Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 435 (N.L.R.B. 1967)

FIRESTONE TIRE & RUBBER CO.
Firestone Tire & Rubber Company and
United Rubber , Cork, Linoleum and Plastic
Workers of America , AFL-CIO. Case
26-CA-2495
June 16,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 30, 1967, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
.complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a
supporting brief, and the Respondent filed an
answering brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR E. REYMAN. Trial Examiner: On July 21, 1966,
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, herein sometimes called the Union,
filed a charge against Firestone Tire & Rubber Company,
herein sometimes called the Company or the Respondent,
the basis of the charge being that the Respondent "has
engaged in and is engaging in -unfair labor practices"
within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act, in that on or about
June 19, 1966, it, by its officers and agents, terminated the
employment of C. L. Robinson, a welder, because of his
membership and activities in behalf of the Union.'
' The actual date of the discharge has been shown to be
June 12,1966
435
Thereafter, on September 2, 1966, the General Counsel of
the National Labor Relations Board, on behalf of the
Board, by the Regional Director for Region 26, pursuant to
Section 10(b) of the Act, and Sec. 105.15 of the Board
Rules and Regulations, Series 8, as amended, issued a
complaint and notice of hearing against the Respondent,
alleging that the Respondent had engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and (3) and 2(6) and
(7) of the Act. The Respondent filed timely answer to the
complaint, effectively denying that it had engaged in or
was engaging in the unfair labor practices set forth in the
complaint.
Pursuant to notice, this case came on to be heard at
Russellville, Arkansas, on October 31, 1966, and was
closed on the following day. At the hearing, the General
Counsel and the Respondent were represented by counsel
and the Charging Party, the Union, was represented by a
field representative. Each party was afforded full
opportunity to call and examine witnesses, to cross-
examine witnesses, to present evidence relevant to the
issues of the case, to engage in oral argument, and to file
briefs. A brief was filed on behalf of the Respondent and
has been carefully considered.
From my observation of the witnesses, and upon the
whole record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Firestone Tire & Rubber Company, Respondent
herein, is now and has been at all times material herein, an
Ohio corporation with a place of business at Russellville,
Arkansas, where it is engaged in the manufacture of tire
tubes and related rubber products. During the 12-month
period immediately preceding the issuance of the
complaint, the Respondent, in the course and conduct of
its business operations, purchased and received at its
Russellville, Arkansas, plant, directly from points located
outside the State of Arkansas, goods and materials valued
in excess of $50,000, and during the same period of time,
manufactured, sold, and shipped from its Russellville,
Arkansas, plant, directly to points located outside the
State of Arkansas, finished products valued in excess of
$50,000.
The Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, the Charging Party, is now , and has
been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, and the answer admits, that on
and about June 19, 1966 , [sic] the Respondent terminated
the employment of employee Cecil L. Robinson. The
complaint alleges, and the answer denies, that the
Respondent terminated , and thereafter failed and refused,
and continues to fail and refuse , to reinstate Robinson,
because "said employee" joined and assisted the Union or
engaged in union or concerted activities for the purpose of
165 NLRB No. 64
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining or other mutual aid or protection;
and that by these acts the Respondent interfered with,
restrained, and coerced, and is interfering, restraining,
and coercing, its employees in the exercise of their rights
guaranteed in Section 7 of the Act, and thereby did engage
in and is engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), and
further by such acts, the Respondent did discriminate and
is discriminating in regard to hire or tenure of terms of
employment, thereby discouraging membership in a labor
organization, "and Respondent did thereby engage in and
is engaging in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and Section 2(6) and
(7) of the Act."
Preliminary Statement
The Firestone Tire & Rubber Company opened its plant
in Russellville, Arkansas, during October 1964. There it
employs approximately 200 employees in the production of
rubber tubes for tires.
James Sellers, the plant manager, is the chief
management official at the Russellville plant. B. L.
Frazier, industrial relations director, reports to Sellers.
