Rubber Teck, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1974

209 N.L.R.B. 605 (N.L.R.B. 1974)

RUBBER TECK, INC. 605
Rubber Teck, Inc. and United Rubber, Cork, Linoleum
and Plastic Workers of America , AFL-CIO, CLC,
District No . 5. Case 31-CA-3664
March 12, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 25, 1973, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint -herein be, and it
hereby is, dismissed.
DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Administrative Law Judge: The
complaint, issued May 11, 1973, alleges that Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.'
Specifically, the complaint alleges that (1) on or about
January 24, 1973, Supervisor Lorraine Gilbraith attempted
to induce an employee to refrain from joining or assisting
Local 839; and (2) on or about March 9, 1973, Respondent
discharged, and has since failed and refused to reinstate,
Sophie Solomon because she joined or assisted the Union
or engaged in other protected concerted activities, thereby
discriminating in regard to her hire and tenure of
employment, and discouraging membership in the Union,
in violation of Section 8(a)(1) and (3) of the Act.
Respondent's answer, duly filed on May 22, 1973,
generally admits the procedural and jurisdictional allega-
tions of the complaint; the supervisory status of the
1 Designations herein are as follows: The General Counsel, unless
otherwise specified or required by the context , his representative at the
hearing : Rubber Teck, Inc, Respondent, the Company, or the Employer,
United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, CLC, District No 5, the Charging Party, and Local 839 thereof,
persons named as its agents; and the discharge of the
alleged discriminatee; but denies generally the substantive
allegations of the complaint.
Hearing was held from July 9 to 12, 1973, both inclusive,
at Los Angeles, California. The General Counsel and
Respondent were represented by counsel. All parties were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce oral and documenta-
ry evidence relevant and material to the issues , to argue
orally, and to file briefs and proposed findings of fact and
conclusions of law. The parties waived oral argument but,
pursuant to an extension duly granted, filed briefs on
August 15, 1973. No proposed findings of fact or
conclusions of law have been filed by any of the parties.
Upon the entire record in the case and, based upon the
appearance and demeanor of the witnesses, and the briefs,
which have been carefully considered, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein,
Respondent has been a California corporation, with its
principal office and plant located at Gardena, California,
where it has been engaged in the business of manufactur-
ing aircraft and space component parts.
During the calendar year preceding issuance of the
complaint, Respondent received gross annual revenues
from its business operations in excess of $100,000, of which
in excess of $50,000 was derived from the shipment of
goods from its Gardena plant directly to points outside the
State of California.
On the basis of the foregoing, and upon the entire record,
including the admissions in Respondent 's answer, it is
hereby found that, at all times material herein, Respondent
has been an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 839, United Rubber, Cork, Linoleum and Plastic
Workers of America , AFL-CIO, CLC, herein called Local
839, and United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, CLC, District No. 5,
herein jointly referred to as the Union , are, and at all times
material herein , have been labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent is engaged in the manufacture of rubber
products , consisting of groove seals , duct conductors, and
jointly, the Union, the National Labor Relations Act, as amended (61 Stat
136, 73 Stat . 519, 29 U.S.C. Sec. 151, et seq.), the Act; the National Labor
Relations Board , the Board The charge was filed and served on March 27,
1973. Unless otherwise stated, all events occurred in 1973.
209 NLRB No. 100
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
molded rubber products. Among these products is an
aircraft wing fuel tank access door, commonly designated
merely as a door.
Since 1968, when Local 839 was certified by the Board,
Respondent and the local have been parties to a collective-
bargaining agreement, containing maintenance-of-mem-
bership and voluntary checkoff provisions. The latest
agreement, negotiated in 1972, for a term of 3 years,
eliminated the escape clause under the maintenance-of-
membership provision, and permitted a wage increase
during the first year at Respondent's discretion. Although
the Union requested a wage increase under this provision,
Respondent's president, Paul Karres, notified the Union
that Respondent would be unable to comply with its
request.
