Swan Rubber Co.

National Labor Relations Board - Board Decisions

Jun 9, 1944

56 N.L.R.B. 1312 (N.L.R.B. 1944)

In the Matter of SWAN RUBBER Co. anul UNITED RUBBER WORKERS OF
AMERICA, CIO
Case No. 8-C-1607.Decided June 9, 1944
DECISION
AND
ORDER
On March 4 , 1944; the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding , finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
.recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. The Trial Examiner also found that the respondent
had not engaged in unfair labor practices in discharging Lewis Cole
and recommended that the complaint be dismissed with respect thereto.
Thereafter , the respondent filed exceptions -to the Intermediate Report
and a brief in support ' of its exceptions. The Union did not file ex-
ceptions . Pursuant to notice and at the request of the respondent, a
hearing for the purpose of oral argument was held before the Board
in Washington , D. C., on May 16, 1944 . The respondent and the
Union participated'in the oral argument. The Board has considered
the rulings made by the Trial Examiner at the hearing, and finds that
no prejudicial error was committed . The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the-respondent's
exceptions in brief, and the entire record in the case, and hereby adopts
the findings , conclusions , and recommendations of the Trial Examiner,
except as noted below.
1. The Trial Examiner found , inter alit, and we - agree, that the
posting of certain notices by the respondent in its plant during the
Union's organizational campaign for members constituted unfair labor
practices . However, in view of the absence of a sufficient showing of
relationship between the notice dated December 10, 1943, assuring
employees of post-war job security , and union activity in the plant,
we do ' not agree that the posting of this particular notice interfered
with, restrained , or coerced employees within the meaning of Section
8 (1) of the Act.
56 N. L . R. B., No. 233.
1312
SWAN RUBBER CO. 1313
2. We agree with the finding of the Trial Examiner that, by Lane's
communication to the respondent's employees of Supervisor Boettcher's'
threat that the respondent would establish a rule prohibiting its em-
ployees from leaving the plant during the hours of 7: 30 a. m. and
11: 30 a. in., and thereby deprive its employees of a long established
privilege, the respondent has violated Section 8 (1) of the Act. We
credit • Lane's testimony set forth in the Intermediate Report, as did
the Trial Examiner, and fund that Boettcher made the statements at-
tributed to him by Lane. Assuming, arguendo, that Boettcher did not
make such statements to Lane, we are of the opinion, nevertheless, that
Boettcher, by failing to advise the employees that Lane's fears of
invocation of such a• rule, expressed to employees in Boettcher's. pres-
ence, were groundless, in effect, indicated to the employees that he
adopted the statements of Lane. In either event, the respondent is
responsible for Lane's statements to the employees referred to above.
3. In lieu of the Trial Examiner's ultimate findings in the, Inter-
mediate Report, with respect to the respondent's violations of Section
8 (1) 'of the Act, we substitute the following :
We find that, by the respondent's interrogation of Carley con-
cerning his union activities, its warning to him that such activi-
ties could result in his discharge, its exaction from him of a prom-
ise to cease these activities under the continuing implied threat
that no further action would be taken against him at that time,
the respondent's posting of a no-solicitation rule which was dis-
criminatory on its face, being applicable only to union solicitation
and which, together with the ' notice of January 25, 1944, was
strategically tuned to coincide with the organ_zational drive,
coupled with Assistant Factory Manager Boettcher's derogatory
statements of unions generally, his thinly veiled threat to close
the plant, and his comments to Lane which, with Boettcher's full
knowledge and acquiescence, were communicated to the respond-
ent's employees, the respondent has interfered with,- restrained,
and coerced its employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
ORDER'
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Swan Rubber Co.; Bucyrus,
Ohio, its officers, agents, successors, and assigns shall : '
1. Cease and desist from :
(a) Discouraging membership in United Rubber Workers of Amer-
ica (CIO) or any other labor organization by discriminating in regard
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hire or tenure of =employment or any term or condition of
employment ;
(b) In any other',manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through,
representatives of'their own choosing and to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.%
2. Take the following affirmative action which the Board finds will
,effectuate the policies of the Act:
(a) Offer to Warren A. Bosworth; without prejudice to his sen-
iority or other fights and privileges,' full and immediate reinstate-,
ment to his. former or substantially equivalent employment;
(b) -Make whole the said Warren•A. Bosworth for any loss of pay
.suffered by him as •a result of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount which
he normally would have earned as wages during the period between
the date of his discharge and the date of the offer of reinstatement, less
his net, earnings during said period;
(c) , Post immediately in conspicuous places in the plant at Bucyrus,
Ohio, and maintain for a period of at least sixty ( 60) consecutive, days
from the date of posting , notices to all employees stating : (1) that
the respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraph 1 (a) and (b) of this Order; (2)
that the respondent will take the affirmative action set forth in para-
graphs 2 (a) and ( b) of this Order; and '( 3) that, the respondent's
employees are free to remain or become members of the United Rub-
ber Workers of America ( CIO) or any other labor organization, and
that the respondent will not discriminate against any of its employees
because of membership in or activities in behalf of that organization
or any labor organization; ,
•
-
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10 ) days from the date of this Order what steps the
respondent has taken to.comply herewith. ,
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges :-( 1) that the respondent engaged in unfair labor practices
in connection with the discharge of Lewis Cole; and ( 2) that there-
spondent has engaged in surveillance of union members or union
meetings.
