Goodyear Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 539 (N.L.R.B. 1968)

GOODYEAR TIRE & RUBBER CO. 539
Goodyear Tire & Rubber Company and United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO. Case 8-CA-4584
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
March 20, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 27, 1967, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiiner 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 Respondent's excep-
tions and supporting brief, and the entire record in
the case, and hereby adopts the findings,' conclu-
sions,' and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, The Goodyear Tire &
Rubber Company, Akron, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
LEO F. LIGHTNER, Trial Examiner: This proceed-
ing was heard before me in Akron, Ohio, on August
15 and 16, 1967, on the complaint of General
Counsel, as amended, and the answer, as amended,
of The Goodyear Tire & Rubber Company, herein
called the Respondent.' The complaint alleges
violations of Sections 8(a)(3) and (1) and 2(6) and
(7) of the Labor Management Relations Act, 1947,
as amended, 61 Stat. 136, herein called the Act.
The parties waived oral argument and briefs filed
by the General Counsel and Respondent have been
carefully considered.
Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation and maintains
its principal offices in the city of Akron, Ohio.
Respondent operates plants in numerous States of
the United States, including plants located in
Akron, Ohio, and is engaged in the manufacture
and sale of various rubber products. Annually, a
representative period, in the course and conduct of
its business operations, Respondent ships products
valued in excess of $50,000 directly to points out-
side the State of Ohio. The complaint alleges, the
answer admits, and I find, Respondent is, and at all
times material has been, an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Wor-
kers of America, AFL-CIO, herein called the
Union , is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
' These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which the Respondent has ex-
cepted After a careful review of the record, we conclude that the Trial Ex-
aminer's credibility findings are not contrary to the clear preponderance of
all relevant evidence Accordingly, we find no basis for disturbing those
findings Standard Dry Wall Products, 91 NLRB 544, enfd 188 F 2d 362
(CA 3) -
' We find it unnecessary to decide whether Respondent violated Section
8(a)(3) as well as 8(a)(1), inasmuch as the remedy for the violation ofSec-
tion 8(a)(3) would be the same as for the violation of Section 8(a)(I) Ac-
cordingly, we do not adopt the Trial Examiner's comments as to an 8(a)(3)
violation
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respon-
dent : ( 1) as more fully set forth in the complaint,
engaged in activity in contravention of the provi-
sions of Section 8(a)(1) of the Act , by interfering
with, restraining , or coercing its employees in the
exercise of rights guaranteed in Section 7 of the
Act, by ( a) instituting wage increases , on or about
' A charge was filed on April 27, 1967, and an amended charge was-filed
on June 9 , 1967 A complaint was issued on June 9, 1967, and amended at
the opening of the hearing herein
170 NLRB No. 79
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 16, 1967,2 and again on a date alleged to
have been between August 1 and August 10, and
instituting a uniform allowance, in an attempt to
hinder, interfere with, and forestall the efforts of
the beneficiary employees, employed as nurses at
its Akron, Ohio, plants to engage in protected or
concerted activities, or (b) the conduct of Respon-
dent's agent and supervisor, Dr. C. A. Johnson, in-
terrogating employees with respect to their union.
activities and sympathies, threatening economic
reprisals should they persist in said activities, or
promising economic benefits should they refrain
from such activities, on approximately March 30,
April 1, April 14, and May 12, or (c) Respondent's
agent and supervisor, Helen T. Redman, superin-
tendent of nurses, interrogating employees with
respect to their union sympathies and activities, on
approximately March 20, or (d) Dr. C. A. Johnson,
on approximately April 16, in a meeting with the
employee nurses announcing that Respondent had
adopted a plan providing for wage increases in
May, June, and the fall, but that said plan was
abandoned and the wage increases would be
withheld by reason of the employees interest in and
activity on behalf of the Union, or (2) engaged in
activity in contravention of the provisions of Sec-
tion 8(a)(3) and (1), as more fully set forth in the
complaint, by maintaining in force and effect a
noncontributory retirement plan, a retirement an-
nuity plan, and a noncontributory group insurance
plan, including group life and accidental death and
dismemberment insurance for salaried employees
which restricted eligibility to employees who "are
not represented by a collective bargaining represen-
tative." Respondent does not dispute the existence
of the enumerated plans or the existence of the
restrictive eligibility language, but denies the com-
mission of any unfair labor practice.
Supervisory Personnel
The complaint alleges, the answer admits, and I
find, that Dr. C. A. Johnson, medical director, and
Helen T. Redman, superintendent of nurses, are
each supervisors within the meaning of Section
2(1 1) of the Act, and agents of Respondent.
Background
Respondent employs approximately 30 nurses in
some 6 hospitals , which it maintains at its various
plants, all of which are located in the Akron, Ohio,
area. These are plant hospitals. Some of these
nurses rotate between the plant hospitals ; others do
not. While the Union , Charging Party herein,
represents a number of Respondent 's production
and maintenance units, that unit at the Goodyear
Aerospace plant is represented by UAW.'
R All of the events herein occurred in 1967, with the exception of certain
events in December 1966, the latter being so noted infra
8 International Union, United Automobile, Aerospace and Agricultural
In the latter part of January 1967 an unspecified
number of nurses received authorization cards,
through the mail, from UAW, and an unspecified
number executed and returned said cards. Jean
Margaret Gray, one of those who signed an
authorization card, related that she was a member
of the organizing committee. Thereafter, on an un-
specified date in April, the nurses substituted the
Union herein as their authorized representative.
Gray identified a Mrs. Rader as the first nurse to
sign an authorization card, and related that Rader
exhibited the letter from the Union to Superinten-
dent of Nurses Redman, advising Redman that
Rader had returned her card to the Union. This
event was near the end of January.'
On March 21, the UAW advised Respondent by
letter that it was engaged in an organizing effort, on
behalf of the nurses, and, inter alia, identifying
members of an organizing committee. The letter
was received on March 23.
Prior to any organizational activity and, accord-
ing to Dr. Johnson, without any request having
been communicated to him by any of the nurses, he
initiated a canvas of the nurses to ascertain their
desires relative to a uniform allowance. The past
practice had been that Respondent would provide
laundering which, however, was limited to cotton
uniforms. An unspecified number of nurses were no
longer using cotton uniforms, but had substituted
jersey, nylon, or rayon. While only cotton uniforms
were laundered, there was no requirement that only
cotton uniforms could be worn. In December 1966,
Dr. Johnson distributed a questionnaire in which
the nurses were requested to indicate which of
three alternatives they desired: (I) Respondent
would continue providing laundry service; (2)
(Respondent would) arrange a rental system; or (3)
the establishment of an allowance to cover the cost
of uniforms. The assertion of Johnson that the
majority indicated a choice for a uniform allowance
is undisputed. Gray related that the nurses were
subsequently notified as to how many had voted for
a uniform allowance and how many against it, and
this information was supplied in December 1966.
Johnson acknowledged that there had been no indi-
cation of any amount being involved, and it is
reasonable to infer that no effort was made, at that
time, to ascertain an approximation of the average
annual expenditure of each nurse for this purpose.
Interference, Restraint, and Coercion
With a single exception, in which Superintendent
of Nurses Redman was involved, all of the allega-
tions of the complaint and evidence relative to con-
duct alleged to have been in derogation of Section
8(a)(1) of the Act, exclusive of retirement, in-
Implement Workers of America , AFL-CIO
' Redman did not appear as a witness, and no explanation appears in the
record relative to her failure to appear
GOODYEAR TIRE & RUBBER CO.
surance, and other plans, considered infra, is at-
tributed to Dr. Johnson.
Helen T. Redman
It is alleged that on or about March 20 Redman
engaged in unlawful interrogation.
Nina McBride, who has been employed by
Respondent as a nurse for more than 10 years,
credibly related that she had attended a union
meeting at Motor Inn, on March 19, and had a con-
versation with Redman the following morning at
plant 1, about 7 a.m. Redman asked McBride if she
had attended the meeting the prior day and was ad-
vised, by McBride, in the affirmative. Redman then
inquired if they "had a good turnout," and was ad-
vised in the affirmative. Redman then advised Mc-
Bride, "I think you girls are making a mistake:"
McBride responded that maybe they were making a
mistake, but they had tried alone to do something
and had not succeeded and felt they needed some
help from the outside as the only thing left for
them to do. Redman then asserted, "I believe you
girls should have tried your own professional or-
ganization first."' By way of explanation, McBride
asserted that she had had conversations with Dr.
