The Goodyear Tire And Rubber Co.

National Labor Relations Board - Board DecisionsJan 30, 1990

297 N.L.R.B. 569 (N.L.R.B. 1990)

GOODYEAR TIRE & RUBBER CO 569 The Goodyear Tire and Rubber Company and Roger D. Crabtree. Case 9-CA-25367 January 30, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On May 12, 1989, Administrative Law Judge George F McInerny issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings, 1 and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Goodyear Tire and Rubber Compa- ny, Jackson, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 2(a) "(a) Make Roger Crabtree whole for any loss of earnings and other benefits suffered by reason of the unlawful discrimination against him in the manner set forth in the remedy section of the deci- sion, less any net interim earnings, plus interest" 2 Substitute the attached notice for that of the administrative law judge 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 the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, Join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT bar Roger Crabtree from our premises because of his concerted activities with other employees and his support for Millwnghts Local 207 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the, exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL make Robert Crabtree whole for any loss of earnings and other benefits suffered by reason of the unlawful discrimination against him, in the manner set forth in the remedy section of the decision, less any net interim earnings, plus interest THE GOODYEAR TIRE AND RUBBER COMPANY Damon W Harrison, Esq , for the General Counsel Donald C Dowling, Esq (Taft, Stemmus & Hollister), of Cincinnati, Ohio, for the Respondent DECISION 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings While we agree with the Judge that Job Superintendent Berkey was aware of the shutdown, we disavow the judge's speculation that Berkey must have known that Crabtree had spoken to the German technicians, and his gratuitous remark at fn 6 of his decision 2 The make-whole provisions of the Order and nonce are modified to conform with the customary language used by the Board STATEMENT OF THE CASE GEORGE F MCINERNY, Administrative Law Judge Based on an original charge filed on April 25, 1988, as amended on June 2, 1988, the Regional Director for Region 9 of the National Labor Relations Board (Board) issued a complaint on June 9, 1988, alleging that the Goodyear Tire and Rubber Company (Goodyear or the Respondent) had violated and was continuing to violate the National Labor Relations Act, as amended, 29 U S C Â§ 151 et seq (the Act), by refusing to permit Roger D Crabtree (Crabtree or the Charging Party) to enter onto its property in Jackson, Ohio, because of Crabtree's ac- tivities supporting or assisting Millwrights Local 207, af- filiated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union) The Re- 297 NLRB No 111 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent filed a timely answer in which it denied the commission of any unfair labor practices Pursuant to notice of hearing included in the com- plaint, as extended by the Regional Director, a hearing was held before me at Jackson, Ohio, on November 2, 1988, at which the Respondent was represented by coun- sel, and all parties had the opportunity to introduce testi- mony and documentary evidence, to examine and cross- examine witnesses, and to argue orally After the hear- ing, the General Counsel and the Respondent submitted briefs, which have been carefully considered On the entire record, including my observations of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION The parties agreed that Goodyear is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The parties agreed that the Union, Millwrights Local 207, is a labor organization within the meaning of Sec- tion 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Goodyear operates a plant in Jackson, Ohio, where it is engaged in the manufacture of molded plastic parts used in automobiles and trucks In April 1988 the Com- pany was involved in the erection and equipping of a new building at its Jackson plant, to be known as a "composite tech center" At the time that the facts in this case began to unfold, the building had been complet- ed, and fences, with a guard facility, had been put in place around a separate entrance to the new construc- tion The additional guard facility was considered neces- sary because the two new presses being installed, a so- called lab press, and a 25,000 ton press for molding fiber- glass-reinforced plastic products, were new, computer- ized, and, apparently, unique in the field According to Dennis Jewell, a member of the industrial engineering staff, who handled security liaison at the Jackson plant, he arranged with the Pinkerton organization to increase its security staff to ensure additional security for the new machines Jewell also testified about the way Goodyear controlled access to the main area of the plant and the new addition Early in April 1988 1 parts for the new presses began to arrive at the plant A nonunion contractor had been engaged to perform the installation work The building trades unions in the Jackson area got wind of this, and on April 5, a picket line was set