The Firestone Tire and Rubber Co.

National Labor Relations Board - Board Decisions

Jul 17, 1945

62 N.L.R.B. 1316 (N.L.R.B. 1945)

In the Matter of THE FIRESTONE TIRE AND RUBBER CO IIPANY and GEN-
ERAL DRIVERS , WAREHOUSEMEN AND HELPERS , LOCAL UNION NO.
90 OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS . CHAUFFEURS,
WAREHOUSEMEN AND HELPERS , A. F. OF L.
Case No 18-C-1039.--Decided JU1V 17, 1945
DECISION
AND
ORDER
On February 24, 1945, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceedings, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the respondent filed exceptions to the Intermediate Report and
a supporting brief
The Board has reviewed the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief filed by the respondent, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modification and additions noted below :
In Section III A of the Intermediate Report, the Trial Examiner has
concluded that the respondent has violated Section 8 (1) of the Act by the
activities of Manager Bertrand and District Manager Humphrey in 1943
and 1944. Although we agree with the Trial Examiner. that Humphrey had
knowledge of union activity in the plant in 1943 and 1944, and that he
viewed this activity with the same anti-union bias that he had evidenced
in 1941, the record discloses no act of interference, restraint, or coercion
by Humphrey other than his conduct in connection with the discharge of
Smith, Lucas, Sheets, and Newland. Accordingly, and since we are satis-
fied that the Trial Examiner's conclusion in this section was not intended
to refer to Humphrey's activities in connection with the illegal discharges,
we do not concur in the conclusion insofar as it relates to the activities of
62 N L. R. B, No 180.
1316
THE FIRESTONE TIRE AND RUBBER COMPANY 1317
Humphrey. We find, however, as did the Trial Examiner, that by the
activities of Bertrand in 1943 and 1944, the respondent has mterferedowith,
restrained, and coerced its employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
The Remedy
Having found that the respondent has violated Section 8 (1) and 8 (3)
of the Act, we must order the respondent, pursuant to the mandate of
Section 10 (c), to cease and desist therefrom. We also predicate our cease
and desist order upon the following findings : On three different occasions
since 1941, the respondent's employees have sought to exercise their right
to self-organization . On each of these occasions the respondent engaged in
various activities which caused or contributed materially to the failure of
the employees' attempts to organize . The respondent's whole course of
conduct since 1941, and particularly since January 1943, discloses a pur-
pose to defeat self-organization and its objects among its employees, and
the culmination of its activities to achieve that purpose, the discharge of
Smith, Lucas, Sheets and Newland, "goes to the very heart of the Act."'
Because of the respondent's unlawful conduct and its underlying purpose,
we are convinced that the unfair labor practices found are persuasively
related to the other unfair labor practices proscribed and that danger of
their commission in the future is to be anticipated from the respondent's
conduct in the past.' The preventive purposes of the Act will be thwarted
unless our order is coextensive with the threat. In order therefore to make
effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of
the Act, we shall order the respondent to cease and desist from in any
manner infringing upon the rights guaranteed in Sectio» 7 of the Act We
shall also order the respondent to take certain affirmative action designed
to effectuate the policies of the Act.
We have found that the respondent, by discharging and failing to rein-
state Smith, Lucas, Sheets, and Newland, has discriminated in regard to
their hire and tenure of employment, thereby discouraging membership in
the Union. We shall, therefore, order the respondent to offer them imme-
diate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered by reason
of the discrimination against them by payment to each of them of a sum
IN L R B v Entwistle Manufactvttug Company, 120 F (2d) 532, 536, (C C A 4) See also
N L R B, v Automotive Mai n tenance Machinery Company, 116.F (2d) 350, 353 (C C A 7),
where the Circuit Court of Appeals for the Seventh Circuit observed '.'No more effective form of
intimidation not one mole violatise of the N I, R Act can he conceived than discharge of an
eniployec becaua. lie )ovicd a union
2 Sec Al L R B v Crptcss Pnbltdting Company, 312 U S 426
1 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of money equal to the amount which he normally would have earned as
wages from the date of his discharge to the date of the offer of reinstate-
ment, less his net earnings' during said period, and less also such dismissal
pay as he has received from the respondent.'
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, The Firestone Tire and Rubber Company,
Akron, Ohio, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in General Drivers, Warehousemen and
Helpers, Local Union No. 90 of International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers, A. F. of L., or in any other labor
organization of its employees, by discharging or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard to
the hire or tenure of their employment, or any term or condition of their
employment ; -
(b) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist General Drivers, Warehousemen and Help-
ers, Local Union No. 90 of International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers, A. F. of L., or any other labor organi-
zation, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid and protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Board finds will effec-
tuate the policies of the Act :
(a) Offer to Carrel Smith,Elmer Lucas, Joe Sheets, and Alys Newland
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges :
(b) Make whole Carrel Smith, Elmer Lucas, Joe Sheets, and Alys
Newland for any loss of pay they may have suffered by reason ' of the
respondent's discrimination against them, by payment to each of them of a
sum of money equal to the amount which he normally would have earned
S 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 elsewhere than for
the respondent , which would not have been incurred but for his unlawful discharge and the conse-
quent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company,
8 N L R B. 440 Monies received for work 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.
* The respondent gave Smith , Lucas, and Newland 2 weeks dismissal pay, in accordance with its
custom, but I week's pay was apparently given to Sheets, because the latter had not had a year's
eervic? with the respondent
Tiii: i^ir.^^^TUNF TIRE AN D RUDDER CoMi^-ENV 1319
as wages from the date of his discharge (April 10, 1944, as to Smith and
Lucas; and April 11, 1944, as to Sheets and Newland) to the date of the
respondent 's offer of reinstatement , less his net earnings during said
period , and less also such dismissal pay as he has received from the re-
spondent;
(c) Post at its Segregated Retread Plant at Des Moines, Iowa, copies
of the notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director of the Eighteenth Region, shall,
after being duly signed by the respondent's representative, be posted by it
for sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees 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 ;
(d) Notify the Regional Director for the Eighteenth Region in writing,
within ten (10) days from the date of this Order, what steps the respondent
has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above Deci-
sion and Order.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Rela-
tions 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 General Drivers, Warehousemen
and Helpers, Local Union No. 90 of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L. 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
protection.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered as a result
of the discrimination.
Carrel Smith
Elmer Lucas
Joe Sheets
A'lys Newland
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate in
regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf
of any such labor organization.
THE FIRESTONE TIRE AND RUBBER COMPANY ( Elitployer)
-By
(Representative) (Title)
Dated
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accordance
with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Francis X. Helgesen , Stephen M. Reynolds, and Clarence A. Meter, for
the Board.
Mrs. A A. McLaughlin, of Des Moines , Iowa, and Mr . Harold 11w11, of Akron,
Ohio, for the respondent.
Mr. Leo Quinn , of Des Moines , Iowa, for the Union.
