Pennsylvania Tire and Rubber Co. of Mississippi, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1963

144 N.L.R.B. 466 (N.L.R.B. 1963)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pennsylvania Tire and Rubber Company of Mississippi, Inc.
and United Rubber, Cork , Linoleum , and Plastic Workers of
America, AFL-CIO. Case No. 26-CA-1420. September 10, 1963
DECISION AND ORDER
On June 3, 1963, Trial Examiner Lloyd Buchanan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in certain unfair
labor practices, and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified.'
[The Board dismissed the complaint.]
1 Contrary to the Trial Examiner, Members Leedom and Brown find that the interroga-
tion of employee 'McDaniel by Respondent's Personnel Manager Brooks violated Section
8(a) (1) of the Act. Because of the isolated nature of these violations, they believe that
no useful purpose would be served by issuing a remedial order in this proceeding Member
Fanning would not find the interrogation to be violative of Section 8(a) (1) in the context
of this case and would therefore sustain the Trial Examiner's dismissal of this allegation
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended (issued December 27, 1962; charge filed
December 3, 1962), alleges that the Company has violated Section 8(a)(3) of the
National Labor Relations Act, as amended, 73 Stat. 519, by discharging Billie S.
Sheffield on or about November 27, 1962, and failing and refusing to reinstate him,
because of his union or other protected concerted activities; and Section 8(a)(1)
of the Act by said alleged acts and by interrogation of employees concerning their
union membership, activities, and desires. The answer avers that Sheffield quit
when he was told that he was to be discharged, and that he was discharged for poor
work, having been previously reprimanded for poor work and violation of various
company rules.
A hearing was held before Trial Examiner Lloyd Buchanan at Tupelo, Mississippi,
on February 28 and March 1, 1963. Pursuant to leave granted to all parties, briefs
have been filed by the General Counsel and the Company.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Mississippi corporation with its
principal office and place of business at Tupelo, Mississippi, is engaged in the manu-
144 NLRB No. 57.
PENNSYLVANIA TIRE & RUBBER CO. OF MISSISSIPPI , INC. 467
facture and sale of tires; that during the 12 months preceding the complaint, it re-
ceived at its Tupelo plant from points outside the State of Mississippi, goods and
materials valued at more than $50,000, and manufactured, sold, and shipped from
said plant directly to points outside the State finished products valued at more than
$50,000; and that it is engaged in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8(a) (3)
Whether Sheffield was discharged or quit after he was told that he would be dis-
charged is unimportant since in the latter event there would be a constructive dis-
charge. What is important is the reason for the notice or actual discharge: whether
the Company acted because of Sheffield's poor work and violations or because of
his protected concerted activities. The allegation in the answer that Sheffield quit
was apparently abandoned; it appears from the testimony that he was told he was
going to be fired and that he was fired. The primary issue is whether, in the face of
a record of reprimands and poor work far worse than that of any other tire builder,
and an unusual number of bad tires which he turned out on November 26, the
Company, citing these reasons, discharged him on November 27 because he engaged
in protected concerted activities, knowledge of which by the Company is hardly to
be inferred.
On the issue of company knowledge, it appears that Sheffield was the union ob-
server at two Board-conducted elections in 1961, which the Union lost; that several
months before those elections he went to the home of the Company' s personnel
manager, Brooks, whose knowledge is imputable to the Company, where one or the
other (this is in dispute) suggested that Sheffield could obtain return of his union
card; and that he thereafter did get the card and gave it to Brooks, who tore it up.
There is no suggestion that, although Sheffield was one of the Union's "better leaders"
in the campaign, the Company had any knowledge of union activity by Sheffield
when the Union resumed organizational activities in August and September 1962,
whatever the Company's knowledge of such activities generally at that time. The
General Counsel relies on a conversation on the day after the second election, in
October 1961, when Wilcox, the plant manager, called Sheffield into his office and
told him that his past union activities were strictly in the past , and that he was not
concerned with his or other employees' union activities; to which Sheffield replied
that if there should be another campaign, he would probably feel the same way
and again be active in it, Wilcox repeating that Sheffield's future with the Company
depended on his performance on the job.
