Goodyear Tire & Rubber Co.

National Labor Relations Board - Administrative Judge Opinions

Mar 25, 2011

26-CA-023778 (N.L.R.B. Mar. 25, 2011)

JD(ATL)–04–11
Union City, TN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
GOODYEAR TIRE & RUBBER CO.
and CASE 26-CA-23778
MITCHELL JOHNSON, AN INDIVIDUAL
Christopher J. Roy, Esq., for the Acting General Counsel.1
John T. Billick, Esq., for the Respondent.2
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This is an interference with
employee rights case I heard in Union City, Tennessee, on January 24, 2011. The case
originates from a charge (and amended charge) filed by Mitchell Johnson, an Individual
(Johnson or Charging Party) on July 12 and September 15, 2010 respectively, against
Goodyear Tire & Rubber Co. (Company). The prosecution of this case was formalized
on November 22, 2010, when the Regional Director for Region 26 of the National Labor
Relations Board (Board), acting in the name of the Board’s Acting General Counsel,
issued a complaint and notice of hearing (complaint) against the Company.
It is specifically alleged Human Resources Specialist Mark Kitchen, in the plant,
in early June 2010, told an employee he was prohibited from wearing a shirt that stated:
“Union ‘til I retire, then scab in!” It is further alleged Supervisor Louis Davis, in the
plant, in early June 2010, threatened an employee with unspecified reprisals if the
employee wore a shirt that stated: “When I retire I will not scab. I will go fishing.” It is

1 I shall refer to counsel for the Acting General Counsel as counsel for the Government and to the
Acting General Counsel as the Government
2 I shall refer to counsel for the Respondent as counsel for the Company and I shall refer to the
Respondent as the Company.
JD(ATL)–04–11
2
alleged the Company’s actions violate Section 8(a)(1) of the National Labor Relations
Act, as amended, (Act).
The Company, in a timely filed answer to the complaint, denied having violated
the Act in any manner alleged in the complaint.5
The parties were given full opportunity to introduce relevant evidence, to examine
and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of the
witnesses as they testified and I rely on those observations in making credibility
determinations. I have studied the whole record,3 the post trial briefs, and the authorities 10
cited. Based on the detailed findings and analysis below, I conclude and find the
Company violated the Act substantially as alleged in the complaint.
Findings of Fact
15
I. JURISDICTION, LABOR ORGANIZATION STATUS, AND SUPERVISORY/AGENCY
STATUS
The Company is an Ohio Corporation, with a facility located in Union City,
Tennessee, where it is, and has been, engaged in manufacturing tires. During the 12-20
month period ending October 31, 2010, a representative period, the Company purchased
and received at its Union City, Tennessee facility goods valued in excess of $50,000
directly from points outside the State of Tennessee. During that same time period, the
Company sold and shipped goods valued in excess of $50,000 directly to customers
located outside the State of Tennessee. The evidence establishes, the parties admit and I 25
find, the Company is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
The parties admit, and I find, United Steelworkers, Local 878L is, and has been, a
labor organization within the meaning of Section 2(5) of the Act.30
It is admitted Plant Manager Perry Tennison, Human Resources Manager Tom
Gossett, Human Resources Specialist Mark Kitchen and Supervisor Louis Davis are
supervisors and agents of the Company within the meaning of Section 2(11) and (13) of
the Act.35
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
40
1. Background

3 Counsel for the Acting General Counsel’s unopposed Motion to Correct Hearing Transcript is
granted. The corrections are as set forth in the Motion which has been made a part of the record as
Judge’s Exhibit 1.
JD(ATL)–04–11
3
The Company opened its Union City, Tennessee facility in 1968 and has 47 acres
under roof. At various times the Company has employed approximately 1750 to 2000
employees and employs approximately 500 to 600 on its second shift. The plant is
divided into various departments, the largest of which is the tire room employing
approximately 150 to 200 employees. The tire room, as it’s name implies, is where the 5
tires are made. There are various other departments such as the shears, bias cutters,
shipping, receiving and, some what pertinent to this case, the banbury department. Raw
components are assembled and processed into flat rubber in the banbury department then
utilized throughout the plant in the tire building process. There are approximately 20 to
25 employees on second shift in the banbury department.10
The Company and Union have a long bargaining relationship beginning in 1968.
