Seiberling Rubber Co.

National Labor Relations Board - Board Decisions

Apr 24, 1963

142 N.L.R.B. 267 (N.L.R.B. 1963)

SEIBERLING RUBBER COMPANY, BATESVILLE DIVISION 267
fair labor practices within the meaning of Section 8(b) (4) (i ), ( ii) (B) and (D) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Seiberling Rubber Company, Batesville Division and United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO. Case No. 26-CA-1301. April 044, 1963
DECISION AND ORDER
On February 21, 1963, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter the General Counsel and the Charging Party filed excep-
tions to the Intermediate Report and supporting briefs.
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 [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was conunitted. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed June 14, 1962, and an amended charge filed July 23, 1962, by
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, herein
called the Union, the General Counsel of the National Labor Relations Board, herein
called the Board, by the Regional Director for the Twenty-sixth Region, issued his
complaint dated October 30, 1962, against Batesville Rubber Company. The name
of the Company was amended at the hearing and now appears in the case as
Seiberling Rubber Company, Batesville Division. The complaint against the desig-
nated company, herein called the Respondent, alleged that the Respondent had en-
gaged and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent's answer
denies the allegations of unlawful conduct in the complaint . Upon notice of hearing
duly served upon the parties a hearing was held at Batesville, Arkansas, on Decem-
ber 14, 1962, before Trial Examiner Thomas N. Kessel. All parties were represented
by counsel . Full opportunity to be heard , to examine and cross -examine witnesses,
and to introduce evidence was afforded all parties . Oral arguments by the parties
at the close of the hearing and the brief filed by the Respondent have been carefully
considered.
142 NLRB No. 29.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a
labor organization which admits to membership the employees of Respondent.
H. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that the Respondent is an Arkansas
corporation which is a subsidiary of Seiberling Rubber Company, an Ohio corpora-
tion, maintaining a plant in Batesville, Arkansas, where it is engaged in the manu-
facture, sale, and shipment of rubber shoe heels, soles, and related rubber products;
that during the year preceding issuance of the complaint the Respondent purchased
and had shipped from points outside the State of Arkansas, to its plant in Batesville,
materials valued in excess of $50,000; that during the same period the Respondent
manufactured, sold, and shipped from its Batesville plant finished products valued
in excess of $50,000 to points outside the State of Arkansas. The Respondent con-
cedes and I find from the foregoing facts that it is engaged in interstate commerce
and that it will effectuate the policies of the Act to assert jurisdiction over its business
in this proceeding.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that the Respondent unlawfully discharged Edward
L. McClure on or about May 29, 1962, because of his union activities. In oral
argument at the conclusion of the hearing the General Counsel maintained that
McClure's discharge was in reprisal for his leadership in the union campaign pre-
ceding the election on April 20, 1962, in which the Union was rejected by the
Respondent's employees. The Respondent denies that it discharged McClure. It
defended at the hearing and asserted in its brief that McClure walked off the job on
May 25 and was not permitted by the Respondent to return to work when he reported
again on May 29 at the conclusion of a 3-day suspension on the ground that he had
voluntarily quit his job.
There is no question in the case about McClure's leadership in the Union's cam-
paign for election as the bargaining representative of the Respondent's employees.
The record also convincingly shows that the Respondent knew that McClure was one
of the Union's most active protagonists. I am satisfied that each of the Respondent's
officials did not know about all of his various activities in behalf of the Union, but
they admittedly knew that McClure and another employee had been the signers of
a letter supporting the Union which was published in the local newspaper shortly
before the election. Furthermore, McClure's foreman, Channing L. Meek, acknowl-
edged that he had heard of McClure's union activities through the grapevine. These
activities were of such character that, having heard of them, Meek must have under-
stood McClure was a leader in the union movement.
The General Counsel theorizes that in its desire to get rid of McClure after the
election, the Respondent embarked upon a program of harassment with the intention
that it would thereby make McClure's job so unendurable that he would quit, or,
failing in this objective, that it would thereby manufacture a pretext to obscure his
discharge for union activities.
