United States Rubber Co.

National Labor Relations Board - Board Decisions

Nov 5, 1965

155 N.L.R.B. 556 (N.L.R.B. 1965)

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue remains that alleged under the original and unamended complaint:
whether or not Respondent maintained with Armco the clause in question . Respond-
ent's brief concedes that the question is whether or not it may be concluded that
unfair labor practices exist from the fact that Respondent has maintained the
agreement with the no-distribution clause in question. The evidence indisputably
indicates that the bulletin boards were in existence at the plant at the time of the
hearing and that Respondent posted notices thereon. In addition it appears from
the credited testimony of Weller Dalton, an employee of Armco's inspection depart-
ment, that during the campaign preceding the 1964 election when he sought to dis-
tribute Steelworker literature on company property he was told he would have to
move to the curb.
The evidence in the present case thus establishes that Respondent has maintained
the contract clause in question within the 6-month period preceding filing of the
charge in the instant case in the sense that it has continued to be it party to and
enjoyed the fruits of the clause in question.
I conclude and find that Respondent 's action in thus maintaining the clause con-
stituted the unfair labor practice within the scope of Section 8(b)(1)(A ) alleged in
the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices found to have occurred and set forth above, occurring in
connection with the operations of Armco, as described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
In view of my findings set forth above that Respondent has engaged in unfair labor
practices defined in Section 8(b)(1)(A) of the Act, I shall recommend that it be
required to cease and desist therefrom and take such affirmative action as appears
necessary and appropriate to effectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning of the Act.
2. Armco is an employer engaged in commerce within the meaning of the Act.
3. By maintaining the clause in its collective-bargaining agreement with Armco
which prohibits employees from distributing self-organizational literature on behalf
of the Steelworkers on nonwork time in nonwork areas of the Armco plant premises,
Respondent has engaged in unfair labor practices defined in Section 8(b) (1) (A) of
the Act.
[Recommended Order omitted from publication.]
United States Rubber Company and United Rubber, Cork, Lino-
leum and Plastic `Yorkers of America , AFL-CIO. Cases Nos.
P-7-OA-1920 and 2-3-CA-1944. November 5,1965
DECISION AND ORDER
On August 20, 1965, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, funding that the Respondent
had engaged in and vas engaging, in certain unfair labor practices and
recommending that it cease and desist therefrom. and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. She also found that Respondent had not engaged in certain other
155 NLRB No. 61.
UNITED STATES RUBBER COMPANY 557
unfair labor practices alleged in the complaint. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Trial Exam-
iner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
hereinafter, and orders that the Respondent, United States Rubber
Company, Laredo, Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, except as modified herein.
Add the following as paragraph 2(b) to the Trial Examiner's Rec-
ommended Order, the present paragraph 2(b) and those subsequent
thereto being consecutively relettered :
"(b) Notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges unfair labor practices not specifically found
herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on October 5 and November 17, 1964, by United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, herein called the Union, com-
plaints were issued on November 19 and December 23, 1964. The two cases were
consolidated on December 23 and were heard before Trial Examiner Fannie M. Boyls
on January 26 through February 3, 1965, at Laredo, Texas. The issues posed by the
complaints and answers are whether the Respondent, United States Rubber Company,
unlawfully threatened its employees with discharge or other job reprisals because of
their union activities, and in fact discriminatorily discharged four employees because
of their support of the Union, thereby violating Section 8 (a) (1) and (3) of the Act.
All parties have filed briefs which have been carefully considered 1
1In his brief, the General Counsel moved to strike paragraph 7(b) of the complaint in
Case No. 23-CA-1944 and paragraphs 7(a) through (e) of the complaint in Case No
23-CA-1922 Since no evidence at all or no credible evidence was adduced in support of
these allegations , the motion is granted.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation having manufacturing plants located in
Michigan, Wisconsin, Alabama, and California, and operating a tire proving ground
near Laredo, Texas, which is the only facility involved in this proceeding. Respond-
ent concedes, and I find, that it is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege , Respondent 's answers admit, and I find that 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.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Introduction; sequence of events
By about September 1963, Respondent had completed the construction of its prov-
ing ground and other facilities near Laredo, Texas, and began moving its operations
from Lancaster, California, to Laredo. With the exception of about 11 people, includ-
ing its management personnel, Respondent employed new testdrivers and other
personnel from the Laredo area. Respondent's test fleet operations, as distinguished
from some of its tire manufacturing plants, were not organized.
In early July 1964, three of Respondent's employee, Jesus Morales, Armando
Villareal, and Sabos Marcos Rocha, Jr. (all of whom were subsequently discharged,
allegedly in violation of Section 8(a)(3)), decided that the Laredo operations should
be unionized. One of them, Villareal, volunteered to and did get in touch with a
Texas State AFL-CIO representative in Laredo about the matter. Soon thereafter,
however, Villareal was transferred from testdriving to office work and notified the
union representative that in view of his new lob he would be unable to assist in
organizing the plant. He recommended Morales or Sam Brewster (the fourth
employee whose discharge is alleged to have been discriminatorily motivated) to
carry on the organizational work. Morales thereafter sought out the union representa-
tive who put him in touch with Union Organizer Steinke.
On August 9, the Union's first organizational meeting was held. At this meeting
15 employees were elected as the Union's organizing committee and from these 15,
3 were chosen to serve as cochairmen. The three cochairmen were Morales, Brewster,
and Guillermo Ponce, Jr.
Respondent's plant manager, Maurice Williams, heard on the following morning
that organizational activities had started At meetings with all of the employees on
August 12 and 14, and in a meeting with the three cochairmen of the organizing
committee and five other union members on August 13, Williams let the employees
know of his strong opposition to the Union and made various statements alleged to
be threatening and coercive.
The Union filed a representation petition on August 21, a hearing on the petition
was held on September 15, and an election was held on November 6.
On September 22 Respondent discharged Villareal, on September 24 it discharged
Rocha; on September 25 it discharged Brewster; and on November 10, while the
Employer's objections to the election were pending, it discharged Morales. Thus,
within about 3 months after the Union's first meeting, two of the three cochairmen
of the organizing committee and all of those who had initiated the union movement
had been discharged. Respondent contends that all four of these employees were
discharged for cause. The General Counsel and the Union contend that the reasons
assigned by Respondent were pretextual and that Respondent was in fact motivated by
its desire to rid itself of these union supporters.
Sharp issues of credibility are presented with respect to what was said by Plant
Manager Williams to employees on August 12, 13, and 14, as well as with respect to
the circumstances surrounding the discharges.
B. Plant Manager Williams' talks to the employees
A number of witnesses were called by the General Counsel as well as by Respondent
to testify regarding what Plant Manager Williams said in his talks to the employees
on August 12, 13, and 14. The versions of these witnesses were not entirely incon-
sistent. Most of them gave only fragmentary accounts. The recollections of others
UNITED STATES RUBBER COMPANY 559
were concededly vague. Most of those called by the General Counsel tended to
emphasize those statements attributed to Williams which would support the allega-
tions of the complaint that Williams threatened loss of jobs if the employees engaged
in union activities or if the Union succeeded in organizing Respondent's facility.
Most of those called by Respondent, on the other hand, tended to emphasize or
recall only those statements attributed to Williams which appeared to be mere predic-
tions of the unfavorable consequences which might flow from the unionization of the
facility. Except for Morales who, on the day before being called to testify, refreshed
his recollection by reading over notes which he had reported or "dictated" to Union
Representative Vasquez in the presence of Ponce and Jimenez on August 13 and 14
regarding what Williams had said on those dates, the witnesses were apparently testify-
ing merely from their recollections as to what had occurred almost 6 months earlier.
The task of attempting to resolve the credibility issues and of reconstructing from
fragmentary accounts a finding as too what Williams said on each of the three occa-
sions has not been an easy one. However, after carefully comparing the testimony of
the various witnesses and weighing their relative reliability (from my impression of
some of them at the hearing as well as from a consideration of their testimony as a
whole), it is my best judgment, and I find, that Williams made statements to the
employees substantially as set forth below.2
1. The August 12 speech
After consulting with Respondent's Detroit office about the organizational move-
ment, Williams, on August 12, called meetings of the employees in two separate
groups, one at 1 p.m. and the other at 3 p.m. He told the assembled employees that
he had learned about the Union's organizational movement that was underway, that
it had started with only about 25 employees at the August 9 meeting but that the
number had now gotten out of hand (testimony of Morales, Jimenez, and Ponce).
He stated that he was upset about it, particularly because the employees had gone
behind his back to organize rather than having come to him and talked about it first
(testimony of Arce). He informed them that although Respondent's manufacturing
plants were organized, its test fleet operations, such as those at Laredo, had never
been organized (testimony of Williams, Sasse, and Brewster). He told them that by
organizing they were jeopardizing their jobs (testimony of Jimenez and Ponce), that
he did not believe that the test fleet could operate under the Union because the Union
would permit each employee to do only one type of job, and that this practice would
cause an increase in operating costs (testimony of Ponce and Leal). He stated that
there were a number of independent testing companies in Texas and one in Carson
City, Nevada, which were already undercutting Respondent in the price per mile they
were charging for testing tires (testimony of Williams), and predicted that if the
Laredo operations were unionized the costs of operating the test fleet would be pro-
hibitive (testimony of Williams, Dickinson and Sasse) and that about 70 employees
would be laid off (testimony of Morales, Brewster, and Ponce).