Johnson, on more than one occasion in the latter
part of 1966, during which she called his attention
to the fact that the nurses in the Akron hospitals
had obtained pay raises, and during which she re-
lated a request, on behalf of herself and other nur-
ses, to Dr. Johnson for the consideration of wage
raises.
Dr. Johnson
The evidence establishes that Dr. Johnson held a
series of conferences, with individual nurses, com-
mencing in late March and continuing into early
April, held a meeting with a number of the nurses,
at the request of the nurses, on Sunday, April 16,
had other individual conferences, and made state-
ments relative to wage raises, the abandonment of a
"pay plan," and, in August, the granting of wage in-
creases and the establishment of a uniform al-
lowance. These events are so interwoven that
separation would be needlessly cumbersome. Ac-
cordingly, an effort is made to set them forth
chronologically.
The testimony of Dr. Johnson, even if the
testimony of General Counsel's witnesse86 was
disregarded, permits a reasonable inference that he
held individual conferences with each of Respon-
5 I have noted, supra, that Redman did not appear as a witness The
testimony of McBride , whose demeanor I find impressive, stands unchal-
lenged
' Five nurses, with the indicated varied periods of employment by
Respondent, appeared on behalf of General Counsel They were Jean Mar-
garet Gray, 11-1/2 years, Nina McBride, 10-1/2 years, Carolyn Marie
Fahrenback, 5 years, Ruth Marie Ebenhart, 2-1/2 years, and Barbara Ann
Carr, 2 years
' It is undisputed that a raise of $25 a month was placed into effect as of
541
dent's nurses, either in late March or April, to
ascertain their attitudes and views relative to the
subject matter next set forth.
Fahrenback credibly related a conversation she
had with Dr. Johnson, at plant I in the latter part of
March. Johnson opened the conversation by advis-
ing Fahrenback that he was calling each of the
nurses in, individually, since he knew they had "com-
plaints" that he wanted to discuss with each of
them. He inquired as to whether Fahrenback was
getting along with the other nurses, and was advised
in the affirmative. He then inquired if she was
satisfied with her present earnings , and Fahrenback
responded that she was managing with what she
was getting but would like more and could use
more. Johnson then related that she had received a
raise in February,' and that Respondent had plans
to give periodic raises during 1967, in April and an
across-the-board raise in June,' and a further raise,
probably in September, as a result of which some of
the girls would receive a total of as much as $90 a
month increase in wages. Johnson then went on to
explain, however, "with things as they were they
would have to drop these plans right now."
Fahrenback related that they discussed the uniform
allowance. Johnson advised her that he had been
considering establishing a uniform allowance but
had not been able to decide on how much the al-
lowance should be and that he would take this into
consideration as soon as possible. Johnson then
inquired, according to Fahrenback, "if my benefits
meant anything to me." She explained they did as
she was self-supporting. Johnson then advised her,
"Well, you know that if this goes through you're
going to have to negotiate for your benefits."
Fahrenback explained that the discussion of
benefits related to her participation in the pension,
retirement, and insurance plans. Fahrenback
acknowledged that Johnson did not specify what he
was referring to when he made the statement, "If
this goes through," however, I find it reasonable to
infer that the only matter pending disposition, to
which he could have referred, was the organizing
effort.
McBride placed the time of her conversation
with Johnson as Friday, March 31, about 2:15 p.m.
in Johnson's office. Johnson advised McBride that
he was talking to all of the nurses individually, and
she responded that she was aware of this fact. John-
son then advised McBride that he desired a talk
over the "problems" that the girls might have in
relation to their work. Johnson then inquired where
McBride's husband was employed and if he be-
February 15, but not included in the paychecks until the paycheck of
March 15.
s It is undisputed that historically, after Respondent completed its
negotiations with the production and maintenance units , and it may be in-
ferred that these relate in large part to units represented by the Union
herein, the nurses, as well as other nonrepresented employees, were given
some equivalent raises to maintain a degree of comparability These annual
increases are thus distinguishable , in terms of past practice , from the other
raises granted to the nurses herein, as reflected in this record
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longed to a union at his place of employment. Mc-
Bride supplied the requested information and ad-
vised that her husband did belong to a union. John-
son then observed that McBride's husband
probably had benefits which would also cover Mc-
Bride, and she verified the accuracy of this assump-
tion. Johnson then related, "then we won't go into
the discussion of benefits because perhaps you are
not interested in them." McBride confirmed the ac-
curacy of this assumption. Johnson next inquired as
to how McBride learned of the February 15 raise,
and McBride responded that Mrs. Redman had so
advised her.-Johnson then related that the Com-
pany had a plan to raise the nurses' salaries with the
first stage being the February raise and further
raises were to be granted in April, June, and Au-
gust .9 McBride then inquired as to why they were
not advised of this plan for raises, prior to this time,
and Johnson responded that it was not company
policy to inform employees on matters of that type.
McBride then advised Johnson, "In this circum-
stances that was unfortunate because had the girls
known that we were going to receive these wage in-
creases that this union activity would never have
begun." Johnson responded that he realized they
had had poor communications in his department,
and that this would be taken care of in the future.
Johnson also advised McBride, "Of course, at this
time-the raise plan will have to be shelved because
to issue the raises at this time would constitute a
violation of the National Labor Relations Act."
Johnson then asked McBride if she was lacking
anything in the way of supplies or had any difficul-
ties or personality problems with any of the other
nurses. McBride acknowledged that, during the
conversation, she mentioned that after the first
meeting she was a member of the organizing com-
mittee. Johnson's response was that he was sur-
prised to see her name on the organizing list.1°
Ebenhart, while working at night in early April,
possibly the 4th or 5th, was requested by Dr. John-
son to come to his office after she completed her
duty. Ebenhart credibly related that Johnson ad-
vised her that he was talking to all of the nurses in-
dividually about the things that were making them
unhappy, Johnson advised her that the pay increase
in February was the first of the pay increase pro-
gram, that a second raise was scheduled for April,
another in July, and another in the fall; however,
they could not go ahead with the plan.tt Ebenhart
asserted that she asked Johnson what the nurses'
position would be if the union activity was dropped,
and Johnson responded if the union activities were
dropped "that this would have to be reconsidered."
Johnson inquired as to how much Ebenhart spent
on uniforms, advised her that there had been no
0 I find the August date recited is a case of bad memory and that more
likely either the words September or fall, as the evidence from other wit-
nesses indicates, were probably used
10 I find of no consequence McBride's recitation that in the latter part of
1966 she inquired of Johnson if there was a possibility of obtaining raises
decision as to what the amount of the uniform al-
lowance should be and that it was impossible to go
ahead with the uniform allowance at that time.
Johnson also inquired if Ebenhart believed that the
organizing committee would be willing to meet with
him as a group, to which she responded, that she did
not know, "but doubted it very much." Johnson
also advised Ebenhart that he realized that a lot of
the discontent was apparently due to poor commu-
nications, that he was sorry about this, and would
try to do better in the future. Johnson advised
Ebenhart that if the nurses went ahead with the
union organization that they would have to
renegotiate all of their fringe benefits. Johnson
inquired why the nurses had not come to him rela-
tive to pay increases. Ebenhart asserted she
responded that the reason she had not come to him
was that it seemed useless, that the girls, in-
ferentially those who had talked to Johnson, had re-
ported previously that he said there was no money
in the budget, and that she felt if this was the only
story they would get there was no sense wasting her
time to talk about the same thing. Ebenhart as-
serted Johnson made no response. Johnson also
inquired as to the nature of complaints about work-
ing conditions. In response, Ebenhart advised him
that one complaint was in relation to the vacation
schedule, another problem was scheduling of work
hours, which were not posted sufficiently in ad-
vance, and there was also a complaint about park-
ing facilities at plant B. Ebenhart asserted that,
commencing in May, the timesheets scheduling
work were posted 2 weeks in advance, as distin-
guished from the Thursday of the week preceding
the work schedule, and, in July, the nurses who
parked at plant B were advised if the chain was up
they could go to the gate house and have the guards
remove the chain for them, and arrangements were
made for the parking space.,Ebenhart credibly re-
lated that she had discussed the timesheet situation
with Dr. Johnson at least a year previously with no
effective action being taken in the interim. _
Gray placed the date of her conversation with
Dr. Johnson as being approximately April 10, in the
office of Dr. Kessel at the Aerospace Plant
Hospital. Gray credibly related that Johnson ad-
vised her that there had been a master plan "formu-
lated in February to grant raises in April, June, and
September," but, Johnson explained, "now, we
can't go through with this." Johnson also inquired
as to how many uniforms and how many-pairs of
shoes Gray purchased in a year and requested a
rough estimate on what she spent a year for these
items, asserting he had planned to give the nurses a
uniform allowance. Gray also related that in his 3
years as medical director, the series of interviews
for the nurses and was subsequently advised by Johnson that there was not
enough money in the budget.