B. Interference, Restraint, and Coercion
On January 24, 1973, Lomita Green was hired as an
assembly employee. About 3 o'clock that afternoon,
according to Green, Supervisor of Assembly Lorraine
Gilbraith asked her whether she had been told about the
Union. Green acknowledged that Richard Amante, sales
and personnel manager, had told her that there was a
union in the plant but that membership was optional.
Gilbraith then told Green that if she Joined the Union, the
Company would not hold it against her but that she,
Gilbraith, was not in the Union, adding that she did not
have "$6 to throw away every month," and that it was "a
waste of time."
Gilbraith testified that, during some questions about the
job, Green asked her about the Union. When Green asked
Gilbraith whether she belonged, Gilbraith told her that she
was part of management and was not required to join.
Gilbraith denied the remarks attributed to her by Green to
the effect that Gilbraith did not have "$6 to throw away." 2
Amante testified that he interviews all newly hired
employees, explains the union contract to them, tells them
that membership is entirely optional, and that they are
covered by the contract whether or not they join the
Union. Green conceded that Amante told her that her job
would not be Jeopardized if she joined the Union.
Under these circumstances, assuming that Gilbraith did,
in fact, tell Green that she did not have $6 a month to
"throw away," and that joining the Union was a "waste of
time," such statements, unaccompanied by promises of
benefit or threats of reprisal, are protected as free
expression of opinion under Section 8(c) of the Act, and
are insufficient to constitute interference, restraint, or
coercion.
C. Discrimination in Regard To Hire and Tenure
of Employment
Sophie Solomon had been employed by Respondent for
2 Although this was the only incident of its kind alleged in the complaint,
evidence was introduced, without objection, that when Cassandra Zimmer-
man was hired as an assembler on March 21, 1973, Gilbraith asked her
whether she had been told about the Union. Zimmerman acknowledged
that Amante had told her there was a union in the plant, that she was not
required to join, and that it was entirely her decision. Gilbraith confirmed to
Zimmerman that there was a union in the plant but said she saw no reason
for anyone to join, and that it was nothing but "a waste of time"
15 years at the time of her discharge on March 9, 1973. She
was then working in the assembly area , "building doors"
primarily, but also "flashing" or "deflashing" parts, which
entailed removing excess rubber from the parts. The
building of doors is performed at the rear of the assembly
room where the operator works alone at a table .3
In 1968, shortly after the Union was organized, Solomon
was elected president of the local and became its chief shop
steward and member of the negotiating committee. Karres,
Respondent's president for 26 years, took no active part in
the management of the business, except for the 1968 union
contract negotiations, until the latter part of 1970. During
these negotiations, according to Solomon, Karres threat-
ened to close the plant rather than deal with the Union.
The union representatives left, refusing to return until they
received a letter of apology from Karres' attorney for his
behavior. During the organizational activity, according to
Solomon, Karres had threatened to fire her if he ever
caught her "talking union." 4
After serving as union president and chief shop steward
for about 3 years, Solomon became inactive in the Union
and apparently dropped her membership. In the summer of
1972, she discussed with employees, including Violet
Cheney, Norma Steiner, Gladys Knott, Louise Gilmore,
and Martha Barker, the prospect of a raise. On a number
of occasions during this period, Solomon approached
Gilbraith on the subject. The group of women designated
Solomon to speak to President Karres.
Late in September Solomon asked Gilbraith to arrange
for a meeting with Karres. When Solomon finally asked
Karres for a raise for herself and those in her group, he told
her that he would think about it. Solomon related the
substance of her conversation with Karres to the women in
her group and, as she was on the verge of an extended sick
leave of absence, asked Steiner to follow the matter up with
Karres. During October, Steiner spoke to Karres but he
told her that he could not afford to grant a wage increase.
Solomon was on vacation during the month of October.
She was granted a leave of absence from November to
February 19, during which she underwent surgery. On
Tuesday, February 6, Gilbraith telephoned Solomon and
asked her to procure a letter from her physician indicating
when she could return to work. The following day, on an
office visit to her physician, she obtained a release from
him stating that she was able to return to work. Solomon
sent the letter to the plant.