The General Counsel's case is premised upon testimony by McClure that he was
singled out by the Respondent's officials and supervisors after the election as the
recipient of reprimands and discipline for noncompliance with the Respondent's rules
and regulations. He assertedly had not before the election been subjected to the
discipline and reprimands which followed the election. According to the General
Counsel, there was no more justification after the election than before for the repri-
mands and discipline which followed that event and which led to his termination.
McClure operated a press for the production of rubber heels through a process in
which raw rubber was cured by the application of heat. All the procedures and
operations which McClure was required by the Respondent to perform in a single
curing process were to be accomplished within a 13-minute period. These 13-minute
cycles were to be continuous throughout each 8-hour workday so that in the course
of a single day there would, absent abnormal circumstances, thirty-seven 13-minute
cycles. No time off was permitted by the Respondent for a lunch break by McClure
and his fellow pressmen. Lunch was to be eaten by them during the free time avail-
able to the pressmen in the course of each 13-minute cycle.
SEIBERLING RUBBER COMPANY, BATESVILLE DIVISION 269
McClure conceded his ability generally to maintain the required cycle. He
testified, however, that because of various difficulties encountered in the operation
of his press he had trouble keeping on cycle. For this reason and because he believed
that the 13-minute cycle was too demanding and that he had to push to maintain it,
he was off cycle almost every day by 1 minute. He claimed that he was not the
only pressman who was on a 14-minute cycle but that other pressmen also were
similarly off cycle. He conceded that one reason for being consistently off cycle
was the fact that he and the other employees were engaging in a "deliberate slow-
down." Although this condition had existed before the April 20 representation
election and was known by his supervisors, neither he nor the other pressmen, to
his knowledge, had been reprimanded therefor by their superiors.
McClure testified that the first reprimand he received came on the first Monday or
Tuesday after the election , April 23 or 24. On this occasion he had been running
a 14-minute cycle and was so informed by Superintendent Reynolds who ordered
him to report to the plant manager's office. Another pressman, Robert Cazort, was
directed to accompany McClure to the office to witness what transpired there.
McClure gave this account of what occurred at the foregoing meeting. Acting
Plant Manager Sam Roudebush pointed out to McClure that he was not maintain-
ing a 13-minute cycle and the latter admitted this was the case but argued that he was
not working differently than he had previously. Roudebush emphasized the ne-
cessity for keeping on the 13-minute cycle and McClure responded that this ought to
be the rule for everyone. Roudebush informed him that it would be uniform for
all the pressmen. He explained to McClure the time studies which had been made
and other factors pertaining to the performance of the job. He concluded by
directing Superintendent Reynolds to find other duties for McClure. The latter
acknowledged that he might have explained his failure to keep on cycle because his
back had been bothering him. When McClure returned to his press, Foreman
Meek presented him a written reprimand and asked for his signature. McClure
refused to sign. Meek thereupon summoned Group Leader Gipson and directed
him to sign the reprimand. Gipson did so and handed a copy to McClure who
thereupon tore it up and threw it away.
McClure further testified that immediately after his session with Roudebush,
Superintendent Reynolds directed him to assume the duties of the stockboy in his
department. The stockboy in turn took over the operation of McClure's press.
Three or four days later McClure asked Reynolds to reassign him to his press.
The request was granted . Although the hourly pay for the stockboy's job was
slightly lower than that for pressman McClure lost no pay during the period he was
away from the press.
McClure's account of the foregoing incident was not substantially controverted
by the Respondent's witnesses. The main difference, as they related, was in the
solicitude shown McClure. Roudebush testified that when McClure failed to report
for work on April 21, the day after the election, he assumed, because of information
conveyed to him by an employee, that McClure's absence was attributable to fear
of physical reprisal from employees who had opposed the Union. Roudebush had
then asked his informant to tell McClure that he was needed and to come to work
without fear that he would be bothered by anyone. On the following Monday
Roudebush addressed the employees in the plant and warned them in McClure's
presence that the Respondent would not tolerate reprisals against anyone. He stated
that the election was over, the employees had expressed their will, and that their
job now was to concentrate on improving the productivity which had suffered during
the election campaign. The next day he spoke personally to McClure and reiterated
the same sentiment. At the same time he encouraged him to report any actions
against him by other employees.