11 Ebenhart asserted that Johnson did not state that the reason for
Respondent's inability to effectuate the pay plan was related to the union
activity
GOODYEAR TIRE & RUBBER CO.
which Johnson held in March and April were the
only time he conducted such a series of interviews
with the nurses.
Carr credibly related the events which occurred
at a meeting on company premises at plant 1 on
April 16, at which Dr. Johnson and approximately
19 or 20 nurses were present. It is undisputed that
the nurses requested this meeting. Carr related that
Johnson mentioned the fact that he had held in-
dividual conversations or conferences inferentially
with all of the nurses and regretted the apparent
lack of communication between himself and the
nurses. Johnson then advised the group that the pay
raise which they had received in March, effective as
of February 15, was just the beginning of a pay plan
that the Company had proposed; however, since
nothing had been said about it previously, they
thought it would be an unfair labor practice if they
went ahead with the pay plan which contemplated
addi,tonal raises in April, July, and in the fall. Carr
asserted that Johnson explained that since the
union activity had started and there had been no
announcement of the contemplated pay plan, the
Company felt they could not proceed with the pay
plan. During a question-and-answer session Carr as-
serted that one of the nurses advised Johnson that
she had been at a union meeting, that she had been
advised there by a union representative that the
nurses would not lose any of their benefits; how-
ever, in Respondent's booklets, which each salaried
employee received when hired, it stated that these
benefits were for "non-bargaining unit personnel,"
and she wondered if the nurses would lose these
benefits by becoming bargaining unit personnel.
Carr credibly related that Johnson responded that
he had talked to Plant Manager Ball, and he (John-
son) was under the impression that the nurses
would have to go back to scratch and renegotiate
all their benefits, that these different plans, i.e.,
pension plan , life insurance, etc., were with private
insurance companies , and that they would have to
negotiate with the private companies. One of the
nurses inquired whether the Company would go
ahead with the pay plan if the union activity were
to cease. Carr related that Johnson asserted that if
the union activity was resolved or ceased he saw no
reason why the Company would not go ahead with
the pay plan. Johnson, acknowledging that he was
not 'very clear" about a lot of things, advised that
if the nurses wished questions clearly defined that
they could call Mr. Ball, or one of the company
lawyers, and have a meeting with them to discuss
some of these points.
Carr credibly related that she had a conversation
with Dr. Johnson in his office on May 12 about 4
p.m. Carr related that Johnson advised her that
since she had been at the April 16 meeting there
was not too much more to discuss, since she had
been at the meeting and most of the matters were
12 I find of no consequence Johnson's explanation that this information
was requested by Respondent's tax department, from whom Johnson had
543
discussed at that time. Johnson then asked Carr,
"whether I felt that the nurses needed a union."
Carr responded that she thought they did. Johnson
then advised that he was sorry that the nurses were
losing out on the pay raise, that with the union ac-
tivity the Company could not go on with the pay
plan that they had planned on or were trying to
start. Johnson then asserted that he had not heard
too much of the union activity recently and won-
dered if the Union had filed a petition for an elec-
tion. Carr responded that she thought it had been
filed. Johnson then asked Carr how she felt the
union activity had affected the nurses. Carr
responded that she felt that the majority of the nur-
ses had been brought closer together "in their feel-
ing of togetherness and working together for one
thing."
Dr. Johnson's version of these events, which I
find is confused as to some aspects, and self-con-
tradictory as to others, is not at substantial vari-
ance, in most respects, with the recitations of
General Counsel's witnesses, as related. The varia-
tions, as well as the corroborations, are next con-
sidered.
Johnson asserted that after the December poll
relative to uniforms, he did not individually or col-
lectively discuss with the nurses a uniform al-
lowance. He asserted that, however, in March and
April as he talked to each of the nurses he did
inquire as to the amount each nurse spent for
uniforms and shoes.12
Johnson asserted that at the meeting of April 16
the questions, which he asserted he tried to answer
to the best of his ability on the basis of the informa-
tion he had, treated mainly with fringe benefits. He
then asserted that his information was "to the effect
that it was my understanding that these things were
all subject to negotiations." Johnson further ex-
plained that he understood there were some dif-
ferences in the insurance plans for those who were
members of bargaining units as distinguished from
those who were unrepresented salaried employees.
Johnson acknowledged that he might have stated
that these benefits would have to be negotiated
between the employees and the private insurance
companies. Johnson acknowledged that at the
meeting he did review "the wage adjustment plans
we had at that time," that he advised the nurses
what the plan was, that it called for increases in
February, April, a general, increase in June, and a
further adjustment in September. He described the
"general increase" as the increase based on the
result of contract negotiations for the represented
employees on the basis of past practice.
Johnson's explanation of the purported "pay
plan" was confused and unconvincing. Johnson,
who acknowledged he had been employed at
Goodyear for 13 years and medical director for 3
years, acknowledged he had no prior dealing with
requested information as the best method to handle the matter in relation
to its income tax implications
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage arrangements and had never previously been
engaged in any discussion with administrative en-
gineering to set up a wage program similar to the
one he asserted had been approved, or at least
represented to the nurses that a plan had been ap-
proved. Initially, Johnson asserted that in the latter
part of January he received a call from administra-
tive engineering indicating that they had been ad-
vised of some additional increases in the nurses
salaries for local hospitals, following which he had
discussions with administrative engineering person-
nel to determine "how we could go about it and to
determine the amounts." Subsequently Johnson as-
serted that he had checked with administrative en-
gineering and determined, through them, that the
Akron city nurses had received a pay raise. Johnson
asserted this pay raise was in the amount of $50 a
month. Johnson described administrative engineer-
ing as having, among other functions, a section
which keeps tab on salaries and wage levels, and as-
serted that there were some discussions with ad-
ministrative engineering as to the amount and the
procedure. Johnson asserted that he and adminis-
trative engineering determined what the ap-
propriate amount should be and what would be
recommended. Later, Johnson asserted that ad-
ministrative engineering does not approve raises,
"it is simply worked out with them." Johnson then
explained that it was necessary for him to fill out a
card proposing the pay raise and have it approved
by Nelson Ball, vice president of industrial rela-
tions. In February, Ball did approve the February
15 increase in the amount of $25 per month. John-
son acknowledged that he was not seeking approval
at that time of anything other than the February in-
crease, but "in his own mind" was contemplating
additional increases later. In late March, while Mr.
Ball was out of town, Johnson prepared a similar
card for an approval of a further increase of $25 a
month, to be effective April 15, and submitted it to
Mr. Dupre, executive vice president, the superior of
Mr. Ball, who refused to approve the increase.
Johnson acknowledged the first time he mentioned
his plan, for three or four increases to the nurses,
was when he called them in to talk to them in-
dividually, commencing in March, and that he did
discuss it at the April 16 meeting. Asked if he had
stated to the nurses in March and April whether or
not these contemplated subsequent pay raises
would be granted or held in abeyance, Johnson first
responded that, in view of the fact that Mr. Dupre
had not signed the cards, "we would not be able to
proceed with the granting of the April increase."
He then acknowledged that in the process of trying
to get this pay increase approved, he was advised
"Carr related that when she was first employed she was advised she
would receive a wage increase each 6 months, for the first 18 months
"Somewhat at variance with what has been set forth, Johnson
acknowledged the increases granted the Akron city hospital nurses in
January or early February amounted to $50 a month increase Johnson as-
serted he did discuss the amount of increase proposed in his "pay plan" and
that there was a possibility that they could be
charged with an unfair labor practice if they
proceeded and he did state this to the nurses as a
reason for holding up the pay raises.
Johnson did not recall, and did not deny, advising
the nurses that if they wanted more definite infor-
mation about benefits that he would arrange a
meeting with Mr. Ball or company attorneys. John-
son acknowledged having a discussion with Carr,
but did not recall asking her if she thought the
nurses needed a union or if the Union had filed a
petition for an election. Johnson did not deny the
other comments attributed to him by General
Counsel's witnesses.
