Goodyear Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Aug 2, 2011

357 N.L.R.B. 337 (N.L.R.B. 2011)

GOODYEAR TIRE & RUBBER CO.
357 NLRB No. 38
337
Goodyear Tire and Rubber Co. and Mitchell John-
son. Case 26–CA–023778
August 3, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On March 25, 2011, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Acting General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Goodyear Tire and Rubber
Co., Union City, Tennessee, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Christopher J. Roy, Esq., for the Acting General Counsel.1
John T. Billick, Esq., for the Respondent.2
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is an
interference with employee rights case I heard in Union City,

1 In affirming the judge’s finding that the Respondent violated the
Act by prohibiting employees from wearing T-shirts in the plant that
used the word “scab” in reference to retirees who returned to work for
the Respondent as contract laborers, we agree with the judge that the
Respondent failed to meet its burden of demonstrating that the ban was
justified by special circumstances, including a divisive strike that oc-
curred in 2006. We find Reynolds Electrical Co., 292 NLRB 947
(1989), and United Aircraft Corp., 134 NLRB 1632 (1961), two cases
cited by the Respondent in which the Board found lawful a prohibition
on the display of union insignia, to be distinguishable. In Reynolds
Electric and United Aircraft, the employers banned union insignia as a
“reasonable precautionary measure” 1 to 2 months after strikes that
were marked by significant animosity and violence. The banned insig-
nia bore messages that related directly to the strike. In this case, in
contrast, the Respondent banned the T-shirts 4 years after the strike in
question ended. Further, the levels of violence and animosity demon-
strated in Reynolds and United Aircraft did not exist during the 2006
strike of the Respondent. Finally, the banned T-shirts in this case bore
messages completely unrelated to the 2006 strike.
1 I shall refer to counsel for the Acting General Counsel as counsel
for the Government and to the Acting General Counsel as the Govern-
ment.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and I shall refer to the Respondent as the Company.
Tennessee, on January 24, 2011. The case originates from a
charge (and amended charge) filed by Mitchell Johnson, an
individual (Johnson or Charging Party) on July 12 and Septem-
ber 15, 2010 respectively, against Goodyear Tire & Rubber Co.
(Company). The prosecution of this case was formalized on
November 22, 2010, when the Regional Director for Region 26
of the National Labor Relations Board (Board), acting in the
name of the Board’s Acting General Counsel, issued a com-
plaint and notice of hearing (complaint) against the Company.
It is specifically alleged Human Resources Specialist Mark
Kitchen, in the plant, in early June 2010, told an employee he
was prohibited from wearing a shirt that stated: “Union ‘til I
retire, then scab in!” It is further alleged Supervisor Louis
Davis, in the plant, in early June 2010, threatened an employee
with unspecified reprisals if the employee wore a shirt that
stated: “When I retire I will not scab. I will go fishing.” It is
alleged the Company’s actions violate Section 8(a)(1) of the
National Labor Relations Act (the Act).
The Company, in a timely filed answer to the complaint, de-
nied having violated the Act in any manner alleged in the com-
plaint.
The parties were given full opportunity to introduce relevant
evidence, to examine and cross-examine witnesses, and to file
briefs. I carefully observed the demeanor of the witnesses as
they testified and I rely on those observations in making credi-
bility determinations. I have studied the whole record,3 the post
trial briefs, and the authorities cited. Based on the detailed
findings and analysis below, I conclude and find the Company
violated the Act substantially as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION, LABOR ORGANIZATION STATUS, AND
SUPERVISORY/AGENCY STATUS
The Company is an Ohio Corporation, with a facility located
in Union City, Tennessee, where it is, and has been, engaged in
manufacturing tires. During the 12-month period ending Octo-
ber 31, 2010, a representative period, the Company purchased
and received at its Union City, Tennessee facility goods valued
in excess of $50,000 directly from points outside the State of
Tennessee. During that same time period, the Company sold
and shipped goods valued in excess of $50,000 directly to cus-
tomers located outside the State of Tennessee. The evidence
establishes, the parties admit and I find, the Company is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties admit, and I find, United Steelworkers, Local
878L is, and has been, a labor organization within the meaning
of Section 2(5) of the Act.