2. Williams' August 13 conference with eight employees
On the following day, August 13, Williams called to his office the three organizing
committee cochairmen (Morales, Brewster, and Ponce), three other committeemen
(Jimenez, Molina, and Guajardo) and two other employees who had attended the
August 9 union meeting (Semmelmann and Perez). He told them at the outset that
they might as well start looking for other jobs (testimony of Jimenez, Morales,
Brewster, Ponce, and Semmelmann). He singled out Brewster as being the "main
instigator" of the Union and said he had not expected that sort of thing from him
(testimony of Morales, Jimenez, Brewster, and Ponce). He accused Jimenez of
having been negligent a few days earlier when a tire came off the car he was driving
and warned that he could find reasons for firing the employees-that he could even
fire them for their past mistakes (testimony of Jimenez and Brewster corroborated in
part by Morales). He advised all of them to find another place to work where they
would be happier (testimony of Ponce and Semmelmann). He stated that Respond-
ent's test fleet had never operated under a union, that it could never compete with
independent test fleets, and that if the costs at Laredo got out of line, Respondent
would have to contract work out to independent tire testers (testimony of Morales
and Jimenez). At one point during the meeting, Ponce stood, gave his name, and
announced in a loud strong voice that he was for the Union; the others present said
they were too (testimony of Williams, Morales, Jimenez, and Ponce). Williams
admonished the group for not having come to him to discuss any complaints they
21 do not credit the testimony of either the General Counsel's witnesses or of Respond-
ent's witnesses which is inconsistent with the findings hereinafter set forth.
56 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had instead of going to the Union, and told them that his door was always open to
them (testimony of Ponce and Williams). He asked them what they were unhappy
about (testimony of Williams and Semmelmann). Brewster then asked why he had
not been given the skid and traction work he had been promised when hired, and
Williams denied that such work had been promised him (testimony of Williams and
Ponce). Perez and Semmelmann complained that the employees in Laredo were not
being paid as high wages as Respondent had been paying in California and Williams
acknowledged that this was true but explained that the standard of living was different
in Laredo and that a survey of wages paid in the Laredo area showed that the wages
being paid by Respondent were fair (testimony of Ponce and Williams). Williams
asked the employees whether they could "undo" what they had started and Morales
replied that they could not, that they were still all for the Union; the other employees
agreed with him (testimony of Morales and Ponce). Williams then told them, "Well,
there's nothing else I can do with you boys, you are dismissed" (testimony of
Morales). Semmelmann and Perez asked if Williams was giving them their "walking
papers" or firing them (testimony of Morales, Jimenez, Brewster, Ponce, and Wil-
liams). Williams replied that be was not firing them but repeated that they had better
start looking for other jobs because they would not be working there long (testimony
of Morales, Jimenez, and Ponce).
I do not credit Williams' testimony that he called the meeting because Supervisor
Marlin had told him that these eight employees had been reported as having made
threats to employees to get them to sign union cards or attend union meetings, and
that he warned these eight employees in that meeting that he would not tolerate such
threats. Williams' testimony in this respect has no support whatever in the record.
Semmelmann (Respondent's own witness), Morales, and Jimenez specifically denied
that any mention of threats was made at that meeting; all agreed that it was only at
the August 14 meeting on the following day that Williams mentioned hearing about
threats.
3. The August 14 speech
On the next day, August 14, Williams called another meeting of all the employees.
It is undisputed that he repeated in substance some of the things he had said at the first
meeting about the history of Respondent's test fleet operations and their competitive
nature. He had with him some brochures which, he said, substantiated his statements
that there were a number of independent tire testing operators in Texas and one in
Nevada which were charging less per mile for testing tires than it was then costing
Respondent. He stated that if the Union became the bargaining representative the
costs of testing per mile would increase and that Respondent would have to have its
testing done by independent testers with the result that many of Respondent's employ-
ees would have to be laid off, perhaps as many as 70, or 50 percent (testimony of
Marlin and Villareal). He told the employees that anyone interested in reading these
brochures could see them in his office.
It is undisputed that at one point during the meeting Williams said that he had
heard that some threats had been made by some of the union employees to force
others to sign union cards or go to union meetings, and that he would not tolerate any
threats. Brewster then inquired whether Williams had reported the threats to police
and when Williams replied that he had, Brewster said he was glad to hear that because
he knew of no threats made by any union people and he wanted to be sure that the
union campaign was conducted in a lawful manner .3
3 No evidence was adduced to show that any union person had in fact made any threat.
Williams testified that Supervisor Marlin had told him about the alleged threats. The
only testimony given by Marlin on the subject of threats was to the effect that he had
heard that threats were made to employee Rocha who had been elected as one of the 15
members of the Union's organizing committee at the first union meeting and who was one
of the three initiators of the union movement. Marlin testified: "[Rochal made a state-
ment to me one morning in the lunchroom that two or three of the fellows that were
interested in the Union had told him that if he did not go to the meeting that they were
going to kick hell out of him . . . . Mr Williams had instructed us at meetings if we
heard of any threats . . . that we were to let him know . . . I put it in writing and gave
it to him." No such written report, however, was introduced. Rocha himself testified
that he never heard any threats made and I am convinced that this is true Nevertheless,
as demonstrated infra in connection with treating the issue whether his subsequent dis-
charge was discriminatorily motivated, it appears that Rocha informed several of Respond-
ent's supervisors and Williams himself that he was opposed to the Union It is a fair
inference, and I find, that in an attempt to exculpate himself from blame by his superiors
for the initial support he had given the Union, Rocha sought falsely to lead them to
believe that he bad been forced to do what he had done.
UNITED STATES RUBBER COMPANY 561
During the course of this talk, Williams also told the employees that he knew the
identity of the union committeemen-including the three heads who consisted of two
drners and one office person (testimony of Morales, Ponce, and Villareal). He
stated that he knew there would be another union meeting on the following Sunday
and that he would know who attended that meeting (testimony of Morales, Jimenez,
Brewster, Ponce, Villareal, Ramirez, Arce, and Leal).4 He added that anyone attend-
ing might as well start looking for another job
It is noted that Williams, in denying that he mentioned knowing of the union meet-
ing which was to be held on the following Sunday, was contradicting the testimony of
Respondent's own witnesses, Ramirez, Arce, and Leal. as well as five witnesses called
by the General Counsel. Because of Williams' lack of frankness and veracity in testi-
fying with respect to this and the August 13 meeting with the employees, I have given
less weight than I might otherwise have given to his explanations for the discharges,
treated antra, of the alleged discriminatees.
4. The August 25 bulletin board notice and Williams' later speech
On August 25 there was posted on the bulletin board at the plant a notice signed
by W. J Dobie, manager of production evaluation in Respondent's Detroit office.
This notice, after telling the employees that Respondent was aware of the Union's
attempt to organize the employees at the Laredo proving grounds, stated, inter alga,
regarding Respondent's position.
It is not necessary to join a union and we would prefer that you do not. It should
be noted, however, that the Company appreciates its legal obligations in this
matter and has not, nor will it in the future, discriminate against employees
because of lawfully conducted union activity, nor will it dismiss employees or
close existing facilities merely to avoid dealing with unions. What I am telling
you is simply the attitude of the Company toward the necessity of the forma-
tion of a union for the Proving Grounds. We do not believe it would be to
our mutual best interests that one be formed.
The mere fact that a union organizer says that something will be done if there
is a union does not make it so. Any such "changes" would have to be bargained
for and might or might not become a reality.
No union can guarantee job security, nor can any union tell you that because
you fail to sign authorization cards your job security is being put in jeopardy
Your jobs at this facility depend primarily on keeping our facility in a sound
competitive position with low costs, high quality and good customer service.
Later, about September 2, Williams made a speech to the employees in which he read
this notice from his superior at the Detroit office.
4 Morales testified, and I find, that following Williams' August 14 speech, he had the
place of the union meeting changed from Chavanas Ranch to Seven Lights He also
checked with the police department to ascertain whether Williams had in fact reported
any threats supposedly made to the employees and was informed by that department that
it had no record of any such report
'This was Morales' testimony Brewster's recollection was that Williams said the
approximately 70 employees who had signed union cards might as well start looking for
another job Jimenez' account was that Williams said he would find out who attended
the forthcoming meeting and they "would be fired " Ponce testified that Williams said
anyone attending "would be dismissed." Vi lareal's recollection was that Williams said
anyone attending "would be fired." Although each of these witnesses may correctly have
interpreted what Williams said, I have accepted Morales' account as the most accurate,
not only because he had recently refreshed his recollection from notes dictated on the day
of the event but because it appears from other statements made by Williams, particularly
at the August 13 meeting, that it was characteristic of him to leave some room for innuen-
does in issuing his threats. Morales' version also would more nearly accord with that of
Respondent's witness, Ramirez-whose testimony in general I found credible-that Wil-
liams said Respondent "would have to cut the manpower" if the plant became organized
"because they couldn't operate with a union," but that he did not threaten to "fire"
anyone. In view of Williams' reference to knowing about the scheduled meeting and the
people who would attend-which Ramirez conceded Williams mentioned-the employees
were warranted in interpreting Williams' remarks as an expressed intention to select for
a reduction in force those employees who demonstrated their continuing support of the
Ijnion by attending the scheduled meeting
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions Respecting Williams' Speeches
It is not necessary to analyze each of Williams' statements regarding the effect of
unionization upon Respondent's Laredo facility to determine whether it constitutes
merely an expression of views, argument, or opinion within the protection of 8(c) of
the Act, for it is clear that during his talks with all the employees as well as during his
interview with the eight employees on August 13, he made unlawfully coercive and
threatening statements. His singling out of Brewster at the August 13 meeting as the
"main instigator" of the Union, along with pointing out to Jimenez that he had been
careless in losing a tire, that Respondent could find reasons for firing employees and
could even fire them for their past mistakes, could reasonably have been interpreted
by the employees present only as meaning that Williams was aware of the identity
of those active in the Union's behalf and meant to find pretexts for discharging them
if they continued in those activities. In this context, his urging of the employees to
undo what they already done was plainly an unwarranted interference with their orga-
nizational rights So coercive were Williams' remarks at this meeting that two of the
employees thought he was perhaps firing them forthwith when he told them they were
dismissed. His response to their inquiries as to whether they were being fired can
hardly be considered reassuring, for although he stated that he was not firing them,
he added that they had better start looking for other jobs because they would not
be working there long. This was in effect saying that he would be firing them later if
they succeeded in their attempts to unionize the test fleet.