The parties’ most recent collective-bargaining agreement expires in 2013. According to
HR Manager Gossett, the bargaining relationship is currently the best it has been in the
past 40 years. The Company and Union have partnered on various projects that are 15
beneficial to the plant. The parties partnered on safety, profit sharing, production
standards and obtaining government money for training and other purposes.
A work stoppage occurred during contract negotiations in 2006. The employees
went on strike starting in October and ending December 31, 2006. The Company 20
continued to maintain production during the strike and a number of employees crossed
the picket line. Ten to 12 employees who crossed the picket line are still working at the
facility.
According to HR Manager Gossett, the Company has always encountered high 25
absenteeism during the summer months. The Company, as a result thereof, asked some
experienced retirees to return to work for a limited time in 2008. Gossett explained this
was one way for the Company to offset the increased absenteeism and make production
quotas on weekends. The Company hired 15 to 17 experienced retirees through Labor
Finders of Jackson, a supplier of temporary labor to companies. The Company advised 30
Local Union President Harry Alberg of the need for the retirees. The Union took no
adverse action nor did the Union file a grievance regarding the Company bringing in
retirees. Retired employee Norman Boucher, for example, worked 5 weekends building
tires in March/April 2008.
35
Pertinent to this case the Company again utilized experienced retirees to build
tires in 2010 during June/July and October, November, and December. The Company
discussed with Local Union President Ricky Waggoner, its needs regarding retirees for
tire building starting in May 2010. The Company followed up its dissuasions with
Waggoner in letters to him on May 20, July 8, and August 5, 2010. The retirees brought 40
back in 2010 came as employees of the temporary employee service company Hamilton-
Ryker. According to HR Manager Gossett, retirees were needed in the summer of 2010
because the Company was transitioning from one building equipment to another and in
the transition the Company could not train new employees quickly enough to allow it to
maintain daily production quotas. The Company utilized approximately 17 to 20 retirees 45
in 2010, the last of which left at the end of December. For example, retiree Norman
JD(ATL)–04–11
4
Boucher worked at the Company as an employee of Hamilton-Ryker during June and
parts of July 2010 building tires, whereas, retiree Richard Gephart worked building tires
in June and July as well as October, November, and December 2010. No retirees have
worked in the plant since the beginning of 2011.
5
The Company has had a zero tolerance policy since the facility opened in 1968.
The policy provides for “a work environment that is professional, respectful and free
from discrimination, harassment or violence.”
2. Government’s evidence10
The Union held a meeting at its hall of the second shift employees in March 2010.
Local Union President Ricky Waggoner informed members the Company was talking
with the Union about bringing in retirees to build tires. According, Danny Foy, who
attended the meeting, “a lot of [the] membership voiced our opinion against it.” 15
Waggoner said retirees would be brought back through a labor contracting service and he
did not know their rates of pay because he only negotiated wage rates for members but,
he figured the retirees rates would be around $24 per hour. Foy was frustrated because,
“union brothers that were new hires . . . was making $13 an hour. And I did not feel it
was right to bring people back in as contract labor making more money than my union 20
brothers paying dues.”
Foy attended the Union’s regular meeting in April for second shift employees at
the union hall. Local Union President Waggoner told the members the Company was
still planning to bring in retirees to build tires. Foy asked why retirees, and why the 25
Company did not hire new employees instead. Waggoner explained 568 employees had
accepted the April 2009 plant reduction buyout and the Company needed to meet
production in 2010 and was going to utilize retirees because there was not enough time to
train new tire builders and still meet production quotas. Foy made a motion the Local
Union send a letter to any returning retirees that the Local Union disapproved of their 30
returning as contract labor.
Foy met with employees Mitchell Johnson and Donnie Revel near the end of May
2010 to talk about retired employees returning to work as employees of a contract labor
employer. The three discussed their dissatisfaction with retirees, “coming back in and 35
working as a scab for contract labor.” Foy told Johnson and Revel he was going to have
a shirt made reflecting his dissatisfaction and frustration with the retirees’ returning to
work. Johnson likewise decided he would have a shirt made and they discussed what
should be on the shirts. Foy said his shirt would say, “When I retire, I will not scab, I’ll
go fishing.” The three ended their meeting.40
Foy had a shirt made near the end of May 2010. Printing on the shirt reads;
“When I Retire I will Not __ __ __ __ I’ll Go Fishing.” Foy, in large hand written
lettering, filled in the blank spaces with all capitalized letters “SCAB.”