up at the contractors' entrance to the plant The millwrights' contingent on the picket line was headed by Regional Manager Gerald Platt, and included Business Representative Dale Evans, Crabtree, and another millwright named Kelly On April 6, Platt had business elsewhere, and he designated Crab- tree as the person in charge of the picket line, to keep 'All dates herein are in 1988 order, to conduct the picketing lawfully, and to talk to anyone who asked about the Union's grievances Sometime on April 6, a Goodyear representative, iden- tified by Crabtree only as being from the Company's Akron headquarters, came out and asked that representa- tives from the picketing unions come inside and discuss their grievances They met in the office of Frank Lai, in- dustrial relations manager at the Jackson plant Present were the unidentified man from Akron, Lai, Crabtree, an Operating Engineers representative named Miller, and the president of the Rubber Workers Local 820, which represents Goodyear plant production employees After the construction union representatives expressed their grievances about the nonunion contractor on the job, the Goodyear representatives agreed to set up a meeting the next day in Columbus with Platt and other higher union officials They did meet the next day, the Company agreed to replace the nonunion contractor with a union contractor, Keller-Hall, and the pickets were removed Keller-Hall came on the job and on April 11, held a prejob conference with the unions whose members would be doing the work of installing the presses At- tending this meeting were Keller-Hall's President Ronald L Hall, and job Superintendent Edward S Berkey The union representatives included Marvin Knapp, represent- ing the Carpenters' District Council, Crabtree, sitting in for Platt, and Bill Smith for the Iron Workers They agreed on which trade was to perform what portions of the job Knapp and Crabtree informed the Keller-Hall representatives that he would be the steward for the Millwrights, and the meeting ended According to Superintendent Berkey, although he stated that there was no work for Millwrights during the first few days after the prejob conference, Crabtree sta- tioned himself in the parking lot outside the contractors' gate, and talked to employees of other trades as they en- tered and left the plant On the afternoon of April 13 Crabtree's patience was rewarded when he learned from Mike Canter, the Iron Workers' steward on the job, who was-working that day, that Keller-Hall was dismantling, moving, and resetting a hydraulic hoist (also referred to in the testimony as a "gantry"), work which Crabtree felt belonged, at least in part, to the Millwrights He waited in the parking lot until a pipefitter came out and discussed this work Crab- tree and the pipefitter agreed that the pipefitters would not do the work any more Later that evening Crabtree talked on the telephone with Platt, who was in Washington, D C, on union busi- ness Piatt told Crabtree that Keller-Hall had requested two millwrights for Friday, April 15 He told Crabtree to report then, but, in the meantime, instructed him to go to Keller-Hall's trailer on the next day, Thursday, April 14, and determine if Millwrights' work was in fact being performed by another craft If it was, Crabtree was to ask Keller-Hall to put the millwrights on immediately, or stop doing the work At 7 a m on Thursday, April 14, Crabtree went to the Goodyear plant He met Canter and the two of them went in to the guard shack at the entrance to the new addition Canter signed in, as did Crabtree, but when the GOODYEAR TIRE & RUBBER CO 571 latter came to the name "company" on the sign-in sheet, he asked the guard, "What do you want me to put here? I don't know whether I'm going to work or not" He ex- plained to the guard that he was there to discuss the job with Keller-Hall The guard, a man Crabtree knew named Bill Cox, told him "Put Keller-Hall there" Canter and Crabtree went through the gate and into the Keller-Hall trailer where they met Berkey Crabtree explained that he had been referred to the job for Friday, but that he had been asked to come in this (Thursday) morning to discuss other trades doing Mill- wrights' work He told Berkey that he should either put the millwrights to work then, or stop doing their work with other employees Berkey said he had no instructions about that, he did not request any millwrights for that morning, and that he could make no decisions on the matter until his main office opened at 8 o'clock Up to this point, there does not seem to be any con- flict in the facts as related by Crabtree, as corroborated by Canter and Platt Berkey did not remember the details of his conversation with Crabtree on the morning of April 14, but his testimony agrees with the others that he and Crabtree discussed the work and that he told Crab- tree that he had to wait until his office opened at 8 o'clock before he could give him an answer Likewise, there is no dispute that Crabtree left the Keller-Hall trailer with Canter, and that the two of them went over to the actual site of the work and stood there for a while Crabtree talked to a few employees, who were just standing around and not working While Crab- tree was standing and talking to other construction em- ployees, he