On Thursday, February 8, the company bookkeeper,
Helen Mitchell, telephoned Solomon, and notified her that
Amante wanted her to report for work. Solomon asked to
speak to Amante, and reminded him that she had been
granted a leave of absence until February 19. Amante told
her that the Company needed her "desperately," that the
help they were getting wasn't worth having. Finally,
Amante told her that if she did not return to work, he
1 The term, building doors, is somewhat misleading . The operation
actually requires the application of an "anti-chafing strip" on the aircraft
wing fuel tank access doors The doors are first heated, adhesive is applied
to the edge, and clean phenolic, a synthetic resin, is pressed into position
over the adhesive.
Since no unfair labor practice is alleged or based on either of these
events, which occurred well beyond the Section 10(b) period, they are
mentioned only as background
RUBBER TECK, INC.
would have to replace her. Solomon called Karres, related
what Amante had told her, and said that she needed the
remainder of her leave of absence to February 19 because
she was still under postoperative care and required some
eye treatment. Karres repeated what Amante had told
her-that they needed her desperately. Next day, Friday,
February 9, Solomon reported for work.
Soon afterward, Solomon revived interest in the Union,
and discussed with other employees the prospect of joining
as a means of obtaining a wage increase. She successfully
recruited Lomita Green as a union member. On Wednes-
day, March 7, Solomon, accompanied by Violet Cheney
and Norma Steiner, attended a union meeting at the home
of one of the employees, and all three joined the Union.
Solomon was elected chief union steward and member of
the negotiating committee for the forthcoming wage
reopening in April.
The following morning , March 8, Jane Camp, secretary-
treasurer of the Union, delivered a letter to Gilbraith,
notifying the Company of Solomon's appointment as chief
shop steward. Gilbraith turned the letter into the office.
When Camp told Solomon during the morning rest period
that she had delivered the letter, Solomon donned her
steward's badge.
Later that day, Lomita Green asked Gilbraith for a
chance to perform other types of work than she had been
doing. Gilbraith told her that she had been hired to do
cleaning. When Green complained to Solomon that she
was being denied the opportunity to gain experience in
other types of jobs, Solomon told her that since she was
now chief steward, she would take the matter up with
Gilbraith. Solomon did so, and when she received no
satisfaction, told Green, in Gilbraith's presence, to file a
grievance.
Solomon testified that the same day, almost continuously
between 10:30 a.m. and 3 p.m., President Karres remained
in the assembly department, where she was building doors,
and kept her under constant observation throughout that
interval. Karres conceded that he observed Solomon from
behind a glass partition but did so to check on her
behavior. He testified also that he made routine tours of
the assembly department in an effort to expedite pro-
duction.
The following day, Friday, March 9, about 11 a.m.,
according to Solomon, she was sitting at her work station,
wearing her steward's badge and cleaning parts, when
Lomita Green, whom Gilbraith had assigned a job of
deburnng to do, asked Solomon- what to do with the part.
Solomon told her to put it in a corner. With that, Karres
came storming toward Solomon, shouting, "You're here to
work, not talk," and ordered her to clock out, adding, "and
I mean for good."
According to Karres, he had been in the shipping
department, about 20 feet from Solomon, when he
observed her standing several feet from her work station,
talking to Green. As soon as Karres entered the assembly
department. Karres testified, Solomon returned to her seat.
Karres told Solomon that this had happened so often, that
he had "had it" with her, and ordered her to punch out.
5 According to Galbraith, employees would be required to leave their
station as often as I I times a day, 8 to procure parts and 3 to obtain
607
Solomon retorted, according to him , "Well, you go to hell,
you punch me out ." Karres ordered Gilbraith to punch
Solomon out , and she complied.
On March 13 , at 10 a .m., a meeting was held in the office
at the plant to discuss Solomon 's grievance. At the outset,
Karres , Amante, Union International Representative
Albert G. "Cy" Blanton, and Martha Barker , president of
the local , were present . According to Karres , Blanton
remarked that Karres' "timing" in discharging Solomon
was "bad," particularly as she was chief steward . Karres
replied that that made no difference to him. Blanton said
that Karres would have been better advised to delay firing
her, adding that he , Blanton , had had experience in these
matters and that Karres did not "have a chance ." Blanton
observed that it appeared to him that Solomon had been
discharged because of her union activity . Karres denied it.