It is admitted Plant Manager Perry Tennison, Human Re-
sources Manager Tom Gossett, Human Resources Specialist
Mark Kitchen, and Supervisor Louis Davis are supervisors and
agents of the Company within the meaning of Section 2(11)
and (13) of the Act.

3 Counsel for the Acting General Counsel’s unopposed motion to
correct hearing transcript is granted. The corrections are as set forth in
the Motion which has been made a part of the record as Judge’s Exh. 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
The Company opened its Union City, Tennessee facility in
1968 and has 47 acres under roof. At various times the Com-
pany has employed approximately 1750 to 2000 employees and
employs approximately 500 to 600 on its second shift. The
plant is divided into various departments, the largest of which is
the tire room employing approximately 150 to 200 employees.
The tire room, as it’s name implies, is where the tires are made.
There are various other departments such as the shears, bias
cutters, shipping, receiving and, some what pertinent to this
case, the banbury department. Raw components are assembled
and processed into flat rubber in the banbury department then
utilized throughout the plant in the tire building process. There
are approximately 20 to 25 employees on second shift in the
banbury department.
The Company and Union have a long bargaining relationship
beginning in 1968. The parties’ most recent collective-
bargaining agreement expires in 2013. According to HR Man-
ager Gossett, the bargaining relationship is currently the best it
has been in the past 40 years. The Company and Union have
partnered on various projects that are beneficial to the plant.
The parties partnered on safety, profit sharing, production
standards and obtaining government money for training and
other purposes.
A work stoppage occurred during contract negotiations in
2006. The employees went on strike starting in October and
ending December 31, 2006. The Company continued to main-
tain production during the strike and a number of employees
crossed the picket line. Ten to 12 employees who crossed the
picket line are still working at the facility.
According to HR Manager Gossett, the Company has always
encountered high absenteeism during the summer months. The
Company, as a result thereof, asked some experienced retirees
to return to work for a limited time in 2008. Gossett explained
this was one way for the Company to offset the increased ab-
senteeism and make production quotas on weekends. The
Company hired 15 to 17 experienced retirees through Labor
Finders of Jackson, a supplier of temporary labor to companies.
The Company advised Local Union President Harry Alberg of
the need for the retirees. The Union took no adverse action nor
did the Union file a grievance regarding the Company bringing
in retirees. Retired employee Norman Boucher, for example,
worked 5 weekends building tires in March/April 2008.
Pertinent to this case the Company again utilized experi-
enced retirees to build tires in 2010 during June/July and Octo-
ber, November, and December. The Company discussed with
Local Union President Ricky Waggoner, its needs regarding
retirees for tire building starting in May 2010. The Company
followed up its dissuasions with Waggoner in letters to him on
May 20, July 8, and August 5, 2010. The retirees brought back
in 2010 came as employees of the temporary employee service
company Hamilton-Ryker. According to HR Manager Gossett,
retirees were needed in the summer of 2010 because the Com-
pany was transitioning from one building equipment to another
and in the transition the Company could not train new employ-
ees quickly enough to allow it to maintain daily production
quotas. The Company utilized approximately 17 to 20 retirees
in 2010, the last of which left at the end of December. For
example, retiree Norman Boucher worked at the Company as
an employee of Hamilton-Ryker during June and parts of July
2010 building tires, whereas, retiree Richard Gephart worked
building tires in June and July as well as October, November,
and December 2010. No retirees have worked in the plant
since the beginning of 2011.
The Company has had a zero tolerance policy since the facil-
ity opened in 1968. The policy provides for “a work environ-
ment that is professional, respectful and free from discrimina-
tion, harassment or violence.”
2. Government’s evidence
The Union held a meeting at its hall of the second-shift em-
ployees in March 2010. Local Union President Ricky Wag-
goner informed members the Company was talking with the
Union about bringing in retirees to build tires. According,
Danny Foy, who attended the meeting, “a lot of [the] member-
ship voiced our opinion against it.” Waggoner said retirees
would be brought back through a labor contracting service and
he did not know their rates of pay because he only negotiated
wage rates for members but, he figured the retirees rates would
be around $24 per hour. Foy was frustrated because, “union
brothers that were new hires . . . was making $13 an hour. And
I did not feel it was right to bring people back in as contract
labor making more money than my union brothers paying
dues.”