was observed by a Goodyear engineer named Jim Hnvnak whose duties included the inspection of the previous evening's work Hnvnak did not recognize Crabtree, so he asked him who he was and who he worked for Crabtree replied that he was Roger Crabtree and he worked for Keller-Hall Hnvnak asked Berkey about Crabtree and Berkey replied "No, he's not work- ing for me" Hnvnak then called his supervisor, Fred Von Thaer, Goodyear's engineering manager Von Thaer, in turn, called Frank Lai, and they went to the jobsite There is some dispute about what was said when they met Crabtree but there is no question that they es- corted him off the premises The Shipping Gate Traffic Log, maintained by Goodyear and submitted in evidence here, shows that Crabtree signed out at 7 40 a m Crabtree's version of his encounter with Von Thaer and Lai relates that they approached him as he was standing near the location where the presses were to be installed Von Thaer asked if he was working for some- one He replied that he was not on anyone's payroll but that he was the job steward for the Millwrights and he was there to straighten out jurisdiction on the work 2 Von 'Thaer then told Crabtree that he was trespassing and mentioned calling the sheriff Crabtree asked Von Thaer if he "wanted to discuss this" Von Thaer said, 2 In his testimony, Canter corroborated the facts that Crabtree told Von Thaer and Lai that he 'wasn't signed up with anyone," he was in there to check the Millwright work to be performed and that he was sent there by Matt According to Canter, Lai and Von Thaer told Crab- tree that if he was not signed up with anyone he would have to leave the property "No, get off the property" According to Crabtree, Von Thaer stated that "that damn Platt was supposed to have this worked out" Crabtree assured him that it was not worked out, that the Union did not have the work Von Thaer again told him to get off the property They then walked to the guard gate and Crabtree left He remained outside the gate, after calling Platt's office to let him know what was happening, and about 9 30 all of the other Keller-Hall employees walked off the job Canter told Crabtree that they had shut the job down and were leaving 3 The testimony of Von Thaer, Lai, and Berkey about this incident was quite different Lai and Von Thaer both agreed that they asked Crabtree who he was and why he was there on the Goodyear property They agreed that he told them his name and that he worked for Keller- Hall Von Thaer and Lai then brought Crabtree to face Berkey They asked Berkey if Crabtree worked for Keller-Hall and Berkey said no Crabtree was thereupon escorted to the gate Von Thaer and Lai checked the traffiC log at the gate house and noted that Crabtree had signed in as an employee of Keller-Hall Von Thaer and Lai then came to the conclusion that Crabtree had falsified the log at the gate house and had lied to them about his status as an employee of Keller- Hall Goodyear's policy is to allow no one on company premises who is not authorized to be there Von Thaer accordingly advised Ronald Hall, the president of Keller-Hall, that he had escorted Crabtree off of Good- year's premises and did not want him to return He also told Marvin Knapp, the Union's district council repre- sentative, Gerald, and Platt that Crabtree had been barred from Goodyear Aside from questions of the demeanor of these wit- nesses, I find the testimony of Von Thaer and Lai incon- sistent and illogical Von Thaer, for example, denied that he knew that Crabtree was connected with the Union But Crabtree was present as a picket for 3 days, April 5, 6, and 7 in full view of everyone in front of the contrac- tors' gate After the picketing ended Crabtree remained on station in the parking lot, where everyone, according to Berkey's testimony, could see him In Lai's testimony, he said that he had not only observed Crabtree on the picket line, but met with him and others in his office on April 6 to try to work out the picketing problem In his testimony about the events of April 14, a little over a week later, Lai stated that he did not advise Von Thaer of Crabtree's union activities until after Crabtree left the property Berkey testified that he had a conversation with Crab- tree and Canter on the morning of April 14 about juris- diction He did not deny that he said to Crabtree and Canter that he had no knowledge of millwrights coming on the job that day, but that he would have to refer the matter to his main office, which did not open until 8 o'clock But he did state that he discussed with Von 3 Canter also stated that he had told Berkey that his (Iron Workers) business agent told him not to do any Millwrights' work, that the hydrau- lic gantry was the work of both Iron Workers and Millwrights and they "couldn't fool with that" Berkey replied that there was no other work for them to do, so they would have to leave 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thaer on April 14 that the Millwrights' problem was, at least in part, the cause of the shutdown of the job that day, and pointed out to him that Keller-Hall was going to subcontract out the Millwrights work and they could avoid "all this hassle now" and return to work with a new contractor without "nit-picking from day-to-day" Ronald Hall