The General Counsel's argument in this connection is that "the Company could
tolerate (Sheffield's) union desires" in 1961 after (and also before?) the Union lost
the elections, but not when the new organizing campaign was started in 1962. The
General Counsel here asks for the assumption and presumption that once an employee
engages in union activity and states that he will do so again should the opportunity
arise, it is to be presumed that the employer will connect him with any future activity
(assuming here the employer's knowledge of such later activity). The General
Counsel argues that, to meet the effect of such a statement by the alleged discriminatee,
the employer would have to prove a later disavowal or contrary actions by the
employee.
Such a presumption , novel in its scope , would constitute an all too convenient
basis in perpetuo for a finding of knowledge. Even in the absence of a specific
contrary declaration or acts by the employee, I will not hold that his assurance of
future activity, made in the heat of and immediately after an election, is a basis for
finding company remembrance, and that such remembrance was or would be relied
Upon by the Company into the indefinite future or, in this case, more than 1 year
later, as it might rely on actual contemporary knowledge or belief of such activity;
all of this in the face of Wilcox's admittedly proper, even laudable, attitude and
declaration in 1961. In addition to this, we should consider that there has been no
suggestion of animus or discriminatory attitude by Wilcox or any other company
representative other than Brooks, who in 1961 allegedly threatened possible dis-
charge, blackball, and shutdown. The General Counsel's novel but very convenient
theory is a "No-Cal" argument; it lends no weight to his position. I do not rely
on it as supporting a finding of company knowledge of Sheffield's 1962 activities
on the basis of his 1961 statement.
727-083-64-vol. 144-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Presumably to show that Wilcox knew or "figured" that union activities had been
renewed, Elliott, the Union's field representative, testified that at a chance meeting
in a bowling alley in the latter part of August, he told Wilcox that he was again
trying to organize the plant, Wilcox replying that he figured that he would. Wilcox
was not asked whether he knew that the Union was again engaged in organizational
activities here. He testified that he had no recollection of actual statements made to
Elliott, but based on his policy in such situations to make no statements concerning
a union to anyone, he was "practically positive" that he did not ask Elliott what
he was doing in Tupelo; he recalled no statement by Elliott concerning another at-
tempt to organize the plant. Wilcox impressed me as a reliable witness, and I credit
his testimony on cross-examination that he did not ask Elliott what he was doing
in Tupelo (Elliott did not claim that Wilcox had asked this), and that nothing was
said between them concerning the Union or organizational activities. Wilcox's
statement of policy, although broad, was made in connection with a union official,
not an employee. Furthermore, the assurance which Wilcox had given Sheffield
the year before was of a wholly different nature.
Rather than slight the mass of testimony concerning Sheffield's work and the re-
primands issued to him, this may be briefly considered despite the failure to show
company knowledge of or belief that he had engaged in concerted activities., The
witnesses and their testimony, sometimes conflicting, sometimes reconcilable, con-
cerning the condition of Sheffield's machine and specifically its drum persuade me
that, although the equipment was not in first-class condition, Sheffield and any other
experienced operator or tire builder could have made necessary adjustments for sat-
isfactory production; that the other operators on this machine did, as did Sheffield
himself except for November 26; and that his bad tires on that day exceeded by far
the number which he and other operators had theretofore and have since produced.
Because his friend, Estes, testified to poor production to a greater degree than did
the other witnesses, I shall briefly analyze Estes' statements; it is unnecessary to
detail and explain the rejection of some of the other testimony.