Foy attended the Union’s regular meeting in April for second
shift employees at the union hall. Local Union President Wag-
goner told the members the Company was still planning to
bring in retirees to build tires. Foy asked why retirees, and why
the Company did not hire new employees instead. Waggoner
explained 568 employees had accepted the April 2009 plant
reduction buyout and the Company needed to meet production
in 2010 and was going to utilize retirees because there was not
enough time to train new tire builders and still meet production
quotas. Foy made a motion the Local Union send a letter to
any returning retirees that the Local Union disapproved of their
returning as contract labor.
Foy met with employees Mitchell Johnson and Donnie Revel
near the end of May 2010 to talk about retired employees re-
turning to work as employees of a contract labor employer.
The three discussed their dissatisfaction with retirees, “coming
back in and working as a scab for contract labor.” Foy told
Johnson and Revel he was going to have a shirt made reflecting
his dissatisfaction and frustration with the retirees’ returning to
work. Johnson likewise decided he would have a shirt made
and they discussed what should be on the shirts. Foy said his
shirt would say, “When I retire, I will not scab, I’ll go fishing.”
The three ended their meeting.
Foy had a shirt made near the end of May 2010. Printing on
the shirt reads; “When I Retire I will Not __ __ __ __ I’ll Go
Fishing.” Foy, in large hand written lettering, filled in the
blank spaces with all capitalized letters “SCAB.”
GOODYEAR TIRE & RUBBER CO. 339
Foy wore his printed shirt at work on June 1, 2010. During a
company provided hamburger dinner in the tire room on that
date, Foy met, for the first time, new Plant Manager Perry Ten-
nison. Tennison said nothing to Foy about his shirt. However,
about 45 minutes later, Tire Room Supervisor Louis Davis
summoned Foy to his office. Foy asked Davis if he would need
a union steward and Davis said he would not, that “we’re going
to talk man to man.” Foy was okay with that. According to
Foy, Davis asked him to turn around so he could see the shirt
and asked, “Do you think anyone might get offended by that on
your shirt?” Foy said he did not but Davis said people get of-
fended at lots of things. Foy then asked Davis if he thought
retirees might take offense but Davis did not respond. Foy
explained he did not see how the retirees could get offended
because they did not work for the Company but worked for
“Hamilton-Ryker Scab Company.” Davis told Foy not to wear
the shirt back into the plant for his own good. Foy responded,
he did not see anything wrong with his shirt, that he was a un-
ion man who was frustrated about what was happening. Foy
thanked Supervisor Davis for their “man-to-man” talk and told
him if he decided to wear the shirt back into the plant he would
cross that bridge when he got to it.
A short time later that same day, Foy told coworker Mitchell
Johnson and union steward Todd McCartney about his meeting
with Davis. Foy has not worn the shirt in the plant since Davis
warned him because he “felt like [he] would be fired for insub-
ordination.” Foy never spoke to any of the retirees about the
shirt; never made threatening comments to them; was never
involved in any fights or altercations with them; never made
any threatening gestures toward them and there was no inter-
ruption in production in his department the day he wore the
shirt.
Second shift shop steward McCartney testified Business
Center Manager Tommy Greer, the highest ranking manage-
ment official in the tire room, asked him if he had seen Foy’s
shirt. McCartney told Greer he had the day before. According
to McCartney, Greer told him, “That shirt is not allowed in
here. You need to tell him not to wear it; that we have a zero
tolerance in this plant. And you need to have a talk to Mr.
Foy.” McCartney told Foy about the conversation telling him
he had talked with the Union and “we didn’t feel like there was
a problem with the shirt but, he needed to know all the facts
and make his own decision.”
Sixteen year banbury department employee Mitchell Johnson
attended the regular union meeting at the hall in May 2010, at
which Local Union President Waggoner spoke about the Com-
pany bringing retired employees back to build tires. Johnson
said he and other coworkers were frustrated because new hire
union employees at the Company were paid $13 per hour,
whereas, retirees being brought back through nonunion, Hamil-
ton-Ryker, were being paid $24 per hour.