Sir'ATEMENT OF THE CASE
Upon an amended charge duly filed on May 12, 1944, by General Drivers, Ware-
housemen and Helpers, Local Union No.90 of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, A F. of L., herein called the Union, the
National Labor Relations Board, herein called the Board, by the Acting Regional
Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint
dated July 1, 1944, against The Firestone Tire and Rubber Company,' Akron, Ohio,
herein called the respondent, alleging that the respofdent had engaged in and was
engaging in unfair labor practices affecting commerce at its Des Moines, Iowa, plant,
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 notice of hearing were duly served upon the respondent and the Union.
Thereafter, the respondent filed an answer dated August 1, 1944, in which it denied
that it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held before a duly designated Trial Examiner of
the Board on August 8, 9, and 10, 1944. The Board, the respondent, and the Union
participated in the hearing. On or about September 5, 1944, counsel for the Board
filed with the Chief Trial Examiner a motion to disqualify the said Trial Examiner
and to transfer the case to the Board for the issuance of proposed findings of fact,
proposed conclusions of law, and proposed order, because of alleged prejudicial errors
committed by the said Trial Examiner during the hearing' Upon receipt of this
motion, the Chief Trial Examiner afforded all part.es an opportunity to respond to
said motion. Counsel for respondent filed, on September 13, a comment on the motion.
The Chief Trial Examiner thereupon referred the motion to the Board
1 The "The" was added to the caption by amendment at the second of the hearings referred to
below
2 The Trial Examiner had not filed an Intermediate Report.
THE FIRESTONE TIRE AND RUBBER COMPANY 1321
Thereafter, on September 29, 1944, the Board entered a Decision and Order (58
N. L. R. B. 630), wherein it found, in substance, that the said Trial Examiner had
committed prejudicial error, and it ordered that the record at the said hearing, except
the charges and pleadings, be set aside "and that a new hearing before another
Trial Examiner be had .
On October 4, 1944, the Regional Director for the Eighteenth Region issued a
new complaint (in all respects, however, except for the date thereof, the same as the
earlier complaint), copies of which, accompanied by a notice of hearing, were duly
served upon the parties
With respect to the unfair labor practices, the complaint alleged in substance that
the respondent : (1) from on or about January 1, 1943, warned and discouraged its
employees against affiliation with or activity for the Union; questioned them about
their union activities; made disparaging remarks about the Union ; and advised them
that they would not receive benefits through the Union; (2) on or about April 10,
1944, discharged Carrel Smith, Elmer Lucas, Joe Sheets, and Alice Newland,' and
since failed and refused to reinstate them, because of their union membership and
activities; and (3) on or about April 10, 1944, refused to employ Harry Mayse, and
since failed and refused to employ him, because he was a member of the Union.
On October 16, 1944, the respondent filed an answer admitting most of the allega-
tions of the complaint with respect to its business, but denying the alleged unfair labor
practices
Pursuant to notice, a hearing was held at Des Moines, Iowa, on October 26, 27,
28, and 30, 1944, before Samuel H Jaffee, the undersigned Trial Examiner duly dcsig-
nated by the Chief Trial Examiner, pursuant to the Board's Decision and Order
hereinabove referred to. All parties participated in the hearing. They were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues.
During the hearing the complaint was, by consent, amended to add an allegation
that on about September 15, 1944, the respondent discharged Leo Ellsworth and since
failed and refused to reinstate him, because of his union membership and activities,
and because he had testified as a witness for the Board in the earlier hearing This, it
was alleged, was a violation of Section 8 (3) and (4) of the Act. The respondent's
answer was in turn amended to include a denial of this additional allegation
At the conclusion of the Board's case, counsel for the respondent moved to dismiss
the complaint. The motion was denied. At the conclusion of the hearing, the pleadings
were, by consent, deemed conformed to the proof as to spelling, dates,' names, and
similar matters . The parties waived oral argument before the undersigned They were
afforded the opportunity to file briefs with the undersigned. Briefs have been received
from counsel for the Board and for the respondent
Upon the entire record in the case' and from his observation of the witnesses, the
undersigned makes, in addition to the above, the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDhNT
The Firestone Tire and Rubber Company is an Ohio corporation with its principal
office at Akron, Ohio It operates, in addition to other plants, a retread shop at Des
I Newland's given name is variously spelled in the accord The correct spelling sccni , to be "Alys,"
and the latter spelling is adopted hereinafter
i in older to correct a ccitavi stenographic error in the typed transciipt of the testimony, it is
oi dened that the word "there" be substituted for the winds "on earth" on page 315 , line 17, of said
ti iiiscript In addition , the figure 362 in line 24 of page 417 - 18 is ordered corrected to read "324 "
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moines, Iowa, called the Des Moines Segregated Retread Plant, which employs 26
or 27 employees . This shop is engaged in the retreading and recapping of tires. It is
there that the unfair labor practices are alleged to have occurred. For the first six
months of 1944, the respondent purchased and the shop used 173,981 pounds of camel-
back, all of which was shipped from the respondent's factory at Akron to the shop at
Des Moines. The shop does an annual business of over $100,000, approximately five
percent of which represents tires recapped and retreaded for customers engaged in
interstate commerce. An additional two percent represents tires which are recapped,
retreaded, and shipped in interstate commerce to customers located outside Iowa. And
about six percent of the business represents certain large tires received at the shop,
and in turn shipped by it to other retread shops located outside Iowa for recapping
and retreading, after which these tires are returned to the Des Moines shop for delivery
to its customers.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen and Helpers, Local Union No. 90 of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, is a labor organi-
zation affiliated with the American Federation of Labor, admitting to membership
employees of the respondent
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
There were three attempts by the retread shop employees to organize-in 1941, in
1943, and in 1944. All failed. The respondent was the cause of or contributed materially
to all the failures.
There were but seven or eight employees at the shop in 1941. All decided to join
the United Rubber Workers (C. I. 0.). They signed cards. They paid their initiation
fees. They met at the union hall to formulate demands And they selected employee
Frank Palcic to act as spokesman in the presentation of the demands they formulated.
But they did not reckon with C. W. Humphrey, the respondent's district manager
The district over which Humphrey has jurisdiction includes the retread shop, and
the shop is located in the same building and on the same floor as the district office. He
had learned from a union organizer of the organization of the employees. The night
before the employees were to present their demands to him, he summoned them from
their homes to his office. When they arrived, he accused Palcic of being the instigator
of the movement for organization. There was some further discussion, during which
Humphrey said the employees could have the union or turn it down. The employees ac-
cordingly went outside the office and took a vote on whether to stay with the union or to
leave it. The vote was 7 to 1 for leaving. They returned to the office, where Humphrey
was waiting, and reported the result. Humphrey then spoke to Palcic alone, the other
employees not being present, and gave Palcic a raise in pay. Nothing further was
heard of the United Rubber Workers (C. I. O.)