45
JD(ATL)–04–11
5
Foy wore his printed shirt at work on June 1, 2010. During a company provided
hamburger dinner in the tire room on that date, Foy met, for the first time, new Plant
Manager Perry Tennison. Tennison said nothing to Foy about his shirt. However, about
45 minutes later, Tire Room Supervisor Louis Davis summoned Foy to his office. Foy
asked Davis if he would need a union steward and Davis said he would not, that “we’re 5
going to talk man to man.” Foy was okay with that. According to Foy, Davis asked him
to turn around so he could see the shirt and asked, “Do you think anyone might get
offended by that on your shirt?” Foy said he did not but Davis said people get offended
at lots of things. Foy then asked Davis if he thought retirees might take offense but Davis
did not respond. Foy explained he did not see how the retirees could get offended 10
because they did not work for the Company but worked for “Hamilton-Ryker Scab
Company.” Davis told Foy not to wear the shirt back into the plant for his own good.
Foy responded, he did not see anything wrong with his shirt, that he was a union man
who was frustrated about what was happening. Foy thanked Supervisor Davis for their
“man-to-man” talk and told him if he decided to wear the shirt back into the plant he 15
would cross that bridge when he got to it.
A short time later that same day, Foy told coworker Mitchell Johnson and union
steward Todd McCartney about his meeting with Davis. Foy has not worn the shirt in the
plant since Davis warned him because he “felt like [he] would be fired for 20
insubordination.” Foy never spoke to any of the retirees about the shirt; never made
threatening comments to them; was never involved in any fights or altercations with
them; never made any threatening gestures toward them and there was no interruption in
production in his department the day he wore the shirt.
25
Second shift shop steward McCartney testified Business Center Manager Tommy
Greer, the highest ranking management official in the tire room, asked him if he had seen
Foy’s shirt. McCartney told Greer he had the day before. According to McCartney,
Greer told him, “That shirt is not allowed in here. You need to tell him not to wear it;
that we have a zero tolerance in this plant. And you need to have a talk to Mr. Foy.” 30
McCartney told Foy about the conversation telling him he had talked with the Union and
“we didn’t feel like there was a problem with the shirt but, he needed to know all the
facts and make his own decision.”
Sixteen year banbury department employee Mitchell Johnson attended the regular35
union meeting at the hall in May 2010, at which Local Union President Waggoner spoke
about the Company bringing retired employees back to build tires. Johnson said he and
other coworkers were frustrated because new hire union employees at the Company were
paid $13 per hour, whereas, retirees being brought back through nonunion, Hamilton-
Ryker, were being paid $24 per hour.40
About a week after the union meeting, Johnson spoke with Foy and Donnie Revel
near the banbury department. They discussed having t-shirts made to wear in the plant.
Johnson had a shirt designed with the word “scab” on the front with a crossed out circle
on top of it and on the back; “UNION TIL I RETIRE, THEN SCAB IN.” Johnson wore 45
his shirt the second week in June for a full work shift. No supervisor or manager spoke
JD(ATL)–04–11
6
with Johnson that day about his shirt; however, Johnson’s immediate supervisor, Gideon
Fichu, observed Johnson wearing the shirt. The following day union steward Jeff
Williams told Johnson that HR Specialist Mark Kitchen had spoken with him about
Johnson’s shirt and told him Johnson “didn’t need to wear the shirt back in again that it
was a violation of the zero tolerance policy.”5
Upon learning of Kitchen’s comments, Johnson telephoned him the next day and
asked about his conversation with union steward Williams regarding the shirt. Kitchen
told Johnson he had relayed the position of the HR department to Williams. Johnson told
Kitchen, “I think my shirt’s fine.” Kitchen responded; “It violates our zero tolerance 10
policy. You’re creating a hostile work environment.” Johnson told Kitchen he did not
bring the retirees back into the plant, the Company did, and it was the Company that was
creating the hostile work environment. Johnson then told HR Specialist Kitchen, “Mark,
if you tell me not to wear that shirt, I will call the National Labor Relations Board.”