Blanton asked Karres whether Solomon had been dis-
charged for discussing the Union on working time . Karres
could not recall his reply but Amante quoted Karres as
saying that that had had nothing to do with it.
Karres stated that employees had been complaining that
they were being harrassed to join the Union , and Amante
referred to a letter in which an employee had registered a
complaint to that effect , although the letter did not
mention Solomon by name . Karres also told Blanton that
five employees, including Solomon, had been absent from
work on February 21, in what had been reported to him as
a "quickie" strike . Solomon, however, testified that her
absence had been due to a medical appointment , and that
she had notified Amante , when she returned to work from
her leave of absence , that she would have to take time off
for that purpose , and that Amante had consented. In any
event, none of the women were disciplined, and Respon-
dent does not rely on Solomon 's absence that day as a
ground for discharge.
Otto Grass , Respondent's vice president, joined the
meeting, and Solomon and Gilbraith were summoned after
the meeting had been in progress for about 20 minutes.
Karres and Amante stated their reasons for Solomon's
discharge , asserting that she had interfered with production
by excessive talking, which prevented employees from
doing their work, leaving her work station to engage in
conversations with other employees , and contributing to
"delinquencies" in deliveries, which had plagued the
Company for some time.
Solomon retorted that it was necessary for her to leave
her work station 10 or 15 times a day to procure parts and
cleaning supplies ,. which Gilbraith, in effect, at least
partially corroborated .5 According to Solomon , occasions
on which she left her work station to talk to other
employees were to assist and instruct employees as, it
might be noted, she had been doing in the case of Green at
the time Solomon was terminated. Although this did not
comprise part of her duties and, according to Gilbraith, she
had told new employees not to ask anyone but Gilbraith
for help, it was common practice for more experienced
employees to help others with less experience, and
Gilbraith was aware of the practice and encouraged new
employees , as in the case of Lomita Green , to seek advice
cleaning supplies.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the older employees for shorter or more effective
methods in performing their tasks. Moreover, according to
Martha Barker, she told Karres at this meeting that
employees frequently went to Solomon's work station to
seek her advice. Barker, as well as Blanton, testified that
Karres admitted at the meeting that Solomon had been at
her work station at the time she was discharged.
Gilbraith stated at the meeting that she had reprimanded
Solomon twice for talking in the entire 15 years of
Solomon's employment. The last time occurred on March
8, the day before her discharge, when an employee, Ida
Mae Richards, called to Soloman while the latter was
waiting to apply phenolic to a door which was being
heated. Gilbraith told Solomon that Karres wanted her to
get back to work.
Gilbraith acknowledged at the meeting that Solomon
was a good worker, and, Solomon, denying the conduct
jniputed to her, told Karres that she was the best worker he
had. Her statement that she had built 107 doors the day
before she was discharged was not refuted.6
Solomon's grievance was not sustained and, by the terms
of the collective-bargaining agreement, the grievance was
not subject to arbitration.?
Respondent's Contentions
Respondent does not rely solely on the incident which
occurred on March 9 as grounds for Solomon's discharge.
It contends, in effect, that the incident was merely the
culmination of a series of incidents of misconduct
commencing almost immediately upon her return from her
sick leave of absence on February 9. Respondent's
complaints consisted of her excessive talking to other
employees, thereby disrupting her own work as well as
theirs; leaving her work station frequently; engaging in
loud, boisterous, belligerent conduct, and displaying a
"chip on her shoulder" attitude, resulting in interference
with and decline in production; and using loud, offensive,
and vulgar language. Although conceding that Solomon
had engaged in similar conduct before going on leave of
absence, Respondent contends that since her return, this
conduct became more aggravated, possibly because of her
reluctance to return ahead of time. Respondent conceded,
however, that when she applied herself to her work and
abstained from talking to other employees, she performed
her work well.