Sellers and Frazier have held their respective positions
since the plant opened, neither having served in his
respective position prior to his assignment to this plant.
Under Sellers are a number of persons occupying
supervisory positions, including Maintenance Supervisor
La Moyne Jones, Shift Foreman Henry Butto, Foreman
Ralph Hoffman, and Plant Engineer Roy Styx.
The Respondent and the Union entered into an
agreement for consent election on December 3, 1965. An
election was conducted and a tally of ballots issued
December 16, 1965, showing out of a total of 178 eligible,
80 votes were cast for the Petitioner Union (the Charging
Party herein), 5 for Teamsters Local 878, and 88 votes
were cast against the participating labor organizations.
One other ballot was void. Thus, a majority of the valid
votes counted were cast for neither union.' No objections
were filed by either union in regard to the conduct of the
election or to the Respondent's conduct affecting the
outcome of the election and the results of the election were
certified. Case 26-RC-2547.
The organizational campaign seems to have been
extremely quiet; several employees announced
themselves as being in favor of union organization and
solicited other employees to join with them, either in
support of the Rubber Workers or the Teamsters?
This case involves only the matter of the Respondent's
discharge of one employee, Cecil L. Robinson, the
complaint alleging that the Respondent terminated his
employment because he joined or assisted the Union or
engaged in union or concerted activity for the purpose of
collective bargaining or other mutual aid or protection.
Robinson at no time engaged in affirmative support of
the Union, except that he did sign a union authorization
card and attended two out of six or seven meetings held by
the Union. He did not solicit membership in the Union,
pass out union literature, talk to other employees in regard
to joining the Union, or express his views regarding the
Union to any member of management. In the interim
between the election and the termination of Robinson's
employment on June 12, 1966, there has been no known
union activity on the part of any employee or any other
person.
Counsel for the General Counsel asserts that "the
discriminatory discharge of Cecil Robinson was a very
subtle, a very carefully thought out and very well planned
affair. It was carefully executed and carefully put into
effect." He contends that the Respondent deliberately
waited for the expiration of the 6-month Section 8(b)
limitation period until it discharged Robinson.
In the absence of any proof of animus on the part of the
Company against Robinson or the Union, and in the
absence of any showing that Robinson was active in any
way in the Union's organizational activities, very strong
circumstantial evidence must be shown that Robinson
was, in fact, discharged for the reasons stated in the
complaint and by counsel.
Robinson was terminated for violating the company rule
respecting the use of a timeclock at break periods in the
morning, at lunch, and in the afternoon. The Company
accused him of cheating by falsely recording his actual
time of breaks. Robinson was discharged for clocking in
from his lunch period and then returning to the locker
room or the lunchroom rather than returning to work.
A. The Company's Breaktante Rule
During all of the times under discussion here,
employees received two 10-minute breaks for personal
activities and a 20-minute lunch break during the usual
workday. After June 1965, when timeclocks were installed
in the various departments throughout the plant,
employees were required to clock out for breaks on their
department timeclocks, attend to their personal duties or
to take lunch, and return to their department to clock in
from the break.
The plant building is approximately 960 feet in length
with the lunch and locker area being located about one-
fourth of the distance from the West end of the plant, so
that in some departments the timeclock for a particular
department was located at a greater distance from the
lunch and locker area than other departments, such
physical location of an employee's department therefore
partly determining the actual length of his break in the
morning, for lunch, and in the afternoon. Between June
and August 23, 1966, there were many instances where
employees overstayed breaks and lunch periods and were
disciplined by the Company for such loss of worktime.
Management regarded the continual overstaying of
breaks and consequent discipline of involved employees to
be serious enough to warrant the imposition of a rule so
2 The employees voting in this election in the agreed-upon
appropriate collective - bargaining unit were all production and
maintenance employees in the employ of the Employer at the
Employer's Russellville, Arkansas, plant , excluding office clerical
employees , professional and technical employees , guards and
supervisors as defined in the Act
Y No complaint of company interference in the Union's
organizational campaign or retaliation against any employees
during or as a result of their union activities has ever been made.