5 The findings in this paragraph are based upon a consideration of the testimony of Palcic, Humph.
rey, and H . L Bertrand , the latter being the present manager of the retread shop but then manager
of the "store warehouse ". At the time of the hearing before the undersigned , Palcic had been a
working foreman for two years He was called to the stand by counsel for the Board. He proved a
most unwilling witness His effort to avoid testimony harmful to the respondent was painfully evi-
dent Palcic 's version of what occurred varied substantially from Humphrey 's. Bertrand , in sub.
stance, testified only that the meeting was held; that Humphrey said he had heard that the men
wanted to organize , and that the vote was taken . The above findings are based principally upon
Palcic's testimony . It should be added that Palcic's testimony reveals that there may have been two
meetings with Humphrey , rather than one, a few days apart If it be so, this would not affect the
conclusions hereinafter reached
THE FIRESTONE TIRE AND RUBBER COMPANI 1323
Early in 1943, there being some talk among the employees as to their desire for an
increase in wages, employees Carrel Smith and Ralph Ogilvie suggested joining a
union. Smith went to Palcic (then a foreman) and asked what the Company would
think of the idea. Smith had begun his employment with the respondent only the
previous December. Palcic replied that union organization had been attempted once
before (in 1941), but that the employees had never got anywhere with it Bertrand
also heard of the talk concerning the union. He inquired of several employees if they
knew anything about it. To at least two or three of them he said he had gotten along
without a union in the past and could get along without it in the future. Smith and
Ogilvie were unable to obtain a majority of the employees to join The plan was
dropped.'
During the latter part of March 1944, there were about 26 or 27 persons employed in
the retread shop. There was some dissatisfaction among them due to the fact that
the Company had been hiring some new employees and, because of the manpower
shortage, paying them as much as the older men. Employee Elmer Lucas accordingly
had a conversation with Carrel Smith about April 1, in the course of which Lucas
suggested forming a union. Smith said it was a good idea. Smith went to Palcic and
told the latter that organization of the shop was again going to be started. He asked
Palcic which union had been involved in 1941 when Palcic, then a non-supervisory
employee, had tried to organize a union.' Palcic replied that it had been the C. I. O.
Smith said the A F. of L. was better, that hswas going to talk to the other employees
in favor of it. Palcic told Smith to go right ahead, that he was for it 100 percent but
that he could say nothing, that he had "stuck" his "neck out" before and was not
going to do it again. Palcic was here referring to what had happened when, in 1941,
he had participated with the other employees in attempting to join a union, as has
been related hereinabove.'
During the next few days, Smith spoke to the rest of the employees in the shop.
Bertrand became aware of the union talk going on. In a conversation with employee
Leo Ellsworth, Bertrand told Ellsworth that "they" had tried to organize a union in
the shop before, but that the Company had "out-smarted" them, and that he did not
think it would "go through" this time either a
Smith, Elmer Lucas, Joe Sheets, and Alys Newland, all to be discharged in a few
days, were the leaders in the movement for unionization 10 On the afternoon of April
4, Bertrand, in a conversation with Harry Mayse (of whom more hereinafter),
asked Mayse what he knew about what was going on. Mayse replied that he had
heard some talk, but knew nothing more. Bertrand then inquired if Smith, Sheets,
The findings in this paiagiaph are based upon the testimony of Smith and other employees
There was no contradiction by either Palcic or Bertrand, other than Bertrand's general denial that
lie had ever discussed unions with the employees
'Apparently none of the emplovec in 1941 were employees at this time, the personnel turn-over
in the shop is extremely high
'The findings in this paragraph are based upon the undemed testimony of Smith
0 The findings in this paragraph sic based principally upon the testimony of Smith and Ellsworth.
As to the conversation between Ellsworth and Bertrand, the testimony of Ellsworth, an especially
straightforward witness, is far moie credible than that of Bertrand who testified only that he did
not say that "That I knon, of ' -
10 Smith was the most active of all After his first talk with Lucas, he talked to the employees to
obtain their ideas of the proposal; he talked to the organizers of the Union when they came to the
shop, as found below, he then talked again to the employees; and he distributed membership appli-
cations Practically all this activity took place in the shop. (He had, as has been found, also been
active in 1943 ) Lucas originated the idea, he discussed it with Smith ; and he got the organizers
to come in . Sheets spoke to many of the employees in favor of the Union Newland was not as
active as these three , but was the most active of the women employees All four attended the union
meeting of April 5, referred to below
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Lucas were the ones who had started it. Mayse responded that he (lid not know"
About this time also, and before April 4, employee Robert Whiteman had a conver-
sation in a lavatory in the shop with Carrel Smith and Paul Lowe, during which the
Union was discussed Lowe complained that he was* not getting paid sufficiently
Either Whiteman or Smith replied that if the Union came in there would be more
money There was some further discussion along this line At this point, Bertrand
entered the lavatory through the swinging door and said to the men present "If you
think joining the union is going to get you anything, you are crazy."12
Lucas was already a member of the Union at this time, but was inactive and had
received a "withdrawal card." At Smith's suggestion, he phoned organizers of the
Union on the morning of April 4, and the latter agreed to come to the shop. They
did come the same morning and had a conversation with Smith in a lavatory of the
shop. It was arranged that a meeting of the employees would be held at the Labor
Temple the evening of April 5, beginning at 6 00 o'clock" Smith and others thereupon
made known throughout the shop the time and place of the meeting
On the afternoon of April 5, Ellsworth told Bertrand that he was going to attend
the union meeting. Bertrand responded by asking Ellsworth, as Ellsworth testified,
"which said [Ellsworth] was on." Ellsworth replied that he was not on "either side.""
Approximately 15 employees attended the meeting, including Smith, Lucas, Sheets,
Newland, and Ellsworth The meeting began at about 6 30 Six employees signed
membership cards at the meeting It walk arranged that campaigning for the Union
should proceed. During the next several days-until further activity abruptly ceased
on April 10 and 11 when four of the employees were discharged-there was discussion
in the shop with the employees concerning the Union, and membership applications
were distributed.
'The undersigned has given careful consideration to the respondent's claim that
neither Bertrand nor Humphrey was aware of the union activity among the-employees
in 1944 ; particularly to the assertion, among others, that the activity began but a day
or two before April 5; that Bertrand went to a hospital on the afternoon of April 5
because of an infected foot, where he remained until April 8, that there is no evidence
that Bertrand saw any union activity in the shop; and that because of the noise of the
machines he could not hear such activity being carried on
Bertrand was at the hospital as indicated And there is no direct evidence (except
for the admissions referred to presently) that he either saw or heard any union
activity during this time But the shop is small, the employees few, and there are
periods in the working day when the shop is not noisy. Bertrand spends most of his
time in the shop. What was going on in the few days prior to the April 5 meeting
and, for that matter, up to the time of the discharges, was in general a matter of
common knowledge Bertrand, moreover, may well have learned of what was going
on from other sources, from Palcic for example, or from other employees." And it is
a reasonable inference that Bertrand told Humphrey of what was going on, especially
since both were opposed to unions, as the facts disclose
u These findings are based upon the testimony of Ilfayse, who had been engaged a few days befoi e
as a working foreman The uudeisigned does not credit Bertiand's general testimony that he never
discussed unions with the employees and that he knew nothing of any union activity in the plant
1=The findings in this-paragiaph ale based primarily upon the testimony of Whiteman The under-
signed does not credit Beitrand's testimony that lie did not so speak, "not that I recall"
13 There wei e three shifts in operation at this time, and the time for the meeting was chosen
because the time from 6 to 7 p m was the lunch hour for the swing shift (3 00 to 11.00 p in )
ii These findings are based upon the testimon> of Ellsworth and employee Grace Hamlme The
undersigned does not credit the testimony of Bertrand that he did not have the conversation de-
scribed, "not that I recall"
15 Palcic saw Bertrand in the hospital twice
TI-1 E FIRESTONE TIRE AND RUBBER COMPANY 1325
Experience, evidenced by the Board's consideration of hundreds of similar situations
over the past several years, and a realistic view of the matter, makes it evident that
in small shops such as this union activities become generally known , at least where no
attempt is made to keep them secret, and often even then Here there was no attempt
at secrecy.
The short answer to the respondent's contention that Bertrand did not know of the
union activities , moreover , lies in the fact that , as has been found, his statements to
Ellsworth, Mayse, and Whiteman, Smith, and Lowe, indicated not only that he knew
that they were taking place (as he had known of the 1943 activities), but that he was
aware of who the leaders were; and conclusive proof is supplied by the fact that
within a few days after Smith, Lucas, Sheets, and Newland were discharged on April
10 and 11 Bertrand told Ellsworth, according to the latter's credited test mony,
that he had got rid of the "main instigators" of the Union 16
In short, the evidence is overwhelming both in quality and quantity that in this small
shop of some 26 or 27 employees both Bertrand and Humphrey did know what was
going on.
Since the complaint alleges unfair labor practices only from on or about January
1, 1943, and involving only the charging union, no finding of unfair labor practices
is made as to the activities of Humphrey in 1941 involving the earlier union Such
earlier activity, by well established authority, is, however, relevant in the consideration
of the alleged unfair labor practices covered by the complaint" It is clear, and the
undersigned finds, that by the activities of Bertrand and Humphrey thereafter, as
found hereinabove, the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
B. The discharges and the refusal to employ
1. Smith, Lucas , Sheets, and Newland
Within a week after the union meeting on April 5, 1944 , and while the union cam-
paign was still being carried on, Smith , Lucas, Sheets , and Newland , the leaders in
the movement , were discharged , the first two on April 10, and the others on the 11th
The union movement abruptly stopped.
A few days before, as has been found , Bertrand had said to Ellsworth that the
Company had "outsmarted" the attempts to organize a union before , and that he
(Bertrand ) did not think it would "go through" this time either ( To employees
Whiteman, Smith , and Lowe he said , "If you think joining the union is going to get
you anything, you are crazy .") This was an admission of intention A few days after
the discharges , Bertrand told Ellsworth that the "main instigators " of the Union
had been got rid of This was an admission of acconiplislnnent What happened be-
tween the intention and the accomplishment supplies the facts to support the admis-
sions ; they show that Bertrand here spoke truly What happened will now be told
It is the position of the respondent that the low profit in the retread shop for the
month of March , caused by the poor production and work records of these employees,
necessitated the discharges This, testified Humphrey, came about in this wise
He keeps in touch with the work at the shop through "production reports and .. .
monthly operating statements " which are prepared in his office by the accountant
These monthly operating statements are ready for his examination "usually the 10th
of the following month ." The report covering March came in the 10th of April. He
gets it first , and a copy is mailed to the home office in Akron where it is received
16 There is no denial by Bet ti and of this liter conversation with Ellsworth , other than his general
9t,itement that lie never spoke of unions to the employees
rs N L R B v Lint,-Bch Co. 311 U. S 584, 588
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"usually around the 15th." The "expectation" of the home office is a profit of 25 percent.
(Counsel for the respondent in his brief also refers to it as a "hope".) However, the
net profit in March was only 12.2 percent. When he came to work Monday morning
April 10, before 8 o'clock, he saw the report on his desk, it having been completed and
placed on his desk by the accountant the day before. As Bertrand came in to work
at about 8 o'clock, he (Humphrey) asked Bertrand "for an explanation of the [pooil
performance in the retread plant for the month of March." Bertrand replied that the
reason was "due to some of the employees in handling [sic should be "not handling"]
their production end of the work, as they should." So. continued Humphrey in his
testimony, "we went over the personnel . . . to determine who the people were that
were not handling their work in line with the expectation, or keeping up with their
production record. After an analysis of the men and women in the shop," and a d.s-
cussion of "the people involved," and "after getting Mr. Bertrand's explanation of
their performance, I told Mr. Bertrand to release these people [Smith, Lucas, Sheets,
and Newland] because we had to have perfect performance in our retread shop and
could not allow anyone to lay down on the job or hinder our objective." Nothing was
said in this conversation, testified Humphrey, about unions or union activity, and he
knew nothing about any such activity at this time. Indeed he was "favorable" to
unions. It is production which primarily affects the amount of net profit, though the
cost of materials has some bearing. Continued Humphrey : "Whenever I have anyone
in my organization that fails to do their job, I immediately- release them." Bertrand
discussed proposed discharges with him, but he did not suggest firing these four; he
merely gave Humphrey the facts as to all the employees in the shop
Bertrand 's testimony was as follows: As he came to the shop the morning of April
10, Humphrey "started getting on" him "about operations of the retread shop ; that
something was going to have to be done; that he was catching so much thunder
from Akron, we were just going to have to do something"; that after discussing the
employees, Humphrey suggested firing Smith, Lucas, Sheets, and Newland, and that
he (Bertrand) concurred in the selection, and thereafter did the firing, two the same
day, and two the next. He had, however, given Humphrey his opinion of these
employees before any decision was made to discharge them. Humphrey has to rely
upon him considerably in sizing up the personnel, since Humphrey has charge of the
entire district. Humphrey usually asks for his recommendation, but he does not recall
whether he gave Humphrey a recommendation in this instance. Humphrey is after
him all the time on production, says he wants "more sales," puts pressure upon him
for more production, and this has been going on "Ever since [he took] the job over'
This pressure by Humphrey was nothing new, "Only he sometimes spreads it on a
little heavier . . ." He is called in by Humphrey "practically every month."
Before considering the particular testimony indicating the respondent's asserted
reasons for the selection of Smith, Lucas, Sheets, and Newland, for discharge, com-
ment should be made on the respondent's evidence as to the necessity for the selection
of anyone for that purpose at this time.
Unfortunately for the respondent's contentions, the facts do not bear out either the
necessity or the claim that either Humphrey or Bertrand or any other representative
of the respondent believed there was such necessity. Even the figures in the respondent's
own records are far from supporting these contentions. Humphrey conceded that the'
"expectation" of 25-percent profit was only seldom realized.18 The March net profit of
is The evidence shows monthly figures from Januiry 1943 through June 1944 In but one month,
March 1943 , was the "expectation" realized (28.6 percent ) In but three other months did the fig-
ures reach 20 percent ( February 1943, 24 percent ; February 1944, 21 8 percent ; and June 1944
[after the discharges], 24 4 percent) The average for the fiscal year ending October 1943, was.
however, but 14.8 percent, and from November 1943 through June 1944 the average was but 14.5
percent,
THE FIRESTON E TIRE \ ND RUBBER COMPANY 1327
12.2 percent was not unusual. Thus, the net profit for January 1943, was but 8.6
percent; for April 1943, 10 percent; for January 1944, 9.2 percent. And the average
for the four months preceding April 1944 (the respondent's fiscal year begins Novem-
ber 1), was 14.2 percent. Never before, nevertheless, and as far as the record shows,
not since, had more than two employees been discharged at one time. This time,
however, four were discharged," and this in the face of a manpower shortage, a
shortage so acute that in order to acquire new employees the respondent found it
necessary to attract them to the job by offering them top wages at the start-the
circumstance which impelled the 1944 union movement in the first place.
Nor is there support in the evidence for the intimation that special pressure had been
put upon Humphrey from the respondent's home office because of the profit situation,
which pressure in turn resulted in Humphrey's decision to discharge the employees
he claimed to be responsible. His own figures, as Humphrey testified, are not received
from the accountant until about the 10th of the following month. Humphrey sees the
figures before they go to Akron where they arrive "around the 15th " On his own
testimony, he saw the March figures for the first time shortly before 8 o'clock on the
morning of April 10. Akron did not know of the figures until later, after the discharges
had already taken place. Thus, pressure from Akron could not have brought about
the discharge unless some earlier pressure was involved. But it is not reasonable to
infer that there was such earlier pressure so operating. Here again the figures show
the contrary The net profit had increased from 9 2 percent in January to 21 8 percent
in February, a figure much higher than for any month back to March 1943, much
higher than the average profit for the fiscal year beginning November 1943 (14.8
percent), much h^gher than the average for the four months of the fiscal year to
March 1, 1944 (142 percent), indeed much higher, also, than for any month there-
after through June 1944, which is as far as the evidence covers.
It is thus plain from the record that not only was there no necessity to discharge
any employee at this time because of the performance of the shop as a whole, but that
neither Humphrey, nor Bertrand, nor any other representative of the respondent
thought that there was.
Moreover, even if it be assumed that Humphrey had decided to discharge a number
of employees for reasons not violative of the Act, the record makes it crystal clear
that in the selection of Smith, Lucas, Sheets, and Newland, Humphrey and Bertrand
were impelled by anti-union considerations.
Smith, it is claimed, was chosen for discharge because his production was not up to
expectations, and because he had cracked the base of a buffing machine upon which he
worked, causing production to be held up for necessary repairs. But the evidence indi-
cates, and the undersigned finds, that the facts are to the contrary; Smith was not thus
derelict, nor did Humphrey or Bertrand think so, nor was Smith in any event dis-
charged for either of the claimed reasons.
Smith began his employment with the respondent on December 16, 1942, as a mold
roan He was the fifth oldest employee in the shop in length of service. He started at
$120 per month. Effective May 1, 1943, he received an increase of $15 for the reason,
as given in the respondent's records, of "Increased efficiency and responsibility. Super-
visor, night shift, when on that shift." This increase, for the stated reason, was
approved in advance by Bertrand, by Humphrey, and by the home office (the same
is true of all increases hereinafter referred to, not only as to Smith, but the other
discharged employees as well). On August 1, 1943, he received a further increase of
$15 for this recorded reason : "Increased production. Also runs tire buffers." And
IN It is true that two were discharged on the 10th and two on the 11th, but the decision to discharge
all was made at the same time.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as of January 1, 1944, he received a third increase of an additional $ 15 for this recorded
reason. "Doing a good job Increased Production "
In view of what the respondent ' s records show, it hardly seems likely , to put it
mildly, that Smith , an employee with one of the longest records of service in the
shop, was remiss in his work, and Smith denies the alleged dereliction 20 Humphrey's
explanation for the three raises in salary is most unusual A merit raise , he said,
does not necessarily mean that the recipient deserves it because his work is satis-
factory; it is given, he testified, principally as an incentive to the employee to improve
his work, as a "shot in the arm " Bertrand , too, testified that Smith was given a
raise to inspire him to do better . Bertrand did say that he had testified in the first
hearing that raises are not given as a bonus for inefficiency , but he now testified that
he desired to qualify his earlier evidence to the extent that he had given raises where
the employee in question had slacked in his work , and that such raises were given
to "inspire" them This , in turn, he later qualified still further by saying that if a
matt slacks down he talks to him , and then if the employee improves he puts through
a raise. The evidence also shows that Bertrand had also testified earlier that it would
be fair to conclude , from the fact that an employee had received a raise in pay, that
he (Bertrand ) was then satisfied with his work , raises, he said , were granted on
merit, which meant a consideration of the employee ' s work , his attitude toward the
work, how he handled his equipment , and production
Extended comment upon this testimony is unnecessary . The undersigned does not
believe that any of the merit increases under consideration in this proceeding were
given for any reason other than merit The claim that these employees received not
only one but repeated "shots in the arm" to revive flagging work records is rejected
Smith ( and the other employees referred to below who received increases in pay)
received the increases because Bertrand , and Humphrey , and the home office thought
he deserved them for the reasons shown in the company records'
This brings us to the matter of the crack in the base of the buffing machine, which
was discovered by Palcic about noon of Saturday , April 8 . Smith was on'b of two
employees who operated the machine . Neither Humphrey nor Bertrand nor Palcic
had seen it 'broken . Smith denied breaking it,22 and there is no evidence that he did
break it . While Bertrand testified that Palcic had told him that Smith "evidently"
had broken it, and Humphrey testified that Bertrand told him that Smith had broken
it Palcic in turn testified that he did not remember whether he told Bertrand that
Smith had broken it, that he did not remember whether he investigated who broke
it, and that he did not know whether Smith or the other employee who operated the
machine broke it. Moreover , Humphrey testified that it cannot be determined who
breaks a buffer unless it is seen broken , and Bertrand testified that the break might
have been caused by vibration in operation , or by strain , or by some other means not
the fault of the operator. (The crack in the base was some 8 to 10 inches in length).
Neither Palcic, nor Bertrand , nor Humphrey , as a matter of fact, made any investi-
gation as to the cause of the crack In any event , the undersigned is satisfied that the
20 There is one exception Early in 1943, Smith's work admittedly suffered Bertrand criticized
him for it, and Smith promised to do better He did do better There was no further criticism and,
as found above, Smith later received the first of three increases in pay The testimony of Bertrand
that he told Hilmphrey early in 1944 that Smith was not caring foi his equipment properly is not
ciedited, in which latter connection it may be noted that there is no evidence that Bertrand had talked
to Smith about it
21 It is not without significance. in this connection, that of the employees on the pay roll as of
the date of the heaiing before the undersigned, but two had received as many raises in pay as
Smith had received from January 1, 1942 to the time of Smith's discharge, and these two, more-
over, had begun at a substantially lower figure than Smith had
22 The other operator of the buffer did not testify.
THE FIRESTONE TIRE AND RUBBER COMPANY 1329
crack in the base of the buffer had nothing to do with Smith's discharge, and that,
on the contrary, the only reason for the discharge was Smith's membership in and
activities on behalf of the Union.
Lucas. Humphrey testified that Lucas was selected for discharge for the reason that
it was necessary to re-run many of his tires because he had failed to lubricate the
molds, and that Lucas had been thus derelict "for quite some time" No evidence in
the record worthy of the name supports this assertion,23 and the facts contradict it.
Lucas began his employment with the respondent as a mold man on December 12,
1942. He was the fourth oldest employee in the shop in length of service. He started
at $110 per month. On June 1, 1943, his salary was increased $15 for this reason, as
given in the respondent's records : "Increased production. Runs 4 pass. [passenger]
molds, 2 truck molds, and builds up retreads." And on November 1, 1943, he received
an additional $15 raise for this reason : "Always on the job. More dependable and turns
out better work." Lucas had never been criticized for his work, and had never been
warned that he was in danger of losing his job. It is clear that his discharge was
motivated solely by anti-union considerations.
Sheets was chosen for discharge, it is claimed, because he did not "coordinate his
efforts" with other employees to the best of his ability. Again, the facts are to the
contrary, and Bertrand and Humphrey knew it. Sheets was originally employed by
the respondent in 1932 and left after two years. He resumed employment at the
shop in October 1943, alternating between "building up repairs," and the molds. He
started at $125 per month. He received no raises When he was hired, however,
Bertrand told him he would receive an automatic raise after 90 days The raise was
not given, and in March 1944, but a month before his discharge, he asked Bertrand
about it. Bertrand replied that he could do nothing then, though admitting he had
made the promise. Sheets thereupon asked if his work was satisfactory. Bertrand
replied that it was.29 When Bertrand notified Sheets, a month later, that he was dis-
charged, Sheets asked-why. Bertrand responded, "We won't go into that." Sheets
was never told the reason by the respondent. The claim that he did not coordinate
his efforts with others in the shop to the best of his ability rests solely upon Hum-
phrey's testimony that Bertrand had told him so, that and nothing more. Sheets had
never been criticized for his work, never warned that his job was in danger The reason
for his discharge was the union activity.
Newland, it is said, was "rather antagonistic," had "failed to cooperate" with her
co-workers, and idled on the job, thus reducing her output. The respondent's own
records belie the claim. Newland began her employment on October 10, 1942, doing
repairing and retreading. Other than Foreman Palcic (and of course Bertrand) she
had the greatest length of service in the shop. Her starting wage was $90 per month.
On December 1, 1942, she was given a raise of $10 for "increased efficiency." On July
15, 1943, she was given an additional $10 raise, again for "increased efficiency " And
on October 1, 1943, she was given a further raise of $15, this time for "Increased
Efficiency and production." The undersigned has carefully examined the respondent's
evidence as to Newland and is satisfied that her discharge was motivated by anti-onion
considerations.
The evidence in sum, shows : (1) a background of anti-unionism exhibited beginning
in 1941; (2) the timing of the discharges at the height of the union activity in 1944;
(3) the falsity of the respondent's reasons for the discharge of any of the employees
on April 10 and 11, 1944, particularly in view of the then existing manpower shortage
in the rubber industry; (4) the selection of the leaders in the union movement for
23 Bertrand testified only generally on the subject, his testimony being unsupported by any details
as to time , place, or occasion
24 The finding as to this conversation rests upon Sheets ' uncontradicted testimony.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge in the face of the fact that (a) three of them had among the longest length
of service of any employees in the shop (b) the same three, according to the respond-
ent's own records, had received two or more increases in pay based on individual
merit; (c) Bertrand admitted to the fourth (Sheets) as late as a month before the
latter's discharge that his work was satisfactory, and the record is absent any evidence
that it was not; (d) all four had excellent work records; (5) the clear falsity of the
reasons asserted for the individual discharges ; (6) the statements made by Bertrand
to Ellsworth and to others indicating anti-union threats ; and finally and especially
(7) the statement to Ellsworth a few days after the discharges, as found hereinabove,
that the threat had been carried out. All this, and the evidence as a whole, leads
to the compelling inference that the discharges of Smith, Lucas, Sheets, and Newland
were motivated solely by anti-union considerations.
It seems to be the position of the respondent, in effect, that even assuming Bertrand
were so motivated, Humphrey was not; that Humphrey was not aware of the union
activity in 1944; that the decision to discharge was Humphrey's and only Humphrey's ;
that Bertrand participated only to the extent of furnishing Humphrey with the facts ;
and that since it was Humphrey who made the decision, there is therefore no case
unless Humphrey was illegally motivated, and that the evidence does not so show.
This defense is without merit. For one thing, the undersigned is satisfied that
Humphrey did know what was going on, not only of the earlier attempts at unioniza-
tion, but of the 1944 attempt as well. It is a reasonable inference that Bertrand did not
keep from him what was taking place in the retread shop, particularly since both
men thought alike in the matter. Humphrey's office is in the same building and on the
same floor as the shop. Bertrand and he are in constant touch with one another.
Moreover, even if Humphrey were not himself impelled by anti-union reasons in
1944, he did, on his and Bertrand's own testimony, rely upon the latter to supply him
with the "facts" upon the basis of which Humphrey claimed to have made the deci-
sion to discharge. If Bertrand were similarly motivated in presenting the "facts"
(and, for that matter, in also accompanying the presentation with a recommendation,
which he normally makes when discharges are proposed), that is alone sufficient to
establish a violation. The undersigned is satisfied that, whether the matter occurred
one way or the other, Bertrand acted with illegal intent, and 'that is enough. The
undersigned is further satisfied, however, that the only basis for the selection of the
four employees to be discharged, in the minds of both Bertrand and Humphrey, was
an anti-union basis.
It should be said, finally, that while the record alone shows more than ample evi.
deuce fairly to support the conclusions herein reached, the undersigned's observation
of the witnesses lends corroboration to these conclusions. Bertrand especially was
unconvincing, impressing the undersigned as evasive. In material particulars, his
testimony varied, substantially from Humphrey's and from other portions of his own
testimony, and Foreman Palcic's testimony varied substantially from that of both.
On the whole, the union witnesses gave their evidence in a clear, straightforward,
and convincing manner.'
u Mayse testified that during a conversation with Bertrand about April 10 or 11, Bertrand referred
to Smith and Sheets, who were then walking by, as "a couple of our union troublemakers," and
that Bertrand made other antiunion remarks during the conversation Mayse was unclear as to dates
in this connection, and exhibited some uncertainty as to whether it was Smith or Lucas who was one
of the men walking by. Bertrand denied the alleged conversation , though saying at one point that
he did not recall whether the Union was discussed . It is unnecessary to resolve the difference between
them If it were found that Bertrand made the remarks which Mayse testified to, it would only add
an item to evidence already more than ample . If the contrary were found , it would not serve to alter
the conclusions herein reached. For the purposes of this Report the undersigned has assumed the
truth of Bertrand' s version
THE FIRESTONE TIRE AND RUBBER COMPANY 1331
By discharging and failing to reinstate Carrel Smith, Elmer Lucas, Joe Sheets, and
Alys Newland, the respondent has discriminated in regard to their hire and tenure
of employment , thereby discouraging membership in General Drivers, Warehousemen
and Helpers , Local Union No. 90 of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers, A. F. of L., and has thereby interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Harry Mayse
The complaint alleges that the respondent on or about April 10, 1944, "refused to
employ Harry Mayse and has since said date refused and failed to employ" him
"for the reason that he was a member of the union ." This the respondent, in its
answer, denies ; it says that Mayse was "discharged" on or about April 14 for reasons
unconnected with union membership or activities.
While he was an employee at the Goodrich rubber plant , Mayse had a conversation
with Bertrand about March 1, 1944 , during which Bertrand indicated that he desired
to engage Mayse as a working foreman on the night shift at the Firestone retread
shop at a higher wage. On March 16, Mayse saw Bertrand again, and said that he
was ready to go to work at the retread shop. The necessary release was secured and
cleared through the local office of the United States Employment Service . On March
17, Mayse formally filled out an application for employment at the Firestone shop.
This application was in the respondent 's usual form, and its filing was in accordance
with the respondent 's custom. It included a list of Mayse 's former employers, dates
of employment , etc. Bertrand told Mayse , at this time, that it was the policy of the
respondent to investigate applicants for employment and to obtain "personal history
reports" as part of the investigation , that it would take a bit of time for this to be
completed , but that Mayse could go to work in the meantime pending the result of
the investigation . Mayse went to work the morning of March 18, it having been
decided that he would spend about two weeks familiarizing himself with the opera-
tions before he would go on the night shift as working foreman.
On April 1, Bertrand was informed by Shirley Otto , secretary to the stores
supervisor,' that a "report" on Mayse had been received, that the report was "unsatis-
factory," and that Mayse would have to be released
Bertrand did nothing about it, however, until April 4, and this for two reasons ; frst,
because, as he testified , he needed Mayse's work on Sunday , April 2, and second,
because if he permitted Mayse to "work out a full week," Mayse would be enabled
to secure overtime pay including double time for the Sunday work. Up to this time,
Bertrand had no knowledge that Mayse was a member of the Union ( Mayse had
joined it in 1937).
On April 4, Bertrand told Mayse that his "papers " had not cleared and that Mayse
would therefore have to be let go. Mayse asked what was in the report . Bertrand
replied that the contents were confidential . Mayse inquired whether his work at the
Goodrich plant was involved . Bertrand replied that he could not say . Mayse then
asked whether , if he got it "straightened out" with Mills , the stores supervisor at
Goodrich ' s, he could return to work with the respondent . Bertrand replied that Mayse
could try, and he suggested that Mayse see him thereafter ; that he ( Bertrand) would
see what he could do.
Mayse did see Mills, and Mills apparently visited the premises of the respondent,
°' The respondent runs a store on the first floor of the building The stores supervisor has iuns-
diction not only over this store but of about a dozen mote in the district He has charge of investi-
gations'of applicants for employment
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though the evidence is not clear on the latter point At any rate, the matter was
not "straightened out"
On or about April 10 or 11, Mayse returned to see Bertrand once more He asked
Bertrand whether his papers had now cleared. Bertrand said lie would find out
Mayse testified that during some further talk between them at this point, during
which unions were discussed, he told Bertrand that he had been a member of the
Union since 1937, and that Bertrand responded that he was "absolutely against the
Union" and did not want any union in there telling him "how to run" his shop.
Bertrand then, according to Mayse, went into the office, returned, said he could do
nothing as the report had still not cleared. Mayse accordingly asked for a release and
secured it . Bertrand in his testimony denied Mayse ' s version of the conversation
between them, particularly the 'anti-union remarks.
It is not necessary to resolve this difference. The respondent in releasing Mayse
under the circumstances was following its custom of not keeping men on whose
personal history reports had not cleared, Mayse was put to work subject to clear-
ance; the report did not clear; and the decision to release Mayse was reached before
Bertrand knew that Mayse was a member of the Union Even if it be assumed that
Bertrand became aware of Mayse's membership before the investigation had been
completed, it would be pure speculation to conclude that Mayse was let go because of
his membership in the Union The case as to Harry Mayse must therefore be dis-
missed , and it is so recommended hereinafter."
3 Leo Ellsworth
The complaint, as amended, alleges that the respondent on or about September 15,
1944, discharged Leo Ellsworth and since failed and refused to reinstate him because
of his union membership and activities, and because he had testified as a witness for
the Board in the earlier hearing in August. This is claimed to be a violation of Section
8 (3) and (4) of the Act The respondent denies these allegations.
That Ellsworth was a member of the Union, and that Bertrand knew it, has
already been found That he testified against the respondent in the earlier hearing is
unquestioned. His testimony then and at the second hearing was especially damaging
Of probably all the witnesses at the later hearing, Ellsworth, though a hit shaky on
dates, impressed the undersigned most favorably. His testimony has been used to
support the findings of unfair labor practices hereinabove recited, particularly in
connection with certain conversations he had with Bertrand. He was equally forth-
right in telling of the details of his own case But his own story is enough to support
the conclusion that the allegations as to him cannot be supported. The, respondent
offered no evidence to refute his testimony most directly applicable to the allegations
as to him It had no need to.
14 The report itself, which was received from a ciedit investigating company which makes such
investigations for the respondent and companies generally, was not put in evidence Counsel for the
respondent offered to prove by oial testimony that there was nothing in the report conceining unions
o, union activity, lie said that he would not offer the repoit itself because such reports are received
on a confidential basis, and " foi the further reason that the offering of the document might subject
the parties who furnished the information and the credit company to litigation " Counsel added that
It is not withheld because of any fear of respondent of litigation , since counsel for respondent is
of the opinion aside from the violation of the agreement and the fact that it was furnished as a
confidential matter, it could offer the document itself without cieating any financial liability to itself "
(It is well known , of course , that such reports are furnished by credit investigating companies on a
confidential basis ) Counsel concluded by saying that "it is only by being compelled by an order of
the Examiner through a properly issued subpoena duces tecum to produce that we would not be
jeopardized by the presentation of it " The undersigned rejected the offer of the oral testimony
No subpoena was otheiwise requested, and none was issued The facts found justify the conclusion
that Maybe has no case
THE FIRESTONE TIRE AND RUBBER COIIP_ANY 1333
Ellsworth began his work at the retread shop about July 15, 1943, as a mold man
at $135 per month. On August 16, he was raised to $150 for "Increased production
and efficiency." On April 30, 1944, he was promoted to the job of working foreman
on the night shift. (He apparently got the job Mayse had been hired for, and which
Xtayse would have retained, had his investigation cleared.) This promotion was
accompanied by a raise to $165 per month. He was an excellent worker.
Ellsworth occasionally suffered from liver trouble Twice previous to August
1944, he had remained away from work because of this, the first time about Septem-
ber of 1943, at which time he stayed home for two or three days, and then again
in March or April 1944, at which time he stayed home for a similar period. Each
time he telephoned to Bertrand and told him of his illness, or he caused someone
else to do so.
At noon on August 16, he became ill once more, and he went home, remaining for
the next six days ; he telephoned to Bertrand, however, on the 17th or 18th, and
said that he was out sick but would return as soon as possible. Bertrand replied that
Ellsworth had put him "on the spot," which apparently means that the shop was
busy then and that Bertrand was in need of Ellsworth's services.
Ellsworth returned on August 22, Bertrand put him to work. Ellsworth was, how-
ever, not as fully recovered as he believed he was, and at or near the end of the day
he became ill again. This time, he did not report back for work until September 25,
almost five weeks later. He did in the meantime, however, return to the shop on
August 31, pay day, to obtain the pay due him. While there he saw Bertrand.
Bertrand upbraided him for having done him (Bertrand) "a dirty deal" in not
telephoning to him and telling him that he (Ellsworth) was sick.
Ellsworth had, indeed, not informed Bertrand that he was out sick, or that he
had intended to remain out for that purpose, nor had he asked anyone else to do
so, nor is there any evidence that Bertrand knew or had been told why Ellsworth
was not at work between August 22 and August 31. When asked at the hearing why
he did not inform Bertrand, between August 22 and August 31, that he was out sick,
Ellsworth replied that when he had returned to work on August 22, Bertrand had
given him more work than he could do," and so, as Ellsworth put it in his testimony,
"I figured when I got sick again I would stay home until I got well, and that is
what I done." He did know, he conceded, when he left for home on the 22d, that he
would stay home 2°
At any rate, Ellsworth's response to Bertrand's complaint was to say to Bertrand,
as Ellsworth testified, that "if he thought I had done him such a had thing, why
didn't he fire me." Bertrand replied that Ellsworth had already quit. Ellsworth denied
it Bertrand asked if Ellsworth had another job and was going to work. Ellsworth
answered that he did not intend to go to work until he was well enough to do a
day's work. He asked Bertrand for a release. Bertrand said he could not give a
release for the reason that Ellsworth had quit. There was some dispute about the
amount of pay due Ellsworth, during which both men became angry. Ellsworth con-
cluded by asking Bertrand if it would do any good for him to come back for a job
Bertrand replied that it might.
Ellsworth next returned on September 25, almost four weeks later, as has been
- There is no evidence that there was any unlawful discrimination against Ellsworth here Ells-
worth simply was not as well as he thought he was
^ Ellsworth testified at one point that he did tell two employees on August 22 that he intended to
be out sick, but he conceded that he did not ask them to mfoiin Beitiand of it Ellsworth also indicated
in his testimony that the house he was living in between August 22 and August 31 was without a
telephone, and also several miles from the shop He could have sent a postcard, he admitted, but
did not think of it
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated above. He was then well. He asked Bertrand for permission to go to work,
or for a release. He was informed that business in the shop had fallen off and that
no work was then available. After some discussion about the release, during which
Bertrand first refused to give one, claiming that Ellsworth had quit, the stores
supervisor was called in from downstairs, and the three men discussed the matter.
During this discussion Ellsworth was offered a job with the Company at Fort Dodge,
Iowa. This offer Ellsworth declined for the reason that he had six children and
owned a home in or near Des Moines. Ellsworth was accordingly given a release.
But when, at the same time, he asked Bertrand if he could come back to work in
the retread shop, Bertrand, indicating that there was no work then available, said
that there "might be," and suggested that Ellsworth come back to see him "the
first of the week."
But Ellsworth did not come back, either the first of the next week, or ever. He
obtained other employment, he testified, and he did not return "because [he] needed
a job."
What has been related above is based entirely on Ellsworth's testimony. It is suffi-
cient to say that a finding that he was discriminated against in violation of Section
8 (3) or 8 (4) of the Act would be based on pure speculation -It is hereinafter
recommended that the case be dismissed as to Leo Ellsworth 30
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III-A and III-B-1 above,
occurring in connection with the operations of the respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and have led and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. General Drivers, Warehousemen and Helpers, Local Union No. 90 of Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A. F. of L.,
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 engag-
ing in unfair labor practices, within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Carrel Smith,
Elmer Lucas, Joe Sheets, and Alys Newland, thereby discouraging membership in
m Ellsworth testified that before the earlier hearing his relations with Bertrand were friendly, but
that after he had testified, while Bertrand was about equally friendly, his "attitude was different-
the way he would tell me to do things . before he left things for me to do, and after that hearing
he just told me." This testilhony manifestly does not warrant a finding of violation of Section 8 (4).
a The fact that Smith and Newland , according to concession of counsel for the Board , received
equivalent employment elsewhere after their discharges by respondent, does not militate against the
recommendation of reinstatement hereinafter made See Ford Motor Company, 31 N L R B 994,
1099-1100
THE FIRESTONE TIRE AND RUBBER COMPANY 1335
General Drivers, Warehousemen and Helpers, Local Union No. 90 of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, A F. of L., the
respondent has engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not discriminated in regard to the hire and tenure or the
terms and conditions of employment of Harry Mayse and Leo Ellsworth.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the undersigned
recommends that the respondent , The Firestone Tire and Rubber Company, Des
Moines, Iowa, and its officers, agents , successors and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in General Drivers, Warehousemen and Helpers,
Local Union No. 90 of International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers , A. F. of L., or in any other labor organization of its employees,
by discharging , laying off, or refusing to reinstate any of its employees , or in any other,
manner discriminating in regard to the hire or tenure of their employment, or any
term or condition of their employment;
(b) In any other manner interfering with, restraining , or coercing its employees in
the exercise of the right to self-organization , to form labor organizations , to joiti or
assist General Drivers , Warehousemen and Helpers , Local Union No. 90 of Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers , A. F of L.,
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 any other mutual aid and 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:
(a) Offer Carrel Smith, Elmer Lucas, Joe Sheets, and Alys Newland immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges;
(b) Make whole Carrel Smith , Elmer Lucas, Joe Sheets , and Alys Newland for
any loss of pay they have and will suffer by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal to the amount
which he would normally have earned as wages from the date of his discharge (April
10, 1944, as to Smith and Lucas ; and April 11 , 1944, as to Sheets and Newland), to
the date of the respondent 's offer of reinstatement , less his net earnings'- during said
period and less also such dismissal pay as they have received from the respondent ,'3
(c) Post at its Segregated Retread Plant at Des Moines, Iowa , copies of the notice
attached hereto and marked "Appendix A." Copies of said notice , to be furnished by
the Regional Director of the Eighteenth Region, shall , after being duly signed by the
respondent 's representative , be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous
32 By "net earnings" is meant the definition of the term indicated in Crossett Lumber Company,
etc, 8 N. L R B 440, 498.8, and Republic Steel Corp v N L R B., 311 U S 7, and is used by
the Board in numerous decisions since.
a9 The respondent gave Smith, Lucas, and Newland two weeks' dismissal pay, in accordance with
its custom, but one week's pay was apparently given to Sheets, because the latter had not had a
year's service with the respondent
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places, including all places where notices to employees are customarily posted. Reason-
able steps shall be taken-by the respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighteenth Region in writing, within ten
(10) days from the date of 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 recommended that the allegations of the complaint as to Harry Mayse and
Leo Ellsworth be dismissed.
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 excep-
tions 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 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.
SAMUEL H. JAFFEE
Trial Examiner
Dated February 24, 1945