INTERMEDIATE REPORT
Russell Packard , Esq.', and William A. Murdock, Esq., of Cleveland , Ohio, for
the Board.
John D. House, International Representative , of [1331/2 East Center Street,)
Marion, Ohio , for the Union.
Edward J. Myers°, Esq ., of Bucyrus , Ohio, and Frank Wiedcman , Esq., of
Marion, Ohio, for the respondent.
SWAN RUBBER CO. 1315,
STATEMENT OF THE CASE
Upon an amended charge filed February 7, 1944, by United Rubber Workers
of America, CIO, herein called the Union, the National Labor Relations Board,
'herein called the Board, by its Regional Director for the Eighth Region (Cleve-
land, Ohio), issued its,complaint dated February 7, 1944, against Swan Rubber
Co., herein called the respondent, alleging that the respondent, at its plant in
Bucyrus, Ohio, has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of,Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and amended charge accompanied by notice of hearing
thereon, were, duly served upon the respondent and the Union.
In respect to unfair labor practices, -the complaint alleges in substance that
the respondent since on or about December 1, 1943, has questioned and inter-
rogated its employees concerning their affiliation with and activities on behalf of
the Union ; has advised , urged, threatened, and warned its employees to refrain
from assisting , joining, or becoming or remaining members of the Union; has
kept meetings of the Union under surveillance ; has indicated to its employees
its disapproval of and opposition to their self-organization and on January 31,
1944, posted a notice prohibiting union solicitation on company, property. The
complaint further alleges that on or about December 20, 1943, the respondent
discharged Warren A. Bosworth and on or about January 19, 1944, dischaiged•
Lewis Cole, and at all times since then has failed and refused to reinstate them
for the reason that they joined and assisted the Union and engaged in concerted
activities with other employees for the purposes of collective bargaining and,
other mutual aid and protection, and that all 'the foregoing acts of the respondent
constitute unfair labor practices within the meaning of Section 8 (1) and (3)
of the Act.'
The answer of the respondent duly filed herein admits the allegations of the
complaint with reference to - the corporate existence and the nature and extent
of business transacted by the respondent, and the character of the Union as a
labor organization ; it admits the discharge of Bosworth and Cole, but denies
all the allegations of the complaint concerning unfair labor practices.
Pursuant to due notice, a hearing was held on February 22 and 23, 1944, in
Bucyrus, Ohio, before R. N. Denham, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel, and the Union by its international representative All
parties participated in the hearing where full opportunity was afforded them
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. At the conclusion of the taking of the testimony, coun-
sel for the Board moved to amend the pleadings to conform to the proof. .The
motion was granted without objection, to apply to all pleadings herein for the
purpose of correcting names, dates and other minor recitals not affecting the
issues of the case. Oral argument was waived. Opportunity was afforded all
parties to file briefs with the Trial Examiner within 7 days from the close of-
the hearing. No briefs have been received.
Upon the basis of the foregoing and after having heard and observed, all the
witnesses and considered the exhibits admitted into evidence, and upon the
entire record herein, the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation with its principal office and place of
business in Bucyrus, Ohio, where it engages in the manufacture, distribution,
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sale of mechanical rubber products, including rubber hose, tires and spe-
cialties In the 'course and conduct of its business, the respondent causes large
quantities of reclaimed rubber and chemicals to be purchased and transported'
in interstate commerce from and through States of the United States to its
plant in the State of Ohio. ` During the calendar year of 1943, the total dalue of
such raw material was in excess of $300,000, of which more than 10 percent
was shipped from points outside the State of Ohio. During the same period,
the respondent shipped finished products manufactured or processed at its plant
in Bucyrus, Ohio, of the value of more than $1,000,000, of which, in excess of
50 percent represented products shipped to points outside The State of Ohio.
The respondent raises no question concerning the jurisdiction of the Board in
this proceeding.
II. THE ORGANIZATION INVOLVED
United Rubber Workers of America,-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
The respondent's plant is in a three story building and its products consist
of rubber hose and accessories manufactured chiefly from reclaimed rubber and
various synthetics, as well as miscellaneous chemicals. One of these is zinc
stearate, commonly referred to as stearic acid, which is used in substantial
quantities. The initial process is carried on in the milling department, situated
on the ground floor, where the materials are first ground into a fine powder,
then by other milling processes worked into a product which eventually leaves
the department in the form of rolls, to be worked up into the respondent's
finshed materials. About 265 persons are employed in the production and main-
tenance operations, which. are carried' on in 8 departments.. At the times that
are material herein, the plant operated with 3 shifts and approximately 12
foremen. Approximately 40 percent of the business now being done is devoted
to war work.