It is undisputed that the nurses who testified
herein, Carr, Gray, Ebenhart, McBride, and
Fahrenback, each received a telephone call from,
or had a personal conversation with, Dr. Johnson
on various dates between August 1 and August 7,
advising them that they were receiving an addi-
tional increase of $51 a month, of which $26 was
attributable to a "general increase" resulting from
the outcome of the union negotiations, and
Ebenhart related that Johnson advised her that the
other $25 resulted from a decision "to go ahead
with the wage increase program." Several of the
nurses asserted they were not due for a merit in-
crease or a normal periodic increase, the latter ap-
plying inferentially during the first 18 months of
employment.13 Each of these nurses also received a
letter dated August 1 advising of the institution of a
uniform allowance in the amount of $100 a year
payable quarterly, commencing retroactively to
July 1, 1967. Fahrenback related that the previous
wage increases had been announced by Superinten-
dent of Nurses Redman , not Dr . Johnson.
Johnson asserted the additional $25 wage in-
crease, effective July 16, was, in fact, the increase
which he had recommeaded he placed in effect in
April. Johnson, who testified on August 16, as-
serted that he had not dropped the proposed plan
for an increase in September, but asserted that he
had not discussed it with Mr . Ball.14
Contentions of the Parties and Concluding Findings
I have found, supra, from testimony which I deem
credible and which stands substantially undisputed,
that Supervisor of Nurses Redman, on March 20,
interrogated McBride relative to her participation,
and the participation of others, in a union meeting,
and that Johnson held a series of conferences with
individual nurses in March and April and one on
May 12, as well as a meeting with a group of nurses
on April 16.
asserted that the amount discussed was $50, cover,ug the February and
April proposed increases Asked if the June "general increase" and Sep-
tember increases were contemplated as being in $25 increments, Johnson
asserted they had no knowledge of what the amount of the "general in-
crease" would be, and that the contemplated September increase was "Just
to be additional minor adjustments based on service "
GOODYEAR TIRE & RUBBER CO. 545
In these meetings, Johnson sought to identify the
nature of "complaints" or "problems" confronting
the nurses, and subsequently modified the
procedure relative to work scheduling and made
provision for adequate parking space, which were
among the items discussed. In addition, Johnson,
concededly for the first time, announced that the
$25 a month increase, which the nurses had
received on March 15, effective February 15, was
the first step in a "pay plan" which contemplated
further raises, amounts unspecified, in April, an
across-the-board raise in June, and a further raise
in September, with a contemplated total of as much
as $90 a month. Johnson then announced that
"with things as they were they would have to drop
these plans right now," also, "of course, at this
time, the raise plan will have to be shelved because
to issue the raises at this time would constitute a
violation of the National Labor Relations Act."i5
Johnson advised Ebenhart, in answer to her
question, that if'the union activities were dropped,
"that this [pay plan] would have to be recon-
sidered." At the April 16 meeting Johnson advised
the group, in answer to a similar question, that if
the union activity ceased he saw no reason why the
Company would not go ahead with the pay plan.
While a pay raise was granted, on approximately
August 1 effective July 16, it appears undisputed
that there had been neither consideration nor
determination as to the timing or amount of any
further increase, and there is a complete absence of
any evidence of the essential approval of Ball for
such an increment, essential to round out the pur-
ported "plan." '
It is essential to consider one other aspect of
these pay raises. Respondent, in its brief, would
cast the formulation of the "pay plan" by Dr. John-
son, to events predating the organizing efforts
herein, and Respondent's knowledge thereof, as
justification for Respondent's subsequent conduct
and to avoid the allegation of unlawfulness. The
premise contains inaccuracies and, accordingly, I
find it without merit. Respondent urges that, admit-
tedly, some of the nurses requested consideration
of a pa y' increase in December based on the as-
serted ground that nurses in other hospitals in the
Akron area had received increases. Dr. Johnson's
own succinct answer to that was that one or two
nurses- "asked about merit increases " and he ad-
vised them that "there was no merit budget availa-
ble." Johnson placed the time of the first advice to
him of the Akron nurses increases, resulting from a
call from the administrative engineering depart-
ment , as being in the latter part of January. Later,
Johnson asserted that the raises received by the
other Akron nurses as being "it was the end of
January and it also extended to the first of Februa-
ry, the middle of February." Since I have found,
supra, that Superintendent of Nurses Redman was
advised of the organizing activity of the UAW on
approximately January 28 and since Dr. Johnson's
purported "pay plan" was assertedly discussed by
him with administrative engineering after their ad-
vice to him, it follows that these conferences, and
the purported development of the plan, including
the granting of the February increase, were all-sub-
sequent to Respondent's knowledge of the union
activity of these nurses. I find accordingly.
While it is undisputed, and I have found, that
Respondent historically granted a general increase
to nonrepresented salaried employees to maintain
comparability with represented production and
maintenance employees, and the $26 per month in-
crease of July 16, herein, clearly fell into that
category, there is no contention of any past prac-
tice of maintaining comparability, in the matter- of
pay raises, with nurses employed in other hospitals
in the Akron area. The facts-herein establish the
contrary. While it is asserted that the other Akron
nurses received raises in late January' and early
February, in a total amount of $50 a month, the
nurses herein received $25 effective February 16,
$51 effective July 16, and a $100 a year uniform
allowance, with a further "merit increase" in con-
templation for September. -
Additionally, I have found supra, that in March,
Johnson, after inquiring, "if my benefits meant
anything to me," advised Fahrenback, "well, you
know that if this goes through you are going to have
to negotiate for your benefits." Similarly, Johnson
inquired of McBride, if McBride's husband's mem-
bership in a union provided benefits for McBride,
as a result of which, Johnson observed, "then we
won't go into the discussion of benefits because
perhaps you are not interested in them." Johnson
advised Ebenhart that if the nurses went ahead with
15 It is,obvious, and I find from the testimony of Dr Johnson, that the as-
serted pay plan was not, in fact , ever formalized or established with the es-
sential approval of Ball. Unquestionably, the specific amounts contem-
plated were nebulous, -
While Johnson asserted that he had discussed the matter with adminis-
trative engineering, he acknowledged that'the approval of administrative
engineering was not an essential step What was essential was the approsal
of Ball It was Ball who approved the single increase in February In Ball's
absence his superior, Dupre, disapproved the proposed April increase It
was Ball who advised Johnson to go ahead with the July increases of $26
and $25 . Johnson made no representation that he had either requested or
obtained approval fora contemplated September or fall increase In fact,
Johnson admitted that he had not discussed the amount of the September
increase with Ball Johnson described the September portion of the "plan"
as, "these were just the additional minor adjustments based on service " At
another point, Johnson described the September increase as, "The Sep-
tember increase would have been based on the amount of money that
was available to me in my merit budget." Accordingly, I find if the contem-
plated September increase was confined to longevity or merit raises, as
stated by Johnson, it follows they were couched in terms other than a
general increase.
Asked why he did not announce the "pay plan" about March 15 when
the first portion of it was distributed, Johnson responded, "there had not
been any final approval on it Ordinarily, the procedure is when you get
final approval then you proceed to advise your nurses .." Johnson was
self-contradictory in then asserting that he could not get approval "on all
four increments at one blow," then asserting that Ball had approved the
"plan," but each step had to be approved I am unable to find credible
evidence of an approved "plan," or the identity of its component parts
350-999 0 - 71 - 36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union organization that they would have to
renegotiate all of their fringe benefits. Johnson
similarly advised the nurses at the April 16 meeting
that it was his understanding, as a result of his con-
versation with Plant Manager Ball, that if the nurses
organized they would have to go back to scratch
and renegotiate all of their benefits under the pen-
sion, retirement, life insurance, etc., plans with the
private insurance companies. I find these state-
ments constitute threats and were coercive.
I have also found that Johnson, in December
1966, -conducted a survey relative to the nurses
desires vis-a-vis laundry service or uniform al-
lowance, and ascertained that a majority indicated
a preference for an allowance, as distinguished
from the existing provision for laundry services, and
announced the result of the canvass. In his inter-
views with individual nurses in March and April,
Johnson sought and obtained further information
relative to the annual expenditure of each nurse for
uniforms and shoes. At no time during these inter-
views did Johnson make any representation relative
to either the approval of, or amount of, any con-
templated allowance. In fact, it is undisputed. that
the announcement of the uniform allowance, con-
tained in the letters of August 1, retroactive to July
1, came as a complete surprise to the nurses.
General Counsel, in his brief, asserts that the in-
terrogation, coupled with threats revealed by the
credible evidence herein, was violative of the
proscriptions of Section 8(a)(1). Respondent's
brief does not treat with this problem.
While Section 8(c) permits the expression of
views, argument, or opinion, it contains the injunc-
tion that they shall not contain a threat of reprisal
or promise of benefit.