About a week after the union meeting, Johnson spoke with
Foy and Donnie Revel near the banbury department. They dis-
cussed having t-shirts made to wear in the plant. Johnson had a
shirt designed with the word “scab” on the front with a crossed
out circle on top of it and on the back; “UNION TIL I RETIRE,
THEN SCAB IN.” Johnson wore his shirt the second week in
June for a full work shift. No supervisor or manager spoke
with Johnson that day about his shirt; however, Johnson’s im-
mediate supervisor, Gideon Fichu, observed Johnson wearing
the shirt. The following day union steward Jeff Williams told
Johnson that HR Specialist Mark Kitchen had spoken with him
about Johnson’s shirt and told him Johnson “didn’t need to
wear the shirt back in again that it was a violation of the zero
tolerance policy.”
Upon learning of Kitchen’s comments, Johnson telephoned
him the next day and asked about his conversation with union
steward Williams regarding the shirt. Kitchen told Johnson he
had relayed the position of the HR department to Williams.
Johnson told Kitchen, “I think my shirt’s fine.” Kitchen re-
sponded; “It violates our zero tolerance policy. You’re creating
a hostile work environment.” Johnson told Kitchen he did not
bring the retirees back into the plant, the Company did, and it
was the Company that was creating the hostile work environ-
ment. Johnson then told HR Specialist Kitchen, “Mark, if you
tell me not to wear that shirt, I will call the National Labor
Relations Board.” Kitchen said that was fine if that was what
Johnson needed to do. Johnson then asked, “So you’re telling
me not to wear this shirt back in the plant again?” Johnson
testified Kitchen responded, “That’s exactly what I’m saying.
Don’t wear it back in the plant again” and ended their conversa-
tion.
After Johnson wore his shirt in the plant several coworkers
asked if he would have them one made. Johnson had 60 addi-
tional shirts made which he sold to coworkers. When his
coworkers asked Johnson if they should wear their shirts into
the plant, Johnson told them he had been told not to but added,
if they did, it would be at their own risk. Six or seven cowork-
ers wore their shirts at the plant on various occasions up to and
including the Friday night before the trial. Johnson wore his
shirt at work on two or three more occasions without any one
from management mentioning it to him. Retirees were working
at the plant on the days Johnson wore his shirt. Johnson was
never disciplined for wearing the shirt. Johnson said there were
no fights, altercations or threatening gestures made at work nor
was production interfered with as a result of his wearing his
shirt. Johnson wore the shirt because he wanted his fellow
union members to see his disgust with what was going on and
for the retirees to see he did not approve of the situation. John-
son said he wanted the retirees to be offended by what they
were doing.
Employees have displayed or worn, at the plant, various un-
ion related stickers and clothing for years and specifically since
2006. Foy displayed a sticker, “USW Local 878L I Would
Never SCAB” on his truck parked in the company parking lot.
The same type sticker has been displayed inside the plant on
hard hats, tool boxes, forklifts, lunch boxes and the bicycles
maintenance employees ride around the plant. According to
Foy, no one from management has spoken with employees
about the stickers. Foy has worn a shirt with the Union’s logo
on the sleeve in the plant for years which also reads, “I would
never SCAB U.S.W.A. Local 878L.” Foy has been observed
by management wearing the shirt. Foy said several hundred
other employees have worn this same type shirt for years and as
recent as the week before the trial. No company official has, to
Foy’s knowledge, ever spoken with any of the employees about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
wearing the shirts. Johnson testified Supervisor Howard Nel-
son asked employees on more than one occasion, if they wanted
“to work with that scab today,” referring to an employee who
had crossed the picket line during the 2006 strike.
3. Company’s evidence
HR Specialist Kitchen notified HR Manager Gossett in June
2010 that employee Johnson had worn a shirt at the plant that
made reference to the returning retirees as scabs. Gossett also
learned Johnson was selling the shirts to coworkers and planned
to have a number of the employees bring them into the plant.
Gossett concluded Johnson’s, as well as Foy’s, printed shirts
violated the Company’s zero tolerance policy which provides
for a workplace free from harassment, discrimination, violence
and where employees are to be treated in a professional man-
ner. Gossett said one of the returning retirees, Tommy Stewart,
even complained about Johnson’s shirt.