At the August 14 meeting, Williams continued his coeicive and threatening con-
duct. His statement that he knew the identity of the committeemen, including the
three heads, was in itself coercive for it is a reasonable conclusion that by divulging
this information to the assembled employees, Williams intended to and did cause them
to fear that their own union activities might be known to Respondent and that repris-
als would follow. To be certain that they got the point, Williams also told them that
he knew there would be another union meeting on the following Sunday and would
know who attended This, without more, would have been a sufficient warning of
reprisal but Williams could not resist driving home his point by adding that those
attending had better start looking for other jobs. In the face of these blatant threats
to discriminate against employees who continued their support of the Union, I have
no doubt that Williams' further statements about being unable to operate under union
conditions because the Union would cause an increase in operating costs, and his pre-
diction that a unionization of the test fleet would result in a curtailment of about 50
percent of the employees were not made in good faith and were intended to and did
coerce the employees in their organizational rights.6
It is found that by the conduct above described, Respondent interfered with,
iestrained, and coerced its employees in the exercise of their Section 7 rights, in viola-
tion of Section 8 (a) (1) of the Act.
Respondent contends that any coercive statements made by Williams on August 12,
13, or 14 were neutralized by the posting of the August 25 bulletin board notice and
the later reading of this notice to the employees. I do not agree. The notice did not
purport expressly to repudiate anything that Williams had said and it devoted more
space to expressing Respondent's opposition to the Union than to assuring the employ-
ees that it would abide by it legal obligations under the Act. Moreover, it was Wil-
liams at the Laredo proving grounds, not Dobie in the Detroit office, who controlled
the day-by-day operations at Laredo and determined whether and for what reasons
an employee was to be discharged I find that neither the August 25 notice nor Wil-
liams' subsequent speech was sufficient to overcome the coercive effect of Williams'
previous statements.
C. The discharges
Despite Williams' threatening and coercive statements, the Union filed a represen-
tation petition with the Board on August 21, a hearing on the petition was held on Sep-
tember 15, and an election was conducted on November 6, at which a majority of the
employees voted for the Union. During the preelection period, as already noted,
6 As a basis for his statement that the Union would cause an increase in operating costs,
Williams testified that he believed union restrictions would cause this and referred to
his latest experience along this line when in 1958, upon arriving at Respondent's Detroit
plant after an across-country test drive, he and the tire engineers were not peimitted by
union members to touch the tires on the test cars until specific permission from the union
steward was obtained There is no evidence indicating that the Union seeking to organize
the Laredo employees would insist upon imposing any such restrictions as those encoun-
tered by Williams 6 years previously in Detroit, and Respondent certainly could not be
compelled to adhere to any such restrictions even if demanded by the Union.
UNITED STATES RUBBER COMPANY 563
Respondent discharged Villareal and Rocha, two of the three employees who had
initiated the union movement, and Brewster, who had been elected one of the three
cochairmen of the organizing committee at the first meeting. On November 10, while
Respondent's objections to the election were still pending, and the outcome of the elec-
tion had therefore not yet been finally determined, Respondent discharged Morales,
who was both one of the initiators of the union movement and one of the cochairmen
of the organizing committee. For the reasons hereinafter set forth, I am convinced
and find that only two of these discharges, those of Brewster and Morales, were dis-
criminatorily motivated. All of these discharges are treated below in the sequence in
which they occurred.
1. The discharge of Villareal on September 22, 1964
Armando Villareal was hired by Respondent as a testdriver in February 1964. It
was he who personally secured the services of AFL-CIO Representative Vasquez in
getting the organization started. Prior to the first meeting on August 9, however, he
was transferred from driving to work as a posting clerk in Respondent's offices, and
informed Vasquez that because of his new job and a hope that he could work himself
into a supervisory position, he did not wish to have anything further to do with the
union movement. He did not in fact participate further in union activities until some-
time after he was transferred back to driving work in late August. Thereafter, he
attended a union meeting on September 13.7
In early September-prior to attending the September 13 meeting on an occasion
when he was called to Williams' office and requested not to report for work before
4 o'clock in the mornings-Villareal broached the subject of the Union to Williams.
According to Villareal, he told Williams that although he had started the union move-
ment, he had not thereafter been active in it and had attended no union meetings.
Williams replied that he knew Villareal had attended none of the meetings . Villareal
explained that he had been given no reason for having been transferred from office
work back to driving and thought perhaps the transfer was because someone "had told
on" him, revealing his initial role in the union movement. Williams did not reply to
this statement and Villareal continued talking, stating that he also realized that his
transfer could have resulted merely from a desire of Williams to train different
personnel.
Williams' version of this discussion about the Union was that Villareal had asked
to talk with him and set the record straight. Villareal told Williams that he had never
had anything to do with the Union, though he had been accused of it, and that he did
not want to have anything to do with it. Villareal told Williams that he had asked
people to stop calling him about the Union. Williams replied that he had never
accused Villareal of having anything to do with the Union. Except for Williams'
testimony that Villareal said he had never had anything to do with the Union, the two
versions are not necessarily inconsistent and I accept both. I find it unnecessary to
resolve the conflict in the two versions for even accepting Villareal's version, Villareal
was clearly renouncing the Union and giving Williams no cause to discriminate against
him for union reasons. To be sure, Villareal did thereafter attend one union meeting
and it is possible that Williams may have learned of that fact in the same way he
learned about some of the other union activities. Nevertheless, as shown below,
Villareal gave Respondent reasonable cause to discharge him and I am convinced that
his discharge was for cause rather than for union activities even were I to assume that
Williams knew about all of Villareal's union activities.
Villareal was discharged on September 22, by a letter of that date delivered to him
by his son, Armando Villareal, Jr., who also worked for Respondent. The text of the
letter, signed by Lee Marlin, his supervisor, reads as follows:
Mr. Williams requests that you turn in your uniforms and identification card,
as your employment was on a full time bases [sic] and U.S. Rubber test fleet
should be your primary obligation, not secondary.
You are terminated as of this date.
7 At that meeting Villareal saw a man who he believed to be Williams looking through
the glass panel in the door to the meeting room and so Informed the presiding union
official . This was clearly a case of mistaken identity, however, for there was ample and
convincing evidence introduced to show that Williams was not even in town on the after-
noon of the meeting. The General Counsel, by moving to dismiss the allegation of the
complaint that Respondent engaged in surveillance of a union meeting, has in effect
conceded that it was not Williams who looked in on the union meeting.
212-809-66-vol. 155-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 90 days before being hired by Respondent, Villareal sold a cafe and bar
which he had owned and operated. In late August he decided to open a bar and to
hire someone to operate it for him. He did open it on Labor Day, September 7. In
connection with preparing to open this new business he had requested and been
granted permission to take time off from his work on August 26 and on three sepa-
rate occasions totaling 17 hours during the week before Labor Day. According to the
undenied and credited testimony of Supervisor Marlin, he told Villareal following
these requests for time off that the Company's business had priority over his personal
business and that Villareal would have to choose between the two.8
On the morning of September 22, Villareal again called the plant about taking the
day off to attend to personal business a Supervisor Marlin, who answered the tele-
phone, replied, "All righty, I will schedule somebody in your place and schedule you
for work tomorrow." According to Marlin's credited testimony, in accordance with
a habit he acquired while working as a radio dispatcher for the police department, as
he answered the telephone he jotted down the time, which appears on a note reading
as follows: "Armando Villareal Sr-Called 4:45 a.m. Will not be in as he has
business to take care of today." A few minutes later, after checking his drivers'
schedules and listing Villareal's son to drive in Villareal's place, Marlin made the fol-
lowing note on another scrap of paper: "Stating `I won't be in today. Put someone
in my car. I'm not sick but I have some business to take care of today.' " He then
placed both notations in an envelope and left them on Williams' desk. About 8 a.m.,
Williams instructed Marlin to terminate Villareal and Marlin wrote the letter of ter-
mination described above.10
It is true as the General Counsel and the Union point out in their briefs that
Respondent had been rather lenient with several other employees and had tolerated
several unexcused absences from at least two of them-Guerra and Muckelroy-
before warning them that another absence would result in their discharge. Following
the warnings each had again failed to show up for work and had announced there-
8 Williams testified that just after Labor Day, on September 8 or 9, be talked to Villareal
about his absences, going into detail about the reasons for each, and "told him that he
could not be absent any more and that if he was absent any more he would be terminated "
He further testified that Villareal told him on this occasion about having bought and
opened a bar, but said that be had people lined up to operate it and would not be absent
again. Villareal testified, on the other hand, that he could not recall ever having received
any warning from Williams about his absences and that the only time he talked to Wil-
liams about taking time off was on the first day lie started working, when he requested
and Williams granted him part of the day off. I find it unnecessary to resolve the conflict
in this testimony of Williams and Villareal for it is clear from Marlin's testimony that
Villareal had been warned of Respondent's unwillingness to continue granting him time
off to attend to his personal business
O At the time he called, Villareal had already decided to quit Respondent's employment
but had apparently not decided upon the exact date. This fact, however, was not known
to Respondent at the time it discharged him.