In the Blue Flash case,16 the Board held that in-
terrogation of an employee as to union member-
ship, activities, and desires is not per se unlawful
The Board, in that case, found legitimate reason for
inquiry which was conducted with appropriate
safeguards. The Board held that the test is whether,
under all the circumstances, interrogation
reasonably tends to restrain or interfere with the
employees in the exercise of rights guaranteed by
the Act.
The Board further elaborated its position in its
decision in the Johnnie's Poultry case,17 in which
the Board stated that the purposes which the Board
and courts have held legitimate (permitting inter-
rogation) are of two types: Verification of a union's
claimed majority status to determine whether
recognition should be extended-and the investiga-
tion of facts concerning issues raised in a complaint
where such interrogation is necessary in preparing
the employer's defense for the trial of a case.
Prior to the Blue Flash case all interrogation was
held to be per se unlawful. As stated in the decision
in the Johnnie's Poultry case, that holding has been
modified to permit legitimate inquiry, where legiti-
mate inquiry is essential and proper safeguards are
established. Herein, the incidents related- are not
isolated but are indicative of the Employer's hostili-
ty to union organization. No claim of legitimate
purpose for inquiry has been advanced, and
Respondent did not dispute the accuracy of much
of the recitation of General Counsel's witnesses.
Absent requisite safeguards or purpose, I find the
interrogation complained of as conducted by
Redman and Johnson, coupled with the threats of
retaliatory action, including the loss of fringe
benefits, voiced by the latter, was coercive and thus
constituted interference, restraint, and coercion
and, in each instance, was violative of the provi-
sions of Section 8(a)(1) of the Act.
The complaint, as amended, alleges, and General
Counsel urges, that the granting of wage increases
on March 16 and in the period of August 1 to Au-
gust 10, and the establishment of a uniform al-
lowance, announced August 1, were an attempt to
hinder, interfere with, and forestall the efforts of
the nurses to engage in union activities, and were
violative of the provisions of Section 8(a)(1). The
facts, which I have found supra, relative to the
amount and timing of these increases and the
establishment of the uniform allowance, are un-
disputed.
Respondent urges that the uniform allowance
had been planned prior to any notice to the
Respondent of union organizational efforts, and
that its implementation was. delayed by reason of
certain tax apprehensions. It is true that Dr. John-
son ascertained the attitude of the nurses relative to
the matter of a uniform allowance in December
1966 and advised them of the result of the canvass
prior to the commencement of organizational ef-
forts. However, Johnson admitted and the record
establishes that no commitment was made by
Respondent relative to a uniform allowance at any
time prior to the announcement of it, by the letters
distributed under date of August 1. As late as late
March and early April, when Johnson conducted
his individual interviews, he was still seeking to
ascertain information from which he could project
an approximation of individual annual costs of
uniforms and shoes. It is patent that no determina-
tion had been made up to that time relative to the
appropriate amount of such allowance. While it is
obscure in this record as to when the determination
to grant an allowance was actually made, I find it
reasonable to infer that such a determination would
not have been made, or finalized, prior to the
acquisition of the information essential to deter-
mine the amount involved. It is undisputed that no
announcement of the allowance was made prior to
August 1. It is reasonable to infer that final ap-
proval, after acquisition of the essential informa-
tion, was substantially after rather than before
16 Blue Flash Express, Inc , 109 NLRB 591 11 Johnnie 's Poultry Company, 146 NLRB 770, 775
GOODYEAR TIRE & RUBBER CO.
Respondent's knowledge of the organizing activity
herein. ][ so find.
The Supreme Court has held18 that the Act
prohibits not only intrusive threats and promises,
but also conduct immediately favorable to em-
ployees which is undertaken with the express pur-
pose of impinging upon their freedom of choice for
or against unionization and is reasonably calculated
to have that effect. In that case the Court observed,
[t]he danger inherent in well-timed increases
in benefits is the suggestion of a fist inside the
velvet glove. Employees are not likely to miss
the inference that the source of benefits now
conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged. The danger may be diminished if,
as in this case, the benefits are conferred per-
manently and unconditionally. But the absence
of conditions or threats pertaining to the par-
ticular benefits conferred would be of con-
trolling significance only if it could be
presumed that no question of additional
benefits or renegotiation of existing benefits
would arise in the future; and, of course, no
such presumption is tenable.
In the same case19 the Supreme Court held:
Other unlawful conduct may often be an indi-
cation of the motive behind a grant of benefits
while an election is pending, and to that extent
it is relevant to the legality of the grant; but
when as here the motive is otherwise
established, an employer-is not free to violate
Section 8(a)(1) by conferring benefits simply
because it refrains from other, more obvious
violations.... The beneficence of an employer
is likely to be ephemeral if prompted by a
threat of unionization which is subsequently
removed. Insulating the right of collective or-
ganization from calculated good will of this
sort deprives employees of little that has lasting
value.
It is well settled that the test of interference,
restraint, and coercion under Section 8(a)(1) of
the Act does not turn on the employer's motive or
whether the coercion succeeded or failed. The test
is whether the employer engaged in conduct which,
it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act.
American Freightway Co., Inc., 124 NLRB 146.
Interference is no less interference because it is
accomplished through allurements rather than
coercion. Western Cartridge Company v. N.L.R.B.,
134 F.2d 240, 244 (C.A. 7).
Accordingly, for the reasons stated, I find that
the granting of the wage increase, announced on
approximately March 15, effective February 16,
i"NLRB v. Exchange Parts Co , 375 U S 405, 409
19Id at 410
20 Bonu it Teller, Inc v N.L R B , 197 F 2d 640 (C A 2), cert denied
345 U S. 905, denying enforcement in pertinent part of 96 NLRB 608
Si There is a clear factual distinction between the circumstances sur-
547
and the granting of the wage increases announced
in August, effective July 16, to the extent it ex-
ceeded the normal offsetting comparability with the
increase obtained by the production maintenance
unit, and the establishment and announcement of
the uniform allowance, by letter of August 1,
retroactive to July 1, were, in each instance, con-
duct constituting interference, restraint, and coer-
cion and thus violative of the provisions of Section
8(a)(I) of the Act.
Next considered are the allegations that the an-
nouncement, by Dr. Johnson at the meeting of
April 16 that Respondent had adopted a plan for
wage increases, that said plan was abandoned, and
that said increases would be withheld because of
the union activities of the nurses, was violative of
the Act.
Respondent in its brief asserts that it would be in-
consistent to find that coercive conduct resulted
both from the delay of the April increase and the
granting of it, effective July 16. Respondent urges
that, "it cannot be coercive both to grant a wage in-
crease in March and not to grant one in April, ab-
sent any showing that the nurses' attitudes toward
the Union had so changed in the interim that the
doing of two diametrically opposed things would
have the same effect." Respondent is not only inac-
curate, in asserting the pay plan was devised prior
to Respondent's notice of the organizing activity, as
I have found supra, but its contention here has no
substance. The success or failure of an effort is not
the test by which coercion is determined. American
Freightway Co., supra.
I find Respondent's reliance on the court deci-
sion in the Bonwit Teller case20 is misplaced.
Respondent correctly recites that the court, dis-
agreeing with the finding of the Board, found that
an employer president's advice to employees that
they knew wage increases (resulting from semian-
nual salary review and recommendations) were
waiting for them, but could not be put into effect
lest the store be accused of an unfair labor practice,
did not by itself constitute an unfair labor practice
under Section 8(a)(1).21
General Counsel, in his brief, accurately calls at-
tention to the Interstate Smelting case,22 where the
Board found the announcement of an intent to
grant a wage raise and a simultaneous statement
that he could not give a raise, because of the union
activity, were threats to cancel the raise to
discourage the union activity and a violation.
The nurses herein had no knowledge of the pur-
ported "pay plan" until advised of it by Dr. John-
son, who, at the same time, announced Respondent
would not proceed with it, ostensibly because of the
possibility of unfair labor practice charges being
filed. At the same meeting on April 16 Johnson an-
rounding the anouncement in the cited case, as compared to the within
case In addition, with all due respect for the court, I am constrained to ad-
here to the view of the Board, since I am acting for it See loita Beef
Packers, lnc , 144 NLRB 615,616
22 Interstate Smelting & Refining Co , 148 NLRB 219, 221, 227
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nounced that if the union activities were dropped
that the pay- plan would have to be 'reconsidered.