In the past there have been one or two abortive attempts td organize the em-
ployees, one of which developed into an effort to set up an inside union. Nothing
came of these, however, and there is now no charge that the respondent was in-'
volved in any of them.
In the early part of December 1943, Howard' Carley, maintenance electrician
who had been in the employ of the respondent for about 41/2 years, was approached
by two other employees who suggested the introduction of a union in the plant.
He made no commitment but stated that he would talk to the other employees to
see how they felt about it. His work was such that if carried him to all parts of
the plant and afforded him. an opportunity to see and converse with many of the
employees during the working day.' He availed himself of this and spent the
next day conducting an active canvass of the employees in an effort to create an
interest in the Union. This attracted the attention of Gilbert Boettcher, the as-
sistant factory manager. The day after Carley started his canvass, Boettcher met
him in the plant and'inquired how "his" union was getting along. Carley made
no effort to deny his activities but told Boettcher that it was not his union. In
fact, up to that time; Carley had not joined and the indications are that no ap-
plications had been signed by anyone. Carley's activity was more of the nature of
a poll of the employees to determine whether they would be interested in or-
1 The above recitals with respect to the business of the respondent and the organization
involved are derived from a stipulation entered into on the record by the parties, that the
recitals on those subjects set out in the complaint are true and correct and may be found
as facts by the Board.
ti
SWAN RUBBER CO. .1317
ganization . The next morning Carley was called to the office of the factory man-
ager, Cody Ressegger, where he was interviewed by both Ressegger and Boettcher.
They asked him why the men wanted a union. Carley replied that they were
dissatisfied ; that they felt they were being "kicked" around, and that they could
get some relief for their grievances if they were organized . Boettcher told him
there was no need for organization and that everything could be settled at the
office as it had been in'the past. Carley agreed with this if the employees could
feel there would be no "aftermath" of reprisals. After the conversation had
continued along this line for a while, Boettcher told Carley that the company was
paying him to work during working hours; that he had no business spending the
company's time going around the plant soliciting for the Union ; and that he
could be discharged for what he had done Carley admitted to them that he had
put himself in the position where he was eligible for d;scharge but was told by
Boettcher and Ressegger that they would say nothing further about it, but they
did not want him to continue his activity. Carley agreed to have nohing further
to say about the Union and to completely suspend all his activities in its behalf.
He immediately reported what had happend to Warren Bosworth, a will operator,
and advised Bosworth that he would Have nothing further to do with promoting
the Union in the plant. A week or so later, Carley was icalled to the office of M. G.
Nussbaum, the respondent's president, who asked him whether he was the ring-
leader of the Union When Carley denied it, nothing further was said to him on
.the subject by Nussbaum. Carley maintained this position until early January
when he became a member. Since then he has again become active. No disciplin-
ary action has ever been taken against Carley who is still employed by the
respondent.
Up to the time of the Carley incident, there seems never to have been any
rule restricting solicitations of any character in the plant. ' The matter of inter-
ruptions during working hours was governed largely. by the discretion of the
men themselves, not only within their respective departments but also as to
leaving the premises during working hours. This particularly applied to visit-
ing the grocery store operated by Robert Lane next to the plant Lane has been
the proprietor of this store for more than 10 years. He has no connection with
the respondent other than that for the past 5 years, since the respondent acquired
the land on which the store stands, he has leased the property from the respondent
on a month to month basis. For many years it has been a custom among the
employees to leave their work during the day and visit Lane's store to 'buy
candy, cakes, soft drinks or other such refreshments Many of them make two
or three such visits a day during working hours. The supervisory staff similarly
frequent the, store and, so far as the record discloses, the respondent not only has
never sought to terminate the practice but has recognized it as•an established
custom and privilege. Somewhat in line with this and illustrative of the fluctua-
tions of the work during the day, the mill operators technically work 'a straight
8-hour shift with no fixed time for a lunch 'period. The nature of the mill
operation is such that at frequent intervals in each day, there comes a time
when, for 15 or 20 minutes, the operator's mill does not operate and the operator
has idle time. At such intervals he eats his lunch or otherwise occupies his
time as he wishes. While there is some testimony that there has been a rule
prohibiting employees going from one department to another except on business,
there is no credible evidence that notices to that effect have been posted or that
it has been consistently enforced. On the contrary, while such conduct appears
to have been indulged in rarely, the evidence indicates that the employees did
not regard such visits as unusual.2 _
' 2 There is no question that, since the respondent has been engaged in war work, the
military authorities have required it to restrict visitors to the Boiler Room, Engine Room
- and Pump Room . Notices to this effect are posted but there are no such notices relating
1318 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conversation between Carley, Boettcher, and Ressegger took place during
the first week in December. There' is no evidence as to what arguments Carley ,
or Bosworth advanced to the other employees concerning- the desirability of
Union representation , but on December 10, 1944, the following announcement was
posted on the bulletin boards throughout the plant:
To ALL SWAN EMPLOYEES
To CORRECT SOME FALSE INFORMATION THAT Is BEING CIRCULATED IN THIS -
PLANT-
ANY WORTHY EMPLOYEE Now ON OUR PAYROLLS SHOULD NOT BE CONCERNED
ABOUT LOSING THEIR JOBS AFTER THE WAR BECAUSE:
(1) PRIOR TO THE WAR AND RUBBER RESTRICTIONS, WE EMPLOYED 475
'PEOPLE. WE Now HAVE LESS T111N 300.