Roudebush further testified that on April 24, Foreman Meek or Superintendent
Reynolds reported to him that McClure was running his press off cycle. Roudebush
directed that word be communicated to him that the same performance was expected
from him as from other employees. The following day he received a report that
McClure was still not complying with requirements. He then ordered him to be
brought to his office with a coworker as a witness . He asked McClure why he
was not performing according to instructions and was told he could not keep up with
the 13-minute cycle. He thereupon showed him his past records revealing that he
had maintained this cycle. McClure explained he was able to do so only on certain
days but not on others. Roudebush presented him with records of other pressmen
who in the preceding days had cured on cycle at times when McClure had not.
McClure responded that he had not felt like curing on cycle. Roudebush inquired
whether he had been ill and offered to have him checked by a doctor. McClure
rejected this offer but accepted Roudebush's suggestion that he be transferred to a
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less arduous job until he felt better. Superintendent Reynolds was instructed to
accomplish the transfer and did so as McClure himself testified.
Not long after McClure's visit to the Respondent's office an instrument was
installed on his machine for recording its operations. No other press had such a
device installed on it. Because of certain operational difficulties the instrument was
unable to function. It was, however, not removed from McClure's press. This
action by the Respondent presumably was offered by the General Counsel as addi-
tional proof that McClure had been singled out for harassing treatment. In explana-
tion, Roudebush testified that he ordered the procurement of the device in order
to ascertain why so many heels were being improperly cured. He claimed his
intention was to check the presses at random and that he did not instruct the plant
engineer who procured the device to install it on a particular press Plant Engineer
Parks confirmed that he had received no direction from Roudebush as to the press
to be checked. He testified that he had instructed the plant maintenance man, J. B.
Nieman, to attach it to a press without specifying which. Nieman testified that he
had received such instruction from Parks and had selected McClure's press merely
because it was the handiest on which to make the installation. He had not known at
the time it was McClure's press.
The next incident relied upon by the General Counsel as proof of McClure's
harassment occurred, as related by McClure, at the end of April or beginning of May.
He testified that Foreman Meek had come to his press to count the cured heels in the
tub in which they were deposited upon removal from the press. McClure, like the
other pressmen, was required to record on his press sheet the number of heels
cured after each pull of the press. This number was supposed to correspond exactly
with the amount of heels in the tub. Meek's count disclosed less heels in the tub
than recorded on the sheet. He directed McClure to go to the office. Before he
left his press employee Tommie Holland volunteered to accompany McClure as
his witness. When McClure arrived Plant Manager Fred Burrell called for an
explanation of the heel shortage. McClure replied he might have made a mistake
in his written report. Burrell told him this "was not going to work." After McClure
returned to his press Meek came there and upon checking his work found a mistake
on the press sheet. Meek left but soon returned with a reprimand or grievance
slip. He remarked to McClure "I don't guess you will sign this?" McClure assured
him he would not whereupon Meek gave him a copy and left.
Holland recalled that McClure had failed to explain the shortage in his heels
and that Burrell, or one of the other officials present in the office, had thereupon
pointed out to him the problems which resulted from such shortages He and
McClure were then sent back to their presses. Upon his return he found that
the heels in his tub had been counted and compared with his press sheet and that
a shortage had been noted. Then Foreman Meek arrived and checked his press
sheet. Meek merely observed that he had made a mistake and showed him how
to complete his press sheet. He received no reprimand slip as had McClure. He
acknowledged that at the time of this incident he was new on the job and still learn-
ing how to do it and that Meek had so indicated.
As proof that the heel-counting episode was another of the Respondent's harassing
tactics against McClure, former employee Marvis Reynolds testified that during his
employment, which began on September 19, 1961, he had not seen any other press-
man's heels counted. He acknowledged, however, that he had not watched closely
and it was possible that such count had been made of other pressmen's heels.