General Counsel correctly urges that if, as the
evidence establishes, no employee nurse had heard
of the-plan and'if Respondent privately decided to
avoid a charge of unlawful conduct by scrapping
the plan, then the only purpose ascribable for Dr.
Johnson's statement was to advise the nurses they
were losing wage increases solely as a result of their
union activity. This could be characterized as the
"carrot on a stick" approach. I find the statement
was coercive and thus violative of Section 8(a)(1)
of the Act.
The Noncontributory Retirement Plan, Retirement
Annuity Plan (Contributory), Group Insurance
Plan, including Accidental Death and
Dismemberment Insurance
The complaint alleges that Respondent maintains
a noncontributory retirement plan, a retirement an-
nuity (contributory), and a group insurance plan,
which includes life and accidental death and
dismemberment insurance , each of which is as-
serted' to be violative of the provisions of Section
8(a)(3) and (1) of the Act, by reason of the ex-
press limitation of participation to "eligible em-
ployees" who, by definition, are restricted to those
salaried employees who "are not represented by a
collective bargaining representative."
There is'no dispute relative to the facts set forth
under this subsection.
Respondent has prepared and caused to be issued
to new employees, who potentially qualify under
the various described plans at the time of the
respective hiring of each, a detailed resume of the
nature, purpose, benefits and, in this instance more
importantly, the "eligibility" requirements of each
of the plans or any subsequent amendments
thereto, and said distributions were made and such
plans were continued in effect during the 6-month
period preceding the filing of the initial charge
herein on April 27, 1967, and thereafter.
The noncontributory retirement plan, applicable
only to employees who retire or whose employment
is terminated on or after August 1, 1964, contains,'
inter'alia:
Article I, Definitions:
4. "Employee," as used herein, shall mean
any employee who, at the time of his retire-
ment or other termination of employment, is a
domestic employee or foreign employee, as
herein defined, provided he is not represented
22 During the hearing, the Trial Examiner rejected as exhibits the several
booklets, covering 36 more printed pages, reflecting in toto all of the
manifold provisions of these various plans, but cautioned the parties to
separately submit such portions as were essential, relevant, and material to
a resolution of the issue presented. Such booklets are in a rejected exhibit
file To the extent that said ruling may be found to have excluded article ll[
eligibility for pensions in its entirety it is hereby modified
While article III, subsections 2, 3, and 4, defines eligibility for disability
pension, early retirement pension, and deferred vested pension, the key
phrase in each subsection is the term "each employee" as reflected in sub-
section I
by a collective bargaining representative recog-
nized by his employer....
Article III, Eligibility for pensions:23
1. Normal Retirement Pension.
Each employee who retires from the service of
an Employer on or after August 1, 1964, shall
be eligible for an immediate pension upon his
retirement if such employee has- attained age
65 at the time of his retirement.
The retirement annuity plan (contributory), also
applicable only to employees who retire or whose
employment is terminated on or after August 1,
1964, contains inter alia:
Article 1, Definitions:
4. "Employee" as used herein, shall mean a
domestic employee or foreign employee, as
herein defined.
Article III, Eligibility for Participation; Em-
ployee Contributions:
1. Eligibility for Participation. Each Em-
ployee participating in the Plan on July 31,
1964, is automatically eligible to continue his
participation, Each non-participating Em-
ployee may become a participant in the Plan
on August 1, 1964, or on the first day of any
succeeding month, if he then meets all of the
following conditions:
(c) He is not represented by a collective
bargaining representative recognized by
the Company or by any subsidiary of the
Company by which he is employed 24
The group insurance plan for salaried employees,
which includes life, accidental death, and- dismem-
berment insurance, provides the following in a
"foreword," although not so titled:
This booklet describes briefly the essential fea-
tures' of a plan of Group Life and Accidental
Death & Dismemberment Insurance provided
for employees of The Goodear Tire & Rubber
Company and its subsidiary' companies as un-
derwritten by the Aetna Life Insurance 'Com-
pany of Hartford, Connecticut . It-is not to be
considered the contract of insurance.
The employees covered are salaried employees
-not represented by a collective bargaining
representative.
The booklet carries an issuance date of August 1,
1964. -
The 1950 pension plan, covering hourly and
salaried employees who are represented by a col-
lective-bargaining agent provides, inter alia:
Article I, Definitions:
4. "Employee," as used herein, shall mean
General Counsel correctly notes that a portion of the preface, as distin-
guished from the provisions of the plan, defines "eligible employees" in the
same language as the definition set forth -
21 General Counsel also calls attention to a provision contained in the
preface to the booklet, which contains both retirement plans, which pro-
vides An employee covered by the noncontributory retirement plan is also
eligible to participate in the , retirement annunity plan if the employee has
completed 6 months of service and his earnings are more than $4,800 a
year
GOODYEAR TIRE & RUBBER CO. 549
any employee who, at the time of his retire-
ment, is an hourly rated employee in the ser-
vice of any Employer, and any employee who,
at the time of his retirement, is a salaried em-
ployee in the service of any Employer and is
represented by a collective bargaining
representative with whom his Employer has in
effect a contract providing for pensions under
the Plan.
The 1950 pension plan, as amended effective
August 1, 1964, contains the-following,-inter alia, in
a foreword, after describing "applicable" employees
in the terms recited next above as "eligible" em-
ployees:
It is also applicable to designated hourly rated
employees at various locations.
The group insurance plan for hourly rated em-
ployees, which includes life, accidental death, and
dismemberment insurance, provides the following
in a "foreword," though not so titled:
The employees covered are those represented
by a collective bargaining representative with
whom the Company has entered into an agree-
ment specifying this plan of insurance. Other
groups of employees may be covered, under
this plan at the election of the Company.
The announcement and booklets carry the date of
August 1, 1964. The time of origin of the last sen-
tence is otherwise obscure.
B. N, Colyer has been manager of the pension
and group insurance departments for the past 5
years and manager of the pension department since
its formation in 1950. Colyer identified the plans
set forth, supra, and the relevant provisions of each,
and related that the plans complained of are availa-
ble to salaried employees who are not represented
by a labor organization, wherever they may be em-
ployed, and are companywide plans which are cur-
rently in effect. Colyer related that while earlier
plans, with particular reference to a pension plan,
were initiated as early as 1916, and modified in
1928 and 1940, the present-plans went into effect
approximately April 1, 1950, and, while modifica-
tions have been made since that date, there has
been no change in the complained-of eligibility
provisions during that period of time.
Relative to past practice, Colyer acknowledged
that since 1950 when groups of salaried employees
for the first time became represented by bargaining
units recognized by Respondent, said employees, in
such units, no longer- met the eligibility require-
ments under the definition of an, employee as con-
tained in each plan. Colyer asserted that such em-
ployees were covered under other plans negotiated
with the respective collective-bargaining agents,
" The record reflects some production and maintenance employees in
identifiers plants are not represented Colyer asserted these employees were
included under the 1950 Pension Plan
s, By way of illustration Respondent cited a situation where a salaried
group became represented at an installation in Point Pleasant, West Vir-
ginia A letter, under date of May 12, 1961, advised an employee named
Frazier, that his previous coverage as a salaried employee, in the amount of
there being a number of different unions represent-
ing different groups of employees, both salaried and
hourly. Colyer acknowledged, relative to the group
insurance plan here in issue that either the em-
ployees or their collective-bargaining representative
was notified that their eligibility to participate in
that plan had terminated by reason of the fact that
they were now represented by a collective-bargain-
ing representative. Colyer then asserted, however,
that said employees would be covered under an in-
surance plan negotiated with such a representa-
tive.26
Colyer 'related that, in addition to numerous
plants, where employees are represented by various
collective-bargaining agents, Respondent has 1,200
retail outlets in all of which there are salaried em-
ployees, some of whom are represented by collec-
tive-bargaining representatives while others are no
so represented. Accordingly, some of these retail
outlet employees are covered under the 1950 pen-
sion plan covering employees in the bargaining
units, as amended, while others are covered by the
noncontributory retirement plan and retirement an-
nuity plan (contributory).
Colyer asserted that for funding purposes when a
group of salaried employees selects a collective-
bargaining representative the funding for the fol-
lowing year is determined at the yearend on the
basis of the changed status; i.e., transfer of the
group from the nonrepresented employee plans to
the represented employee plans. Colyer
acknowledged that this is limited to retirement, an-
nuity, and pension plans as distinguished from in-
surance plans. Colyer asserted that the transfer
from one life insurance program to the other oc-
curred simultaneously when the time agreement on
a contract with the collective-bargaining represen-
tative was reached.