(2) WE HAVE COMPLETED PLANS FOR AN EXPANSION PROGRAM - FOR POST-
' WAR WHICH, WILL CONSIDERABLY INCREASE THE NUMBER OF
.\ PRE-WAR EMPLOYEES. _
(3) MEN, WHO THROUGH THEIR OWN EFFORTS Now, WILL BE QUALIFY-
ING FOR BETTER POSITIONS IN THE POST-WAR EXPANSION PERIOD.
AS AN OVERSEA'S VETERAN OF WORLD WAR 1, I CAN APPRECIATE WHAT MUST
BE IN THE MINDS OF OUR EMPLOYEES'NOW IN THE ARMED SERVICES AND, AS
PATRIOTIC AMERICANS, YOU MUST AGREE THAT MEN WHO GIVE UP YEARS AT
Low PAY AND Do OUR FIGHTING AND DIEING (Sic) FOR Us ARE WORTHY OF EVERY
CONSIDERATION.
ANY OF OUR FORMER EMPLOYEES Now IN SERVICE WHO WILL HONOR US BY
COMING BACK WILL MOST CERTAINLY BE EMPLOYED.
FORTUNATELY, OUR PLANS WILL ABSORB ALL OF-THESE MEN AND EVERY ONE
OF YOU, SO PLEASE Do NOT BE MISLED IN ACCEPTING FALSE INFORMATION.
RESPECTFULLY,
[s] 'M. G . NUSSBAUM,
President.
MGN:ET '
December 10, 1943
While this notice, standing alone, may appear to have no bearing on organiza-
tional activities, its proximity to the preliminary steps that ripened into an
organizational campaign is such that it is reasonable to infer the subject matter
of the notice was closely related either to some of the stated objectives of union
organization or to the discussions within the plant that led to the initiation of
the organizational movement.
When Carley advised Bosworth that he was quitting his activity concerning the
Union, Bosworth picked up where Carley had stopped and began a systematic
campaign among the employees, sometimes talking to them about the Union
and at other times merely getting their names and addresses'and advisingithem
that he wanted to send, them some union literature. 'At that time, Bosworth
had'not yet joined the Union However, on December 13, 1943, at a meeting
called by the representative of the Union, he signed an application card and
obtained a number of other cards which he subsequently passed out at the
to the ordinary operating departments. The testimony , that notices restricting inter-
departmental visits have been posted in the past is disregarded . If true, it was either so
long ago as to have been forgotten or so ignored as to have become inoperative through
disuse. '
SWAN RUBBER CO. ` 1319
plant, sometimes during working hours and at other times in the shower room
while the men were changing clothes preparatory to going off shift On one such
occasion, Darold Kennedy", the foreman of the maintenance gang, was in the
shower room and Bosworth, in passing out the cards, jokingly remarked-to him
that he could not have one because he was a foreman. Some four of five days
after the meeting of December 13, Bosworth observed the foreman, Henry
Steffens, of the milling room, performing some manual labor ordinarily done
by helpers, and in talking to him about it, said "when we get the Union organized
here you won't have to do that." -
Lane testified that at about the time the Union activities began at the plant,
Boettcher told him, on one of the occasions when he was in the store, that it the
Union came into the plant the respondent would establish a rule prohibiting the
men from leaving the plant between 7 o'clock a. m. and 11.30 a. m., which began
thei usual lunch period. Since this would deprive Lane of much of his business
from the employees, he told Boettcher that if that were done, he would have to.
close the store since he did not feel he could carry on under such restrictions.
Lane further testified that he is personally opposed to unions, and that when
the men, coming into the store- as usual, mentioned the union, he told them on
numerous occasions that Boettcher had advised him that if,the Union came into
the plant, they would not be permitted to visit the store during working hours
as they had in the past, and that he would have to go out of business. Boettcher
denied having made this statement to Lane. Like the others in the plant, he was
a frequent visitor at the store, and testified that during the period when the
Union was an active topic, Lane often expressed the opinion when talking to the
men, that if the Union came into the plant the company would become more
strict and not permit them to leave the plant as freely as heretofore for the pur-
pose of visiting the store, and that he would have to close the store. Boettcher
was unable to explain how Lane should have arrived at this conclusion without
having it, suggested to him by someone representing the company. Lane's ad-
mitted antipathy to the Union lends weight to his testimony. Under such cir-
cumstances, Boettcher's denial loses all persuasive value and is not credited. It
is found that Lane's testimony with reference to his conversations'with Boettcher
on the subject of restricting employees and his statements to the men, which were
inspired by the Boettcher conversations, is substantially correct.
