verel's
report, which listed his prior absences starkly without the
reason. They all appear to be excused absences , but the
impact of the report was that Verel simply did not bother
too much about getting to work . Both reports placed the
absences because of the hearing on the same plane as the
others, so that it was made clear that they, too, were the
target of the critical tone. On their face the reports necessar-
ily operated as reprimands and as warnings to their subjects
that their absences because of the hearing at least contribut-
ed to a worsening in Respondent 's eyes of their attendance
records; and it is significant that even though they had been
told before testifying that the absences would be excused,
they asked Moen, at the conferences described below,
whether they were excused.
Assuming, as Sanders testified, that, in any event, Re-
spondent was as much concerned with excused as with
unexcused absences, that would not justify Respondent in
reprimanding or warning employees because their absence
records had grown as a result of their attendance as witness-
es at a Board hearing. The Act does not make it illegal for
an employer to put the fear of God into employees because
they stay away from work because they are ill, or because
their children or other family members are ill and need their
attention , or because of court appearances or of other cir-
cumstances which the employees feel are pressing. He may
not, however, put the fear of God into employees because
they have testified at Board hearings , a right protected by
Section 7 of the Act.
I find that the reports on Allred and Verel's absenteeism
were coercive and that by exhibiting them to the employees
Respondent violated Section 8(a)(1) of the Act.
The mere presence of the reports in the employees' files
placed them at a disadvantage on the job. Any supervisor
or official reading the reports-copies were in the depart-
ment as well as the personnel office-would get the impres-
sion that Allred and, Verel , at least in part because of
testifying, were absentee problems. To require them to work
under those conditions was discriminatory and violative of
Section 8(a)(3) of the Act.
(2) The June 13 "counseling"
On June 13 , at the end of their shift, Allred, Frazee, and
Verel were sent together to Moen's office where he inter-
viewed them singly in the presence of Gault, the warehouse
manager . The men spent about 1 hour in the plant because
of these interviews . Moen testified that the reason for calling
these three employees in was that his superior, Sanders, had
instructed him to speak to them. He also testified to a specif-
ic incident or circumstance involving each which led him to
decide , of his own accord , that "counseling" was called for.
Allred As already noted, Sanders had written on the June
7 report on Allred' s absenteeism, "Russ: he's developing a
bad record." In addition, Moen testified that on May 11, in
connection with a disciplinary suspension, he "had verbally
committed to Stan that I would follow him on every in-
stance or occasion of absence until he got his record correct-
ed." Since May 11 Allred had missed 1 day because of the
hearing, and 1 hour on June 10, when he had permission to
go home early because of illness. Moen testified that the
occasion that led him to carry out his May 11 commitment
to Allred was the 1-hour absence on June 10. At the June
13 conference Moen told Allred that he had reviewed his
record again and that it was improving . Allred asked if his
absence because of the hearing was going into his record as
a reprimand , and he reminded Moen that he had specifical-
ly told him at the time that the absence would be excused.
Moen replied that the absence was going into Allred's rec-
ord, but he added that he wanted to make clear that he was
not "getting on to" Allred for going to the hearing, because
that would be against the law.
Verel. Sanders had written on Verel's June 8 absenteeism
report, "Russ : Hasn't he been suspended . GRS" Moen also
explained his summoning of Verel as follows: On June 1 he
had "counseled" Verel on absenteeism and had told him
that if he did not straighten out, he would be discharged or
at least suspended for 3 days. Verel had informed him that
his father was in the hospital, dying of cancer , his wife had
been in the hospital several times , and his asthmatic son had
difficulty sleeping and had also been in the hospital. Fore-
seeing that Verel would have to take time off because of his
father's illnesss, he got Verel to agree to see Gault, to explain
the situation, which Verel had failed to do. At the June 13
meeting Moon briefly reviewed for Gault's benefit the rea-
sons for Verel's absence and he again instructed Verel to
speak to Gault. Verel asked Moen whether he had been
called in because of his absence on June 6 and Moen said
no. Verel also asked if that absence would go into his record
as excused or unexcused and he offered to`get his subpena
to show Moen, but Moen gave no answer . Verel 'did see
Gault the next day.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frazee. An absentee report on Frazee dated May 30 con-
tained two handwritten notes from Sanders reading, "This
is too much GRS," and , "Mr. Frazee has too many absenc-
es. He must change his habits if he expects to continue
working here . GRS." Frazee refused to sign the report.