Burrell testified that a complaint had been received from a packer or trimmer of
a shortage of heels in a box in which the finished heels were packed. A check
revealed that McClure had reported curing more heels on his press sheet than he
had actually cured. McClure was brought to his office for this reason. When the
shortage was pointed out to him he charged that his superiors were "picking" on
him. Burrell denied doing anything of the sort. He indicated that he had just
assumed his position and was not acquainted with the employees, and, further, that
he had no reason to pick on anyone. He assured McClure that everyone was "starting
out fresh and bygones would be bygones."
Counteracting the impression sought to be established by the General Counsel
that the counting of McClure's heels was unique, Robert Cazort, who also operated
a press, testified that from time to time his heels also had been counted and that
on the day when McClure's and Holland's heels were counted a similar count was
made of all the pressmen's heels.
McClure related that a few days after the foregoing experience he was reprimanded
for sitting down to eat his lunch. He named four other pressmen who that day
ate their lunch in the same manner. He claimed that the pressmen commonly sat
down to eat lunch in groups of three or four. Although there was no elaboration
SEIBERLING RUBBER COMPANY, BATESVILLE DIVISION 271
of this incident, I assume McClure's testimony was elicited to show that he alone
was selected for censure in order to provoke him.
The climactic incident resulting in McClure's termination occurred on May 24.
Concerning it McClure testified that in the afternoon of that day Meek timed him
with a stopwatch at his press and remarked that he was running a 14-minute cycle.
He thereupon ordered him to "take off and take 3 days." McClure gathered his
personal items and returned to Meek where he stood at the press. In answer to
his query as to when he should return to work Meek told him to come back the
following Tuesday morning. As Meek accompanied him toward the front of the
plant McClure handed him a small calendar bearing the Union's name and remarked
"here is something to remember me by." Meek turned and walked away. McClure
punched out and left the plant. McClure claimed that Meek was in a position to
see him leave the plant but said nothing to stop him. Before leaving his press he
did not empty the heels which were then being cured as he assumed Meek would
direct someone else to do so. McClure returned to the plant on the next Tuesday
morning ready to resume work. Upon reporting he noted the absence of his timecard
from its customary place in the rack. He asked Burrell for an explanation and
was informed he had quit when he had walked off the job the preceding Thursday.
McClure insisted he had followed Meek's orders, but Burrell adamantly maintained
he had quit. McClure was advised by the Union to report for work the following
Thursday. When he came to the plant Burrell still insisted he had quit his job
and ordered him from the premises. McClure left.
Meek testified that he had checked McClure's operation on May 23 and had
then ascertained he was not maintaining the 13-minute cycle. When he asked
McClure for an explanation the latter merely replied "he just did not want to." Meek
conveyed this information to Burrell who directed him to instruct Meek to comply
with the Respondent's requirements. The next day Meek timed McClure and found
that although he was completing his cycle in less than 10 minutes he was recording
its completion in 14 minutes. The Respondent had no objection to the pressman's
personal utilization of the time between the completion of the cycle and 13 minutes.
The objection was only to arrogation of the additional minute. When Meek again
reminded McClure of the obligation to maintain the required cycle he replied "he
was getting paid for the amount of work he was doing." In the afternoon of May 24
Meek checked again and determined that McClure was still recording a 14-minute
cycle. Meek once more called for an explanation and McClure told him he had no
reason. Thereupon Meek suspended him for 3 days to think the situation over and
decide whether he would work as required. He instructed him to return to work
the following Tuesday at which time he would receive a written reprimand. Meek
related that he walked away to check certain finished products and that McClure
came to him -and presented the Union's calendar with the remark that it was "to
remember him by." He saw him walk to the front of the plant and a few minutes
later learned he had punched out and left the plant. Meek returned to McClure's
press and discovered that the 100 heels which had not been removed were overcured
and spoiled. He reported this to Burrell. Meek claimed that he had said nothing
to warrant belief by McClure that his suspension was to begin immediately. On
the contrary, he claimed he expressly told him to finish that day's work. The
Respondent's records show 6.6 hours worked by McClure on May 24, indicating
that he departed 1.4 hours before completion of the normal day's work. Meek
denied knowing that McClure was leaving when he saw him walk to the front of
the plant as this was an area frequented by employees who patronized the various
vending machines located there. He did however have the feeling that he might
be leaving when he saw him pick up his gloves and walk toward the timeclock, and
also thought that McClure's gesture with the calendar signified his intention to
leave his job.