The activities of the Union's proponents continued through December and into
January. On January 25, 1944, the respondent posted a notice signed by M. G.
Nussbaum, its president, reading as follows :
JANUARY 25; 1944
An Open Letter to Swan Employees :
Recently certain individuals have been soliciting , our employees for mem-
bership in a, labor organization.' .
I feel that our employees , before making any decision on this matter, are
entitled to know certain fundamental truths.
This company began operations in 1929, and all through the depression
years provided steady work and reasonable pay to a large portion ofthe
working population of Bucyrus . Many of these people are still here. Never
during the entire fifteen year period has my door ever been closed to any
employee who had a legitimate grievance or a constructive suggestion. ,My
full cooperation was given in every such instance. -Since - you have this
privilege now, as in the past, it seems to me that you can represent your-
selves better than a third party can do it for you.
As most of you know, the company wage schedules were frozen by law in
late 1942. 'Since that time, with , no other- motive than the welfare of our
1320 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and purely as a voluntary measure on our part, the company so-
licited and obtained permission to grant retroactive wage increases to well
over half of the employees • of the company . In my opinion , no one could
have done more than this.
Based upon the foregoing facts , it is my sincere belief that the existence of
a Union in this plant will have no good result for you or for the company.
This, of course , is my opinion and you are free to accept it or reject it, as
you see fit . You have a right to join any organization you desire . You have
an'equal right to refuse to join any organization you desire . You have an
equal right to refuse to join any organization which you do not believe will
be of benefit to you. Whatever your decision may be , your position with this
company will in no way be affected . My. only request is that before making
any decision , you consider all the facts.
Sincerely yours,
[s] M. G. NUSSDAUM,
President.
On January 31, 1944, Ressegger posted the following notice :
NOTICE TO ALL EMPLOYEES
EFFECTIVE THIS DATE No UNION SOLICITATION WILL BE ALLowED ON THIS
COMPANY'S PREMISES. ANY VIOLATION OF THIS RULE WILL BE CON-
SIDERED GROUNDS FOR IMMEDIATE DISMISSAL OF THE PARTIES INVOLVED
Signed [S] CODY RESSEGGER,
Factory Manager.
JANUARY 31, 1944
2 P. M.
The above notice immediately brought forth a storm of protest from the em-
ployees. Several copies of it were torn from the bulletin boards within a few
moments after they were posted. Others remained up for 2 or '3 days, after which
'they were removed by the respondent because of the protests of the employees.
The foregoing reflects the pattern of the respondent's disapproval of the Union
and of attempts on the part of the employees to organize. From it, it is found
that by the warning to Carley which stopped his activities, the comments of
Boettcher to Lane which,-with Boettcher's knowledge, were passed on to the em-
ployees, and the notices posted as above set forth, the, respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
In. support of the allegation of complaint that the respondent had engaged in
surveillance of the union meetings, there was testimony of, one witness that on
the occasion of one union meeting he had observed Ressegger sitting in his parked
car about 75 feet from the entrance of the hotel where the. meeting was being
held ; and the testimony of another witness that on the occasion of another union
meeting, Boettcher was seen to drive slowly by the hotel at about the time, the
meeting was due to begin, and was observed looking at the door of'the hotel as he
went by. The hotel in question-is on the main street of Bucyrus, which is a
small midwest town. There is a reasonable presumption that both Ressegger or
Boettcher were legitimately where they were seen to be on the occasion men-
tioned. There was no evidence to the contrary. The testimony above noted is
inadequate to establish surveillance by any of the representatives of the re-
spondent, and it is accordingly found that the respondent has not engaged in such
practice.
SWAN RUBBER -CO. 1 1321
The discharge of Warren A. Bosworth
Warren A Bosworth has been employed by the respondent continuously since
1933. His first employment was as a mill operator, carrying on the first proc-
essing operation heretofore described. In 1936 he was made shift foreman in
the mill room, and in early, 1943 became chief foreman of the mill room, in charge
of the first shift and responsible for maintaining a constant supply of raw ma-
terials with which to carry on the operation of the mill. This was done by
requisitioning such supplies through the main office. As foreman, his salary was
,approximately $52 per week, working 6 days per week regularly, and 7 clays
when necessary. The wage of the mill operators under him, who worked at
piece rites, averaged about $72 a week. Bosworth was not satisfied with his job
as foreman, either as to the responsibilities it entailed or the amount of pay as
compared with that of the men working under him. On several occasions he asked
Ressegger for increases in pay and at first was told that his wages were frozen but
was later told that an effort was being made to get him a pay rate of $1 per hour.