HR Manager Gossett concluded Johnson’s and Foy’s shirts
also violated the Company’s dress code specifically the portion
that prohibits “clothing with inappropriate or offensive slogans,
lettering, or symbols.” According to Gossett, Johnson, Foy,
and all employees are trained annually on the Company’s zero
tolerance and other policies which help to protect the Compa-
ny’s good name and image. Additionally, Gossett stated that if
little things at the Company are ignored they tend to escalate
and could result in disciplinary problems. Gossett specifically
viewed Johnson’s and Foy’s shirts as attempts at getting the
retirees to leave the plant. Gossett explained that the difference
between the messages on Johnson’s and Foy’s shirts and those
of other union related messages worn on clothing or displayed
in the plant was that the two messages, at issue were directed at
specific individuals namely the retirees whereas the other mes-
sages were not. Gossett acknowledged employees wore caps,
shirts, and jackets at the plant with union logos. He noted that
during negotiations for the most recent collective-bargaining
agreement employees wore shirts with the picture of a cobra
with the message, “If provoked, I will strike” and shirts which
said, “I would never scab” on them.
Gossett said neither Johnson nor Foy was ever disciplined
for wearing the shirts in question at the plant. Gossett did not
consider the messages on the shirts at issue to be obscene or
vulgar and the shirts did not direct employees to be violent or
hostile toward other employees, nor did the shirts disparage the
Company’s products or call for a work stoppage.
HR Manager Gossett said that during the strike at the Com-
pany in 2006 temporary workers were hired from a temporary
staffing agency to supplement salaried employees and those
who crossed the picket line to maintain production. During the
2006 strike there was an altercation involving a delivery driver
for a supplier and a striker that resulted in the striker being sent
to the hospital with some pretty sever injuries. Some incidents
occurred after the 2006 strike ended. On February 12, 2007,
James Pope reported to his supervisor, Vince Youngquest, that
he had observed graffiti on one of the bathroom walls making
reference to “Bonnie and Cowboy” who had crossed the picket
line during the strike. The graffiti referred to the two as scabs
and included a racial slur. HR Manager Gossett said “Bonnie”
was Bonnie Moss and “Cowboy” was Greg Phelps one of
which was African American. A Company report of the inci-
dent indicates that “[w]ithin an hour, the graffiti . . . [was]
cleaned up [and] . . . gone.” Other incidents included rolls of
toilet paper placed in toilets causing overflows. David Weber
reported in March 2007, his tool box stolen and a personal fan
“torn up.” Weber also complained that the employee who
worked at his same workstation but on the earlier shift left the
machine in disarray. Weber’s written complaint reflects the
employee on the earlier shift had admitted, thought not to We-
ber, he was leaving the area messed up because Weber, admit-
tedly, was a scab who crossed the picket line during the 2006
strike. In the report Weber was asked what could be done
about his machine being left in disarray. He responded, “Noth-
ing. I just came up here because I figured it would aggravate
him to be investigated.” HR Manager Gossett said employee
Johnson Motley complained after the strike, he was “having
trouble getting the items he needed brought to him in the plant
. . . [and] . . . had some issues with his vehicle.” Motley’s writ-
ten report dated May 17, 2007, indicates a “chemical” of some
kind was put in his vehicle’s gas tank. Motley crossed the
picket line during the 2006 strike. Gossett testified an employ-
ee reported he had lug nuts loosened on his vehicle which he
believed happened at work. Randy Garner filed a written report
with the Company on May 22, 2007, in which he indicated he
had five lug nuts on his pickup truck loose enough that he could
tighten them by hand and he believed the lug nuts may have
been loosened at the plant. Garner and his wife both worked
during the 2006 strike.
Retired tire builder Norman Boucher testified he returned to
the Company as a retiree for a period in the spring of 2008, and
again in June 2010. Boucher recalled that during his 2008 re-
turn to work Mitchell Johnson told him he was disappointed in
his being there. Boucher specifically recalled Johnson telling
him “tire builder scabs were coming in there and I shouldn’t be
there.” Boucher saw but did not speak with Johnson when he
returned as a retiree in 2010. Boucher saw Johnson wearing the
shirt at the plant that made reference to retirees being scabs.
Boucher did not, however, complain to the Company about
Johnson wearing the shirt.
Retired Employee Thomas Stewart returned as an employee
of Hamilton-Ryker in June 2010 and observed Mitchell John-
son in the tire room wearing a shirt that said something about
retirees and scabs. Stewart claimed Johnson had no business in
the tire room but acknowledged Johnson said nothing and his
presence did not stop Stewart from doing his work. Stewart
further acknowledged Johnson made no threatening gestures
toward him or the other retirees. Stewart has seen shirts in the
plant stating, “I would never scab.”