10 Villareal placed the time of his telephone call to Marlin as "about 3:55 a.m " on
September 22, explaining that he had set his alarm clock at that time in order to be able
to get to work by 4 B0, his regular starting time, if necessary. This version has corrobora-
tion in the testimony of Villareal's son who, from August 5, 1964, until a few weeks prior
to the hearing, was also employed by Respondent as a driver. The son explained that
September 22 was his day off as a driver; that his father, as was his practice, called him
at 4 a.m. to awaken him, The son customarily drove by his father's house and picked
him up, both arriving at work together When his father called on September 22 and
said he was not reporting for work that day, the son asked if there was any message to
be delivered. The father replied in the negative, explaining that he had already called
the plant The son arrived at work on time and saw that his own name had been added
to the list of those scheduled to drive that day, by placing "Jr " after his father's name,
and that his father's name was on the "day off list." These explanations are clearly
inconsistent with Marlin's version , supported by one of the notations he purportedly made
at the time Villareal called him . The General Counsel has suggested in his brief that the
notation of the time when Villareal purportedly called, "4.45 a.m ," could easily have been
written "4 15 a.m." and that with the later addition of a checkmark the time could have
been altered to read as it now does. This is a possibility but unlikely ; and even the
General Counsel's speculative version would not make the documentary evidence jibe with
the testimony of Villareal and his son, for under their version, Villareal called the plant
about 3.55 a.m., not at 4 :15 a.m. I have therefore credited Marlin's version as to the
timing.
UNITED STATES RUBBER COMPANY 565
after that they were quitting. All of Villareal's absences were excused by Marlin but
Williams knew that the reason for them was Villareal's attempt to carry on another
business while working for Respondent, and he could well expect continued frequent
absences by Villareal for this reason. Villareal had been warned following his four
other absences within less than month that Respondent would not tolerate such
absences to enable him to take care of his personal business. His announcement to
Marlin on September 22 that he would again be absent on account of personal busi-
ness-and a tardy announcement at that-furnished ample grounds for the discharge
and I have no doubt that this was the true reason. I therefore conclude that Respond-
ent did not violate Section 8(a) (3) of the Act in discharging Villareal.
2. The discharge of Rocha on September 24
Sabos Marcos Rocha, Jr, was hired by Respondent in November or early Decem-
ber 1963, and, after working 3 days as a janitor, was put to work lubricating and
servicing vehicles. This was work at which he had had previous experience while
employed in his father's service station. He worked on the 8:30 p.m. to 5 a.m. shift
and was without direct supervision until Shop Foreman Clyde Dickinson came on
duty at 4 a.m.
Rocha's part in the union movement has already been mentioned. He along with
Villareal and Morales were the three employees who decided to initiate the union
movement, and he attended the first union meeting, at which he was selected as 1 of
the 15 members of the organizing committee. Soon thereafter, however, he ceased
supporting the Union and began telling Respondent's management representatives,
including Plant Manager Williams as well as fellow employees, that he was opposed to
the Union. It is undisputed that on a Saturday, about August 29, he telephoned Shop
Foreman Dickinson while the latter was having breakfast at his home, and told Dick-
inson that although he had been 100 percent a union man, he had now changed his
mind and wanted no part of it. Dickinson suggested that Rocha call Williams and
tell him this. Rocha then did call Williams and told Williams substantially the same
thing.ii Moreover, as already noted, he sought to exculpate himself from blame by
falsely telling Supervisor Marlin that two or three of the employees had threatened
"to kick hell out of him" if he did not attend a union meeting.
While thus seeking to protect himself against recrimination by Respondent because
of his early union activities, Rocha did not take the same precaution against protecting
himself against discharge for failing to perform his duties on the job. There had
been complaints from some of the drivers about the manner in which the vehicles
were being serviced and supervisory personnel had talked to him about these com-
plaints even before the Union came into the picture.
It first came to Shop Foreman Dickinson's attention in February or March that
Rocha was not always servicing all the vehicles scheduled to be served, and in April
or May, after receiving a complaint from Assistant Manager Kelly, who was in
charge of vehicular maintenance and repair, that some of the service cards for vehicles
left to be serviced were not being completed, he talked to Rocha about the complaint.12
Rocha explained to Dickinson that he had not been completing his work because he
had been kept busy at other things such as transporting someone in the office to town.
Dickinson corrected this situation and Rocha's work appeared to improve for a while
after that.
In July and August the drivers started complaining that the oil was low on vehicles
supposedly serviced by Rocha. Supervisor Marlin and Mechanic Ramirez told Kelly
that they believed the vehicles had not been serviced although the cards indicated
that Rocha had serviced them. Kelly reported this fact to Shop Foreman Dickinson
who then talked to Rocha. Rocha explained that it was his practice to put 4 quarts
of oil in the vehicle, run the motor a while, then add a fifth quart, but that he some-
times forgot to add the fifth quart. He also explained that it was his practice to fill
in and initial the service cards of vehicles which were to be serviced before starting
his work in order to keep the cards clean, and that he would sometimes forget to
"I do not credit Rocha's testimony that about September 14, while in the plant coffee
shop where McMullen and other supervisors were drinking coffee, he told McMullen that
he had signed a union card and had also signed up 15 other employees. I credit instead
McMullen's denial that Rocha ever made any such statement to him and McMullen's
further testimony that he had been told by Shop Foreman Dickinson that Rocha was
against the Union.
12 There is a service card for each vehicle. It Is Rocha's duty, when servicing a vehicle,
to mark on the card the date, the odometer reading, and the service performed and to
initial it.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
correct the cards later to show that the work had not been done. Dickinson instructed
him not to fill in the cards until the work was completed and suggested the use of
scratch paper to mark down what services were performed on each vehicle as the work
was being done.
Further complaints were made by some of the drivers to Supervisor Marlin later in
August and in September about vehicles not receiving the service indicated on the
service cards . In late August, Dickinson had Marlin and the mechanic check the oil
level, the discoloration of the oil , and the oil filters on vehicles Rocha was supposed
to have serviced and, after receiving a report from them that in their opinion Rocha
could not have changed the filter and the oil in one vehicle as the service card had
indicated , Dickinson again called Rocha in for a talk . Rocha admitted that he had
not changed the filter but said he would get to it on the following night for sure.
On September 1, the day before Dickinson left for his vacation , he and Kelly dis-
covered a car on a hoist which Rocha had supposedly lubricated but which, in their
opinion , could not have been lubricated.
After Dickinson left for his vacation on September 2, Assistant Manager Kelly
took over his duties . About September 8 or 10, he found an obvious error in the
odometer reading on one of the service cards and called Rocha 's attention to it. Then
on September 21, the differential on a pickup truck was burned up after being driven
only 59 miles after it had supposedly been serviced by Rocha. Mechanic Ramirez
reported that it was out of grease and that there was no oil in the differential, facts
which he attributed to Rocha's failure to properly service the vehicle. Following
this incident , Kelly on September 22 made an inventory of the oil filters in the parts
room . He then listed the vehicles that were to be serviced that night and put them
in a sealed envelope for Supervisor Marlin, with instructions that the vehicles were
to be checked the next morning to ascertain whether they had in fact been serviced.
On the night of September 22, Rocha marked the service cards indicating that all the
vehicles had been serviced in the manner called for; this included the installation of an
oil filter in another pickup truck. The next morning , Marlin, with the assistance of
Ramirez, checked the vehicles and found that three or four of them had not been
touched . Kelly checked the cards against the inventory of filters in the stockroom and
found that a filter on a pickup truck which the service card indicated was changed
was not in fact changed.13
Kelly then discussed the matter with Plant Manager Williams and recommended
that Rocha's services be terminated . Williams left it up to Kelly to handle the prob-
lem but instructed him to get Rocha's side of the story before taking any action.
On the following day, Kelly talked with Rocha, recited his failure to change the
filter on September 22, his falsification of the service card, and a number of his other
derelictions . Rocha offered no explanation for his failure to change the oil filter but
disputed that Marlin and Ramirez could ascertain by looking at the oil in a car
whether he had changed the oil in vehicles which they had reported as not having
been serviced . Kelly discharged him at this interview . He testified that he dis-
charged Rocha for falsifying company records and indicating that he had accom-
plished work which he had not done. I have no doubt about this being the true
reason. I find that Respondent did not violate Section 8(a)(3) of the Act in dis-
charging Rocha.14
3. The discharge of Brewster on September 25
Sam Brewster, before being hired by Respondent on October 29, 1963, had been
employed as a police officer and had driven a police car. He started with Respondent
as a regular testdriver but later, after Supervisor Fletcher suggested that he volunteer
for high-speed driving, a job requiring greater skill, he did so and became a high-speed
testdriver.