According to Sheffield and McDaniel, an operator whose discharge is not here
in issue, excessive returns were due to the poor condition of the No. 2 machine, which
Sheffield operated. While McDaniel recognized his 5 to 10 returns per day as exces-
sive, Sheffield attempted to explain his 20 or 22 of November 26 as due to the con-
dition of the same machine. What can now be said of Estes' testimony that, al-
though a good tire builder, he himself averaged 5 to 25 returns per day. Although
sponsored by the General Counsel, Estes leaned over so far in his testimony that he
collapsed completely. It may also be noted that, after he had testified that he built
mostly good tires but many bad ones on the No. 2 machine in November 1962,
Estes declared that he was unable to say whether tires which he had built on that
machine were returned to him by the inspectors that month. Later testimony in-
dicates that Estes did not work on that machine at that time. Clearly, aside from
Estes' testimony, the number of Sheffield's tires returned on November 26 was ex-
ceptional. No comment is necessary on Harris' testimony that, during his employ-
ment which was terminated in March 1962, he had as many as 50 returns per day.
With respect to his poor tires of November 26, which were called to his atten-
tion on the following day (these were in addition to those which he had corrected
before he had gone home), Sheffield could say only that he had not examined them
carefully; they did not look to him like scrap tires, some had offcenter beads and
plies, and some looked like normal tires. Such testimony does not meet the Com-
pany's that 11 were definitely bad and had to be marked. as seconds and rejects,
while 9 could be repaired. (If, as was later suggested, this included more than 1
day's production, it was noted on November 27 and it appears from the same testi-
mony that no other tire builder had offcenter plies.) It does not appear that
Sheffield was limited to the "glance" which he took at these tires or, admitting that
they were his tires, that he was otherwise prevented from even attempting to ques-
tion the serious charge now being made against him and the reason for his discharge.
Witness Moore testified that of nine of these tires (apparently the same ones)
which he noticed on the morning of November 27, eight had offcenter beads, which
could have been caused by the drum, and one had offcenter plies; he did not "pay
attention" to the other tires stacked there. Aside from the mere possibility aspect
with respect to the eight tires, this testimony again leaves us with no evidence con-
cerning the other tires which in any way contradicts the Company's. I find that 20
bad tires were turned out and left behind by Sheffield on November 26, of which
no more than 9 could be repaired.
i The possibility of preference on review for one or the other basis for the findings made
must not be ignored ; I shall not attempt to anticipate any such preference.
PENNSYLVANIA TIRE & RUBBER CO. OF MISSISSIPPI, INC . 469
Notice should be taken of the suggestion that a number of tires might have been
on the conveyor on the way to the inspectors' station at the end of Sheffield's shift,
and thus would not be picked up by him there. But it was explained without
contradiction that these would be checked and turned up by the foreman at that
time. McDaniel clearly testified that the tire builder repaired these before he left
the plant.
As for the Company's responsibility for Sheffield's poor work because of the
condition of his machine, aside from the fact already noted that he and others
did not approach his record of November 26, I do not believe that the Company
willfully or negligently continued operation of a seriously defective machine, and
that, taking advantage of this condition, it discriminatorily discharged one of at
least three men who operated it. To believe, in the face of testimony by Sheffield
himself and others, that poor tires were turned out to the extent which Harris de-
scribed when he testified that during some weeks more than a year before he had
without reprimand turned out tires all of which had offcenter plies, is to believe
that there was a conspiracy at that earlier period and again in November 1962
among the green tire inspectors and quality control men. I credit Production
Manager Fierbaugh's testimony that, when he inspected the drum on the No. 2
machine on November 28, he found that it had scalloped edges but that its condition
was such (one operator had requested and received a transfer to this machine from
another) that he directed that the machine be kept in operation even though other
drums were at hand and a change could have been made in a few minutes. The
extent of the slight repair made to this drum shortly thereafter is consistent with
the good tires previously produced by Sheffield and the others, rather than with
Sheffield's poor work on November 26. Moore, who maintained the machine on
Sheffield's shift, was called by the General Counsel and testified that he worked on
it every day, but that it did not give any major trouble. These facts and the testi-
mony of frequent adjustments and repairs to the various machines place in perspec-
tive the reports that this machine was not in good condition.