It should be noted that there was no rule or policy
against talking among employees, provided it did not
interfere with production. There was evidence that conver-
sation among employees was quite common, and that even
members of management occasionally stopped to engage
employees in pleasantries and matters unrelated to their
6 Steiner, who built doors almost daily while Solomon was on leave of
absence , produced no more than 50 or 60 doors in an 8-hour period.
According to Gilbraith , while no employee had built more doors than
Solomon until the time of her discharge, one employee , Darlene Kelly, had
produced as many as Solomon . On the day before the hearing in this
proceeding, Karres learned that a newly hired employee had produced 110
doors in a day There was no showing as to the previous experience of this
employee or the number of hours she worked that day. In any event, it is
undisputed that Solomon's output of doors for the day before her discharge
was outstanding
work. In fact, it may be said that, if anything, an
atmosphere of permissiveness prevailed in the plant, which
included wagering on horses (in particular, a racehorse
owned by Karres' daughter, with wagers being placed from
Karres' own telephone), and lotteries. Gilbraith herself was
not above indulging in pranks, which admittedly included
barking like a dog, inserting foam rubber in her bosom,
and pasting duo seals on her face. In Gilbraith's words,
that "doesn't mean that I'm not working . . . after all,
they've proven already they don't expect you to be behind
prison bars . . . you can have a little fun there."
According to Karres, after Solomon returned from her
leave of absence, she frequently left her station to talk to
employees for from 3 to 10 minutes at a time. She also
summoned employees to her work station when they were
in the vicinity or on their way to the restroom and engaged
them in conversation for as long as 10 minutes at a time.
She was critical of Gilbraith, gesticulated and shouted at
her so that she could be heard 70 feet away over the din of
plant noises. On one such occasion, she allegedly shouted
at Gilbraith, "You are nothing but a bitch and we don't
respect you in this place." During such encounters,
according to Karres, employees stopped their work to
observe what was going on.
Employees complained about Solomon's conduct to
management . According to some, Solomon engaged in
arguments with Gilbraith on an almost daily basis,
becoming so enraged as to shout so that she could be heard
throughout the assembly department. One assembly
employee, Juanita Rollins, testified that because of the
noise , she was obliged to take refuge in the shipping
department, and could even hear Solomon's voice through
closed doors. Since her job entailed counting parts, Rollins
claimed she was unable to concentrate on her work, and
told Karres that she would have to punch out because of
the commotion Solomon generated, though there was no
showing that Rollins ever did so.
According to Gilbraith, Solomon became excited four or
five times a day, and threw temper tantrums. When
Solomon returned from her leave of absence, apparently
resentful at having been ordered to return early, according
to Gilbraith, she went about exclaiming , "What did they
think [I ] was doing, going to Las Vegas?", sometimes
venting her anger at her fellow employees. Solomon was
also accused by some employees of "cussing everybody
out," and resorting to profanity or other vulgar epithets.
Gilbraith admitted, however, that she had not been
shocked by Solomon 's language, and that Solomon had not
indulged in name calling since returning from sick leave.
Moreover, according to Gilbraith, she knew of at least one
other employee who had used a vulgar sexual epithet, one
Art. IV, sec. 4,-of the agreement provides, in pertinent part:
.. no alleged grievance shall be arbitrable which :... (iii) involves
any claim which, if true, would constitute a violation of any federal or
state legislation concerning discrimination and/or of the National
Labor Relations Act, or which , in any case, would be within the
jurisdiction of the National Labor Relations Board "
Moreover, Respondent stated its unwillingness to submit the matter to
arbitration, and the parties agree that the Collyer policy (Collyer Insulated
Wire, A Gulf and Western Systems Co., 192 NLRB 837) is not involved.
RUBBER TECK, INC.
never used by Solomon, and who had, nevertheless, not
been disciplined.
No useful purpose would be served by further detailing
Respondent's reasons for discharging Solomon. They are
of the same general character as those already described.8
It should be noted, however, that Solomon was not without
her staunch defenders, though principally union adherents
or sympathizers.
It need hardly be said that, if Solomon had engaged in all
or any of the acts of which Respondent complains, her
misconduct would have furnished ample grounds for
discharge. Indeed, as has repeatedly been held, Respon-
dent would have been entitled to discharge her, with or
without cause, provided only it did not do so for reasons
proscribed by the Act. Nor need it be added that the fact
that she may have been an active union protagonist did not
absolve her of the consequences of her misdeeds.
It is, of course, also true that valid grounds for discharge
will not preclude a finding of discrimination if the
employer was actually motivated, in whole or material
part, by a purpose to discourage membership in a labor
organization, and the employer merely utilizes the asserted
reason as a pretext.
On the other hand, where an employee is actually
discharged or otherwise disciplined for valid or legitimate
reasons, untainted by motives proscribed by the Act, an
employer does not violate the Act merely because the
employee was engaged in protected concerted activities
and the employer parts company with the employee
without regret.
The question, then, is whether, in discharging Solomon,
Respondent was motivated, in whole or material part, by a
purpose to discourage membership in the Union.
Solomon had been active in organizing the Union, had
held the office of president, and had been chief shop
steward and a member of the negotiating committee which
arrived at the initial contract with Respondent.
She became mactive in the Union after 1971 until the
summer months of 1972. Then, as has been seen, she
sought a merit wage increase for herself and the group
named elsewhere. The denial of the raise obviously
prompted her renewed interest in the Union and, after she
returned from her extended sick leave, she rejoined the
Union and recruited others. On March 7, 1973, she
formally joined the Union, together with Cheney and
Steiner. She was appointed chief union steward and a
member of the negotiating committee in connection with
the wage reopening scheduled in April 1973.
The following day, she wore her steward's badge in the
plant, and almost immediately became embroiled in an
argument with Supervisor Gilbraith regarding Lomita
Green's complaint. Within 2 days, she was discharged,
ostensibly for talking to Green, whom she had advised to
file a grievance. All indications are that the conversation
between Solomon and Green was work related. While the
8 Mention should be made, however, of an alleged claim that Solomon
was responsible for damage to rubber seals, referred to as Part No 4109, on
which she had admittedly worked, and which were discovered to contain
cuts The incident occurred on March 1 but was not discovered until after
her discharge . Thus, it could have played no part in Respondent's decision
In its brief, Respondent conceded that it did not discover the damage until
its investigation m preparation for the hearing in this proceeding
incident itself was trivial and insignificant, scarcely
warranting the precipitate action of discharge, without any
attempt at investigation, Respondent treated the incident
as the culmination of a long, and what Respondent
obviously regarded as a trying and intolerable, series of
incidents in which Solomon had allegedly been singlehand-
edly responsible for disruption in production and impair-
ment of morale among employees.
Respondent conceded that Solomon's work performance
and deportment, at least, for the last several years prior to
her leave of absence, had differed only in degree from that
which followed her return to the plant. It may be assumed,
not only from the testimony of witnesses at the hearing but
also from observation of her own general attitude and
demeanor, that Solomon was vocal in statements of
position which she asserted at the plant; she may have
indulged in colorful language, which probably did not go
beyond shoptalk; she was independent, quick to assert her
rights; and, due no doubt, to her long tenure, she was
inclined to take liberties in her relations with her peers and
superiors.
This was obviously well known to management when
they importuned her to return to work before she was
scheduled to do so, asserting that she was needed
desperately because of lack of qualified help, and because
of the drastic delinquency it was encountering in making
shipments to its customers, including the Government and
aerospace contractors. As desperate as its plight may have
been, it does not seem probable that Respondent would
have disregarded Solomon's previously known antics and
temperament. To conclude that Solomon's work habits,
attitude, and temperament deteriorated to the extent
claimed by Respondent, on her return from her 4 months'
leave of absence, flies in the face of uncontroverted
evidence regarding her output of 107 doors on the very day
before her discharge, in addition to her other work tasks in
deflashing rubber seals. While Respondent had no records
available (since they had been destroyed) regarding
Solomon's (or, for that matter, that of other employees')
production on other days during the month of her last
employment, it seems all but inconceivable that Solomon
would have been able to achieve the production admittedly
performed if she spent so much time indulging in extensive
and nonwork related conversations with employees,
repeatedly left her work station, and engaged in the
vituperative, boisterous, belligerent conduct in which
Solomon was alleged to have engaged.