The charge in the instant case was filed by the Union on July 21,
1966, so that any unfair labor practices which might have been
alleged in connection with the organizational efforts of employees
had long since been barred by the proviso of Section 10(b) of the
Act.
FIRESTONE TIRE & RUBBER CO.
that all employees would be advised of the importance of
observing proper timeclock procedure and to warn them
not to overstay breaks and lunch periods. Just prior to
August 23, 1965, a meeting of employees was called by
management to impress upon the employees the necessity
for observing timeclock procedures. During the course of
this meeting it was suggested by employee Alvin Carruth,
who referred to the obvious inequities in the break system,
that by using the timeclock directly opposite the lunch and
locker area for clocking in and out on all breaks and
lunches the inequities as between the employees near this
area and those further away could be eliminated. After
consideration, management adopted Carruth's suggestion.
The policy adopted by the Respondent was set forth in a
posted notice to the employees, as follows:
FIRESTONE
INTEROFFICE
August 23, 1965
To: All Employees
From: B. L. Frazier
SUBJECT: TIME CLOCKS-PUNCHING FOR
BREAKS & LUNCH
It has been suggested by Alvin Carruth, a utility
and serviceman in the warehouse , that a more
equitable policy could be established if we were to use
one clock for punching in and out for breaks and
lunch . He suggested we use the clock at the entryway
which is closest to the cafeteria.
We have considered this request and feel that it is
reasonable . In view of this, the following policy is
established, effective immediately:
1. Employee will clock in at the beginning of his
shift in his home department as usual and place his
time card in the home department rack.
2. Employee will remove his card from the home
department rack at his first break and use the clock in
Department 336 (West wall and entryway) for
punching his card for breaks and lunch. The cards
will be maintained in the box adjacent to the time
clock by department until permenent racks are
installed. Those employees assigned to Department
336 will continue to use the time card rack.
3. At the end of the second break, employee will
take his time card to his home department and place
it in the rack. The home department clock will be
used for clocking out at the end of the shift.
4. Employees working in loose carbon black, and
others who use the East Cafeteria, will continue to use
the time clock in Department 326 for starting their
shift, breaks, lunch and for ending their shift.
5. Since this request has been granted, it is
expected everyone will cooperate. There should be no
loitering to and from the clock in going from or
returning to work positions.
6. As explained in our group meetings of Friday,
August 13, all written warnings that have resulted
from violations of the previous break and lunch policy
are being removed from your personnel folders and
destroyed. It is, therefore, to be understood that
437
anyone violating this policy in the future shall be
subject to disciplinary action including discharge.
B. L. Frazier
This policy, covering the system of accounting for
breaktime, was in force at the time Robinson was
discharged on June 12, 1966.
Under the system adopted on August 23, 1965, an
employee desiring to go to the lunch and locker area for
break or for lunch removed his timecard from the timecard
rack in his department and took it with him to that area
where he clocked out, after use of personal time, that
employee was required to clock in on the lunchroom
timeclock and return to his work station, and his timecard,
which normally was left in the lunch and locker area
timecard rack at the first break, would be returned by the
employee to his department after the final break of the
day. The lunch and locker area timeclock was located near
the "E" line production area, a location from which it was
possible from certain points to observe anyone who used
the timeclock. (Resp. Exh. 1.)
Sometime after the posting of the notice on August 23,
1965, Plant Manager Sellers was informed that violations
of the procedure had occurred or were occurring. He
testified:
A. Well, I should say at some time, and this is very
difficult for me to determine in my own mind, the
winter months of 1965 1 had word from somebody, and
I don't recall who it was, that some of the employees
were violating the punching of the clock.
Q. Now, in what respect was this rumor or report
violation , how was it occurring?
A. Well, they claimed it was occurring this way.
The employee would punch the clock and go to the
cafeteria, or the locker room, and he would then come
back within the 10-minute time allotted or the 20
minutes allotted time, punch the clock again, and
then he would take off and go back into the locker
room or the cafeteria, or elsewhere in some cases.