Kitchen said that was fine if that was what Johnson needed to do. Johnson then asked, 15
“So you’re telling me not to wear this shirt back in the plant again?” Johnson testified
Kitchen responded, “That’s exactly what I’m saying. Don’t wear it back in the plant
again” and ended their conversation.
After Johnson wore his shirt in the plant several coworkers asked if he would 20
have them one made. Johnson had 60 additional shirts made which he sold to coworkers.
When his coworkers asked Johnson if they should wear their shirts into the plant,
Johnson told them he had been told not to but added, if they did, it would be at their own
risk. Six or seven coworkers wore their shirts at the plant on various occasions up to and
including the Friday night before the trial. Johnson wore his shirt at work on two or three25
more occasions without any one from management mentioning it to him. Retirees were
working at the plant on the days Johnson wore his shirt. Johnson was never disciplined
for wearing the shirt. Johnson said there were no fights, altercations or threatening
gestures made at work nor was production interfered with as a result of his wearing his
shirt. Johnson wore the shirt because he wanted his fellow union members to see his 30
disgust with what was going on and for the retirees to see he did not approve of the
situation. Johnson said he wanted the retirees to be offended by what they were doing.
Employees have displayed or worn, at the plant, various union related stickers and
clothing for years and specifically since 2006. Foy displayed a sticker, “USW Local 35
878L I Would Never SCAB” on his truck parked in the company parking lot. The same
type sticker has been displayed inside the plant on hard hats, tool boxes, forklifts, lunch
boxes and the bicycles maintenance employees ride around the plant. According to Foy,
no one from management has spoken with employees about the stickers. Foy has worn a
shirt with the Union’s logo on the sleeve in the plant for years which also reads, “I would 40
never SCAB U.S.W.A. Local 878L.” Foy has been observed by management wearing
the shirt. Foy said several hundred other employees have worn this same type shirt for
years and as recent as the week before the trial. No company official has, to Foy’s
knowledge, ever spoken with any of the employees about wearing the shirts. Johnson
testified Supervisor Howard Nelson asked employees on more than one occasion, if they 45
JD(ATL)–04–11
7
wanted “to work with that scab today”, referring to an employee who had crossed the
picket line during the 2006 strike.
3. Company’s evidence
5
HR Specialist Kitchen notified HR Manager Gossett in June 2010 that employee
Johnson had worn a shirt at the plant that made reference to the returning retirees as
scabs. Gossett also learned Johnson was selling the shirts to coworkers and planned to
have a number of the employees bring them into the plant. Gossett concluded Johnson’s,
as well as Foy’s, printed shirts violated the Company’s zero tolerance policy which 10
provides for a workplace free from harassment, discrimination, violence and where
employees are to be treated in a professional manner. Gossett said one of the returning
retirees, Tommy Stewart, even complained about Johnson’s shirt.
HR Manager Gossett concluded Johnson’s and Foy’s shirts also violated the 15
Company’s dress code specifically the portion that prohibits “clothing with inappropriate
or offensive slogans, lettering, or symbols.” According to Gossett, Johnson, Foy and all
employees are trained annually on the Company’s zero tolerance and other policies which
help to protect the Company’s good name and image. Additionally, Gossett stated that if
little things at the Company are ignored they tend to escalate and could result in 20
disciplinary problems. Gossett specifically viewed Johnson’s and Foy’s shirts as
attempts at getting the retirees to leave the plant. Gossett explained that the difference
between the messages on Johnson’s and Foy’s shirts and those of other union related
messages worn on clothing or displayed in the plant was that the two messages, at issue
were directed at specific individuals namely the retirees whereas the other messages were 25
not. Gossett acknowledged employees wore caps, shirts, and jackets at the plant with
union logos. He noted that during negotiations for the most recent collective-bargaining
agreement employees wore shirts with the picture of a cobra with the message, “If
provoked, I will strike” and shirts which said, “I would never scab” on them.