Moen testified that he received Sanders' instruction to
speak to Frazee about May 30 and June 13 was the earliest
convenient opportunity to do so .33 At the June 13 confer-
ence Moen told Frazee that his absenteeism was looking a
little bad , and he discussed the individual absences listed on
a sheet of paper he had . Frazee protested that those absen-
ces had been excused . Moen asked Gault if that was so.
When Gault replied that he did not know, Moen said he
would have to check . They discussed Frazee 's health-his
files show that he suffered from migraine headaches-and
his work . Moen told Frazee he had to give him a warning
on his absenteeism . He also said that he had not called
Frazee in for the same reason he had summoned Verel and
Allred.
Concluding findings as to
the June 13 "counseling"
Respondent points out that no discipline was meted out
at the June 13 conferences and it contends that they were
merely advisory in nature. It explains the coincidence of the
three witnesses for the General Counsel having been called
in at that time. by the claim that they had the worst atten-
dance records of anyone in the warehouse. This claim is not
supported by the record, which does not even give a rea-
sonably clear picture of Respondent's policy. Thus, it was
testified that absence because of "personal" reasons was
excused or unexcused depending on the circumstances, and
it would be necessary to examine memorandam to de-
termine which. It was also testified that absence because of
sickness was excused; but at one point Sanders said it had
to be "substantiated" sickness. Many of the absences listed
for the three men were for sickness, and others were for the
illness or death of close relatives, both excusable. There is
no evidence that any of the employees whose attendance
records are in evidence was ever told that his absence on any
occasion of illness was not excused, and none of
Respondent's officials or supervisors testified that any re-
corded absence for these reasons were unexcused. Nor does
the record disclose general plant or warehouse experience as
to absenteeism.
The simultaneous summoning of three employees to
Moen's office to discuss absenteeism less than I week after
the three had been absent because of the hearing on its face
strongly suggested that they were so summoned because of
that particular absence. Except for Allred having left, with
permission, 1 hour early the previous Saturday because of
illness, none had been absent in the interval. The employees
did not interpret the conferences as "advisory." The reac-
tion of each was that he had been summoned because of the
hearing; and Respondent's absentee reports of June 7 and
8 had given Allred and Respondent's absentee reports of
June 7 and 8 had given Allred and Verel ample reason for
33 Respondent points out in this connection that Moen was busy with the
hearing June 5 through 8.
that reaction.
While Moen explained each summons on the basis of
particular circumstances not involving the absences because
of the hearing, he also explained them by saying that his
superior, Sanders, had directed him to speak to these em-
ployees. In the cases of Allred and Verel the directions
Moen referred to apparently were the notations which San-
ders made on the June 7 and 8 reports covering their ab-
sence because of the hearing.34 I do not credit Moen's
testimony that his summoning of Allred was occasioned by
his 1 hour's illness the previous Saturday and his "commit-
ment" to Allred of May 11 to follow up his every absence.
Respondent's records, easily available to Moen, showed the
illness ; and he knew that employees becoming ill during a
shift had to go through Respondent's medical department
before getting the pass needed to leave the plant. Sanders'
note, "He is developing a bad record," is much more persua-
sive as a reason for the interview, especially in view of
Moen's own testimony that he summoned the employees
because Sanders had so directed. Moreover, Moen failed to
reassure Allred when, as was to be expected, he asked if the
June 7 absence was going into his record as a reprimand.
While Moen said that he was not "getting on to" him be-
cause of that absence, he made it clear that it was "going
into" his record. In view of Respondent's stated policy of
warning employees under the guise of "counseling" of the
possibly adverse effect of excused, as well as unexcused,
absences, the net effect of the interview on June 13 was to
tend to cause Allred to have misgivings about having testi-
fied.
The special circumstance testified to by Moen for calling
in Verel was somewhat more plausible, since Verel had
failed to see Gault as he had agreed. At the same time, the
circumstance of simultaneously calling the three employees
for warning interviews a week after they had all testified for
the General Counsel had the tendency and effect of making
them think that that was the reason; and when Verel asked
Moen whether that absence would go into his record as
excused or unexcused, Moen did not answer. As a result of
the "counseling" Verel could not but have some second
thoughts about having testified for the General Counsel.