testified, in response to a question I asked, that in his conversation with Von Thaer the latter ex- plained that Crabtree had signed in on the job under Keller-Hall's name and was harangumg 4 officials (Berkey) of Keller-Hall about some union grievance, but he had signed in improperly and Goodyear did not want him on the site There is no question in this case about Goodyear's rules, designed as they are to control access to its prem- ises, and to prevent unauthorized persons from entenng onto those premises The ordinary rules were strength- ened in this case because of the sensitive nature of the new presses The addition of security guards and the badge system implemented sometime in April indicate Goodyear's legitimate concern for the confidential nature of its industrial processes Thus, if Crabtree fraudulently obtained admission to Goodyear's plant and to a particu- larly sensitive area of that plant, and if he maintained when questioned by company officials that he was em- ployed by a contractor, when in fact he was not, then Goodyear would have been justified not only in escort- ing him off the premises, but barnng him future entry even when he was referred to an employer which was legitimately engaged in work on those premises The facts, however, do not support the Company's po- sition The undemed testimony of Crabtree as corrobo- rated by Canter, shows that Crabtree was honest in his conversation with the guard, Bill Cox, explaining to him that he did not know whether he would be working for Keller-Hall or not The guard's response was to go ahead and put down Keller-Hall on the traffic log Von Thaer testified that he looked at the log, and decided that Crabtree had fraudulently gained access to the plant because he put Keller-Hall as his employer Von Thaer did not, apparently, check with the "old gentlemen" named Cox who was on duty that day If he had, he un- doubtedly would have learned that Crabtree was told by the guard to put down Keller-Hall as employer Based on my observations of Roger Crabtree, and my evaluation of his testimony I found him to be a straight- forward and credible witness He impressed me as a forceful person, not easily intimidated, and, as described by Piatt, "vocal and persistent" policing "the jurisdiction that we consider Millwright work to the fullest extent" Crabtree went to the Goodyear plant on the morning of April 14 with information that other trades were per- forming work in the Millwrights' jurisdiction, and with instructions from Platt to get to the bottom of the matter and either go to work as Millwright himself, or force Keller-Hall to top assigning the work to others His con- versations with Berkey at the Keller-Hall trailer as well as with the guard are consistent with that mission His testimony that he explained his jurisdictional concern to 4 'Haranguing" was my word, but Hall did agree with the use in the context of my question to him a group of Germans who were there in connection with the installation of the German-made presses, and his going to look at the actual worksite while waiting for Berkey's main office to open are consistent with his fact- finding assignment I, therefore, find it entirely illogical that, when accosted on the jobsite by Von Thaer and Lai, he insisted that he was there as an employee of Keller-Hall, and said nothing about jurisdiction, or about the real reasons he was there Berkey's part in the Crabtree affair is curious and equivocal He had been present at the prejob conference on April 11, so he was aware that Crabtree was there, had discussed the Millwrights jurisdiction, and was des- ignated as the Millwrights' steward when that trade was called to the job He had observed Crabtree out in the parking lot, talking to people, between April 11 and the 14 On the morning of April 14 Crabtree had explained exactly why he was there, and Berkey responded by saying that he could not act on Crabtree's problem until his office in Columbus opened at 8 o'clock But even before 8, when confronted with Crabtree in the company of Von Thaer and Lai, he mentioned none of this, but merely denied that Crabtree was employed by Keller- Hall If this was all there was to it, Von Thaer and Lai might well have been justified in believing that Crabtree was on the property with no plausible excuse But that was not all Crabtree testified that even before Von Thaer and Lai approached him on the job none of the other trades were working Berkey must have known that Crabtree had spoken to the German technicians, and informed them that despite their willingness, they could not do the disputed work 5 Berkey must have known that Berkey may have had union antecedents, and may still be a union member, but he' was also the job superin- tendent, the job had to be done, and was not getting done Berkey's testimony about his conversations with Von Thaer, which must have taken place on April 14, made it clear that he was irritated at the shutdown He told Von Thaer that Crabtree was partially responsible, then told Von Thaer not to be concerned because Keller-Hall was going to subcontract the Millwnghts' work and they could get back to work without "nitpick- ing from day to day "6 To sum up, I find that Von Thaer and Lai did not check with old Bill Cox, the one person who could