30
Gossett said neither Johnson nor Foy was ever disciplined for wearing the shirts
in question at the plant. Gossett did not consider the messages on the shirts at issue to be
obscene or vulgar and the shirts did not direct employees to be violent or hostile toward
other employees, nor did the shirts disparage the Company’s products or call for a work
stoppage.35
HR Manager Gossett said that during the strike at the Company in 2006
temporary workers were hired from a temporary staffing agency to supplement salaried
employees and those who crossed the picket line to maintain production. During the 2006
strike there was an altercation involving a delivery driver for a supplier and a striker that 40
resulted in the striker being sent to the hospital with some pretty sever injuries. Some
incidents occurred after the 2006 strike ended. On February 12, 2007, James Pope
reported to his supervisor, Vince Youngquest, that he had observed graffiti on one of the
bathroom walls making reference to “Bonnie and Cowboy” who had crossed the picket
line during the strike. The graffiti referred to the two as scabs and included a racial slur. 45
HR Manager Gossett said “Bonnie” was Bonnie Moss and “Cowboy” was Greg Phelps
JD(ATL)–04–11
8
one of which was African American. A Company report of the incident indicates that
“[w]ithin an hour, the graffiti . . . [was] cleaned up [and] . . . gone.” Other incidents
included rolls of toilet paper placed in toilets causing overflows. David Weber reported
in March 2007, his tool box stolen and a personal fan “torn up.” Weber also complained
that the employee who worked at his same workstation but on the earlier shift left the 5
machine in disarray. Weber’s written complaint reflects the employee on the earlier shift
had admitted, thought not to Weber, he was leaving the area messed up because Weber,
admittedly, was a scab who crossed the picket line during the 2006 strike. In the report
Weber was asked what could be done about his machine being left in disarray. He
responded, “Nothing. I just came up here because I figured it would aggravate him to be 10
investigated.” HR Manager Gossett said employee Johnson Motley complained after the
strike, he was “having trouble getting the items he needed brought to him in the plant . . .
[and] . . . had some issues with his vehicle.” Motley’s written report dated May 17, 2007,
indicates a “chemical” of some kind was put in his vehicle’s gas tank. Motley crossed
the picket line during the 2006 strike. Gossett testified an employee reported he had lug 15
nuts loosened on his vehicle which he believed happened at work. Randy Garner filed a
written report with the Company on May 22, 2007, in which he indicated he had 5 lug
nuts on his pickup truck loose enough that he could tighten them by hand and he believed
the lug nuts may have been loosened at the plant. Garner and his wife both worked
during the 2006 strike.20
Retired tire builder Norman Boucher testified he returned to the Company as a
retiree for a period in the spring of 2008, and again in June 2010. Boucher recalled that
during his 2008 return to work Mitchell Johnson told him he was disappointed in his
being there. Boucher specifically recalled Johnson telling him “tire builder scabs were 25
coming in there and I shouldn’t be there.” Boucher saw but did not speak with Johnson
when he returned as a retiree in 2010. Boucher saw Johnson wearing the shirt at the plant
that made reference to retirees being scabs. Boucher did not, however, complain to the
Company about Johnson wearing the shirt.
30
Retired Employee Thomas Stewart returned as an employee of Hamilton-Ryker in
June 2010 and observed Mitchell Johnson in the tire room wearing a shirt that said
something about retirees and scabs. Stewart claimed Johnson had no business in the tire
room but acknowledged Johnson said nothing and his presence did not stop Stewart from
doing his work. Stewart further acknowledged Johnson made no threatening gestures 35
toward him or the other retirees. Stewart has seen shirts in the plant stating, “I would
never scab.”
Retired employee Richard Gephart built tires at the Company as a temporary
employee of Hamilton-Ryker in June and July and from mid-October to December 2010.40
Gephart observed Mitchell Johnson in the plant a few times in the summer of 2010 and
on an occasion saw Johnson wearing a shirt with “retirees and scabs” on it and other
words too small for Gephart to read at the distance he was from Johnson. Gephart said
the words retiree and scab made him feel “weary” because he did not consider himself a
scab. Gephart paid union dues even when he worked as a retiree. Gephart said Johnson 45
never made any threatening gestures toward him.