However, such wage increase never materialized. On several occasions he also
requested Ressegger to be relieved of his duties as foreman and to be put back to
work as a mill operator where lie could make more money and not have a foreman's
responsibilities. This request was refused, chiefly on the ground that they could
not get anyone to replace him.
In the respondent's plant, inventory is taken every 4 weeks, usually on Sundays.
October 24, 1943, was such an inventory day. On Saturday, October 23, Bos-
worth decided he was unwilling to continue at his job under the conditions then
existing, imbibed too freely of liquor, got drunk and not only failed to report at
the plant on Sunday to take inventory but did not show up until the afternoon of
Monday, October 25, At the beginning of the business day on Monday, the of-
ficials at the plant learned that the millroom inventory had not been taken, sus-
pended part of the plant operation and had the foremen of the other millroom
shifts take the inventory. At the same time, Ressegger and Boettcher decided
to remove Bosworth as foreman and appointed Henry Steffen, one of the mill
operators, to take his place. Notice of this appointment was posted during the
clay on the 25th and was observed by Bosworth when he came to the office on the
afternoon of that day, determined to quit his job. He saw Boettcher, told of
his intention to quit and commented on the change in foremen that had been made,
over the week end. - Boettcher prevailed upon Bosworth not to quit, offered him
a job as mill operator and gave him his choice of mills and shifts. Bosworth
expressed relief and gratification at the change and took the job, but told Boettcher
he might not be there long since he had another job in view. He agreed to co-
operate with Steffen and assist him in becoming acquainted with his duties but
otherwise assumed hi§ place as any other mill operator, working at piece work
rates. As a mill operator he earned approximately $72.00 per week and was
fully satisfied although he did not immediately abandon his interest in a job else-
where. The only time, however, when he evidenced this interest was during the
week following his demotion when he was allowed to leave the plant an hour early
in order to go to a nearby town where lie had another job -in view. Boettcher
testified that when Bosworth was demoted and went to work as a mill operator,
there was an agreement between them that his work would be only temporary
and would last no longer. than it took him to find other employment. Bosworth
denied this and stated that he took the operator job as permanent, employment
but that he did, in fact, tell Boettcher he might leave in the near future to,take
other employment. Boettcher testified that Bosworth was a wholly satisfactory
operator and that there were no complaints to be made of his work either in quan-
tity or quality. As a foreman, however, he had been criticized to some extent,
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
chiefly concerning the accumulation of scrap In view of the fact that the work
of a mill operator is one requiring skill and experience , which is not easily re-
placeable , and in the light of the present acute shortage throughout the nation,
of 'skilled men in all classifications , it is improbable that Boettcher would allow
a qualified man to leave the employ of the respondent if he, was willing to remain.
Boettcher 's testimony that he had an unqualified agreement with Bosworth that
he would be allowed to remain as a mill operator only for a short period and would
then find employment elsewhere ; is not credited . None of the circumstances
point to it . Boettcher and Steffen knew he was interested in finding another
job elsewhere but there was no show of desire on their point 'that he.leave them
for other employment and no inquiries by them during the 2 months following'
his demotion , as to his success in finding another job. It is found that no such'
,condition was attached to his employment. ,
Shortly after Steffen assumed his duties as foreman , he inquired of Bosworth
as to the amount of stearic acid it was customary to order and to keep on hand
for carrying on the work . Bosworth did not give him an informative answer
but merely replied, in substance, "that is something you are going to have to
learn from experience just like I did ." Steffen never again requested informa-
tion or cooperation from Bosworth and Bosworth volunteered none. No criticism
was directed to Bosworth about this incident.