have told them whether Crabtree fraudulently obtained admis- sion to the Goodyear plant on April 14 I credit Crab- tree's version of what he told Von Thaer and Lai when they confronted him on the property that day, and I find the testimony of Von Thaer and Lai to be illogical and incredible as to that incident I find that Rerkey let Von Thaer know that Crabtree was in part responsible for the work stoppage on April 14, and that he was also doing nitpicking around the job I find, further, that the Com- pany knew of Crabtree's activities He was at the meet- ing in Lai's office on April 6, and he continued to be a 5 Which, presumably, they could have accomplished with Teutonic ef- ficiency and thoroughness 6 I credit this testimony elicited on cross-examination and I specifically do not credit Berkey s denial that he even said anything about nit-pick- ing" to Von Thaer GOODYEAR TIRE & RUBBER CO 573 visible presence outside the gate until April 14 It is just incredible that Von Thaer would not have known who he was, and it is likewise incredible that Lai did not let his colleague know of Crabtree's union involvement until late in the encounter of the 14th All of these factors lead to my conclusions that Good- year was aware of Crabtree's union and concerted activi- ties with other building trades employees, that the allega- tions of fraud and trespass were but a pretext to rid the property of a meddlesome activist on behalf of the Union and that Goodyear's action in ordering Berkey, Hall, and its own security guards to bar Crabtree from its property was not taken because of his alleged infractions of the Company's rules, but because of his activities on behalf of the Union, and in concert with other employees of Keller-Hall and its subcontractors On April 15, Crabtree and another millwright, Wayne Dotson, reported to the guard shack at Goodyear ready to work in conformity with Platt's prior notification to Crabtree on April 13 The guard, Bill Cox, told them that there was no one at the jobsite from Keller-Hall Cox later went in to inquire as to what Crabtree and Dotson were to do He came back and told them to wait They waited until 8 55 a m No one showed up from Keller-Hall, so they left Again on Apnl 19, Crabtree and Dotson were referred by Puitt to the Keller-Hall job They reported to the guard shack, at 7 o'clock, signed in as Keller-Hall em- ployees, and proceeded in to the Keller-Hall trailer Crabtree told Ed Berkey that he had been referred as the Millwrights steward, and Berkey informed him that he was not allowed on Goodyear property Crabtree told Berkey that he should get someone in authority at Good- year to tell him that, Berkey obliged, went out and re- turned 5 or 10 minutes later with Von Thaer Von Thaer told Crabtree he would have to leave, that he was not allowed on Goodyear property Crabtree then left the premises He had not returned to the Goodyear plant from that day until the day of the hearing in this case For the reasons listed above, I find that Goodyear's action in barring Crabtree from its premises, thereby pre- venting him from working for Keller-Hall on those premises, violated Section 8(a)(1) and (3) of the Act, and Section 8(a)(1) independently Wright Line, 251 NLRB 1083 (1980), Tama Meat Packing Co, 230 NLRB 116 (1977), K & M Electronics, 283 NLRB 279 (1987) THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(1) and (3) of the Act, I shall order that it cease and desist therefrom, and that it shall take the following affirmative action designed to effectuate the policies of the Act Since I have found that the Respondent by its unlawful actions deprived Roger Crabtree of work to which he had been lawfully referred, I shall order that Respondent make him whole by the payment to him of a sum of money equivalent to that which he would have earned absent the discrimination against him from April 19, 1988, to the date Millwrights last worked on the Keller-Hall job at the Goodyear plant in Jackson, Ohio, less any interim earnings, with interest computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) and (3) of the Act by barring Roger Crabtree from its premises on and after April 19, 1988 4 The above unfair labor practice has an effect on commerce as defined in the Act On the basis of these findings of fact and conclusions of law, I issue the following recommended7 ORDER The National Labor Relations Board orders that the Respondent, the Goodyear Tire and Rubber Company, Jackson, Ohio, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Barring Roger Crabtree from its premises because of his concerted activities with other employees and his support for the Union (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Pay to Roger Crabtree the sum of money he would have earned in the absence of our discrimination against him as more fully set out in the remedy section of this decision (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (c) Post at its facility in Jackson, Ohio, copies of the attached notice marked "Appendix "8 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure 7 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 8 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 Nation- al Labor Relations Board shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply