Firestone Tires and Rubber Co.

National Labor Relations Board - Board Decisions

Mar 24, 1977

228 N.L.R.B. 1040 (N.L.R.B. 1977)

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firestone Steel Products Company, a Division of
Firestone Tire and Rubber Company and David R.
Stafford . Case 7-CA-12568
March 24, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On December 28, 1976, Administrative Law Judge
Leonard M. Wagman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found that the
Respondent violated Section 8(a)(1) of the Act by
suspending employee David R. Stafford because of
his activities as a union safety representative and by
attempting to obstruct and interfere with the Board's
processes. The Respondent excepted, claiming that
Stafford was suspended solely for his refusal to
perform an assigned task and that the statements by
a company attorney to Stafford and another employ-
ee were neither coercive nor intended to interfere
with their attendance at the hearing. For the reasons
set out in his decision, in addition to the factors set
forth below, we agree with the Administrative Law
Judge.
The dispute arose over the assignment of the job of
pumping oil from an overflowing drum back into a
leaking machine. The evidence discloses that al-
though Stafford stated that a junior oiler should be
given the assignment, he never explicitly refused to
pump the oil.' He merely stated that he could not do
it safely until a large pile of tire rims was moved out
of the way. Robert Allerie, Stafford's immediate
supervisor, agreed to have the rims moved. Stafford
went to the union office to discuss the assignment
with his chief steward, then took his normal rest
break at 5:30. After his rest break, Stafford was given
i Stafford initially was asked to move the full barrel and replace it with
an empty one . This he refused to do, stating that he could not safely move
the heavy drum because he had a back ailment and might slip in the oil that
had overflowed onto the floor . Superintendent Allene did not make an issue
of this work refusal , but instead merely told Stafford to pump the oil.
2 A recent case which read the implementing regulations in conjunction
with the Occupational Safety and Health Act held that there is a linuted
right to refuse work under certain conditions , noting that arbitration and
228 NLRB No. 117
a pass by Allerie which stated that he was suspended
as of 5:30 for refusal to pump the oil. When Stafford
protested that he could not be suspended while on
his rest break, Allerie changed the time marked on
the pass to 5:40. After consultation with Allerie,
Industrial Relations Manager Wukovits extended the
suspension by 2 days.
It is important at the outset to characterize
correctly the issue presented by this case. This is not
a safety case. It does not present any issues arising
under Section 502 of the Act, which excludes from
the definition of "strike" a work stoppage due to
abnormally dangerous conditions. Nor does it
present the issue of whether such a work stoppage by
an individual employee is protected activity.2 The
issue in this case is not whether Firestone lawfully
could have suspended Stafford for a refusal to move
the overflowing drum or pump the oil without having
the rims moved.3 Rather, the sole issue is whether
Firestone used the alleged work refusal as a pretext
for punishing Stafford's protected activities as a
safety committeeman.
The record fully supports Administrative Law
Judge Wagman's finding that the Respondent's
hostility toward Stafford because of his safety
activities was the real cause of the suspension. The
testimony indicates that of six employees on the
union safety committee, Stafford was the only
militant . The evidence further establishes that this
militancy resulted in hostility toward Stafford. For
example, the Respondent does not deny that both
Allerie and Safety Inspector Angebrandt expressed
to Stafford their displeasure with his manner of
handling safety complaints, and one employee
testified that it was common knowledge around the
plant that Allerie was after Stafford. Moreover, the
timing of the suspension casts doubt on the Respon-
dent's asserted reason . Testimony indicates that the
rims were not moved out of the way until after 5:45,
5 minutes after Stafford was suspended. In light of
this fact, it is Allerie's angry reaction rather than
Stafford's decision to take his normal break that
seems unreasonable. We therefore conclude that the
Respondent's motive in suspending Stafford was to
discourage his safety activities.
We additionally concur with Administrative Law
Judge Wagman's conclusion that in the context of
the Respondent's hostility to safety activity,4 the
statements made by the Respondent's attorney
grievance procedures are no help to a dead employee . Usery v. The Babcock
and Wilcox Company, 1976-1977 OSHD ¶21, 423,4 OSHC 1857.
3 We note that Allerie did not suspend Stafford for those earlier protests,
but rather agreed to modify the assignment to comply with Stafford's safety
concerns.
4 The Respondent urges that the court 's finding in The Firestone Tire and
Rubber Company v. N.LR.B., 539 F.2d 1335, 1338 (CA. 4, 1976), of "no
antiunion animus whatsoever" in the plant herein involved is relevant to the
FIRESTONE STEEL
violated Section 8(a)(1). The first incident involved
the Respondent's attorney telling an employee
witness on the day before the hearing, "Well, if I was
you I would just keep my nose out of it." Although
the statement was made in a laughing and joking
manner, the words convey a clear warning not to
attend the hearing. Moreover, the statement was not
immediately retracted. Only later was the employee
told by another of Respondent's attorneys that he
must testify because he had been subpenaed.
The second incident, which also occurred shortly
before the hearing, involved the same attorney asking
Stafford to drop his case. The Respondent attempted
to characterize this as a mere attempt to reach a
settlement. However, nothing was offered to Stafford
in return for dropping the case, and there is no
evidence that any settlement negotiations followed
the request. In view of Stafford's persistent attempts
to vindicate himself through all available channels,5
it seems odd that the Respondent would expect that
he would simply give up unless he thought that there
was a real danger in continuing.
In sum , we find that the Respondent committed
the unfair labor practices as found by Administrative
Law Judge Wagman. Because of the seriousness of
the violations, we shall, however, modify his recom-
mended Order to provide that the Respondent shall
not in any other manner interfere with, restrain, or
coerce employees in the exercise of rights guaranteed
them in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Firestone Steel Products Company, a Division
of Firestone Tire and Rubber Company, Wyandotte,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
instant case . However, we are here concerned with hostility to safety
activity, not union animus. Indeed, there is evidence indicating that the
Union was disturbed about the possibility that Stafford's tendency to "rock
the boat" might disrupt its "harmonious" relationship with the Respondent.
5 He additionally filed a grievance and an OSHA complaint.
PRODUCTS COMPANY 1041
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend employees because they
engage in protected, concerted activity.
WE WILL NOT attempt to obstruct or interfere
with the Board's processes.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
WE WILL rescind the suspension inflicted upon
employee David R. Stafford on July 28, 1975, and
expunge from his personnel file any reference
thereto.
WE WILL make David R. Stafford whole for
any loss of pay he may have suffered as a result of
the discrimination against him.
FIRESTONE STEEL
PRODUCTS COMPANY, A
DIVISION OF FIRESTONE
TIRE AND RUBBER
COMPANY
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge: This
case was heard before me at Detroit, Michigan, on August
26, 1976. David R. Stafford, an individual, filed a charge
on December 9, 1975, and the General Counsel of the
National Labor Relations Board by the Regional Director
for Region 7 issued a complaint on January 30, 1976. The
primary issues in this case are whether Respondent,
Firestone Steel Products Company, a Division of Firestone
Tire and Rubber Company, referred to herein as the
Company, suspended David R. Stafford from his employ-
ment because he made safety complaints to company
supervisors or threatened to make or made similar
complaints to the Occupational Safety and Health Admin-
istration of the United States Department of Labor
(referred to herein as OSHA). In its timely filed answer, the
Company denied committing the alleged unfair labor
practices.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief' filed by the Company, I make the following:
I Neither the counsel for the General Counsel nor the Charging Party
filed a brief
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Firestone Tire and Rubber Company, of which Firestone
Steel Products Company is a division, is, and has been at
all times material herein, an Ohio corporation engaged in
the manufacture, sale, and distribution of rims and wheels
for motor vehicles at its Wyandotte, Michigan, plant, the
only facility involved in this proceeding. During the year
ending December 31, 1975, a period representative of its
operations, the Company, in the course and conduct of its
business operations , purchased , and caused to be trans-
ported and delivered to its Wyandotte plant, steel and
other goods and materials valued in excess of $50,000
which were transported and delivered to its Wyandotte
plant directly from points located outside the State of
Michigan . The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. David R. Stafford's Suspension 2
At the time of his suspension for 2 days and 6 hours
commencing on July 18, 1975, David R. Stafford was an
afternoon shift (3 to 11 p.m.) oiler in the Company's
mechanical department . For the 6 or 7 years preceding his
suspension , Stafford was also a plant safety representative
for Local Union No. 174, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW
(hereafter referred to as the Union), the recognized
collective-bargaining representative of the Company's
Wyandotte plant employees. In 1975, Stafford presented
approximately a dozen safety complaints to the Company.
In some instances Stafford's complaints were repetitious.
The Company would attempt to resolve the situation. The
same problem would occur again, followed closely by
Stafford's complaints and a second attempt by the
Company to satisfy his complaint.
It also appears that Stafford's complaints annoyed his
superiors . Approximately I month prior to Stafford's
suspension , an admitted supervisor , Company Safety
Inspector Joseph Angebrandt warned Stafford and another
employee, Lazarowitz, saying : "You guys are either going
to cooperate or we are going to get rid of you." During the
few months just prior to Stafford's suspension his immedi-
ate supervisor , Robert F. Allerie, repeatedly warned
Stafford that he was "digging [himself ] a hole and that [he]
had better cool down on these safety complaints.... "
However, Stafford persisted in his efforts as the Union's
safety representative . Approximately I week before his
suspension , Stafford complained to Supervisor Allerie and
Safety Inspector Angebrandt that electric lines immersed
in water posed a threat to employees working on the
production line. Within 20 minutes after Stafford threat-
ened to bring this dangerous situation to the attention of
2 Except as specifically discussed below , the facts regarding Stafford's
suspension are undisputed.
3 From this point until Stafford 's suspension , his testimony and that of
Allerie is in substantial conflict . However, I have concluded that Stafford is
the more reliable witness . Of the two, Stafford appeared to be giving a full
OSHA, Angebrandt and Allerie complied with his request
to shut the production line down.
On the afternoon of July 28, Safety Inspector Ange-
brandt noticed that oil leaking from a machine had filled a
nearby 55 gallon drum and was now overflowing onto the
floor of the plant. He located Allerie and apprised him of
this circumstance.
Stafford appeared on the scene , Allerie instructed him to
move the drum and put another empty one in its place.
Stafford refused the assignment saying that this was not his
department, that he could not move the barrel because of
an infirmity in his back, and that he might slip in the oil.
Allerie instructed Stafford to obtain a pump and pump the
oil back into the machine . Stafford pointed out that he
couldn't reach the machine with a pump because there was
a large quantity of tire rims piled around the machine.
Allerie agreed to have the rims removed . At this, Stafford
agreed to pump the oil back into the machine.3
Stafford then went to the Union 's plant office to discuss
the assignment with his chief steward. Allerie soon entered
the office and asked Stafford if he intended to get on the
job. When Stafford asked if the rims had been removed
Allerie replied, "No, but I am getting them moved."
Stafford replied, "Well, when you get the rims moved I'd
gladly do it." Allerie insisted that Stafford take a pump to
the site of the oil leak and prepare to pump the overflowed
oil into the machine.
Stafford left the office to obtain the pump. As he was
preceding to the work area Stafford noticed that it was 5:30
p.m. He then went back to the union office with a Coke to
sit down and observe his normal rest break . Following his
rest break , Stafford left the union office and came upon
Allerie . Allerie handed Stafford a pass and said , "You are
suspended." The pass stated that the reason for issuance
was a refusal of assigned work . When Stafford noticed that
the pass indicated that the suspension occurred at 5:30
p.m., he protested that Allerie could not suspend him
during his rest period . Allerie changed the time to read
5:40. When Stafford requested a union steward , Allerie
said, "Get him , it don't matter. You're going home
anyway." Stafford sought out his steward , Harold Mink. In
the discussion which ensued between Steward Mink, Mr.
Allerie, and Chief Steward Stevens, in Stafford's presence,
Allerie told Mink that the reason for Stafford's suspension
was his refusal to pump the oil.
Following Stafford's suspension, Allerie telephoned his
general foreman, Moscynski to report Stafford 's suspen-
sion. Employee Ben Citchen credibly testified that in
making his report, Allerie declared : "I have no alternative
but to give Dave Stafford time off. I want to let him know
that OSHA don't run the place , we do." At the end of the
afternoon shift on July 28, Industrial Relations Manager
Wukovits, after consultation with Supervisor Allerie and
Safety Inspector Angebrandt , and without affording
Stafford opportunity to offer testimony, extended Staf-
ford's suspension for 2 days. Wukovits testified that he
and forthright account of the incident . In contrast, Allene appeared
reluctant to testify about his knowledge of Stafford 's activity as the Union's
safety representative . Moreover, Stafford 's version is in substantial part
corroborated by the change of time from 5:30 p .m. to 5.40 p.m., as shown
on the pass issued to him by Allene on July 28.
FIRESTONE STEEL PRODUCTS COMPANY
extended Stafford's suspension to a total of 2 days and 6
hours because of. "His refusal to work, period...."
B. Analysis and Concluding Findings Regarding
Stafford's Suspension
The Company concedes in its brief that Stafford's
activities as a union safety representative was protected
and concerted . It follows , therefore, that if the Company
suspended Stafford because of those activities such
suspension was unlawful . See Wray Electric Contracting,
Inc., 210 NLRB 757, 762 (1974); C & I Air Conditioning,
Inc., McKeon Construction, 193 NLRB 911, 912 (1971).
However, the Company contends that the evidence here is
insufficient to support the contention that the Company
suspended Stafford because of his activities as a union
safety representative . Instead , the Company insists that the
record shows that it punished Stafford for refusing a work
assignment . For the reasons stated below , I find a
preponderance of the evidence supports the complaint
allegation that the Company suspended Stafford on July
28, 1975 , because of his activities as a union safety
representative.
The record leaves little doubt of the Company's growing
hostility towards Stafford's conscientious activities as the
union's safety representative . On several occasions during
the months prior to Stafford's suspension , Supervisor
Allerie warned Stafford that his continued pursuit of safety
complaints was jeopardizing his job. Approximately a
month before the suspension another supervisor , Company
Safety Inspector Angebrandt, warned Stafford that his
conscientious pursuit of safety problems might lead to his
discharge . Undaunted by the Company's warnings, Staf-
ford continued to pursue his job as union safety representa-
tive . A week prior to his suspension , he warned the
Company of an electrical hazard and threatened to report
the problem to OSHA . At about the same time, Allerie,
according to his testimony, heard a rumor that Stafford
had in fact complained against the Company to OSHA.
Against this background , Allerie's report to General
Foreman Moscynski following Stafford's suspension on
July 28 demonstrates that the Company 's hostility had
gone beyond mere threats . Confronted on July 28 with yet
another safety complaint from Stafford , the Company
reacted with a real show of strength , a suspension. For as
Allerie explained , the Company wanted to show Stafford
that neither he nor OSHA would interfere with the plant's
operations.
In view of Industrial Relations Manager Wukovits'
admission that he consulted with Allerie prior to extending
Stafford's suspension , I find that the hostility expressed in
Allerie's report to Moscynski was shared by Wukovits. I
also find that Wukovits was well aware of Stafford's well
known activities as the union safety representative. Thus,
even assuming that the reason stated on the suspension
notice to Stafford on July 28 were borne out by the
evidence , Allerie's words reveal it as being a pretext. I fmd
that the overriding and only real motive for the suspension
4 That counsel was laughing and smiling when he made the quoted
remarks did not cure the coercive effect likely to flow from his words. Nor
was the unfair labor practice remedied by a second company attorney's
1043
was Stafford's continued conscientious pursuit of safety
problems at the Company plant.
However, I fmd that the reason advanced by the
Company does not withstand analysis. The suspension
notice recites that Stafford refused to perform a work
assignment. However, at the time Allerie handed him the
suspension notice Stafford had agreed to perform the
assigned task and had just completed his 10-minute rest
period. Thus, the stated reason for Stafford's suspension is
not borne out by the facts.
In sum, I fmd that the Company suspended Stafford
because of his vigorous pursuit of his role as a union safety
representative, and thereby violated Section 8(a)(1) of the
Act.
C. Additional Interference, Restraint, and Coercion
The General Counsel amended the complaint to allege
that the Company further violated Section 8(a)(1) of the
Act by obstructing and interfering with the hearing of the
complaint herein . The Company denied this additional
allegation.
There are two incidents which sustain the amendment.
The first occurred 1 or 2 days before employee Ben Citchen
was scheduled to appear as a witness in this proceeding. I
fmd from Citchen's testimony that a company attorney
approached him at the plant and asked: "You're going
downtown tomorrow?" When Citchen said "yes, I am
going," the attorney replied, "Well, if I was you I would
just keep my nose out of it .114 The second incident is
depicted in David Stafford's undisputed testimony. On
May 12, the same company attorney asked Stafford "to
drop the case." A third incident is set forth in employee
Billy L. Perry's uncontradicted testimony. I find that
shortly before he was scheduled to appear as a witness in
this proceeding a company attorney questioned him.
However, the questioning related only to Stafford's July 28
suspension . Present at this questioning were Allerie,
Angebrandt, and Union Steward Stevens. Before question-
ing Perry, counsel assured him that he was free to leave and
could refuse to answer counsel 's questions.
I find, in agreement with the General Counsel, that in the
first two incidents recited above, the Company by its
attorney's conduct violated Section 8(a)(1) of the Act. For,
in these instances the attorney, who was clearly a company
spokesman, attempted to interfere with the vindication of
employee rights under Section 7 of the Act. See Grand-
Central Chrysler, Inc., 155 NLRB 185, 188 (1965); Stemun
Manufacturing Company, Inc., 153 NLRB 1278, 1283
(1965). However, I fmd that the atmosphere surrounding
the Company's questioning of employee Perry was not
coercive. Accordingly, I fmd that the Company did not
violate Section 8(aXl) of the Act in that incident.
CONCLUSIONS OF LAW
1. The Respondent, Firestone Steel Products Company,
a Division of Firestone Tire and Rubber Company, is
advice to Citchen that he must comply with the Board's subpena . For there
was no concomitant retraction of the earlier remarks indicating company
hostility towards Citchen's attendance at the hearing
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By suspending employee David R. Stafford because
of his complaints concerning safety at the Company's
plant, and by attempting to obstruct and interfere with the
Board's processes, Respondent Firestone Steel Products
Company, a Division of Firestone Tire and Rubber
Company, interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed to them by
Section 7 of the Act, thereby engaging in unfair labor
practices within the meaning of Section 8(axl) of the Act.
3. The aforesaid unfair labor practices effect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices by suspending David R. Stafford because he
engaged in protected, concerted activity, and by attempt-
ing to interfere with and obstruct the Board's processes, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. I shall also recommend
that Respondent be ordered to rescind the suspension
inflicted upon employee David R. Stafford and delete from
his personnel file any reference thereto. I shall further
recommend that Respondent make David R. Stafford
whole for any loss of pay suffered as a result of his
unlawful suspension, with backpay to be computed as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDERS
The Respondent, Firestone Steel Products Company, a
Division of Firestone Tire and Rubber Company, Wyan-
dotte, Michigan, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Suspending employees because they engage in
concerted activity.
(b) Attempting to obstruct and interfere with the Board's
processes.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind the suspension inflicted upon David R.
Stafford on July 28, 1975, and delete from his personnel file
any reference thereto.
(b) Make David R. Stafford whole for any loss of pay he
may have suffered as a result of his unlawful suspension, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Post in conspicuous places, at its plant in Wyandotte,
Michigan, copies of the attached notice marked "Appen-
dix."6 Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly signed by
the Company's representative, shall be posted by the
Company immediately upon receipt thereof, and main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Company to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
8 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."