Colyer asserted he had no recollection of any in-
dividual notice to an employee that they were no
longer eligible under the noncontributory retire-
ment plan but were under the 1950 pension plan,
explaining that they received a copy of the
negotiated agreement, having previously been made
aware of their prior condition by reason of the
booklet distributed. To the contrary, Colyer ex-
plained, life insurance has an immediate effect and
they are advised of their transfer from the "sal-
aried" plan to the "hourly" plan individually.
Contentions of the Parties and Concluding Findings
The single question to be resolved is whether the
restriction of eligibility to employees "not
$6,000, under certificate 107709 was being canceled A new certificate
was issued in the amount of $4,500, under certificate 118968 Colyer's ex-
planation was that the difference was due to the existence of two different
plans , one for nonrepresented salaried employees and the other for
represented hourly employees It would thus appear- that a represented
salaried employee was, for these purposes, considered the same as an
hourly employee
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by a collective-bargaining representa-
tive" constitutes interference, restraint, and coer-
cion, within the meaning of Section 8(a)(1), or
constitutes discrimination in regard to hire and
tenure, or terms, or conditions, of employment,
within the meaning of Section 8(a)(3) of the Act.
General Counsel asserts that the use of the lan-
guage is a per se violation, while Respondent urges
that the language is "merely descriptive."
I find Respondent's reliance on the court deci-
sion in the Firestone Synthetic case27 misplaced.
Respondent relies on the finding of the court that
the eligibility language "not represented by a
designated collective bargaining agent," in the
words of the court, was "obviously, the terminology
was descriptive in origin rather than discriminato-
ry."28 Assuming, without deciding, that the ter-
minology in the plans in the within case, as stated
by the court, "was descriptive in origin" it must be
considered in context. I have found, supra, that Dr.
Johnson inquired of Fahrenback whether her
"benefits" meant anything to her, advised her that
if the union effort was successful that she would
have to negotiate her benefits, and similarly advised
some 20 nurses at the meeting on April 16 that
Plant Manager Ball had advised him that if the
nurses organized they would have to go back
to scratch and renegotiate all of their benefits
under the pension, retirement, and life insurance
plans. The finding of the Board in the Firestone
case 29 thus becomes pertinent:
Even assuming the innocence of conception
and inauguration of the "plans" some years
ago, . . . , especially in the light of Smith's
forthright letter, . . . the language in question is
clearly violative of Section 8(a)(1) of the Act.
That management not only considered these
"plans" to be substantial benefits bestowed by
it upon nonunion employees only but took affir-
mative measures just before the Board-con-
ducted election to warn such employees that
they would probably lose them if they voted
for the Union, clearly manifests their dis-
criminatory nature. The discrimination being
against union members and adherents, it was
unlawful.
I have found, supra, from the unqualified state-
ment of Colyer, manager of the pension and group
insurance departments, that, since 1950 when
groups of salaried employees for the first time
became represented by bargaining units recognized
by Respondent, said employees in such units no
27 Firestone Synthetic Fibers Company v N L R B , 374 F 2d 211 (C A
4), denying enforcement 157 NLRB 1014
In a footnote, supra, I have noted, with all due respect for the Court, I
am constrained to adhere to the view of the Board, since I am acting for it
lox a Beef Packers, Inc, supra In addition I find clear factual distinctions.
'd Id. at 216
29 157 NLRB at 1019
3° Citing Melville Confections, Inc , 142 NLRB 1334, enfd 327 F 2d 689
(C A 7), cert denied 377 U S 933, Dura Corporation, 156 NLRB 285,
enfd 380 F 2d 729 (C A 6), 65 LRRM 3025, The Kroger Co, 164 NLRB
362
longer met the eligibility requirements under the
definition of an employee in each plan. However,
Colyer also acknowledged that nonrepresented
production and maintenance employees in
identified plants were included under the 1950 pen-
sion plan, as distinguished from the noncontributo-
ry retirement and other plans available to non-
represented salaried employees.
General Counsel contends that the act of main-
taining the forfeiture language constitutes per se
violations of both Section 8(a)(3) and (1) of the
ACt.30
General Counsel urges that evidence of intent is
not a prerequisite. to a finding of a per se violation
of Section 8(a)(3).3' Intent is founded upon the.in-
herently discriminatory or destructive nature of the
conduct itself, and the employer must be held to in-
tend the consequences which foreseeably and in-
escapably flow from its actions. As stated by the
court in Melville, supra, 691:
It was employer conduct inherently destructive
of rights guaranteed by Section 7.... It carried
with it its own inherent evidence of intent-it
strains credulity to ascribe some other or dif-
ferent intent to the provision.32
The factual situation in the Dura case supra ap-
pears parallel to the instant case. The -Board and
court found that Dura had production maintenance
employees who were represented by 5 unions in 12
separate bargaining units, that since 1943 Dura
maintained a profit-sharing plan for its executive
and salaried personnel, that the plan was restricted
to "any salaried employee who is not a member of
a Collective Bargaining Unit recognized by such
Employer," and that a unit of salaried employees at
Ypsilanti selected a union as their collective-bar-
gaining representative. Subsequently, during
negotiations, the Union withdrew a request for a
pension plan and requested that its members be
continued in the profit-sharing plan. Dura refused
on the ground that the involved employees would,
by reason of being members of a collective-bargain-
ing unit , be ineligible to remain in the profit-sharing
plan. The Board found that the profit-sharing plan,
by its own language was a per se violation of Sec-
tion 8(a)(3) and (I) of the Act, in that the natural
consequence of Dura's action was the discourage-
ment of union membership. The court, in granting
enforcement, cited the holding of the Supreme
Court in the Gaynor News case33 in which the
Supreme Court said:
"Citing Radio Officers ' Union [Bull Steamship Co 1, 347 US 17
32 In Melville two Board elections were set aside as a` result of the ex-
istence of similar restrictive language defining "eligible employees," in a
derferred profit-sharing plan, limiting participation to employees "not
represented by a Union designated as the bargaining agent for the em-
ployee," and its use by Respondent to discourage organizational efforts.
3.3 Gaynor Nests Co v N L R B (one of the three cases consolidated in
Radio Officers, supra at 46), where the company granted wage and vacation
benefits solely to union members
GOODYEAR TIRE & RUBBER CO. 551
In Gaynor, the Second Circuit also properly
applied this principle. The Court there held
that disparate wage treatment of employees
based solely on union membership status is
"inherently conducive to increased union
membership." In holding that a natural con-
sequence of discrimination, based solely on
union membership or lack thereof, is
discouragement or encouragement of member-
ship in such union, the court merely recog-
nized a fact of common experience-that the
desire of employees to unionize is directly pro-
portional to the advantages thought to be ob-
tained from such action. No more striking ex-
ample of discrimination so foreseeably causing
employee response as to obviate the need for
any other proof of intent is apparent than the
payment of different wages to union employees
doing a job than to non-union employees doing
the same job.
Respondent's efforts in its brief to distinguish
Melville, Dura, and Kroger are, I find, without
merit. Respondent urges that, as found from the
court's emphasis on the "statement, of company
policies," the language in Melville was not descrip-
tive. Respondent urges that in Dura any descriptive
function was negated by explicit statement of posi-
tions, during collective -bargaining negotiations,
that the involved employees by reason of their
membership in a collective -bargaining unit would
be ineligible to remain in the profit-sharing plan,
thus delimiting those who could participate in the
plan. Respondent also urges that in Kroger the
Respondent therein asserted that continuation in a
profit-sharing plan by represented employees was
impossible by virtue of the eligibility provisions.
Respondent would assert that no equivalent posi-
tion has been asserted by it, and that it never used
the descriptive language in a coercive or dis-
criminatory manner. I have found to the contrary.
It is undisputed that represented salaried employees
have in the past, solely by reason of such represen-
tation, been removed from the plans complained of,
and the nurses herein were warned and threatened
that the same result would follow if they organized.
I find no merit in Respondent's assertion that the
statements of Dr. Johnson were protected within
the meaning of Section 8(c).