Burrell recalled Meek's reports to him on May 23 and 24 about McClure's failure
to cure on cycle. He testified that he had directed Meek to impose the 3-day sus-
pension if McClure refused to comply with his instructions. He received Meek's
report on May 24 that McClure had left the plant at about 2:45 p.m. and assumed
he had quit. He entered this on McClure's record. He next saw McClure on the
following Tuesday morning when he sought to return to work. He informed him
he had quit and would not permit him to go back to his job. He conceded that he
might have overlooked McClure's departure from the plant on May 24 and excused
it as a mistake had he not left so abruptly without removing the heels from his press
which were consequently overcured and spoiled. His disinclination to be forgiving
in the circumstances was further induced by McClure's obstinacy despite the past
considerations shown him.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record fails to establish by the required preponderance that McClure was dis-
charged by the Respondent because of his union activities. I have some reservations
as to whether Meek and Burrell really believed that when McClure left the plant on
May 24 after notice of his 3-day suspension that he was quitting his job with no
intention of returning. McClure might have believed at the time that he had been
ordered to stop work and to start his suspension immediately, and Meek might well
have reasoned that McClure left the plant because of his belief he had been directed
to do so even though he had said nothing which in his view warranted such under-
standing by McClure. There is, however, no need to make findings concerning
these possibilities for whatever may have been the Respondent's course of action in
the circumstances it would not constitute a violation of the Act unless motivated by
McClure's union activities. I am satisfied that whatever the Respondent did con-
cerning McClure, even if it deviously discharged him while insisting he quit, its con-
duct was unrelated to McClure's union activities.
I am convinced that McClure had sufficiently irritated Meek and Burrell by his
admitted rebellious flouting of the Respondent's work requirements and their authority
to obtain compliance therewith that they seized the opportunity to get rid of him for
this reason alone. His unconcealed refusal to cure on cycle despite his clearly estab-
lished ability to do so, coupled with his unwillingness to comply with the demands
of his superiors provided enough provocation to satisfy me that his termination was
attributable to just these factors. This conviction is fortified by the absence of evi-
dence of any kind that the Respondent had violated the Section 7 rights of its em-
ployees. Furthermore, while the Respondent had made known its opposition to the
Union in the election campaign, it did so circumspectly without invective or any
strong language which might intimate a lingering animosity toward employees for
their union activities. To the contrary, the record shows positive action by the
Respondent to dispel any notion of resentment toward those who espoused the Union.
Roudebush made a special effort to protect McClure from molestation by other em-
ployees after the election and encouraged continuation of his employment. As
noted, the Respondent's officials leaned backward, as they claimed, to persuade
McClure to become a satisfied and efficient employee. The implication that the
Respondent was deliberately "riding" McClure is dispelled by his own statement at
an Arkansas Unemployment Commission hearing that after the election the Respond-
ent was riding everyone . This is consistent with the Respondent 's position in the
case and the credited testimony of its witnesses that there was greater stringency
after the election because of the letdown in productivity during the preelection period.
All efforts to placate McClure and to secure his cooperation, however, failed.
McClure insisted upon waging his crusade against the Respondent by refusing to
abide by its requirements. His behavior toward Meek on May 23 and 24 must have
been regarded by him as insolent. Burrell as he said, doubtless took a dim view of
his disdainful departure from the plant and his disregard for the Respondent's prop-
erty. I cannot do otherwise than find that McClure had so provoked them that
they terminated him for these reasons. Whether they designated his termination a
voluntary quitting or whether it was really a discharge is inconsequential. The
Respondent was privileged to do either without risking the sanctions of the Act, for
an employer may discharge an employee for any reason , or even for no reason, so
long as it does not discharge him for a reason forbidden by the Act. I find that it
has not been proved that McClure was discharged because of his union activities.
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. Seiberling Rubber Company, Batesville Division, Batesville , Arkansas, is en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of
the Act have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.