Retired employee Richard Gephart built tires at the Compa-
ny as a temporary employee of Hamilton-Ryker in June and
July and from mid-October to December 2010. Gephart ob-
served Mitchell Johnson in the plant a few times in the summer
of 2010 and on an occasion saw Johnson wearing a shirt with
“retirees and scabs” on it and other words too small for Gephart
to read at the distance he was from Johnson. Gephart said the
words retiree and scab made him feel “weary” because he did
not consider himself a scab. Gephart paid union dues even
GOODYEAR TIRE & RUBBER CO. 341
when he worked as a retiree. Gephart said Johnson never made
any threatening gestures toward him.
III. CREDIBILITY COMMENTS, ANALYSIS, AND CONCLUSIONS
It does not appear there are any controlling credibility con-
flicts in the testimony outlined and relied on. However, it is
helpful to specifically address what might appear to be a credi-
bility conflict involving portions of the testimony given by
employee Foy and Supervisor Davis. Foy testified Supervisor
Davis told him not to wear his, “When I retire I will not SCAB,
I’ll go Fishing” shirt back into the plant for his own good.
Supervisor Davis acknowledged, “I told Foy that the T-shirt he
was wearing was maybe offensive to some people and for him
not to wear it back in the plant again.” However, Davis imme-
diately, thereafter, testified he never in any way threatened Foy
about wearing the shirt. To the extent it is necessary; I do not
credit Davis’ denial of a threat. I find Davis denial to be noth-
ing more than his view on the meaning of the words he spoke to
Foy as credibly testified to by Foy.
I turn to the validity of the Company’s prohibition of the
wearing of the two shirts at issue. It is established the Compa-
ny prohibited employee Johnson from wearing a shirt stating,
“Union ‘til I retire, then scab in!” and prohibited employee Foy
from wearing a shirt stating, “When I retire I will not scab I
will go fishing.” I find the Company, through Supervisor Da-
vis, threatened Foy with unspecified reprisals for wearing his
shirt when he instructed Foy not to wear the shirt in the plant
again for his own good. Davis’ statement makes it clear there
will be adverse consequences, if Foy wears the shirt again in
the plant. I find the content of the messages reflected on the
two shirts worn by Johnson and Foy to be protected by the Act.
The Board, with court approval, has long held that in the ab-
sence of special circumstances employees have a Section 7
right under the Act to wear insignia at work referring to unions
or other matters pertaining to working conditions for the pur-
pose of mutual aid or protection. Midstate Telephone Corp.,
262 NLRB 1291, 1292 (1982), enf. denied 706 F.2d 401 (2d
Cir. 1983); Boise Cascade Corp., 300 NLRB 80, 82 (1990).
Johnson and Foy were, by the messages on their shirts, attempt-
ing to protest a tacit agreement between the Company and the
Union, that the Company could bring back experienced retired
employees on a short time basis to fulfill a labor shortage.
They were also protesting that the retired employees were being
brought back through Hamilton-Ryker, a nonunion supplier of
temporary labor, which labor (the retirees) would be perform-
ing bargaining unit work in the plant as nonunion employees
while being paid substantially more per hour than the newly
hired but untrained unit employees. It is reasonable to conclude
and I do, that Johnson and Foy were acting together to mobilize
solidarity in an effort to discourage the retired employees from
participating in the nonunion retiree program and for support in
favor of the lower paid untrained unit employees. Foy for ex-
ample testified, “I did not feel it was right to bring people back
in as contract labor making more money than my union broth-
ers paying dues.” The mere fact both messages utilized the
word “scab” does not remove the Act’s protection from John-
son and Foy in wearing the shirts. The Act’s protection of em-
ployee rights extends to use of the word “scab” a common and
well-known reference to a person or firm who is nonunion or
works during a strike. Boise Cascade, supra, 300 NLRB at 82;
Letter Carriers v. Austin, 418 U.S. 264, 282–287 (1974); Linn
v. Plant Guard Workers, 383 U.S. 53, 60–61 (1966). In Linn
the Supreme Court noted the Board has allowed wide latitude
to statements or expressions by the parties in labor controver-
sies and has concluded that scab is an epithet that is common-
place and is not so indefensible as to remove the protection of
the Act from the use of it. For Foy and Johnson to associate the
words, “scab” and “retire” on their shirts does not somehow
denigrate retirees but merely focuses the point of their message.
I note in this regard there is no evidence or contention that Foy
and/or Johnson engaged in any threats, violence, physical ges-
tures or contact in the process of wearing their shirts displaying
the word “scab” and associating it with the returning retirees
nor did it cause any disruptions of production.
I turn next to the Company’s special circumstance conten-
tions. An employer may prohibit the wearing of union insignia
or insignia regarding working conditions by its employees if,
and only if, the employer can demonstrate substantial evidence
of special circumstances that would outweigh the employees’
rights protected by Section 7 of the Act. Special circumstances
can include violence, interference with training or production,
or threats thereof, the instigation of disciplinary misconduct,
disparaging the employer’s products and/or services, interfer-
ence with safety or unreasonable interferences with the image
the employer desires for its employees to project its customers
or suppliers. See, e.g., Escanaba Paper Co., 314 NLRB 732,
732–735 (1994). The employer bears the burden of proving
special circumstances. W. San Diego, 348 NLRB 372, 373
(2006). The special circumstance exception is; however, nar-
row and “a rule that curtails an employee’s right to wear union
insignia at work is presumptively invalid.” E & L Transport
Co., 331 NLRB 630 fn. 3 (2000). General, speculative, isolated
or conclusively evidence of potential disruption to an employ-
er’s operations does not amount to special circumstances. Boi-
se Cascade Corp., 300 NLRB at 82.
Norman Boucher, who had worked for the Company for 40
years before retiring, returned to the Company for work 5
weekends in the spring of 2008 as a retiree working for a non-
union temporary labor supplier. Boucher testified Mitchell
Johnson approached him in 2008 and told him he was “disap-
pointed” in Boucher’s being there and said “tire builder scabs
were coming in there” and told Boucher he should not be there.
Boucher was upset Johnson referred to him as a scab because
he did not consider himself to be one because he did not cross
the 2006 picket line at the Company. Boucher again returned
to work in June and a portion of July 2010, working as an em-
ployee of a nonunion temporary labor provider. Boucher saw
but never spoke with Mitchell Johnson during work in 2010.
Boucher observed Johnson, on an occasion, “strutting down the
aisle” wearing a shirt making reference to retirees as scabs.
Johnson’s wearing the shirt “upset” Boucher because he did not
consider himself a scab. Boucher, however, never complained
to anyone about Johnson’s shirt.
I accept Boucher’s description of his encounters with John-
son but conclude such does not constitute special circumstance
that would justify the Company prohibiting Johnson from wear-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
ing his shirt in question in the plant in 2010. Johnson did noth-
ing more in 2008 than attempt to persuade Boucher not to work
nonunion in the plant as a tire builder. Johnson did not threaten
Boucher in any manner. Nor does Johnson’s 2008 comments to
Boucher establish or demonstrate lingering animosity by him in
2010. In June and July 2010, Johnson never even spoke to
Boucher nor made any threats toward Boucher or the other
retirees. Boucher, though being “upset” made no complaints to
management about Johnson’s shirt. Any contention by the
Company that Johnson’s actions in 2008 and 2010 continue to
bring up the 2006 strike, or unfairly single out retirees as scabs,
and thus disrupt production or other problems is simply too
speculative to justify the Company’s prohibiting Johnson from
wearing the shirt at issue. Clearly Johnson’s shirt was not ad-
dressing the strike some 4 years earlier but was protesting the
use of nonunion laborers to build tires in the unionized plant.
Stated differently, the “scab” reference on Johnson’s shirt, and
for that matter Foy’s shirt, was part of larger messages contain-
ing the word “retire” and clearly referred to the nonunion retir-
ees working in the plant. It is highly unlikely that other em-
ployees understood the shirts to reference the 2006 strike or any
misconduct associated with that strike.
While there was some misconduct during and following the
2006 strike, such is separated from the events by as much as 4
years. One incident in the 2006 strike sent a striker to the hos-
pital, however, it did not involve employees crossing the picket
line but rather was an exchange between a driver for a supplier
and a striking employee. Certain other incidents were reported
to management beginning in 2007 and until May of that year.
On February 12, 2007, graffiti was observed on a bathroom
wall that made reference to two employees who had crossed the
picket line as “scabs;” however, the graffiti was cleared away
within an hour and no one was disciplined as a result of the
incident; nor was there any evidence presented as to who may
have been responsible for the graffiti. There were, at about this
same time, incidents where toilet paper was placed in toilets
causing overflows but again no showing as to who was respon-
sible. Employee Weber complained in March 2007 his tool box
was stolen and a personal fan destroyed, however, no showing
was established as to who was responsible. Weber also com-
plained his work area was left in disarray by an employee on an
earlier shift and he had heard it was because he was a scab. In
May 2007, employee Motley complained some type of chemi-
cal had been placed in the gas tank of his private vehicle. Em-
ployee Garner, at about the same time, reported lug nuts had
been loosened on his private vehicle. Garner and his wife both
crossed the picket line during the 2006 strike. However, no one
was ever disciplined for any of these incidents. Even assuming
the incidents were strike related, there is no showing the ani-
mosity that may have persisted after the strike against those
who crossed the picket line, continued to the time Johnson and
Foy wore the shirts in issue some 4 years later in 2010. The
Company could not point to any specific problems related to
discipline or production caused by Johnson and Foy wearing
the shirts in issue. Johnson and Foy had no contact with the
public or customers of the Company. Employees had worn
shirts with union insignia including the word “scab” for years
without anyone being disciplined for doing so. The Company’s
perception that Johnson intended to disrupt plant operations by
persuading retirees to quit their jobs is merely speculative and
does not establish a true threat to disrupt production. The fact
the Company had a policy against harassment that might create
a hostile work environment is no defense. Where as here, there
were no threats, the Company cannot enforce its broad re-
strictions to compel compliance with a zero tolerance and/or
dress policy which interferes with the Section 7 rights of its
employees. Escanaba Paper Co., 314 NLRB 732, 734 (1994).
In sum, I find the Company has not shown special circumstanc-
es which would support a ban of the shirts in question with
messages protected by the Act.
I find prohibiting Johnson and Foy from wearing the shirts at
issue and additionally by threatening Foy with unspecified
reprisals, the Company violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. By telling an employee he was prohibited from wearing a
shirt stating: “Union ‘til I retire, then scab in!” and from pro-
hibiting an employee from wearing and threatening the em-
ployee with unspecified reprisals if the employee wore a shirt
that stated: “When I retire I will not scab. I will go fishing” the
Company engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act and vio-
lates Section 8(a)(1) of the Act.
REMEDY
Because I have found the Company has engaged in certain
unfair labor practices, I find it must be ordered to cease and
desist and to take certain affirmative actions designed to effec-
tuate the policies of the Act.
ORDER
The Company, Goodyear Tire and Rubber Co., Union City,
Tennessee, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting its employees from wearing shirts reading,
“Union ‘til I retire, then scab in!”
(b) Prohibiting its employees from wearing and threatening
its employees with unspecified reprisals if they wear shirts
reading “When I retire I will not scab. I will go fishing.”
(c) Prohibiting employees from wearing articles of clothing
with messages pertaining to the exercise of activities protected
under Section 7 of the Act.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
GOODYEAR TIRE & RUBBER CO. 343
(a) Within 14 days after service by the Region, post at its
Union City, Tennessee facility copies of the notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 26 after being signed by the
Company’s authorized representative, shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site or other elec-
tronic means, if the Company customarily communicates with
its employees by such means. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Company has gone
out of business or closed the facility involved in the proceed-
ings, the Company shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former em-
ployees employed by the Company at any time since June 1,
2010.
(b) Within 21 days after service by the Region, file with the
Regional Director for Region 26 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Company has taken to comply.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT tell you that you are prohibited from wearing
shirts at work that state “Union ‘til I retire, then scab in!’”
WE WILL NOT tell you that you are prohibited from wearing
nor will we threaten you with unspecified reprisals if you wear
shirts at work that state “When I retire I will not scab. I will go
fishing.”
WE WILL NOT interfere with, restrain, or coerce our employees
by prohibiting them from wearing articles of clothing with mes-
sages pertaining to the exercise of activities protected under
Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

GOODYEAR TIRE AND RUBBER CO.