I do not credit Sheffield's testimony that his foreman, Gibson, whatever his
knowledge or his status to make admissions, conveniently told him that the poor
work was not the reason he had been fired; I credit Gibson's denial. Fierbaugh
on November 27 asked Sheffield whether he had seen the 20 bad tires outside the
office, reviewed the reprimands which he had received in 1962, and told him that
he was going to terminate him because of his record.
As for the previous reprimands, it is clear, as noted, that Sheffield had been
justifiably reprimanded in 1962 far more than any other tire builder. Although the
list of reprimands was unreliable in its omission of one employee and in some
figures, these were limited errors; its substantial accuracy was not further questioned
at the hearing or contradicted.
Whether the preliminary investigation in this case was limited by lack of time we
do not know. It appears from testimony received concerning prehearing affidavits
that the investigation was made by someone other than the General Counsel's
attorney who tried the case. One can sympathize with the latter on this assignment.
Where the cause is barren, the result cannot be fruitful. While some may,com-
plain in well-publicized articles that there are too many Government investiga-
tions , it may be helpful to make more thorough investigations before formal ac-
tion is taken: such an investigation might here have disclosed more substantial
basis for the proceeding, or it might have shown that to proceed further would be
but an exercise in futility.
B. The alleged independent violation of Section 8(a) (1)
I credit McDaniel's testimony that in the latter part of August, Brooks asked him
whether he had any idea of the number of union cards signed; and that after his
return in October from a short layoff, Brooks asked whether he had had any
visitors at home, the reference being to union representatives, as the conversation
indicated? (According to Brooks, these were not cases of interrogation; McDaniel
volunteered information.) In view of the necessity of showing an unlawful "con-
text" in connection with any such interrogation, these two instances must be found
not to have been violative.3
2 While Brooks does not appear to have been instrumental in Sheffield's discharge, such
a statement, on the issue of company knowledge, might be construed in several ways,
among them as indicating that the union representatives were soliciting Sheffield's sup-
port rather than that the latter was himself active. I do not rely on such an equivocal
interpretation.
8 Cf. Middletown Manufacturing Company, Inc., 141 NLRB 234.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum , and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (3) or (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the complaint be dismissed
in its entirety.
Gary Steel Supply Company and International Union of Elec-
trical, Radio and Machine Workers , AFL-CIO, Petitioner.
Case No. 13-RC-9191. September 10, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Hymen
Bear. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the following reasons:
The petition herein was filed on February 21, 1963. The Petitioner
seeks to represent a unit of the Employer's employees located at its
Blue Island, Illinois, plant, who are presently represented by the
Intervenor.2 The Employer and the Intervenor assert their current
written contract, dated August 5, 1962, is a bar to the petition. The
Petitioner contends the contract is not a bar because, inter alia, it con-
tains a retroactive union-security and an illegal checkoff clause.'
1 Local 714, Machinery , Scrap Iron, Metal and Steel Chauffeurs , Warehousemen , Handlers,
Helpers and Alloy Fabricators Unions , affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America was permitted to intervene
at the hearing on the basis of Its current contract with the Employer.
2 The Employer 's entire operations are located at its plant and offices in Blue Island,
where it has had a bargaining history with the Intervenor covering its Blue Island em-
ployees. However , until about August 1961 , the Employer also had operated a plant in
Kensington , Illinois , and, prior to the closing of the Kensington plant, the Employer had
had a long bargaining history with the Intervenor covering its Kensington employees.
8 The Petitioner also contends that the Intervenor is, in effect , defunct, because it has
not administered the terms of the contract , and, therefore , the contract cannot bar the
petition. . The record shows, however, that the Intervenor has elective officers and that it
144 NLRB No. 45.