JD(ATL)–04–11
9
III. CREDIBILITY COMMENTS, ANALYSIS AND CONCLUSIONS
It does not appear there are any controlling credibility conflicts in the testimony
outlined and relied on. However, it is helpful to specifically address what might appear 5
to be a credibility conflict involving portions of the testimony given by employee Foy
and Supervisor Davis. Foy testified Supervisor Davis told him not to wear his, “When I
retire I will not SCAB, I’ll go Fishing” shirt back into the plant for his own good.
Supervisor Davis acknowledged, “I told Foy that the T-shirt he was wearing was maybe
offensive to some people and for him not to wear it back in the plant again”. However, 10
Davis immediately, thereafter, testified he never in any way threatened Foy about
wearing the shirt. To the extent it is necessary; I do not credit Davis’ denial of a threat. I
find Davis denial to be nothing more than his view on the meaning of the words he spoke
to Foy as credibly testified to by Foy.
15
I turn to the validity of the Company’s prohibition of the wearing of the two shirts
at issue. It is established the Company prohibited employee Johnson from wearing a shirt
stating, “Union ‘til I retire, then scab in!” and prohibited employee Foy from wearing a
shirt stating, “When I retire I will not scab I will go fishing.” I find the Company,
through Supervisor Davis, threatened Foy with unspecified reprisals for wearing his shirt 20
when he instructed Foy not to wear the shirt in the plant again for his own good. Davis’
statement makes it clear there will be adverse consequences, if Foy wears the shirt again
in the plant. I find the content of the messages reflected on the two shirts worn by
Johnson and Foy to be protected by the Act. The Board, with court approval, has long
held that in the absence of special circumstances employees have a Section 7 right under 25
the Act to wear insignia at work referring to unions or other matters pertaining to
working conditions for the purpose of mutual aid or protection. Midstate Telephone
Corp. 262 NLRB 1291, 1292 (1982), enf. denied 706 F.2d 401 (2d Cir. 1983); Boise
Cascade Corp., 300 NLRB 80, 82 (1990). Johnson and Foy were, by the messages on
their shirts, attempting to protest a tacit agreement between the Company and the Union,30
that the Company could bring back experienced retired employees on a short time basis
to fulfill a labor shortage. They were also protesting that the retired employees were
being brought back through Hamilton-Ryker, a nonunion supplier of temporary labor,
which labor (the retirees) would be performing bargaining unit work in the plant as
nonunion employees while being paid substantially more per hour than the newly hired 35
but untrained unit employees. It is reasonable to conclude and I do, that Johnson and Foy
were acting together to mobilize solidarity in an effort to discourage the retired
employees from participating in the nonunion retiree program and for support in favor of
the lower paid untrained unit employees. Foy for example testified, “I did not feel it was
right to bring people back in as contract labor making more money than my union 40
brothers paying dues.” The mere fact both messages utilized the word “scab” does not
remove the Act’s protection from Johnson and Foy in wearing the shirts. The Act’s
protection of employee rights extends to use of the word “scab” a common and well-
known reference to a person or firm who is nonunion or works during a strike. Boise
Cascade, supra, 300 NLRB at 82; Letter Carriers v. Austin, 418 U.S. 264, 282–287 45
(1974); Linn v. Plant Guard Workers, 383 U.S. 53, 60–61 (1966). In Linn the Supreme
JD(ATL)–04–11
10
Court noted the Board has allowed wide latitude to statements or expressions by the
parties in labor controversies and has concluded that scab is an epithet that is
commonplace and is not so indefensible as to remove the protection of the Act from the
use of it. For Foy and Johnson to associate the words, “scab” and “retire” on their shirts
does not somehow denigrate retirees but merely focuses the point of their message. I 5
note in this regard there is no evidence or contention that Foy and/or Johnson engaged in
any threats, violence, physical gestures or contact in the process of wearing their shirts
displaying the word “scab” and associating it with the returning retirees nor did it cause
any disruptions of production.
10
I turn next to the Company’s special circumstance contentions. An employer may
prohibit the wearing of union insignia or insignia regarding working conditions by its
employees if, and only if, the employer can demonstrate substantial evidence of special
circumstances that would outweigh the employees’ rights protected by Section 7 of the
Act. Special circumstances can include violence, interference with training or 15
production, or threats thereof, the instigation of disciplinary misconduct, disparaging the
employer’s products and/or services, interference with safety or unreasonable
interferences with the image the employer desires for its employees to project its
customers or suppliers. See e.g. Escanaba Paper Co. 314 NLRB 732 at 732–735(1994).
The employer bears the burden of proving special circumstances. W. San Dirgo 348 20
NLRB 372, 373 (2006). The special circumstance exception is; however, narrow and “a
rule that curtails an employee’s right to wear union insignia at work is presumptively
invalid.” E & L Transport Co. 331 NLRB 630 fn.3 (2000). General, speculative,
isolated or conclusively evidence of potential disruption to an employer’s operations does
not amount to special circumstances. Boise Cascade Corp., 300 NLRB at 82.25
Norman Boucher, who had worked for the Company for 40 years before retiring,
returned to the Company for work 5 weekends in the spring of 2008 as a retiree working
for a nonunion temporary labor supplier. Boucher testified Mitchell Johnson approached
him in 2008 and told him he was “disappointed” in Boucher’s being there and said “tire 30
builder scabs were coming in there” and told Boucher he should not be there. Boucher
was upset Johnson referred to him as a scab because he did not consider himself to be one
because he did not cross the 2006 picket line at the Company. Boucher again returned to
work in June and a portion of July 2010, working as an employee of a nonunion
temporary labor provider. Boucher saw but never spoke with Mitchell Johnson during 35
work in 2010. Boucher observed Johnson, on an occasion, “strutting down the aisle”
wearing a shirt making reference to retirees as scabs. Johnson’s wearing the shirt “upset”
Boucher because he did not consider himself a scab. Boucher, however, never
complained to anyone about Johnson’s shirt.
40
I accept Boucher’s description of his encounters with Johnson but conclude such
does not constitute special circumstance that would justify the Company prohibiting
Johnson from wearing his shirt in question in the plant in 2010. Johnson did nothing
more in 2008 than attempt to persuade Boucher not to work nonunion in the plant as a
tire builder. Johnson did not threaten Boucher in any manner. Nor does Johnson’s 2008 45
comments to Boucher establish or demonstrate lingering animosity by him in 2010. In
JD(ATL)–04–11
11
June and July 2010, Johnson never even spoke to Boucher nor made any threats toward
Boucher or the other retirees. Boucher, though being “upset” made no complaints to
management about Johnson’s shirt. Any contention by the Company that Johnson’s
actions in 2008 and 2010 continue to bring up the 2006 strike, or unfairly single out
retirees as scabs, and thus disrupt production or other problems is simply too speculative 5
to justify the Company’s prohibiting Johnson from wearing the shirt at issue. Clearly
Johnson’s shirt was not addressing the strike some 4 years earlier but was protesting the
use of nonunion laborers to build tires in the unionized plant. Stated differently, the
“scab” reference on Johnson’s shirt, and for that matter Foy’s shirt, was part of larger
messages containing the word “retire” and clearly referred to the nonunion retirees 10
working in the plant. It is highly unlikely that other employees understood the shirts to
reference the 2006 strike or any misconduct associated with that strike.
While there was some misconduct during and following the 2006 strike, such is
separated from the events by as much as 4 years. One incident in the 2006 strike sent a 15
striker to the hospital, however, it did not involve employees crossing the picket line but
rather was an exchange between a driver for a supplier and a striking employee. Certain
other incidents were reported to management beginning in 2007 and until May of that
year. On February 12, 2007, graffiti was observed on a bathroom wall that made
reference to two employees who had crossed the picket line as “scabs;” however, the 20
graffiti was cleared away within an hour and no one was disciplined as a result of the
incident; nor was there any evidence presented as to who may have been responsible for
the graffiti. There were, at about this same time, incidents where toilet paper was placed
in toilets causing overflows but again no showing as to who was responsible. Employee
Weber complained in March 2007 his tool box was stolen and a personal fan destroyed,25
however, no showing was established as to who was responsible. Weber also complained
his work area was left in disarray by an employee on an earlier shift and he had heard it
was because he was a scab. In May 2007, employee Motley complained some type of
chemical had been placed in the gas tank of his private vehicle. Employee Garner, at
about the same time, reported lug nuts had been loosened on his private vehicle. Garner 30
and his wife both crossed the picket line during the 2006 strike. However, no one was
ever disciplined for any of these incidents. Even assuming the incidents were strike
related, there is no showing the animosity that may have persisted after the strike against
those who crossed the picket line, continued to the time Johnson and Foy wore the shirts
in issue some 4 years later in 2010. The Company could not point to any specific 35
problems related to discipline or production caused by Johnson and Foy wearing the
shirts in issue. Johnson and Foy had no contact with the public or customers of the
Company. Employees had worn shirts with union insignia including the word “scab” for
years without anyone being disciplined for doing so. The Company’s perception that
Johnson intended to disrupt plant operations by persuading retirees to quit their jobs is 40
merely speculative and does not establish a true threat to disrupt production. The fact the
Company had a policy against harassment that might create a hostile work environment is
no defense. Where as here, there were no threats, the Company cannot enforce its broad
restrictions to compel compliance with a zero tolerance and/or dress policy which
interferes with the Section 7 rights of its employees. Escanaba Paper Co. 314 NLRB 45
JD(ATL)–04–11
12
732, 734 (1994). In sum, I find the Company has not shown special circumstances which
would support a ban of the shirts in question with messages protected by the Act.