Brewster was a cochairman of the organizing committee and was accused by
Williams at the August 13 meeting of being the "main instigator." He was not intimi-
dated by this accusation however, and the next day when Williams told the assembled
employees that he had reports that union people were threatening employees, Brewster
is At the hearing, Rocha conceded that he had forgotten to change a filter on Saturday
morning, September 19, though he had marked on the service card that it was changed.
He testified that he did not remember this omission until be had started home; that on
the following Monday morning he looked for the service card for the purpose of correcting
it but could not find it ; and that he did not tell anyone about his failure to service the
car as indicated on the card.
14 The findings regarding Rocha are based upon the credited testimony of Dickinson,
Kelly, Marlin , Ramirez, and Williams. Insofar as Rocha's testimony is inconsistent with
the findings above set forth, I do not credit it.
UNITED STATES RUBBER COMPANY 567
arose and asked Williams whether he had reported the threats to the police and
assured all present that he knew of no threats and wanted to see that the Union's
campaign was conducted in a lawful manner.
He was discharged by Williams on September 25, following an incident on Respond-
ent's 5-mile circular proving ground track, without being afforded any opportunity to
tell his side of the story and, indeed, without Williams even talking to the supervisor
on the basis of whose written report Williams purported to act. On the morning in
question, Brewster was driving a passenger car at a test speed of 80 miles an hour
in the 80-mile lane of the track, and Supervisor Roberto Vidaurri was driving a
pickup truck at a test speed of 60 miles an hour in the 60-mile lane. The 60-mile
lane is in the lower or inside part of the circular track. The highest speed lane, for
vehicles traveling 140 miles an hour, is on the most elevated or outside lane of the
track. The track is graded and banked so that vehicles traveling in their proper speed
lane require no steering. The vehicles travel counterclockwise. If trouble develops
and it is necessary to go off the test track onto the parking lane, a car in a high-speed
lane must cross the lower-speed lanes.
Brewster's account of the incident precipitating his discharge may be summarized
as follows. That morning, as Brewster was driving in the 80-mile lane and passing
Vidaurri in the 60-mile lane, with about 6 or 8 feet distance between the front of
Vidaurri's truck and the front of Brewster's car, Brewster heard a thud under his car
which he thought could have been caused by a piece of rubber from a tire coming
apart. He continued on at his test speed for what he believed was a safe distance,
until he was about 100 feet ahead of Vidaurri's truck and could see it in his rearview
mirror,1:5 then flashed his left-turn signal, cut across the 60-mile lane at an angle, and
came to a stop off the track between one-half and three-fourths of a mile from the
spot at which he heard the thud. He did not apply his brakes while on either the
80- or 60-mile lane but he put his foot on the brake pedal, without depressing it, after
taking it off the accelerator and decelerating as he crossed the 60-mile lane. He
traveled about one-fourth of a mile in the parking lane before applying his brakes
and stopping. He then got out of his car, checked the left front tire, found it all
right, and was walking over to check his right front tire when Vidaurri passed by in
the pickup truck. Finding nothing wrong with any of his tires, he drove back onto
the track and continued his testdriving for about another half hour.
Vidaurri's version of the incident is that Brewster crossed over into the 60-mile
lane when only about 30 feet in front of the pickup truck Vidaurri was driving,
causing Vidaurri to go into the higher speed lane without having a chance to look
back and ascertain whether it was safe to do so.1° He further testified that the brake-
lights of Brewster's car were on as he came onto the 60-mile track at an angle and
that Brewster came to an abrupt stop at the left of the 60-mile lane.
Following this incident, Vidaurri continued driving around the track once more,
then filled his vehicle with gas and changed the tires. Thereafter, he stopped by the
office, wrote a report on the incident involving himself and Brewster, gave this report
to Supervisor Fletcher, and had a brief conversation with him before taking another
car out for highway testing. This was the first time since becoming a supervisor
about 10 days earlier that he had made a report on any employee. According to
Vidaurri, he made the report to Supervisor Fletcher because he was not completely
broken in as a supervisor and was still working under Fletcher at that time. Fletcher
promised to, and did, transmit the written report to Plant Manager Williams after
first getting the signature of employee Semmelmann on it as a witness to the incident.
This report is incorporated in Brewster's discharge letter described infra. Fletcher
told Williams that Vidaurri appeared "shook up" over the incident.
According to Semmelmann, he was driving in the 90-mile-an-hour lane about 300
yards behind Vidaurri when he saw Brewster cut across the 60-mile lane. Later that
morning, Supervisor Fletcher asked Semmelmann if he had seen the incident and
Semmelmann replied that he had. Fletcher then asked Semmelmann if he would
like a report written up and Semmelmann said that he would. Fletcher thereupon
showed him Vidaurri's report and asked if that was how it happened. Semmelmann
said "Yes" and signed the report.
15 This, as William Briscoe (Respondent 's manager of roadtesting from its Detroit office)
testified , would take about 5 seconds during which Brewster would have traveled about
585 feet.
le According to Briscoe's expert testimony , drivers traveling in the 80-mile lane should
maintain a distance of at least 1 ,000 feet between each other . It would therefore have
been safe for Vidaurri to go into the higher lane under these circumstances and unsafe
only if a driver in the 80-mile lane had been driving dangerously close to Brewster.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between about 10:30 and 11 a m., after Fletcher had delivered Vidaurri's report
to Williams, the latter sent for Semmelmann. According to Williams' credited testi-
mony, he "handed [Semmelmann] this report and asked him if this was what he saw
and if this was an accurate description of what had taken place." Semmelmann "read
it and said yes, that 's what happened." Williams then dismissed Semmelmann and
left word for Brewster to see him . Williams testified that he regarded Brewster's
conduct as deliberate but offered no explanation as to why he considered it deliberate.
According to Brewster's credited testimony, when he reported to Williams' office about
1 p.m., Williams handed him his discharge letter, stating, "You asked for it." He
added that someone had signed a complaint against him and that Semmelmann was a
witness. He asked Brewster to turn in his ID card and uniforms . Brewster
attempted to explain what had happened but Williams said he wanted no discussion.
The body of the discharge letter reads as follows:
Road Supervisor, Roberto J. Vidaurri, submitted the following written report
to Management on this date, September 25, 1964:
"Brewster, driving C2289 about 8:15 and doing 80 (M P.H.) at the
H.S.T. cut in about 30 ft. in front of me causing me to go to the upper
lane without having enough time to check if another vehicle was coming
from the rear. This sudden stop was uncalled for and could have very
easily cause [d] an accident."
Signed: Robert J. Vidaurri
"Witness to this was George Semmelmann."
Signed: George Semmelmann
During your employment of approximately 11 months as a test driver, you
have repeatedly ignored the safety rules of the Company as well as instructions
given you by supervision.
You were reported in both June and July of this year by other test drivers as
having entered the high speed track at excessive speeds, completely ignoring the
stop sign on the "On Ramp" prior to entry on the high speed track. In both
of these cases, the alertness of the other drivers avoided possible serious
accidents,
We have given you every opportunity to consider the danger you have created
for yourself and for your fellow employees. We can no longer risk the lives of
our other drivers, as well as your own.
We are hereby giving you notice of your termination as of this date.
At the hearing, Brewster denied the charge mentioned in the letter that he had
,ever failed to stop at the stop sign on the proving ground track but explained that
on one occasion, in June or July, Supervisor Marlin told him that Williams' son, a
college student working during the summer, had accused Brewster of failing to stop
and that Brewster would probably be called into Williams' office about it. Brewster
testified that on the occasion in question the tachograph on his car showed that he
had in fact stopped and he showed the tachograph sheet to Supervisor Fletcher to
prove that he had stopped; Brewster testified, however, that because of a little knoll
between the stop sign and the car driven by Williams' son, Brewster could not see
the latter car until he started onto the tiack. Although I credit Brewster's testimony
that he stopped at the stop sign, I am satisfied hat he did not thereafter proceed onto
the track as slowly as he perhaps should have done.17
At the hearing Respondent adduced evidence as to the following other incidents
or complaints it had against Brewster which it had not mentioned in the discharge
letter as reasons for or in justification of its decision to discharge Brewster. (1) On
June 25, when Brewster-because of mechanical trouble for which he was not
responsible-was delayed for almost 2 hours in starting an oil temperature test run
which was supposed to be made at the test speed of 90 miles an hour and Supervisor
Fletcher asked him to try to make up the mileage called for before the regular quit-
ting time , Brewster drove the car for 340 miles without stopping, except for gas,
skipping his lunch and coffee break. Supervisor Sullivan was riding with Brewster
and taking oil tests as they drove. There is no evidence that he criticized the manner
in which Brewster was performing his part of the test. Either as a result of the
long run at high speed without stopping (Brewster's explanation) or as a result of
Brewster's driving at 95 miles an hour part of the time (Williams' explanation), the
oil temperature was excessively high on that test and Williams regarded the test as
34 Marlin testified to only , one occasion-the occasion about which Brewster testified-
on which it was reported to him that Brewster had failed to stop at the stop sign ; and
Williams himself testified to only one occasion on which he tallied to Brewster about such
an accusation I am convinced that there was only one such occasion , not two, as testified
to by Williams and as mentioned in the discharge letter.
UNITED STATES RUBBER COMPANY 569
clouded. He mentioned the excessive speed factor along with other explanations in
the report covering June 19 through 26 which he made to AC Sparkplug Division,
for wnich Respondent was doing the test. (2) About September 9, Williams repri-
manded Brewster and Ponce allegedly for following too closely on the highway.
When they denied having driven on the highway at all that day and explained that
they had driven only on the proving ground, he apologized. Later, however, he
called them back into his office and said that it was on the high-speed track that they
were following too closely, they denied this charge also. (3) On September 23,
Assistant Manager Kelly informed Brewster, and reported to Williams, that Brewster
had failed to leave the test steering column of his car in the proper position and
Williams talked to Brewster about this . The test on these steering wheels was con-
ducted over a 3- or 4-month period between September and December 1964. No
mechanical damage could result from a failuie to shift the steering column but, as a
part of testing a new type of steering wheel which could be used in a low, middle, or
high position , the manufacturer , in order to insure a certain amount of use of the
shifting process, had requested that the testdriver, when stopping for lunch and
breaks during the day as well as at the conclusion of the day 's work, shift the steering
column to the up position . Drivers occasionally would neglect this when stopping
and various supervisors would call their attention to the omission or report it to
Willlams.ts
In addition , Respondent even adduced evidence regarding Brewster 's alleged mis-
feasances which it had not even heard about at the time it discharged him. This
evidence consisted of the testimony of Semmelmann that he had twice seen Brewster
fail to stop at a stop sign , and that he had once seen Brewster reading a newspaper
while driving in the 80 -mile lane on the speed track.
Obviously, the latter complaints against Brewster could not have had anything to
do with his discharge , and I am convinced that the other alleged shortcomings about
which Williams testified but which he did not mention in the discharge letter were
afterthoughts and makeweights which did not contribute to Williams ' decision in
making the discharge.
Let us now examine the circumstances under which the Brewster -Vidaurri incident
of September 25 was reported and acted upon by Williams. There are several aspects
of Respondent's conduct which are hard to understand and which raise serious
questions in my mind. Why would Vidaurri, a new road supervisor still being
trained for the job by Supervisor Fletcher, have made out a written report on the
incident-and his first such report at that-without first telling Fletcher about the
incident and asking the latter's advice about what, if anything, to do? Moreover,
why did not Vidaurri talk to Brewster about what caused him to cross the 60-mile
lane and stop before Vidaurri took any action? Why did neither Fletcher nor
Williams attempt to learn Brewster's side of the story? Why did not Fletcher and
Williams ask Semmelmann, the purported witness, to tell what he saw rather than
merely ask him whether he saw the incident, show him Vidaurri's report, ask him
if that was what occurred, and have him sign that report? Why did Williams refuse
to listen to any explanation from Brewster at the time of discharging him? And,
finally, why did Respondent at the hearing attempt to support its discharge action by
digging up charges against Brewster not mentioned in the discharge letter, and even
adducing evidence of his purported shortcomings which it did not even know about
when discharging him?
Vidaurri's failure to wait and talk to Brewster before making a written report-
which it seems would be a natural thing to do-might have been explained by
evidence of an ill feeling before the two men . 19 However, it would not explain
is Supervisor Marlin testified that he had talked to some of the men about their failure
to put their steering columns in the proper position but had never made any written
report about such a matter . Assistant Manager Kelly testified that be gave either oral
warnings or written reprimands to drivers for neglecting to perform this part of the test
but that no driver was ever fired for that reason
ii Brewster testified that Vidaurri had not been talking to him since the union move-
ment started , and Vidaurri testified that he had not had a friendly feeling toward
Brewster since one morning , after he had been driving Brewster to work as a part of his
car pool for about 8 or 9 months, Brewster asked Vidaurri in the future to pick him up
at another address where he sometimes spent the night if Brewster was not at his regular
address. These occurrences approximately coincided and each might have had something
to do with a strained relationship between the two. Brewster ' s dislike for Vidaurri,
moreover , is evidenced by Supervisor Marlin's testimony , which I credit , that shortly
after Vidaurri became a supervisor , Brewster remarked to Marlin one day as Vidaurri
passed by, "There goes your driver supervisor , isn't he a smart ?"
using "dirty " curse words for the blanks.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
why Vidaurri failed to talk to his supervisor, Fletcher, or to Williams, about the
incident before writing the report. If, as Fletcher reported to Williams, Vidaurri
appeared to be "shook up" over the incident-a condition not very consistent with
Vidaurri's continuing to drive another 5-mile lap around the proving grounds, his
gassing up, and his changing of tires before giving his attention to the incident-
it would seem all the more likely that Vidaurri would want to discuss it with someone.
Vidaurri's conduct aside, however, it seems strange that neither Fletcher nor
Williams sought to have Semmelmann tell in his own words what he saw. Semmel-
mann, though he had attended the first union meeting and was one of the eight
employees called in by Williams on August 13 and coercively threatened, causing
Semmelmann to ask Williams whether the employees were then being given their
"walking papers," thereafter apparently ceased supporting the Union and conceded
that he may have attempted to persuade Rocha to cease supporting it. The actions
of Fletcher and Williams in showing Semmelmann the report made by his super-
visor and inviting Semmelmann's adoption of the report rather than attempting to
learn independently from Semmelmann what his version would be, is more con-
sistent with a desire to catalogue evidence against Brewster than to learn the fact.20
Williams' decision to discharge Brewster and his preparation of the discharge letter
without even waiting to talk to Supervisor Vidaurri, on the basis of whose cursory
written report he was purporting to act, and his further refusal to ask for or even to
listen to Brewster's side of the story, is in marked contrast to the procedure he
insisted upon following before Rocha was discharged. Rocha, who had renounced
the Union and had even telephoned Williams at his home to inform him of this fact,
was treated with great patience, was talked to by his supervisors a number of times
about his shortcomings, and when Assistant Manager Kelly reported to Williams
about Rocha's serious misconduct and recommended Rocha's discharge, Williams,
according to his own testimony, told Kelly to talk to Rocha and get "his side of the
story" before taking any action. It would seem that an elemental sense of fairness
would have dictated that Williams hear Brewster's side of the story before taking
any action. I am convinced that his failure to do so is explained by his desire to
find a pretext for discharging this active and agressive union leader and his unwill-
ingness to listen to any explanation which might tend to weaken the plausibility of
the pretextual reason.
Upon the basis of all the evidence, I am convinced and find that the reasons
assigned by Respondent for discharging Brewster were mere pretexts, and that the
real reason was his support of and leadership in the union movement.21
20 I do not regard Semmelmann 's adoption of Vidaurri 's report and his testimony re-
garding what he saw Brewster do as very reliable because, regardless of other consid-
ations, I do not believe that from a vantage point 300 yards behind Vidaurri, in the
90-mile lane , he could have ascertained with any degree of accuracy how close Brewster
was to Vidaurri when Brewster crossed the 60-mile lane and whether Vidaurri was forced
to go up to a higher lane.
21 It has not been necessary in making the above finding to resolve the credibility issues
arising from the differing Brewster and Vidaurri versions of the September 25 incident,
since Williams, whose decision it was to discharge Brewster , had not been informed of
Brewster 's version and therefore did not take that into consideration . In any event, I
have grave misgivings about the reliability of Vidaurri 's testimony . I have considered
among other things, that in his testimony regarding the August 12 and 14 speeches made
by Williams , he purportedly could recall only those statements which appeared favorable
to Williams ' version, and did not testify regarding any of the threatening remarks to
which a number of the other witnesses testified and which I am convinced were made.
I have also considered Vidaurri 's role in the discharge of Morales , treated snfra, and how
widely his testimony varied from that of three other witnesses whose testimony I have
credited . Vidaurri, moreover , was a friend of Williams and on occasions had bowled with
him. I gained the impression at the hearing that he was anxious to cooperate with
Williams and I am convinced that he was a willing partner in Williams ' plan to find a
pretext for discharging Brewster.
Williams ' statement at the hearing that he would have discharged Brewster even if he
had listened to and accepted the version to which Brewster testified is too self -serving and
speculative to be entitled to weight even if Williams ' summation of Brewster 's testimony
had been substantially accurate-which it was not. Nor do I regard Biscoe 's opinions
based upon hypothetical situations as too meaningful in evaluating Brewster 's conduct,
for those hypothetical situations fail to correspond with Brewster 's version and Briscoe's
statements of opinion , too, are self-serving and speculative and they do not represent the
basis upon which Respondent acted in discharging Brewster.
UNITED STATES RUBBER COMPANY 571
4. The discharge of Morales on November 10, 1964
Jesus Morales was employed by Respondent as a regular testdriver in October or
November 1963. As already noted, he was one of the three initiators of the union
movement. He took over and made contact with the AFL-CIO representative in
getting the union organizational drive started after Villareal was transferred to office
work. He was thereafter chosen as one of the three cochairmen of the Union's
organizational committee. At the August 13 meeting, when Williams inquired
whether the employees could not undo what they had started, it was Morales who
answered that they could not. He was not intimidated by Williams' threats or by
Williams' action in twice thereafter calling him into the office and accusing him of
starting false rumors. On one of these occasions, in late August or in September,
Williams in a meeting with all the employees accused Morales of circulating a rumor
to the effect that employee Perez had been offered a supervisor's job on the condition
that he report on union people. Morales denied the charge and requested that he be
confronted with his accuser but Williams refused to reveal the source of his purported
information. Later, about September 15, while on layoff status, he testified on behalf
of the Union at the representation hearing. And on November 5, the day before
the representation election , he was again called into Williams' office, with Ponce
as a witness, and accused of falsely stating that if the Union won the election,
Williams would have nothing to do with negotiating a contract. Morales explained
that he had only said that Williams would be subject to Respondent's New York
office. Williams then stated that there had been a misunderstanding and he showed
Morales and Ponce copies of contracts which were signed by local managers.