I have already found that the June 7 and 8 absentee
reports on Allred and Verel were coercive and discriminato-
ry. As Moen's June 13 conferences with those employees
had their origin in those reports and were based upon the
employees' absence because of their testifying, I find that
the conferences coerced the employees in their exercise of
Section 7 rights. I further find that Respondent thereby
violated Section 8(a)(1) of the Act.
Frazee, having been called to his June 13 conference
together with Allred and Verel, was concerned, as they
34I do not credit Sanders' testimony that in Verel's case he was merely
making an inquiry by way of followup of a previous note to Moen on a report
to Sanders from the warehouse to do something about Verel' s absences. The
last note from the warehouse about Verel prior to June 8 was dated May 24
and it bore no note from Sanders . Moreover it dealt with Verel's visit to his
father in the hospital and listing about 10 other absences , all clearly excus-
able, if not actually excused . It gave Sanders no reasonable ground for
expecting Verel to have been suspended . On the other hand, the June 8 report
might have caused Sanders , in eagerness to find fault with a witness for the
General Counsel, to jump to the conclusion that Verel was delinquent in
attendance , since it listed a series of absences without stating any reason.
DAYTON TIRE AND RUBBER CO. 637
were, that it was based upon his absence because of testify-
ing at the hearing. However, Moen assured him that he had
not been summoned for the same reason as Verel and All-
red. Moreover, he had not been shown an absentee report
based upon his absence because of the hearing . I therefore
find that the evidence is insufficient to establish that the
June 13 conference with Allred-was coercive.
3. Alleged discrimination against Grammont
a. Grammont's employment history
and union activity
Grammont, one of the most senior employees in the tire-
building department, worked for a time as a tire builder and
then became a setup man. He was highly regarded by Re-
spondent for his competence in both capacities. On one
occasion he set a record as a tire builder, and as a setup man
he advanced to the highest setup rate in 5 weeks, the record.
He was one of the earliest and most prominent advocates
of the Union among the employees. He was the first to wear
a union T-shirt, he distributed handbills, was a union ob-
server at the Board election, and he testified on behalf of the
General Counsel and of the Union at the first hearing.
b. The' allegedly discriminatory assignment
(1) The posting; Respondent's
general assignment policy
On June 26, 1972, Respondent posted a notice of job
opening as tire builder on the day shift. Its practice was to
award jobs to applicants on the basis of seniority. The no-
tice stated at the bottom, "Replace F. Cata." Cata had
worked on the ninth machine in row A, generally referred
to as Alpha 9. The vacancy was awarded to Grammont, who
thus became the most senior tire builder. However, another
employee was assigned to Alpha 9 and Grammont was as-
signed temporarily to B-8 and then permanently to C-1.
The General Counsel contends that this was discriminatory.
As already found in connection with the challenges, the
tire-building department had 67 tire-building machines ar-
ranged in 5 rows of 12 each, designated A through E, and
2 rows of 4 and 3 machines respectively, designated F and
G. All the machines were identical. A setup man had to
prepare each machine for each variety of tire to be built.
This was frequently a somewhat involved procedure and it
was therefore necessary to change setups as little as possible
consistently with the needs of production and for training
employees . Each permanent tire builder was assigned to a
particular machine. He remained on that machine from
week to week and returned to it after vacation or sickness.
However, he did not work on that machine exclusively; at
times he was assigned to do some work on other machines.
Usually a half-dozen machines on each shift were unas-
signed and thus available for short temporary assignments.
Normally row A had most tire builders assigned.
In general Respondent had no definite scheme or method
for assigning employees to tire-building machines. During
the first 9 months of 1972 Respondent posted 16 tire-build-
ing vacancies . Of the successful applicants 6 were assigned
to the same machine as had been vacated , while 10 were
assigned to other machines. Glenn, the chief instructor, who
made the assignments , testified that a new man coming to
a shift was placed on the vacant machine that happened to
be set up for the production needed at the time or that
happened to be available for such production.
In at least one respect Respondent did have a definite
assignment policy. It concentrated trainees in rows B and
C and assigned them more short run tires. Moreover, at time
their tires were changed just for the purpose of broadening
their experience. While the trainees were on the evening and
night shifts, the day shift employees on those rows tended
to get the short run and changed assignments also, since
setups were retained from shift to shift to the extent possi-
ble. Grammont testified that when, previously, he had been
a tire builder on row A, assignments lasting for long periods,
up to 6 months, were common , whereas changes were so
frequent when he worked on rows B and C that he com-
plained to Kinder, his foreman. I credit this testimony.
(2) Comparative desirability of machines
Grammont testified that machine Number C-1 was locat-
ed'near the "doper." He and Wall testified that the A-line
machines were better maintained and had more work space
than the B and C lines, and that a conveyor belt ran over
the operator of C-1. Wall further testified'that the C-1
station was especially confining because of conduit pipe
running round that machine and a large control panel near-
by. Grammont also testified that a tire builder could earn
more with fewer changes of tire. Glenn testified that some
men had preferences as to lines but that no one line was the
predominant preference, and Gollaher, a supervisor, testi-
fied that all machines on all lines were equally spaced and
kept in the same condition.
As already noted, I viewed the premises after the hearing.
I did not attempt to check the details of the conflicting
testimony. However, on the basis of my own observation,
two things stand out. First, there is no doubt that, in the
absence of some special reason for another preference, by
far most people, if not all, would prefer row A as a work
station to any other. It is set somewhat apart, next to the
main aisle, whereas the other rows of machines are close to
one another. Irrespective of the amount of actual workspace
used or available, an operator on row A had more space and
less noise and operating machinery round him. C-1, the
machine to which Grammont was assigned, had the addi-
tional disadvantage in this respect of having the overhead
conveyor belt passing by. Notwithstanding that some em-
ployees were fearful of this belt-it carried tires weighing
from 20 to 30 pounds-I assume that no actual danger was
present. Nevertheless, it added to the general disturbance in
the area. Second, C-1 was unquestionably among the three
or four most undesirable stations for a tire builder. These
stations were each next to one of the "dopers," which made
a loud, disagreeable noise every few seconds as a gas or
liquid was expelled under pressure.
In addition to the question of comparative unpleasant-
ness of work place , the greater incidence of tire change on
lines B and C made those lines less desirable , since that
tended to reduce earnings. I credit Grammont's testimony
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that earnings were better with fewer changes of assignment.
That testimony is consistent with the general experience
that at least up to a point longer, unchanged tasks enable
incentive workers to attain higher speed and earnings 35
(3) The assignment
When Grammont reported for work the first time after
his appointment, Blair, the supervisor of row B, ordered him
to operate B-8. This was a temporary assignment. He asked
Wren, the manager of the tire-building department, why he
had not been assigned to Cata's vacated machine, Alpha 9.
Wren replied, that it was not done that way. Grammont
asked whether he could be placed on Alpha 7, which was
about to be vacated by the tire builder who had been ap-
,pomted to Grammont's vacated setup job. Wren said that
that could not be done. Grammont then begged Wren not
to assign him to a machine at the end of the line, such as
C-1. Wren replied that Grammont should not worry, that
he should never have to work in such a location. He also
told Grammont that he had taken a man off a machine near
the overhead conveyor belt because he had "psyched out"
and had been unable to produce there. These finding's are
based on Grammont's credited testimony, all of which was
denied by Wren. Wren did testify that he had removed some
men from work places near the overhead conveyor because
he had been convinced that they were really fearful, but he
stated that he had not discussed anything about the convey-
or belt with Grammont.
Grammont also testified that he asked Glenn to assign
him to Alpha 7, but Glenn replied that that machine was
being held for Bridgiford. Alpha 7 was being operated on
a temporary assignment at the time, and was still so operat-
ed at the time of the hearing. Bridgiford had formerly been
assigned to A-12 but had been disabled from tire buildings
since some months prior to the April election. Glenn denied
that Grammont had made the request and denied that A-7
was being "held" for Bridgiford. However, he did state that
no permanent assignment had been made to that machine
pending determination of whether Bridgiford could resume
work as a tire builder, and that if Bridgiford did come back
to tire building, he would be slotted into that machine since
he had previously done a good job on row A and had got
along with the supervisor. Finally, he stated that even if
Grammont had requested A-7, he would not have assigned
it to him. Asked why, he testified:
Having a conversation with Mr. Grammont-well, its
been several months ago, he expressed to me that he
didn't like the supervisor that was on the "A" line,
couldn't get along with the man. So, trying to keep
things running in the proper perspective, trying to keep
personality conflicts out of it, the tire room, and this
supervisor at the time that he said he didn't like was still
on the "A" line. So, I didn't want to get an old wound
35 Respondent adduced evidence of the amount of production by full-time
incentive tire builders on rows A to E for the weeks of October 1 and 8, 1972
There is no evidence that those weeks were randomly selected or representa-
tive, and they were weeks subsequent to the issuance of the complaint alleg-
ing the discrimination against Grammont . I,give no weight to those figures
open, I guess you might state, and put him back there
then.