I find prohibiting Johnson and Foy from wearing the shirts at issue and
additionally by threatening Foy with unspecified reprisals, the Company violated Section 5
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce within the meaning of 10
Section 2(2), (6) and (7) of the Act.
2. By telling an employee he was prohibited from wearing a shirt stating:
“Union ‘til I retire, then scab in!” and from prohibiting an employee from wearing and
threatening the employee with unspecified reprisals if the employee wore a shirt that 15
stated: “When I retire I will not scab. I will go fishing” the Company engaged in unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act
and violates Section 8(a)(1) of the Act.
REMEDY20
Because I have found the Company has engaged in certain unfair labor practices, I
find it must be ordered to cease and desist and to take certain affirmative actions designed
to effectuate the policies of the Act.
25
ORDER
The Company, Goodyear Tire & Rubber Co., its officers, agents, successors, and
assigns, shall
30
1. Cease and desist from
(a) Prohibiting its employees from wearing shirts reading, “Union ‘til I
retire, then scab in!”
35
(b) Prohibiting its employees from wearing and threatening its
employees with unspecified reprisals if they wear shirts reading “When I retire I will not
scab. I will go fishing.”
(c) Prohibiting employees from wearing articles of clothing with 40
messages pertaining to the exercise of activities protected under Section 7 of the Act.
(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act.45
JD(ATL)–04–11
13
2. Take the following affirmative action necessary to effectuate the policies
of the Act.
(a) Within 14 days after service by the Region, post at its Union City,
Tennessee, facility copies of the notice marked “Appendix.”4 Copies of the notice, on 5
forms provided by the Regional Director for Region 26 after being signed by the
Company’s authorized representative, shall be posted by the Company and maintained
for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, posting on an intranet or an 10
internet site or other electronic means, if the Company customarily communicates with
its employees by such means. Reasonable steps shall be taken by the Company to ensure
that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Company has gone out of business or
closed the facility involved in the proceedings, the Company shall duplicate and mail, at 15
its own expense, a copy of the notice to all current employees and former employees
employed by the Company at any time since June 1, 2010.
(b) Within 21 days after service by the Region, file with the Regional
Director for Region 26 a sworn certification of a responsible official on a form provided 20
by the Region attesting to the steps that the Company has taken to comply.
Dated Washington, D.C., March 25, 2011
25
_____________________________
William N. Cates
Administrative Law Judge

4 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board”.
JD(ATL)–04–11
14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell you that you are prohibited from wearing shirts at work that state “Union
‘til I retire, then scab in!’”
WE WILL NOT tell you that you are prohibited from wearing nor will we threaten you with
unspecified reprisals if you wear shirts at work that state “When I retire I will not scab. I will go
fishing.”
WE WILL NOT interfere with restrain, or coerce our employees by prohibiting them from
wearing articles of clothing with messages pertaining to the exercise of activities protected under
Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
GOODYEAR TIRE & RUBBER CO.
(Employer)
Dated: ____________________ By: _______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Brinkley Plaza Building, Suite 350, 80 Monroe Avenue, Memphis, TN 38103-2416
(901) 544–21001860, Hours:8:00 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
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. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (901) 544–0011