Prior to the advent of the Union, Morales had received no complaint about the
manner in which he was performing his duties. But thereafter he received a written
reprimand and a 3-day disciplinary layoff on September 10 and was discharged on
November 10. The circumstances surrounding this layoff and the discharge are
described below.
On September 9, upon returning from a highway test run in a pickup truck,
Morales drove the truck to Respondent' s gas island and started filling the gasoline
tank, using an automatic cutoff nozzle as was his custom. While waiting for the
tank to fill, he busied himself with other duties about the truck, as was his practice.
This was during a season when butterflies on the highway tended to clog the radiator
grill and Morales had lifted the hood of the truck and was busy cleaning the butter-
flies off the radiator by squirting water from a hose into the grill, when he noticed
that the automatic nozzle on the gasoline hose had failed to cut off and that about
15 gallons of gasoline had spilled onto the driveway. The noise of the water being
squirted into the radiator grill and splashing on the cement pavement below had
drowned out the noise of the spilling gasoline. Morales immediately cut off the gas
pump, banged the automatic nozzle to make it kick off, cleaned up the mess, then
promptly reported the incident to Supervisor Fletcher. Fletcher told him not to
worry but to make a report of it on his gas ticket and that he, Fletcher, would take
care of the matter. Morales made the report as instructed.
On the following day, he was summoned to Williams' office and, in the presence
of Assistant Plant Manager Kelly, was told by Williams that he was being given a
3-day disciplinary layoff for having been responsible for the spillage of the gasoline.
He was handed a letter, the body of which reads as follows:
It has been reported by the Shift Supervisor that yesterday, September 9,
through carelessness on your part you allowed approximately 15 gallons of
gasoline to overflow from the tank of your test vehicle while refueling at the
gas island.
This is still another mark against your record as a test driver, having had two
(2) accidents in Company vehicles in less than one year and being sent home
due to reporting late for work, and we are forced to take disciplinary action at
this time. You are hereby given notice that you will be off work without pay
for three (3) working days and that you will next report for work on the
morning of September 16, 1964 on the 4:30 AM shift.
You are also being given notice that due to your record as a test driver, any
further action of this nature, accident, or failure to follow instructions in the
future will result in your termination.
Morales had not been reprimanded following either of the accidents referred to
in that letter and Respondent was in this manner for the first time indicating that it
considered him in some way to blame.22 The first accident, occurring in December
-No evidence was adduced at the hearing regarding the alleged tardiness referred to in
the letter.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963, was occasioned by a doe and a fawn suddenly running from underneath a
bridge and onto the highway in front of the car which Morales was testdriving.
Morales was unable to stop the car in time to avoid hitting them and a headlight of
the car was damaged. When Morales reported the incident to Williams, the latter,
according to Morales' credited testimony, merely stated that he was glad that
nothing else had happened and that Morales had used good judgment.
The second accident referred to in the September 10 letter occurred on February 10,
1964, when Morales, while testdriving at about 6:35 a.m. in spot foggy weather,
crashed into the rear of a tractor-trailer truck which had stopped on the highway
without its lights on. Morales was driving about 55 miles an hour and approaching
denser fog when he saw the parked truck and could not stop in time to avoid hitting
it. The car driven by Morales was demolished and Morales was hospitalized for a
week. The driver of the parked truck was fined as a result of his negligence and the
insurer of the truck owner paid Respondent for the loss of the car driven by
Morales and paid for the injuries to Morales. Following the accident, according to
Morales' credited testimony, Williams told him not to worry, that it was not his
fault, and that he could go back to work and the accident would not be held against
him.23
Following the gas island incident and 3-day layoff in September, Respondent could
apparently find no fault with Morales' work until November 9, 4 days after the elec-
tion and during the pendency of Respondent's objections to the election. Respond-
ent contends that on November 9 it received two reports of a violation by Morales
of company rules, and that these violations, considered in conjunction with the gas
spillage incident and his previous record referred to in the reprimand letter above
set forth, caused it to discharge him on November 10.
The first report was one written by Supervisor Vidaurri and given by him to
Supervisor Fletcher who, in turn, transmitted it to Williams. The test of this report
reads:
This morning I passed cars driven by Jiminez and Morales because I noticed
Morales who was in the second car of the group was following too close to lead
car. I motioned him to fall back to a safe distance and I continued for about
three miles and stopped. After a few moments later they passed me again and
this time Jimenez was too close to Morales. I did not overtake them this time
Because I had to come to headquarters to change tires for high speed. When
I got thru my test it was after 1.00 PM and I supposed they were through for
the day, so I did not get to talk to them personally!
The second report was one written by Assistant Plant Manager Kelly to the effect
that Morales at I p in. had left the test steering wheel of his car in center position
rather than in the top position, as called for on the instructions posted on the
dashboard.
Neither Vidaurri nor Kelly spoke to Morales about these alleged violations.
Vidaurri, who was still being trained by Fletcher as a supervisor, made out his
written report and gave it to Fletcher before mentioning the close-following incident
to Fletcher. Vidaurri was never consulted by Williams about the incident and so
far as the record shows neither was Kelly consulted by Williams about the alleged
steering column violation. Kelly testified that after writing up his report, he gave it
to Williams or left it on Williams' desk.
On the basis of these two written reports, and after discussing the matter with
Respondent's Detroit counsel who were then visiting the Laredo facilities, Williams
prepared a discharge letter and on the following day summoned Morales to Kelly's
office, and in the presence of Kelly, Morales, and Respondent's bookkeeper-secretary,
Sasse, informed Morales that he was being discharged. He read to Morales the
discharge letter, the text of which is as follows:
On September 10, 1964, you were given notice that in the event you failed
to follow instructions, had an accident, or engaged in any other type of mis-
conduct, you would be terminated.
It has just been reported to me that on November 9, 1964 you failed to
follow written instructions that were posted on the dash board of C2289. Pur-
suant to these instructions, you were required to leave the steering wheel in the
top position. It was found that after you left the car, the steering wheel was
23 Williams testified that at the time of the accident , he was primarily concerned with
Morales ' injuries , that he knew Morales had a big family , that he felt sorry for him, and
that he gave him the benefit of any doubt concerning whether he was contributorily
negligent in connection with the accident.
UNITED STATES RUBBER COMPANY 573
in the center position. It was also brought to my attention that you participated
in unsafe conduct on November 9, 1964, by following too closely in violation
of safety rules.
Pursuant to the written notice of September 10, you are hereby terminated as
of November 10, 1964. Before you leave Proving Grounds today, please return
to Mrs. Sasse your I D. Card and clear up your uniform account.
Morales refused to accept the discharge letter He denied that he had followed too
closely on the highway and also that he had failed to put the steering column in the
up position. Williams insisted that he knew Morales had failed to properly position
the steering column because Kelly had gone "directly" over to Morales' car immedi-
ately after Morales had parked and had found the steering column improperly posi-
tioned.24 Williams refused to discuss the matter further because, as he explained at
the hearing, "I had already given him written notice and there was no use discussing
things in the past."
Thus, as in the case of Brewster, Williams summarily discharged Morlaes without
consulting the supervisors on the basis of whose brief written reports he purported to
act, and without giving Morales an opportunity to tell his side of the story.
If Williams had been willing to listen to Morales' side of the story about the
alleged close-following incident reported by Vidaurri, or had attempted to make an
independent investigation of the charge, he would have discovered that a serious
question existed as to whether Morales had in fact been following too closely.
On the day in question, Morales was driving at a test speed of 65 miles an hour
as the second in a three-car convoy, with Ponce ahead of him and Jimenez behind
him. At the time Supervisor Vidaurri passed Morales, motioned to him to drop
back, and pulled in between Morales and Ponce, Morales was, according to Vidaurri,
only about 100 feet behind Ponce.? According to Morales, he was between 800
and 1,000 feet behind Ponce; according to Ponce, Morales was between 3 and 6
blocks behind him; and according to Jimenez, he never saw Morales closer than
about 1,000 feet behind Ponce. Morales saw Vidaurri through his rearview mirror
as Vidaurri was approaching but did not consider his spacing was too close and did
not attempt to widen the distance between himself and Ponce until after Vidaurri
motioned for him to do so. I am convinced, and find, that at the most Vidaurri
could have considered the spacing between Morales' and Ponce's cars as only slightly
closer than he thought desirable. Vidaurri's "main duty," according to Williams'
September 17 notice to the employees, was "to be of aid to the test drivers and
instruct them in the proper method of test driving." But for what I am convinced
was a desire by Vidaurri to cooperate with Williams in finding a pretext for dis-
charging Morales-as I have found he did in Brewster's case-it seems reasonable
to assume that Vidaurri would have sought to aid Morales and Jimenez (who was
also a member of the Union's organizing committee) by discussing with them what
he believed to be the proper spacing rather than filing a written complaint against
them, as he did.