I do not credit Glenn's denial that Grammont asked him for
A-7 and I credit Grammont, whose testimony as to the
conversation I found more convincing. I find that Gram-
mont requested Glenn to assign him to A-7 and that Glenn
refused on the stated ground that the machine was being
held for Bridgiford.
(4)' Concluding findings as to the
discriminatory assignment
The General Counsel did not prove any specific scheme
for assigning machines which Respondent violated with ref-
erence to Grammont. He started on the assumption, appar-
ently fostered by Grammont's faulty recollection on the
point,, that the posting was for a particular machine, Alpha
9, but his assumption proved wrong. At the same time
Wren's assurance to Grammont that he did not have to
worry about being assigned a machine at the end of the line,
and Glenn's holding Alpha 7 for Bridgiford, establish that
machine assignments were not necessarily haphazard, or
dependent upon immediate needs of production ; some con-
sideration was given to person or to past service. In the
absence of such consideration Respondent's policy, as de-
scribed by Glenn, would have called for Bridgiford to return
to Alpha 12, his machine before his disability. In view of
Grammont's high status with respect to both seniority and
competence on the one hand, and of his outstanding union
activity and his testimony on behalf of the General Counsel
in the face of Respondent's animus towards the Union on
the other, I find that the assignment to Grammont of a
machine at the very top of the scale of undesirability was
discriminatory and violative of Section 8(a)(3) of the Act.
As Alpha 7 was a desirable station and was available and
needed but had no permanent builder assigned or in line for
assignment in accordance with any definite policy of Re-
spondent, and it was still unassigned at the time of the
hearing, I infer that Respondent's failure to assign it to
Grammont was in reprisal for his union activity and his
testifying on behalf of the General Counsel and the Union.
I therefore further find that Respondent's refusal to assign
Alpha 7 to Grammont was violative of Section 8(a)(3) and
(4) of the Act.
c. The alleged curtailment
of restroom privileges
In August Goodmiller, Grammont's supervisor, instruct-
ed him and all others on his line to notify him whenever they
went to the restroom during worktime. The order was com-
plied with. Grammont testified that the next day Goodmil-
ler told him that he was not to go to the restroom at all
during worktime. He further testified that Goodmiller told ,
him that he issued the order upon instructions from Kinder,
the shift foreman, who said that it was to apply only to
Grammont and to one Walter Starry; and that if Grammont
violated the order, he would be required to go to the medical
department for a physical examination. Grammont asked
three other supervisors whether they were issuing such, or-
DAYTON TIRE AND RUBBER CO. 639
ders and all three said no.
Goodmiller testified as follows: Kinder told him that
some of his men "were excessive in their breaks on their
assigned time," and Goodmiller knew who they were and
should handle the situation. He told all his men, without
accusing anyone, that some were going to the restroom too
much "and we need to back off a bit." He told Grammont
and the others that they were expected to use the restrooms
during their 20-minute lunch period and their afternoon and
morning 10-minute breaks. In case of compelling need he
told them that they could go at other times but were to
notify him. He denied that he told him that permission was
required.
I find that it was company policy that, to the extent
possible, employees were to avoid using the restroom during
worktime and were to use their morning and afternoon
breaks and their lunch period for that purpose. I also find
that Goodmiller told Grammont that if he used the rest-
rooms during worktime excessively, he might be sent to the
medical department for a physical examination.
Goodmiller's testimony as to what he told Grammont is
not altogether inconsistent with Grammont's own testimo-
ny. According to both, in August Respondent imposed
more restrictive restroom privileges than Grammont had
previously in fact exercised.
Grammont testified that Goodmiller said that the re-
strictions were to apply only to Walter Starry and himself;
Goodmiller testified that he told the same thing to all his
employees. The record discloses nothing about Starry; nor
does it disclose how Grammont's or Starry's use of the
restroom during worktime compared with that of other em-
ployees. As even the General Counsel's evidence fails to
show that the new restriction was applied to Grammont or
other union adherents exclusively, I find that the General
Counsel has failed to prove that Grammont's restroom priv-
ileges were curtailed because of his union activities or be-
cause he testified on behalf of the General Counsel. I shall
recommend dismissal of paragraph 8(h) of the second com-
plaint.
VI. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in
section V, occurring in connection with its operations de-
scribed in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
VII. THE REMEDY
As I have found that Respondent has engaged in certain
unfair labor practices, I recommend that the Board issue the
recommended order set forth below requiring Respondent
to cease and desist from said unfair labor practices and to
take certain affirmative action which will effectuate the pol-
icies of the Act.
I recommend that Respondent reinstate Chambers and
Greenwood to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges, and
that they be made whole for any loss of earnings suffered
by reason of the discrimination against them. The amount
of backpay shall be a sum of money equal to the amount
that they normally would have earned as wages i rom the
respective dates of discrimination against them to the date
of Respondent's offers of reinstatement, with interest at 6
percent per annum, less their respective net earnings during
said periods, computed in accordance with the Board's usu-
al practice. Cf. F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716.
As I have found that Respondent's failure to assign Alpha
7 to Grammont was discriminatory, I further recommend
that Grammont be assigned to tire-building machine Alpha
7 or, if that machine is not available and in good operating
condition, to an equivalent machine and location in row A.
I further recommend that Grammont be made whole for
any loss of earnings caused by Respondent's discriminatory
assignment to him of machines which have fewer long run
assignments than he would have normally have received if
assigned to Alpha 7. I recognize the difficulty involved in
attempting to reconstruct what would have been
Grammont's experience had he not been discriminated
against. However, during the compliance stage of this pro-
ceeding some fair and equitable basis can be found for
remedying his financial loss, if any, such, for example, as the
experience of tire builders in row A of competence compa-
rable to Grammont's. The backpay shall be for the period
from the day he reported for work as a tire builder following
his appointment pursuant to the June 26 posting until he is
reassigned in accordance with the recommended Order,
computed in accordance with the Board's usual practice
and with interest at 6 percent per annum. Cf. F. W. Wool-
worth Company, supra, and Isis Plumbing & Heating Co.,
supra.
I further recommend that Respondent preserve and,
upon request, make available to the Board and its agents,
for examination and copying, all timecards and all payroll,
time, individual production, shipping, and other records to
facilitate the computation of backpay and to ensure the
proper carrying out of the provisions of the recommended
Order.
I have found that the reports on absenteeism of Allred
and Verel dated June 7 and 8, 1972, operated as warnings
that their absence because of the Board hearing contributed
to a worsening of their attendance records. The mere pres-
ence of those reports in their personnel records constitutes
a constant threat that they might suffer some disadvantage
in the future therefrom. In order to ensure to the extent
possible that this not occur and to give the employees assur-
ance that it will not occur, I recommend that Respondent
be required to expunge from its records the two absenteeism
reports in question and all references thereto.
VIII . THE OBJECTIONS
No evidence was offered on objection 2 as numbered by
the Regional Director. In objections numbered by the Re-
gional Director 7 and 11 the Union alleged that Respondent
placed supervisors on the eligibility list it prepared and in-
structed them to vote, and that it held captive audience
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings of employees and of supervisory trainees.
No evidence was offered of any meetings of employees
within the 24-hour period prior to the election. There is
evidence that meetings of supervisory trainees were held
and that the supervisory trainees were told to vote. While
I have found that these individuals are supervisors, they are
on probation as such. Respondent's position that they were
eligible to vote was not so unreasonable-as to warrant find-
ing that their inclusion in the eligibility list was intended as
an interference with the election. Nor was it unreasonable
to tell the supervisory trainees that Respondent considered
them eligible and that they should therefore vote, especially
since, according to the Union's evidence, at least some su-
pervisory' trainees considered themselves ineligible. There-
could not have been any decision as to their status if they
did not vote. Since they were supervisors, any meeting with-
in the prohibited 24-hour period, see Peerless Plywood Com-
pany, 107 NLRB 427, could not affect the -results of the
election.
The only unfair labor practice which I have found took
place within the period between the filing of the petition and
the election, see Ideal Electric and Manufacturing Company,
134 NLRB 1275, was Hembree's coercion of Ferguson by
interrogating him. Since well over 600 votes were cast in the
election, this conduct of Hembree, the lowest level of super-
visor, and a probationary one at that, towards a single em-
ployee was too isolated to affect the results of the election.
I therefore, recommend that the objections be overruled
and the results certified after the ballots of the remaining
eligible voters have been counted.
Upon the basis of the foregoing findings of fact and of the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, the Dayton Tire & Rubber Company, a
Division of The Firestone Tire & Rubber Company, is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatorily terminating the employment of
employees, by discriminatorily assigning employees work
places, and by discriminatorily issuing and filing absentee-
ism reports on employees, because they engaged in union
activities and testified at a Board hearing, Respondent en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (4) of the Act.
4. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act Respondent has engaged in unfair labor practices with-
in the meaning of Section 8(a)(I) of the Act.
5. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. All production and warehouse employees in the
Employer's plant at 2500 South Council Road, Oklahoma
City, Oklahoma, including green-tire inspectors, but exclud-
ing general office clerical and plant office clerical employ-
ees, professional employees, technical employees,
laboratory employees, classifiers, guards, watchmen, and
supervisors as defined in the Act, constitute a unit appropri-
ate for collective bargaining within the meaning of Section
9(b) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER36
Respondent, The Dayton Tire & Rubber Company, a
Division of the Firestone Tire & Rubber Company, its offi-
cers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discharging or reprimandmg employees or assigning
them less desirable machines or work stations, or in any
other mariner discriminating against them with respect to
their hire or tenure of employment or terms or conditions
of employment, because they join or assist United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-
CIO-CLC, or any other labor organization, or because they
testify before, or give evidence to, the National Labor Rela-
tions Board.
(b) Creating the impression among employees that Re-
spondent is engaged in surveillance of their union or other
concerted activities.
(c) Threatening to impose more stringent inspections or
other terms or conditions of employment because employ-
ees join or assist United Rubber, Cork, Linoleum and Plas-
tic Workers of America, AFL-CIO-CLC, or any other
labor organization.
(d) Warning or threatening employees that their absen-
tee records are adversely affected by attendance at Board
hearings for the purpose of testifying.
(e) Filing adverse absenteeism reports on employees
based upon their absence because of their testifying at
Board hearings.
(f) Polling or interrogating employees as to their desires
or interest concerning unionization or a Board election in
a manner or under circumstances constituting interference,
restraint, or coercion in violation of Section 8(a)(1) of the
Act. -
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section-7 of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer Chris Chambers and Paul Greenwood immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges.
(b) Offer Paul Grammont assignment to tire-building
machine A-7 or, if that machine is not available, to an
36 In the event no exceptions are filed as provided in Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shalt, as provided by Section
102,48 of the Rules and Regulations, automatically become the findings,
conclusions, decision, and order of the Board, and all objections thereto shall
be deemed waived for all purposes.
DAYTON TIRE AND RUBBER CO. 641
equivalent machine and location in row A.
(c) Make Chris Chambers , Paul Greenwood, and Paul
Grammont whole in the manner set forth in section VII of
this- Decision, entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board and its agents for examination , copying, and repro-
duction, all payroll records, timecards and other time rec-
ords, shipping records, individual and other production rec-
ords, and all other data necessary or helpful to analyze and
compute the backpay required by this Order and to ensure
the proper reinstatement and reassignment of employees as
required by this Order.
(e) Post at its office and place of business in Oklahoma
City, Oklahoma, copies of the notice attached hereto
marked "Appendix." 37 Copies of said notice, to be fur-
nished by the Regional Director for Region 16, shall, after
being signed by a representative of Respondent, be posted
by Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify said Regional Director for Region 16, in writ-
ing, within 20 days from the date of receipt of this Decision
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as they allege unfair labor practices not found here-
in.
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
37 In the event that the Board 's Order is enforced by a Judgment of the Enforcing an Order of the National Labor Relations Board."