Accordingly, for the reasons set forth, I find
Respondent, by maintaining and enforcing the non-
contributory retirement plan, the retirement annui-
typlan (contributory), and the group insurance
plan, during the period commencing 6 months prior
to the filing of the charge herein, on April 27,
1967, and thereafter, containing the unlawful
restrictive clauses described, enumerated supra, as
an integral part of the formula utilized to determine
employee eligibility to participate , engage in con-
duct constituting discrimination in regard to hire or
tenure or terms or conditions of employment, and
was thus violative of Section 8(a)(3) of the Act,
and constituted interference , restraint , and coer-
cion within the meaning of Section 8(a)(1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in sec-
tion III, above, occurring in connection with the
operations of the Respondent, described in section
I, above, have a close, intimate, and substantial rela-
tion 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
Having found that the Respondent has engaged
in certain unfair labor practices, I will recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
I have found that by maintaining and enforcing
those provisions, enumerated supra, in its noncon-
tributory retirement plan, retirement annuity plan
(contributory), and a noncontributory 'group in-
surance plan, including group, life and accidental
death and dismemberment insurance plan, for
salaried employees, excluding from participation
therein otherwise eligible employees who become
members of a collective-bargaining unit, the
Respondent violated Section 7 rights of its em-
ployees and also unlawfully discriminated against
them with respect to their hire and tenure and
terms and conditions of employment. I will ac-
cordingly recommend that the Respondent be or-
dered to amend the foregoing noncontributory
retirement plan, retirement annuity plan,, and non-
contributory group insurance plan, by the elimina-
tion from each of said plans and the booklets
describing said plans the provisions disqualifying
employees from participation therein because they
have become members of a collective-bargaining
unit or because they have chosen to be represented
by a labor 'organization in collective bargaining in
an appropriate unit.34
I will further recommend that Respondent be or-
dered to cease and desist from in any like or related
manner infringing upon rights guaranteed to, its em-
ployees by Section 7 of the Act.
" In the Dura case , supra , the Board , in addition , ordered reinstatement
of all old and new salaried employees who were or have been so
disqualified , with all the interest , emoluments , rights, and privileges that
would have accrued to them General Counsel has not sought such a
remedy In addition , it is reasonable to imply that a number of collective-
bargaining agreements with a variety of unions have ensued providing al-
ternative plans While the nurses herein were threatened with a loss of
these benefits, there is no evidence of any overt act by Respondent result-
ing in such loss, herein Accordingly, I am constrained to limit the relief by
not exceeding the relief requested
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the-foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the mean-
ing of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. By maintaining and enforcing a noncontribu-
tory retirement plan, a retirement annuity plan
(contributory), and a noncontributory group in-
surance plan, including group life and accidental
death and dismemberment insurance plan, for its
salaried employees, each of which excludes, from
participation therein those employees who become
members of a collective-bargaining unit or select a
labor organization recognized by Respondent as
their collective-bargaining representative in an ap-
propriate unit, the Respondent .has interfered with,
restrained, and coerced its employees in the exer-
cise of their rights guaranteed by Section 7 of the
Act, and has discriminated against employees with
respect to their hire and tenure and teri is and con-
ditions of employment, and has engaged in unfair
labor practices within the , meaning- of Section
8(a)(1) and (3) of the Act.
4. By threatening those salaried employees, en-
gaged as nurses, at its Akron, Ohio, hospitals, on or
about April 16, 1967, and on other dates, found
supra, with the loss of eligibility for participation in
said noncontributory retirement plan, retirement
annuity plan, and noncontributory group insurance
plan should they select a labor organization as their
bargaining representative, to the extent herein
above found, and by engaging in,conduct found to
constitute interference, restraint, and coercion to
the extent hereinabove found, Respondent has-in-
terfered with, restrained, and coerced its employees
in the exercise of their rights guaranteed in Section
7 of the Act, and said conduct is an unfair labor
practice within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law , and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that Respondent, The Goodyear Tire
& Rubber Company, its officers, agents, success-
sors, and assigns, shall: -
1. Cease and desist from:
(a) Maintaining and enforcing a noncontributory
retirement plan, retirement annuity plan, and non-
contributory group insurance plan for its, salaried
employees which contain a provision excluding em-
ployees from participation therein because they
become members of a collective-bargaining unit or
choose to be represented by a labor organization in
collective bargaining in an appropriate unit.
(b) Disqualifying its employees from eligibility
to participate, or threatening employees with loss of
participation, in a noncontributory retirement plan,
a retirement annuity plan, or, a noncontributory
group insurance plan for salaried employees
because they become members of a collective-bar-
gaining unit or choose to be represented by a labor
organization for the purposes of collective bargain-
ing in an appropriate unit.
(c) Threatening employees with less desirable
working conditions, or other economic reprisals, if
the employees select the United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO, or any other union, to represent them.
(d) Interrogating employees concerning their or-
ganizational activities in a manner violative of Sec-
tion 8(a)(1) of the Act.
(e) Granting- benefits to its employees,to induce
them to refrain from becoming or remaining mem-
bers of, or to withdraw their support of activities on
behalf of, United Rubber, Cork, Linoleum, and
Plastic Workers of America, AFL-CIO, or any
other labor organization.
(f) Announcing to- its employees that Respon-
dent has adopted a plan providing for wage in-
creases; however, that said wage increase plan was
abandoned and said wage increases would be
withheld because of the union activities of the em-
ployees.
(g) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form
labor organizations,, to join or assist any labor or-
ganization, to bargain _ collectively through
representatives of their own choosing, and to en-
gage in concerted activities for the purpose.of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Amend its noncontributory retirement plan,
its retirement annuity plan, and its noncontributory
group insurance plan for salaried employees by the
elimination from each the provisions excluding
from participation therein employees who become
members of a collective-bargaining unit, or who
GOODYEAR TIRE
select a labor organization recognized by ,Respon-
dent to represent them in collective bargaining in
an appropriate unit, and similarly amend the
booklets distributed by Respondent to its salaried
employees, titled "Pension Plans for Salaried Em-
ployees," and "Group Insurance Plan for Salaried
Employees," by striking, from each, the offensive
language, more fully set forth supra.`
(b) Post at its plants and hospitals in the Akron,
Ohio, area copies of the attached notice marked
"Appendix. "36 Copies of said notice, on forms pro-
vided by the Regional Director for Region 8, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER RECOMMENDED that unless, within
20 days from the date of the receipt of this Trial
Examiner's Decision, the Respondent shall notify
the said Regional Director, in writing, that it will
comply with the foregoing Recommended Order37
the National Labor Relations Board issue an Order
requiring Respondent to take the aforesaid action.
8' If and when any participating employees become represented by a col-
lective-bargaining agent , this Recommended Order shall not be taken as
precluding the right of either the Respondent or such bargaining agent to
require bargaining concerning the termination , modification , or admend-
ment of such plan or substitution of another therefor Firestone Synthetic
Fibers Company, supra, and fn 1 thereof
36 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
37 In the event that this Recommended Order is 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL amend our noncontributory retire-
ment plan and our retirement annuity plan
& RUBBER CO. - 553
(contributory), each for salaried employees,
and our booklet titled pension plans for
salaried employees setting forth such plans,
and our group insurance plan for salaried em-
ployees, including accidental death and
dismemberment insurance for salaried em-
ployees, and the booklet describing said plan,
by the elimination, from each of said plans and
each of said booklets, of the provision in each
plan, which excludes from participation any
salaried employee who becomes a member of a
collective-bargaining unit recognized by us, or
by any subsidiary of this Company by which he
is employed.
WE WILL NOT disqualify our salaried em-
ployees from eligibility, or threaten employees
with loss of participation in any of the enu-
merated plans, set forth in the paragraph im-
mediately above, because they become mem-
bers of a collective-bargaining unit or choose
to be represented by a labor organization for
the purposes of collective bargaining, in an ap-
propriate unit.
WE WILL NOT threaten employees with less
desirable working conditions or other
economic reprisals if the employees select
United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, or any other
union, to represent them.
WE WILL NOT interrogate employees con-
cerning their organizational activities in a
manner violative of Section 8(a)(1) of the Act.
WE WILL NOT grant benefits to our em-
ployees to induce them to refrain from becom-
ing or remaining members or to withdraw their
support of activities on behalf of United
Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, or any other labor or-
ganization.
WE WILL NOT announce to employees that
we have adopted a plan providing for wage in-
creases, however, that said wage increase plan
was abandoned and said wage increase would
be withheld because of the union activities of
the employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to form labor organizations , to join
or assist any labor organization , to bargain col-
lectively through representatives of their own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or
other mutual aid or protection, or to refrain
from any and all such activities, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified by the Labor-Management Reporting This notice must remain posted for 60 consecu-
and Disclosure Act of 1959. tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
THE GOODYEAR TIRE &
RUBBER COMPANY If employees have any question concerning this
(Employer) notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Dated By Office, Federal Office Building, Room 1695, 1240
East 9th Street, Cleveland, Ohio 44199, Telephone
(Representative) (Title) 522-3725.