These was a wide variety of opinions even among Respondent's management
personnel as to the proper spacing of cars being tested on the highway. Briscoe,
Williams' superior from Detroit, testified that, in according to the National Safety
Council which he accepted as an authority, vehicles, for safe driving, should be
spaced a minimum of one vehicle length (about 18 feet) for every 10 miles per hour
the vehicle is traveling; this would be 117 feet apart for cars traveling at 65 miles
an hour, the regular highway test speed for Respondent's vehicles and the speed at
which Morales and other members of his convoy were traveling on the morning in
question. Briscoe testified that this would be the minimum for convoys but that it is
recommended that cars traveling in convoy should travel further apart , and that
24Kelly, however, testified that it was 3 or 4 minutes after Morales had parked his car
that Kelly looked at the steering column and found it in the center position. It is possible,
as Morales suggested, that after he left the car with the steering column in an up position
by the wash rack, the person who moved the car to change the tires could have left the
steering column in the position in which Kelly found it I do not regard it as necessary
to decide whether Morales did in fact fail to properly position the steering column, for
as pointed out in discussing a similar charge against Brewster, a number of other em-
ployees occasionally neglected to properly position the steering column of their cars and
Kelly testified that no one had ever been discharged for this reason. Even assuming that
Morales in fact failed to leave the steering column in the up position on the occasion in
question, I am convinced that such neglect was not a motivating factor in his discharge.
If this was true, Vidaurri-according to all standards about which there was testi-
mony-was himself engaging in an unsafe driving practice by driving so closely to the
lead car and Morales' car; but I do not credit his testimony in this respect.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks are required to travel a minimum of 500 feet apart. Respondent's written
instructions to the employees (Respondent's Exhibit No. 2) state: "When following
another car, ... keep at least 100 feet apart, this distance will be extended as speeds
increase.... Spacing of test cars will be somewhat greater and in line with estab-
lished procedures." Morales testified that he had been given different estimates by
different supervisors as to the proper spacing of test vehicles: that he was to use
his own judgment, stay about 800 feet apart, or about the distance between two
telephone poles. Ponce testified that he had been told different things by different
supervisors: that the cars should be five car lengths, two or three telephone poles,
a safe distance, or about 1,000 feet apart. Vidaurri testified that the spacing should
be about 1,000 feet; Supervisors Marlin and Fuller stated that the spacing should be
about one-fourth of a mile, that is, 1,320 feet; Supervisor Fletcher estimated that the
spacing should be about three-tenths of a mile, that is, 1,584 feet; and Williams
stated that it should be 1,000 to 1,500 feet or spaced, for example, with one car at
the headquarters gate, one car about seven-tenths of a mile beyond that at the pylon
on the highway, and one car in between-which would mean a spacing of about
1,800 feet between cars.
Thus, if Williams had taken the pains to investigate Vidaurri's charge against
Morales and had listened to Morales' side of the story-as he had insisted should be
done in Rocha's case, treated supra-he undoubtedly might have had grave mis-
givings about the accuracy of Vidaurri's report that Morales "was following too
close to the lead car," and would not likely have charged Morales with engaging in
"unsafe conduct," as he did in the discharge letter. I am convinced that Williams
was not interested in learning the truth about either of the November 9 reports he
received, and that he was interested only in finding a pretext to rid the plant of its
remaining most active union leader. I am also convinced that even at the time of
the gasoline spillage incident on September 9, Williams was seeking to build a
record against Morales and would have seized upon that incident-as he almost
did 26-as a pretext for discharging Morales but for the obvious triviality of that
offense.27
Respondent's revival of the stale accident incidents occurring during the first few
months of Morales' employment, and concerning which it did not attempt to assess
blame against him at the time they happened, is, in my view, only further evidence
of an attempt, initiated after Morales became a union leader, to build a case against
him. Respondent, moreover, as an apparent afterthought, raked up and assigned
at the hearing a still further purported reason for discharging Morales-the fact that
in July Respondent had received a letter from a hospital stating that Morales had
failed to pay some hospital bills. At the time of receiving the letter, Williams merely
had his secretary check with the hospital and advised Morales to try to pay the bills
a little at a time. This matter was not mentioned to Morales either at the time of
his layoff or of his discharge, and Respondent's action in spreading this matter upon
the record only reinforces my conviction that the reasons assigned for Morales'
discharge were pretextual.
2' Williams testified that he sought the advice of the Detroit office about firing Morales
because of the incident, was advised to treat Morales as he would be treated if the Union
were not in the picture, and finally decided only to give him a warning and a 3-day layoff.
21 In an attempt to magnify the seriousness of that incident, Williams with the support
of Assistant Manager Kelly and Supervisors Fuller and Fletcher, testified that drivers are
supposed to stay with the automatic nozzle and not leave it unattended even to wipe the
windshield or check the oil. This position, I find, is untenable for, as Supervisor Fletcher
conceded, the advantage of using a nozzle with an automatic cutoff is that it permits the
driver to leave the gas tank unattended while he performs other duties around the vehicle
while waiting for the gas tank to be filled. Williams further testified that drivers are not
supposed to clean butterflies off the radiator when on the gas island ; but, according to the
credited testimony of Morales, he never heard of any such instructions until after he
returned from his 3-day layoff. Moreover, Supervisor Fletcher testified: "To my knowl-
edge, they [the drivers] have not been told when to clean the butterflies nor where." He
added that an air hose away from the gas island has been installed for that purpose.
According to the uncontradicted and credited testimony of employee Garcia, this air hose
was installed subsequent to Morales' discharge. Finally, Williams testified that the
spillage created a fire hazard because if a nozzle were dropped on the concrete pavement,
it might create a spark and, besides, there were frequent visitors in the office about 200
feet away. Respondent argues in its brief that if one of these visitors should light a
cigarette or drop a match, a serious situation could develop. But there is no contention
that visitors are permitted on the gas island and surely Respondent does not suggest that
a visitor could throw a match or cigarette 200 feet.
UNITED STATES RUBBER COMPANY 575
I find that Respondent discharged Morales because of his support of, and leader-
ship in , the Union , thereby violating Section 8 (a) (3) and ( I) of the Act.
IV. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices , my- Recommended Order will require that Respondent cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged Sam Brewster and
Jesus Morales, in violation of Section 8 (a) (3) and (1) of the Act, my Recommended
Order will require that Respondent offer to each of these employees immediate and
full reinstatement to his former or substantially equivalent position , without prejudice
to his seniority and other rights and privileges , and that Respondent make each of
them whole for any loss of earnings he may have suffered by reason of the discrimina-
tion against him, by paying him a sum of money equivalent to the amount he
normally would have earned as wages from the date of the discrimination against
him to the date of the offer of reinstatement , less his net earnings during such period.
The backpay is to be computed on a quarterly basis in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 per-
cent as ascertained by the formula adopted in Isis Plumbing & Heating Co., 138
NLRB 716.
In my opinion , Respondent 's discharge of Brewster and Morales and its threats
of discrimination against other employees for exercising the rights guaranteed them
under the Act demonstrate a callous flouting of statutory restrictions which "go to the
very heart of the Act," as that phrase is used in N.L.R.B. v. Entwistle Mfg. Co., 120
F. 2d 532 (C.A. 4). My Recommended Order will therefore require Respondent
to cease and desist from infringing in any manner upon the rights guaranteed employ-
ees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. By threatening employees with loss of jobs for supporting the Union or selecting
it to represent them, Respondent has interfered with, restrained, and coerced them
in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.
2. By discharging employees Sam Brewster and Jesus Morales because of their
support of, and leadership in, the Union, Respondent has violated Section 8(a)(3)
and (1 ) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. The General Counsel has not established by a preponderance of the evidence
that Respondent violated Section 8 (a) (3) or (1) of the Act by discharging Armando
Villareal or Sabos Marcos Rocha, Jr.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record , and pursuant to Section 10(c) of the National Labor Relations Act,
as amended , it is hereby recommended that the Respondent , United States Rubber
Company, its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in United Rubber, Cork , Linoleum and Plastic
Workers of America, AFL-CIO, or any other labor organization, by discharging or
otherwise discriminating in regard to hire or tenure of employment of any employee.
(b) Threatening to discharge employees because they adhere to or engage in
activities in behalf of the above -named labor organization.
(c) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization , to form , join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activity for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to Sam Brewster and Jesus Morales immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges previously enjoyed by them, and make each
of them whole for any loss of pay he may have suffered by reason of the discrimina-
tion against him, in the manner set forth in the section of this Decision entitled
"The Remedy."
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due them.
(c) Post at its plant at Laredo, Texas, copies of the attached notice marked
"Appendix." 28 Copies of said notice, to be furnished by the Regional Director for
Region 23, shall, after being duly signed by Respondent, be posted by Respondent
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Respondent shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Decision, what steps Respondent has taken to comply herewith.29
In the event that this Recommended Order Is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and
Order."
2D In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:,
WE WILL offer Sam Brewster and Jesus Morales each immediate and full
reinstatement to his former or a substantially equivalent position, without preju-
dice to his seniority and other rights and privileges, and make each whole for
any loss of pay he may have suffered by reason of the discrimination against him.
WE WILL NOT discourage membership in or activities on behalf of United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any
other labor organization , by discharging employees or otherwise discriminating
in regard to hire or tenure of employment or any term or condition of employ-
ment of any of our employees.
WE WILL NOT threaten to discharge employees because they adhere to or
engage in activities on behalf, of the above-named Union.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed in Section 7 of the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above Union, or any other labor organization.
UNITED STATES RUBBER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify each of the above-named employees presently serving in
the Armed Forces of the United States of his rights to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. 228-4722,
Extension 4271.