The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Apr 16, 1946

67 N.L.R.B. 335 (N.L.R.B. 1946)

In the Matter of TIIE FIRESTONE TIRE & RUBBER COMPANY and UNITED
RUBBER WORKERS OF AMERICA, CIO
Cage No. 5-C-1865.Decided April 16, 1946
DECISION
AND
ORDER
On August 3, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged and was engaging in certain unfair labor practices in
violation of Section 8 (1) of the Act and that it had not engaged in
unfair labor practices in violation of Section 8 (3) of the Act by the
discharge of J. A. Sebastian, and recommending that it cease and desist
from the unfair labor practices found and take certain affirmative
action and that the complaint be dismissed insofar as it alleged a viola-
tion of the Act with respect to the discharge of J. A. Sebastian.
The respondent filed no exceptions to the Intermediate Report.
Counsel for the Union and the Board filed exceptions, with a support-
ing brief, to the Trial Examiner's recommendation that the complaint
be dismissed with respect to the discharge of J. A. Sebastian. No re-
quest for oral argument before the Board at Washington, D. C. was
made by any of the parties, and none was held.
The Board has considered the Intermediate Report, the exceptions
and brief of counsel for the Union and the Board, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (e)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent The Firestone Tire & Rubber
Company, Winston-Salem, North Carolina, and its officers, agents,
successors , and assigns shall:
1. Cease and desist from interfering with, restraining or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations , to join or assist United Rubber Workers of
67 N. L . R. B., No. 47.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, affiliated with the Congress of Industrial Organizations, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or pro-
tection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its Winston-Salem, North Carolina, plant, copies of the
notice attached to the Intermediate Report herein, marked "Appendix
A."' Copies of said notice, to be furnished by the Regional Director
for the Fifth Region, after being duly signed by the respondent's
representative, shall be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(b) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminatorily discharged J. A. Sebastian within the
meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. George L. Weasler, for the Board.
Mr. Harold Mull, of Akron, Ohio ; Messrs. J. M. Moore and W. C. Guthrie,
of Winston-Salem, N. C., for the respondent.
Mr. Ray C. Nixon, of Charlotte, N. C., and Mr. M. W. Lynch, of Winston-Salem,
N. C., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Rubber Workers of America,
CIO, herein called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Fifth Region (Baltimore, Maryland),
issued its complaint dated June 27, 1945, against The Firestone Tire & Rubber
Company, Winston-Salem, North Carolina, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
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, together with notice of hearing thereon, were duly served upon
the respondent and the Union.
With respect to unfair labor practices, the complaint alleged in substance
that the respondent : (1) questioned its employees concerning their union affilia-
tion and activities, made disparaging and derogatory remarks about the Union
IS,-said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
THE FIRESTONE TIRE & RUBBER COMPANY 337
and its members, urged and warned its employees to refrain from affiliation with
the Union, and threatened them with discharge or other reprisals if they joined
or assisted the Union ; (2) on January 18, 1945, discharged J. A. Sebastian, an
employee, because of his union and concerted activities; (3) and because of the
foregoing, engaged in conduct violative of Section 8 (1) and (3) of the Act.
In its duly filed answer, the respondent denied that it had engaged in the
alleged unfair labor practices and asserted as affirmative defense that it dis-
charged Sebastian on the date alleged for cause. Prior to the hearing, the
respondent filed a motion for a bill of particulars, and this motion was on July
10, 1945, granted in part, denied in part, by a duly designated Trial Examiner.
Pursuant to notice, a hearing was held at Winston-Salem, North Carolina, on
July 16 and 17, 1945, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner All parties were represented and participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
A t the close of the Board's case the undersigned denied a motion by the respond-
ent to dismiss the complaint The respondent renewed its motion near the close
of the hearing and ruling thereon was reserved. It is disposed of in the body of
the Intermediate Report. Near the close of the hearing the undersigned granted,
vvithout objection, a motion by Board's counsel to conform the pleadings to the
proof. After the testimony had been taken, counsel for the respondent and for
the Board argued orally before the undersigned All parties waived the filing of
briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Firestone Tire & Rubber Company is an Ohio corporation with its principal
office at Akron, Ohio. It operates a plant at Winston-Salem, North Carolina, its
sole plant involved in this proceeding, where it has been engaged at all times
material herein in the manufacture of rubberized bridge pontoons for the military
forces of the United States Government.
During the calendar year 1944, its purchases of raw materials for its Winston-
Salem plant consisted of processed fabric, solvents, cement, rope, and metal valves
and related products, of a value in excess of $2,000,000, of which 98 percent was
purchased and shipped to the Winston-Salem plant from points outside the State
of North Carolina. During this same period, finished products of the Winston-
Salem plant of a value in excess of $5,500,000 were sold and shipped to points
outside the State. All sales were made directly to the United States Government.
The respondent admits that it is engaged in commerce within the meaning of
the Act.
II THE ORGANIZATION INVOLVED
United Rubber Workers of America is a labor organization affiliated with the
Congress of Industrial Organizations and admitting to membership employees of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
J. A. Sebastian was employed by the respondent in June or July, 1944 During
the latter part of August or early September, 1944, he became interested in union
692148-46-vol. 67-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation and arranged to meet with Ray C Nixon , a field representative of the
Union. There is no record of organizational activities among the employees of
the Winston-Salem plant prior to this time. Nixon advised Sebastian of organi-
zational procedures and gave him a quantity of union application cards. Begin-
ning in September , Sebastian was very active in soliciting for the Union and in
distributing union literature among the respondent ' s employees . Another em-
ployee active in the organizational effort was Chester French.
Sebastian testified credibly that shortly after he began soliciting for the Union,
Chief Supervisor Fred Bennett asked him if he was handing out union cards and
warned him that he was "sticking his neck out " by engaging in union activity and
would get nothing out of it.' Sebastian advised Bennett that he intended to
continue his union activities . A few weeks later Bennett asked him how he was
getting along and if he had signed up many employees in the Union At a later
date Foreman Dunn , who was shortly to become Sebastian 's immediate supervisor,
asked the latter if the Union was affiliated with the AFL or the CIO. - On another
occasion , Foreman Cheek instructed Sebastian that he could not sign up employees
on company property , that it was against company rules, but that be ( Cheek) did
not care what Sebastian did outside the plant. While it appears that Sebastian
solicited inside the plant, he denied that he carried on this activity during working
hours and it is clear that Cheek did not limit his instructions with respect to
working time . Cheek testified that he thought there was a rule forbidding solici-
tation on company property but could not recall that lie had ever received specific
instructions to this effect. Respondent 's counsel admitted that there was no such
rule In the fall of 1944 , as Sebastian and another employee , Clarence Freeman,
were leaving the plant at the end of their work shift, Claude Wilson , foreman on
another shift , called after them , "TO Hell with the CIO," and when Sebastian
looked back at him , added, "TO hell with you, too."'
Chester French testified that he signed a union card at Sebastian 's solicitation.
In April, 1945 , according to French, Supervisor James Hill approached him and
asked him about the union badge he was wearing and what he was "trying to
represent ." French replied that it was a CIO badge Hill then told French
that he ( Hill) had been affiliated with another union for 8 or 10 years and
referred to unions as racketeers and gangsters French made a memorandum
of Hill 's statements at the time they were made , since he considered they were
violative of the Act, and Elsner Sink, a fellow employee who overheard the state-
ments, signed it jointly with him. At the hearing Sink admitted that he signed
the French memorandum , but denied that Hill used the terms racketeers or
gangsters in referring to the Union . While testifying that he overheard the
conversation and that it had to do with unions , lie could not recall anything that
was said. Hill also testified that he was unable to recall the conversation though
he did not deny that it may have occurred . He admitted that he had been affili-
ated with an AFL union for 8 or 10 years but denied that he had employed the
terms racketeers and gangsters in referring to unions . French ' s testimony in
contrast to that of Sink and Hill , was clear and definite , and the undersigned
credits it.
' Bennett denied the statements thus attributed to him by Sebastian or that he had any
knowledge of Sebastian's union affiliation or activities. He testified that he had known
Sebastian from the time the latter was employed at the plant, and further testified that
he had no knowledge of organizational activities among the employees until a date subse-
quent to Sebastian' s discharge on January 18, 1945 In view of the fact that Sebastian
distributed union pamphlets outside the plant and engaged in solicitations openly both
inside and outside the plant, and from his observation of the witnesses, the undersigned is
unable to'credit Bennett's denials
2 This finding is based on the credited testimony of Sebastian and Freeman. Wilson
denied that he made the statement thus attributed to him
THE FIRESTONE TIRE & RUBBER COMPANY 339
Norwood Cockerham testified that in August 1944, French gave him some
union cards and he began handing them out to emplol ees inside the plant just
prior to this work shift. According to Cockerham, Supervisor James Llewellyn
approached him and told him that the cards he was handing out would cost him
his job and he replied, "Well, if they do I can get another." Questioned, "Did
you have any other conversation about the union with Llewellyn?" Cocker-
ham testified, "Nothing only he just come up once in a while at the work, he says,
you had better watch . . . those cards you are handing out, they will cost you
your job." Cockerham was discharged in October 1944, and there is no allega-
tion that his discharge was discriminatory. Llewellyn denied that he ever
observed Cockerham passing out union cards or literature or that he ever had
a conversation with Cockerham relating to unions. He admitted that he had
heard of union activity in the plant and had seen union cards on the floor and
in the employees' pockets. Questioned by the Board's attorney, "Have you ever
seen Cockerham carrying any of those union cards in his pocket?" Llewellyn
testified, "I couldn't say. I have seen them probably in most all of the boys'
back pockets." The undersigned is unable to believe that Llewellyn repeatedly
warned Cockerham that handing out union cards would cost him his job, par-
ticularly in view of the fact that it is not charged that Cockerham's discharge,
which followed closely on the heels of this alleged activity, was discriminatory.
Llewellyn's denial was convincing and is credited
Concluding findings
The statements and conduct of Supervisors Bennett, Cheek, Wilson and Hill,
set forth in detail above, considered in their totality, do not, in the opinion of
the undersigned, fall within the category of sporadic expressions of personal
opinion by minor supervisors, as argued by respondent's attorney. Cheek's
instruction to Sebastian to cease solicitations in the plant, without limitation
as to working hours, was on the same footing as a rule which if it incorporated
the same unlimited prohibition would contravene the principle established in
the Republic Aviation case,' and therefore imposed an unlawful restraint upon
the employees' organizational activity. Bennett's questioning of Sebastian con-
cerning the latter's union activities, and admonition that he was "sticking his
neck out" in soliciting for the union, clearly exceeded the bounds of permissible
conduct. The undersigned accordingly finds that the respondent, because of the
anti-union statements and conduct of its Supervisors Bennett, Cheek, Wilson and
Hill, interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act
B. The discharge of J A Sebastian
Sebastian was first employed in June or July, 1944, on a job which appears
to have required little skill, at a starting wage of 50 cents an hour. After two
weeks, he was assigned to assist Foreman Henry Capps in installing bulkheads,
and while working under Capps his wages were increased to 75 cents an hour.
After working only a few weeks on the job with Capps, he was transferred to
the repair and testing department, and continued in that department until Jan-
uary 18, 1945, when he was discharged.
The testing and repair department is situated in a large building known as
the George Davis warehouse, physically separated from the production depart-
ments. In this department, the rubberized pontoons or bridge sections manu,-
8 Matter of Republic Aviation Corporation, 51 N. L. A. B. 1199, enf'd 824 U. S. 793.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factured by the respondent are tested under the general supervision of govern-
ment inspectors, and are repaired for leaks or other defects During the period
in question, from 40 to 75 employees were assigned to this department, of which
number from 6 to 8 were testers. When Sebastian was first transferred to this
department, his unrnediate supervisor was Gordon Cheek. In September or
October 1944, Cheek was succeeded by JarAes Dunn who from that date until
Sebastian's discharge was the latter's immediate supervisor. The chief or floor
supervisor for the entire plant on the second shift-the shift on which Sebastian
worked throughout his employment with the respondent-was Fred Bennett.
The general foreman of this shift, and Bennett's immediate supervisor, was Joel
T. Webb. During the weeks immediately preceding Sebastian's discharge, Webb
was succeeded on the second shift by Foreman William Linkre. The general
foreman over the three shifts was Swartwood, who at the time of the hearing
was employed by the respondent at its plant in Pennsylvania, and the plant
superintendent was Moore. Linkre, Swartwood and Moore did not testify.
Sebastian testified that during his entire tenure of employment he was never
criticized or reprimanded for failure to perform his work satisfactorily and had
on occasion been complimented on his work by Foremen Cheeks and Capps.
Capps did not testify but since during the same 2 weeks in the summer of 1944
that Sebastian worked under his supervision the latter's wages were increased
25 cents an hour, it is assumed that his work was satisfactory during that period.
Cheeks admitted that Sebastian was a competent workman at the time he was
engaged as a repair man, but testified that later, when Sebastian was engaged in
soap testing, a process by which a liquid solution is applied to the.surfaces of the
rubberized pontoons to determine if there are leaks, it was necessary to look him
up in order to get hint back on the job.' Bennett testified that Cheek complained
to him about Sebastian's absences from the job during working hours, and on
September 25, Shift Foreman Webb filed a written complaint or reprimand against
Sebastian i
Dunn, who succeeded Cheek as Sebastian's immediate supervisor, testified
that when he first became foreman of the testing and repair department, pro-
duction in that department was off and the testers did no repair work At this
time, and during the rest of his period of employment, Sebastian was a tester.
According to Dunn, he found that the testers had a great deal of spare time
and required them to do repair work when not actually engaged in testing.
He testified that Sebastian objected to repair work and complained that it was
not required of testers on other shifts, and that Sebastian was the "mouth-
piece" of the group of testers in objecting to the soap test' It appears that the
gist of the complaint was that the liquid solution used in the test hurt the
operators' hands.
" Cheek, who at the time of the hearing had been demoted to a nonsupervisory position,
testified concerning Sebastian's work. ". . he was a good worker when he was working
on repairs, he was as good a worker as I have ever seen, but the time when he went on
testing, he didn't want to come back over and repair, soap test . . .
" Webb's memorandum states, in substance, that Dunn had reported that several employees
working with Sebastian had complained that Sebastian did not do his part of the work but
continuously loafed and killed time on the job. Dunn requested that Sebastian be removed
to another job Later, Dunn reported back that Sebastian had told him (Dunn) that if
given another chance he would perform his duties efficiently "and cause no further friction
in the department " Thereafter, Webb had checked back with Dunn and was advised by
Dunn that Sebastian's "attitude" was poor and that he continued to loaf Both Webb and
Dunn testified that it was late in 1944 that Dunn requested Sebastian's removal from the
department, and it appears from Dunn's testimony that he may have made a second
request of this nature since he refers to the "last time" he sought Sebastian's removal
6 There Is no evidence that the employees authorized Sebastian to act as their spokes-
man with reference to this or other matters, except Dunn's testimony quoted above.
THE FIRESTONE TIRE & RUBBER COMPANY 341
Dunn further testified that from the time he was put on testing, Sebastian
was frequently away from his job during working hours, that on numerous
occasions it was necessary to send someone to look him up, and that on these
occasions he would be found loafing. According to Dunn he would talk to
Sebastian on such occasions and the latter would promise to do better. On one
occasion Dunn requested his superior, Webb, to remove Sebastian from the
department but later rescinded his request after again talking to Sebastian and
obtaining his promise to stay on the job' Dunn's testimony was corroborated
by that of Webb and Bennett. Bennett testified that Dunn filed complaints
with him against Sebastian and that he himself had on several occasions found
Sebastian away from his job and loafing He testified that he made out three or
more written reprimands against Sebastian, and filed them with his superiors,
Swartwood and Moore." Some two or three weeks prior to the date of Sebas-
tian's discharge, he recommended the latter's discharge to Swartwood but
Swartwood at that time told him to talk to Sebastian and see if he couldn't
get the latter "on the ball a little more."
David Todd, a government inspector, was assigned to the Respondent's
Winston-Salem plant in August 1944, and continued in that capacity until Jan-
uary 15, 1945, when he was employed by the respondent. As a government
inspector, Todd worked closely with the testers and inspected their work to
determine if it met government requirements. He testified, as did Dunn, Webb
and Bennett, that Sebastian was frequently absent from his job during working
hours so that it was necessary to look him up, and that Sebastian's work as a
tester was unsatisfactory. He testified specifically that on numerous occasions
Sebastian failed to seal the pontoon bows or valves properly, and that he had
complained both to his own supervisors and to Sebastian's supervisors about
the latter's- failure to perform his work satisfactorily. Todd admitted that
other employees were similarly negligent, but testified that Sebastian was the
chief offender.
Claude Wilson, a first shift foreman, was assigned to the second shift for a
2 weeks' period beginning January 1, 1945, to assist Dunn in overcoming the
production deficiencies which had developed on this shift.' Ile testified that
during this period he reported Sebastian and others to Dunn and to Swartwood
for loafing on the job.
Some 10 days or 2 weeks prior to his discharge, Sebastian was made head
tester or checker and given a 5 cents an hour wage increase Previous to this,
there had been no head testei. Sebastian testified that as head tester, he con-
tinued the same work be had been doing, but had the additional responsibility
of assigning the other testers to their jobs and of seeing that their work was
done properly. Dunn testified that he made Sebastian head checker in order to
make the latter directly accountable to him. "I couldn't work the guy," Dunn
testified, "and I thought I would put him in a place where he would have to be
directly responsible to me, see, for the whole thing, and that is the reason he was
appointed to be a checker." He further testified on the same subject that the
7 See footnote 5, supra.
"The Board introduced into evidence two written reprimands signed by Bennett.
The first dated October 25, 1944, stated that Dunn had complained about Sebastian
being "always off the job and away from the place in which he was supposed to work" ;
that on such occasions he was always "in another part of the plant and generally
found in the men's rest room", that when Dunn found Sebastian off his job, the latter
"readily admitted that he was doing wrong" and assured Dunn "that he would remain on
his job." The second written reprimand, dated January 18, 1945, is set forth in the
main text of the Report.
awilson as not employed by the respondent at the time of the hearing, having
resigned on January 25, 1945.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department was losing production and he thought it would be a good idea to put
one man in charge "to make sure that these boats were sealed the right way"
and no time was lost, and that he selected Sebastian "because he was the one that
I could not find all the time and I thought if he was chargeable with a job like
that I could."
A few days prior to Sebastian's discharge, an unspecified number of pontoons
were found to have been improperly sealed. Dunn called a group of testers
together and advised them of the matter. Sebastian stated that he would assume
responsibility for the occurrence. There was no identification which would dis-
close which of the testers had worked on any individual pontoon. Dunn testified,
however, that the defective seals were Sebastian's fault since he had been desig-
nated the final checker and he "was the man that was supposed to see that they
were sealed properly." The failure to seal the bows properly caused a substantial
delay in meeting production quotas.
On January 18, 1945, the date of Sebastian'- discharge, a group of employees
of the testing and repair department were summoned to the office of Plant Super-
intendent Moore who told them that production was lagging behind schedules and
he wanted them to get out more pontoons. Sebastian questioned Moore about a
plant bonus and apparently suggested that a wage incentiVe plan might result in
increased production. He also complained about working conditions. Later that
same day and near the end of the work shift, Bennett advised Sebastian that
lie was wanted in the office of the Personnel Manager, William Guthrie. He
accompanied Sebastian to the latter's office. Guthrie advised Sebastian that
he was being discharged for unsatisfactory work. It does not appear that
Sebastian asked for or was given any further explanation for his discharge. He
returned to the plant at a later date and asked for his job back but was refused.
Guthrie testified that he did not know Sebastian by name prior to the date of
the discharge and that he discharged the latter on the basis of written reprimands
and the oral recommendations of Shift Foreman Linkie and Floor Supervisor
Bennett. He admitted that Dunn, Sebastian's immediate supervisor, was not
consulted in the matter of the discharge. On the date of Sebastian's discharge,
but after the discharge had been effectuated, Bennett filed the following mem-
orandum with Guthrie :
In going through the plant this afternoon I saw the above employee off
his job again and running all around in one section of the plant, talking to a
number of different employees and not satisfactorily doing the job to which
he was assigned, as it seemed almost impossible for him to remain in any
one spot very long.
I took this matter up with Mr. Linkie and Mr. Linkie in turn said he would
take this matter up with you.
Sebastian, as previously stated, made a general denial that he was ever criti-
cized or reprimanded for unsatisfactory work, and specifically denied that Ben-
nett or Webb had to look him up to get him back on the job, or that he was advised
that Todd reported him as being absent from his job. Several employees who
worked in the department with Sebastian testified that they considered his work
as good as the average and that they had not heard him criticized or reprimanded
by his supervisors
Concluding findings
The undersigned believes it is clear from statements and conduct of super-
visory personnel , set forth in detail in Section III (a ) above, and the open and
undisguised character of Sebastian's union activity, that the respondent had
knowledge of the latter's union affiliation and efforts to organize the plant.
THE FIRESTONE TIRE & RUBBER COMPANY 343
Sebastian testified that he began this activity in August or September 1944, and
continued active in behalf of the Union until his discharge . There is no showing,
however, of an intensified organizational drive by the Union, and no specific
showing of union activity by Sebastian, on or in the period immediately preceding
the date of his discharge.
While Sebastian testified that he was never criticized by his supervisors or
reprimanded for unsatisfactory work, the record is replete with evidence that he
was negligent in the performance of his duties as a tester and that he had on
at least several occasions been reprimanded by his supervisors Believing that
there was a measure of exaggeration in the testimony of respondent's supervisors,
two of whom are shown by their statements to Sebastian to have been biased
against the Union," the undersigned is nevertheless convinced that this testimony
in its totality carries a weight which cannot be ignored and establishes that
Sebastian was frequently absent from his job during working hours and otherwise
negligent in the performance of his duties. The undersigned accordingly is
convinced that in testifying, Sebastian did not give a full and true account of
his employment record. That he was not discharged earlier has a plausible
explanation in the manpower shortage which admittedly caused the respondent
to retain some employees who were incompetent and who otherwise would have
been discharged " The testimony further tends to show that there was a serious
lag in production on Sebastian's shift and that while Sebastian was not the sole
employee accused of loafing on the job, he was regarded by his superiors as the
chief offender in this respect Assuming, contrary to Sebastian's testimony,
that during these periods when he was absent from his job during working hours
he was engaging in union or concerted activities, this does not alter the situation
since such activities do not afford an employee engaging therein immunity from
discharge for neglect of work.
While on first impression it appears inconsistent that an employee whose work
has been found unsatisfactory over a period of months should be advanced
to a degree of responsibility and given a wage increase, Dunn's explanation
of Sebastian's advancement, when related to the entire situation, is not un-
reasonable. As previously stated, there is no specific showing of union activity
by Sebastian during the period between his promotion and his discharge which
would explain the timing of the discharge if it be assumed that the discharge
was discriminatory. Furthermore, had the respondent merely been waiting for
a pretext, it appears that Webb's reprimand issued in September when Sebastian's
organizational activity was well under way would have served such purpose.
Admittedly, Dunn in making Sebastian head checker, was placing him in a
position where he would be more readily and directly accountable for his own
proper attention to his duties as well as the performance of the group. Dunn's
explanation for his action was convincing in absence of a showing that he was
really setting the stage for the discharge by placing Sebastian in a more vulner-
able position, and that in so doing he was moved by discriminatory intent.
The circumstances of the discharge itself give rise- to considerable speculation
as to its actual motivating cause. A few days prior to the discharge and while
Sebastian was acting as head checker, Dunn discovered some pontoons im-
properly sealed and, as he testified, he considered that this was Sebastian's
fault since it was the latter's primary responsibility as head checker to see that
the pontoon bows were properly sealed There is no showing, however, that he
10 That is, Bennett and Wilson
'i Guthrie testified • "We have put up with people . . . that really should have been
discharged, and we have people that are working that under normal conditions would not
fit into the plant. If we had a normal labor supply market they certainly would not fit
and it is a question of getting pi oduction."
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported this to his superiors or that it was considered at the time of the dis-
charge. The memorandum filed by Bennett on the date of the discharge makes
no mention of the incident and, in fact, Bennett testified that he did not know
that Sebastian had been made head checker. It appears that Guthrie in order-
ing the discharge relied solely on the reprimands which had been filed in his
office, and the oral recommendations of Foreman Linkie and Chief Supervisor
Bennett. It would appear that normally Dunn, Sebastian's immediate super-
visor, would have been consulted in the matter of the discharge though admit-
tedly he was not. A further difficulty in resolving the issue of the discharge
lies in Bennett's denial of all knowledge that Sebastian had engaged in union
activities or that there was organizational activity in the plant, a denial which
the undersigned has been unable to credit It is felt, however, that in view
of Sebastian's employment record, a valid reason for his discharge did exist,
and that the Board has not by a preponderance of evidence shown that the
actual motivating cause of his discharge was his union or concerted activities.
Accordingly, the undersigned, while not without very grave doubts, will recom-
mend the dismissal of the complaint insofar as it alleges a discriminatory
discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III occurring in connection
with the operations of the respondent described in Section I, have a close, inti-
mate, and substantial relation to trade, traf&c, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, the undersigned will recommend that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
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, affiliated with the Congress of Indus-
trial Organizations, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. 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.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act by discharging and thereafter refusing to reinstate
J. A. Sebastian.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the respondent,
The Firestone Tire & Rubber Company, its officers, agents, successors, and
assigns shall :
THE FIRESTONE TIRE & RUBBER COMPANY 345
1. Cease and desist from :
Interfering with, restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to join or assist United
Rubber Workers of America, affiliated with the Congress of Industrial Organiza-
tions, or any other labor organization, to bargain collectively through represent-
atives of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Post at its Winston-Salem, North Carolina, plant, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A". Copies
of said notice, to be furnished by the Regional Director for the Fifth Region,
after being duly signed by the respondent's representative, shall be posted by
the respondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, including all
places where notices are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced, or covered
by any other material;
(b) Notify the Regional Director for the Fifth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
It is iecommended that the complaint be dismissed insofar as it alleges a
discriminatory discharge of J. A. Sebastian.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
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 25, 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 objec-
tions) 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 per-
mission to argue orally before the Board, request therefor must be made in writ-
ing to the Board within ten (10) days from the date of the order transferring
the case to the Board.
WILLIAM I,. SPENcEa,
Trial Evamvner.
Dated August 3, 1945.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Rubber Workers ,of America, affiliated with the
Congress of Industrial Organizations or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection. All our employees are free to become or remain
members of this union, or any other labor organization.
THE FIRESTONE TIRE & RUBBER COMPANY,
Employer.
Dated-------------------- By-------------------- ---------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered defaced, or covered by any other material.