As has been heretofore stated, in the early part of December , Bosworth under-
took to arouse interest in the Union among the employees, passing out application
cards to some and taking names and addresses from others so that he could
send union literature to them. ' On December 20, Bosworth carried on his union
activities in the same manner that he had in the past, and at about noon, after
he had, finished the work on his machine to the point where he had' some,idle
time, he went to the third floor while the employees on that floor were eating
their lunch and'obtained a number of names and addresses from them . , A little
later in the day, Walter Robinson , the foreman on the third floor, inquired of,Stef-
fen what business Bosworth' had on the third floor , taking names and, addresses
from the employees there. Steffen replied that he did not know. . ;He- did not
speak to Bosworth about this but promptly reported it to Boettcher who directed
him to have Bosworth come to his office at the close of work. . At about the,time
Bosworth was ready to quit for the day, Steffen told him that Boettcher wanted
to see him . On reporting to Boettcher 's office, the latter told Bosworth that
he would have to resign , Bosworth refused to do so and , told him that if they
wanted ' to get rid of him they 'would have to discharge him. This precipitated
a somewhat acrimonious discussion in which Boettcher , reviewed -. Bosworth's. in-
ability as a foreman and also told him that he had not kept his agreement with
Boettcher to find another employment after his demotion Bosworth - denied
having such an agreement and called Boettcher's 'attention to the' fact that he
had been operating his mill 2 months and that if there was any criticism of him,
they should have decided long since that they did not want . him.in the-shop The
outcome of this meeting was that Bosworth , was discharged , the, reason stated '
on his separation slip being, "lack of cooperation." - . -
The only testimony with, reference to lack of cooperation. was the incident with
Steffen which occurred just a day or two after October 25. There is no evidence
that any other thing, occurred which would invite criticism to Bosworth until
the incident of his, appearance on the third-floor came to the surface., Boettcher
testified that that,,was• nut the reason for his discharge, but that he simply de-
cided Bosworth'scontinued presence in the mill room, working under a foreman
who previously, had.been, a; mill operator under h]m, , was "creating an, unsatis-
faetory,condition," and, that he should be field to his agreement to remain with
the respondent, only long, enough, for,him to, obtain, other employment-and, that
SWAN RUBBER CO. t 1323
for that reason he discharged him as he did This explanation is wholly un-
convincing in the light of the respondent ' s established antipathy to the organ-
ization of its employees and Bosworth 's activity in that respect , which, notwith-
standing the denials of Ressegger , Boettcher and, Steffen ,, was well known to
them. On the day following the discharge , Bosworth , by appointment , came to
the office for a meeting with Ressegger and Boettcher and brought with him as
his' representative , John D. House , the international representative of the Union.;
House attempted to discuss Bosworth 's discharge but was told by Ressegger that
since he was not an attorney they would not talk to him They referred him to
- the respondent 's' attorney , if he desired to discuss the discharge.
Bosworth's discharge is hardly susceptible of explanation on any basis other
than that , in the light of the respondent 's antipathy to the Union and Bosworth's
open activity on behalf of the Union , his discharge was prompted wholly by a
desire to eradicate whatever influence he might have on the other employees.
The reasons for the discharge that were given by Boettcher do not reflect the
normal attitude of a factory manager to whom regular and satisfactory produc-
tion is essential . Such a superintendent does not quickly discharge an employee
who admittedly is an excellent worker and about whom the record reveals no -
complaints concerning either his production or his relation to the other employ-
ees. It ' is found that Bosworth was in fact discharged by the respondent on
December 20, 1943, because of his membership in and his advocacy of the Union
and to discourage membership in the Union.
The discharge of Lewis Cole
Lewis Cole first began to work for the respondent on March 29 , 1943. On June
29,' 1943, he quit. On November 22, 1943, he returned and took a job trucking
material from one machine to another throughout the plant. His initial pay
- rate was , 65 cents per hour. Within 2 weeks his pay was raised 5 cents , per hour.
Cole's work required no skill and was not criticized . Boettcher stated that he
was 'an ordinary 'normal worker of reasonably satisfactory 'quality. His assign-
ment was the third shift; working front 11: 00 p. in until 7 : 00 a in under Foreman
James Harris . '' On 'January 13, 1944, Cole became a member of the Union and
talked "to' a number of employees in the plant about his union membership. He
also talked'to several of them about joining and solicited their memberships, al-
though ' tlie'evidence' does ' not' indicate that he was , very active in this regard,
or that his activities were known to 'ariione ' in management . On January 19;
1943, Cole became ill with a cold and on the evening of that day , his mother tele-
phoned to the guard at the gate, at about 9'00 o'clock that lie was sick and in bed
with a cold,,. and.would , be- unable to report for, work ' The guard passed the
message on to Merle Groves, the foreman of the second shift in the department
where,Cole normally was employed on the third shift. ' Groves promised to relay
the message to the foreman of Cole's shift ,when ',he came on duty. The evidence
discloses that Groves , failed -to notify Foreman Harris that Cole was not report-
ing for work that night because of,illness , and that at no time thereafter did' any-
one notify any of Cole 's superiors of his inability to retgrii to work. The respond-
ent has a -rule that-after 4 days of unreported absence, an employee is automati-
cally , ' removed , from , the pay roll . After- 5 days of absence , ' Cole returned 'on
January 25 , found his time card still!in the rack , punched it , and prepared to start
to work. , Harris stopped him, told him that he was off the pay roll; and that he
would have to see 'Boettcher the next day . ' Cole returned ' to the plant on the
following day , called on Haller, the paymaster and obtained his pay up to 'date
together with a separation slip which gave as the reason for his discharge , `-'Ab-
sent , without report." Cole told Haller that this ' was , incorrect and that his
niothei had called;' in to 'the plant on the night of the first day he was absent.
1324 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haller replied that he knew nothing about it and could do nothing about it, where-
upon Cole took the check which Haller gave him and started to leave. Just in-
side the door, he met Boettcher and told Boettcher that a mistake had been made
about him reporting in when he was unable to come to work. Boettcher told him
he had received no such report and that under the rule he automatically was
severed from the pay roll after 4 days of unreported absence. At this stage
Cole waved his pay check at Boettcher' and told him that it did not make any
difference because he had intended quitting anyway. With this statement Cole
walked away and Boettcher dismissed the matter from his mind. Later in the
day he met Cole who asked him to check with the guard about the call and correct
the separation slip but he did not ask to be returned to work and Boettcher did
not offer to reinstate him, nor did Boettcher immediately check the call although
it is now undisputed that such a call actually was made as testified to by Cole and
by Braydon, the guard who received- it. The whole affair grew out of Groves'
failure to pass the information on to Cole's immediate` superior.