Relying on what it characterizes as an amicable and
harmonious relationship with the Union, as exemplified by
successive collective-bargaining agreements and the satis-
factory disposition of grievances, Respondent contends, in
effect, that it would have had no purpose in attempting to
discourage membership in the Union. Moreover, it had
dealt with Solomon herself, as president and shop steward
of the local during the original organizational campaign,
Respondent states that it "has never contended that this incident was a basis
for her discharge ." It contends, however, that the evidence supports a
finding that Solomon was deliberately attempting to cause damage, and
should , therefore, be denied reinstatement even if otherwise entitled to that
remedy. The record is insufficient to warrant a finding that Solomon was
personally responsible for the damage to the parts involved.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and afterward during negotiations culminating in the
initial contract. By implication, if it had wanted to
undermine the Union, it would have attempted to do so
before the Union gained a foothold. During the following
3-year period, while Solomon was in office, it made no
effort to eliminate her. Why then, so the argument runs,
would Respondent seek to discourage membership in the
Union by attempting to eliminate an active union adherent
after the Union had become reasonably well-entrenched.
The reason may he found in the fact that, until Solomon
had revived interest in the Union in 1972, it had been
relatively dormant. Membership had obviously declined.
After Solomon attempted unsuccessfully to secure a merit
increase for herself and other employees and, following her
return from her leave of absence, she rejoined the Union
and enlisted others to do so. When she appeared at the
plant wearing a steward's badge, Respondent undoubtedly
realized that Solomon's interest in the Union had been
reawakened. In February, the Union notified Respondent
of its intention to reopen wage negotiations in April.
Whether Respondent was aware that Solomon was a
member of the negotiating committee, it is reasonable to
assume that in view of her membership on the committee
which negotiated the initial contract, and her renewed
status as shop steward, Respondent considered it a distinct
possibility that Solomon would be a member of the
negotiating committee, and that she might prove an
aggressive and energetic negotiator.9
This hypothesis, however, is necessarily based on surmise
and conjecture. The timing of Solomon's discharge, within
48 hours of her reaffiliation with the Union, and 24 hours
after she donned her steward's badge, of course, creates the
suspicion that her discharge was causally related to her
renewed union activity, especially when viewed in the light
of the relatively trivial incident which allegedly precipitat-
ed her discharge. So, too, does the fact that Solomon was
summarily discharged in the midst of a pay period,
although she had previously provided grounds for dis-
charge. The absence of any union animus or acts of
interference with the self-organizational rights of its
employees over nearly 4 years of bargaining relationship,
9 The fact that Respondent subsequently agreed to a wage increase in
these negotiations , retroactive to May (and after Solomon was discharged),
does not detract from the likelihood that Respondent aught have preferred
not to deal with Solomon on the bargaining committee.
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
however, is a persuasive factor in any determination
regarding Respondent's motivation in discharging Solo-
mon. Nor does the evidence warrant a finding that
Respondent was so concerned about Solomon's role in any
upcoming negotiations as to have resorted to the drastic
action of discharging her under the pretext that she had
proved to be a disruptive influence in the plant.
While the circumstances of Solomon's discharge are not
altogether free from suspicion, the preponderance of the
reliable and credible evidence is insufficient to sustain a
finding that Respondent discharged Solomon because of
her union or protected concerted activity to discourage
membership in the Union.
Upon the basis of the foregoing findings of fact and,
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Rubber Teck , Inc., Respondent herein , is, and at all
times material herein has been , engaged in commerce and
in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers
of America , AFL-CIO, CLC, District No. 5, and Local
839, jointly referred to as the Union herein, are, and at all
times material herein , have been labor organizations within
the meaning of Section 2(5) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
4. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act, as alleged in the complaint.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record, and,
pursuant to Section 10(c) of the Act, I issue the following
recommended:
ORDER 10
The complaint is hereby dismissed in its entirety.
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.