The evidence does not reflect that the respondent or any of its supervisory
employees had any knowledge of Cole's union membersip or affiliation or that
his union membership, or affiliation played any part in his discharge. The dis-
charge was prompted by a breach of a reasonable rule of the Company. It was
automatic It is unfortunate that the discharge should have grown out of a cir-
cumstance where Cole was not actually at fault but in the absence oPa showing
of discrimination, the circumstance is beyond the Board's jurisdiction. The
discharge was accomplished in good faith and in the ordinary course of busi-
ness of the respondent pursuant to its established rules and regulations. It is
found that in discharging Lewis Cole on January 25, 1944, the respondent has
engaged in no unfair labor practices within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR L),BOR PRACTICES UPON COMMERCE
r
The activities of the respondent set forth in, Section III above, with the excep-
tion of those pertaining to the Lewis Cole discharge, occurring in connection with
the operations of the respondent described in Section I above, have a close, in-
timate and substantial relationship to trade, traffic, and commerce among the
several States] and to the extent that they are found to, have been in contra-
vention of Sections 7 and 8 of the Act, tend'to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
It having been found that the Swan Rubber Company, by the actions above
described, has interfered with,, restrained'and coerced its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act, it will be recommended
that the respondent cease and desist from such'conduct and take other appro-
priate affirmative action designed to effectuate the policies of the Act.
It will also be recommended that the respondent offer full and immediate rein-
statement to Warren A. Bosworth to his,former or substantially equivalent posi-
tion, without loss of seniority or other rights or privileges, and that the re-
spondent also make whole the said Warren A. Bosworth for any loss of pay
he may have suffered by reason of his discharge on December 20, 1943, by paying
to him a sum of money equal to the amount he normally would have earned in his
regular employment with respondent from the date of his discharge to the date
of the offer of reinstatement, less his net earnings during such period 9
3 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
SWAN RUBBER CO. 1325
Upon the basis of the foregoing findings of fact and upon the entire record in
the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Rubber Workers of America (CIO) is a labor organization within
the meaning of Section 2 (5) of the Act admitting,to membership the employees
of the respondent. - ,
2. By discriminating in regard to the hire and tenure of employment of Warren
A. Bosworth, on December 20, 1943, and thereby discouraging membership in
the United Rubber Workers of America (CIO); the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5 By discharging Lewis Cole on January 25, 1944, the respondent has engaged
in no unfair labor.practice within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact, and conclusions of law, and
upon the entire record, the undersigned recommends that the respondent, its
officers, supervisory representatives and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in United Rubber Workers of America (CIO)
or any other labor organization by discriminating in regard to hire or tenure of
employment or any terms or conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join or assist
labor organizations, to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act : k
(a) Offer to Warren A. Bosworth, without prejudice to his seniority or other
rights and privileges, full and immediate reinstatement to his former or sub-
stantially equivalent employment; '
(b) Make whole the said Warren A. Bosworth for any loss of pay suffered
by him as a result of'the respondent's discrimination against him, between the
date of his discharge and the date of the offer of reinstatement, less his net
earnings during said period ;
(c) Post immediately in conspicuous places in the plant at Bucyrus, Ohio, and
maintain for a period of at least sixty (60) consecutive days from the date of
posting, notices to all employees stating: (1) that the respondent will not engage
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440 Monies received for
won k performed upon Federal, State, county, municipal, or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation V. N. L. R. B 311 U. S 7.
587784-45-vol. 56-85
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the, conduct from which it'is recommended that it cease and desist in paragraph
1 (a) and (b) of these recommendations; (2) that the respondent-will take the
affirmative action set forth in paragraphs 2 (a) and (b) of these recommenda-
tions ; and (3) that the respondent's employees are free -to remain or become
members of the United Rubber Workers of America (CIO) or any other labor
organization, and that the respondent will not discriminate against any of its
employees because'of membership in that organization or any labor organization ;
(d) Notify the -Regional Director for the Eighth Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is also recommended that the complaint be dismissed insofar as it alleges ;
(1) that the respondent engaged in unfair labor practices in connection with
the discharge of Lewis Cole; (2) that the respondent has engaged in surveillance-
of union members or union meetings.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies the Regional Director
for the Eighth,Region in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board- issue an order requiring, the
respondent to take such action.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the entry
of the order transferring the case to the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, file with the Board, Rochambeau Building,
Washington, D. C., an original and four copies -of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
,relies upon, together with the original and four copies of a brief in support
thereof Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should- any party desire permission "to
-argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the Board. ,
R. N. DENHAM,
Trial Examiner.
Dated March 4, 1944.
e