Sellers said he did not give the matter too much thought at
that time , but at a later date "and this has to be around the
spring of this year" he heard the same rumor; and that a
short time thereafter Frank Henry, production manager,
[H]appened to be out on E line carrying tubes, and on
this one particular day he noticed a mechanic that had
come out from the hallway and was getting ready to
punch the clock . As he was observing this
mechanic punching the clock, and as he punched the
clock, Mr. Henry started to walk in the direction of
the clock, and the employee at that time started to go
back into the hall and, as he did, he turned around
and he observed Mr. Henry. Mr. Henry then
proceeded to walk down further, but before he could
get to the hallway, this mechanic, and Mr. Henry did
not know who the mechanic was at the time, and Mr.
Robinson came out. We had a discussion after this
and Mr. Henry felt that what had happened, this
mechanic had seen Mr. Henry coming in his direction
and he hollered or motioned, or did something, to Red
[Robinson] and that then [sic] caused both of them
to walk out, making everything satisfactory,
legitimate . They were not caught, at that time. In view
of all of this, it was hard to believe actually that such a
practice was going on. I could see that some of the
employees punching the clock would exceed their
299-352 0-70-29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
breaks by a minute or two in some cases and, when
they were reprimanded and it called to their attention,
they could correct. But it didn't seem conceivable to
me that someone would cheat on purpose and go
ahead and take additional breaks or lunch periods.
Sellers deemed the situation to be of such importance
that he consulted with Industrial Relations Director
Frazier. After discussion, it was decided that an observer
be placed in the lunch and locker timeclock area for the
purpose of determining whether violations of the break
rule were frequent and to identify employees who might
misuse the timeclock. Shift Foreman Butto was given the
special assignment, which began sometime in May 1966.
He was instructed to take station in the "E" line
production area in such a position that he could observe
the area timeclock and entrances to the lunchroom and
locker area, and after observation to report the names of
any employee who might return to break or lunch after
clocking in. The observation position was considered
strategic since Butto could perform the assignment
without attracting attention to himself. He was instructed
to report violations directly to Frazier, to pay special
attention to maintenance employees who had no fixed time
for breaks or lunch, and to take particular notice on
weekends when the supervisory force was low.
Subsequently, Butto made two oral reports to Frazier:
He reported Robinson for returning to the lunchroom after
clocking in in order to talk to a maintenance department
leadman; and he reported Norman Anderson, a
supervisory trainee, for returning to the lunchroom after
clocking in. These apparent violations were not reduced to
written reports. In Robinson's case it was agreed that a
violation had not occurred, and Frazier undertook to
personally handle Anderson's case.
During the time he spent on this assignment, Butto
made four written reports of violations to Frazier. These
are as follows.
May 28, 1966. B. L. Robinson went on his first break
at 9:24 a.m. and returned to the clock at 9:34 to punch
back in. Actual time was 9:23 to 9:32 a.m. After
punching in, employee returned to the locker room.
He was in the locker room for 1 minute, 20 seconds
On coming out, Wilson was with him and both of them
went by the clock without punching in or out. On the
way back to the shop, Wilson continued to the shop,
but Robinson went into the restroom and the tuber
area. He went in 9:41 a.m. and came out at 9:45 a.m.
B. L. Robinson went to lunch at 11:34 and punched
back in at 11.53 a.m. This time and the time
mentioned above (9:24 and 9 34) were taken by my
watch. Actual time at lunch was 11:33 a.m. to
11:52 a.m. Upon punching in after lunch, Robinson
returned to the cafeteria and talked to a maintenance
man until 11:57 a.m. At 11.57 a.m. he went back out
and went back to the shop.
The second report:
June 4, 1966. B. L. Robinson and Wilson went on their
first break at 9.02 a.m. and punched back in at
9:12 a.m. They both returned to the locker room and
both came out at 9:14 a.m. Their lunch and last break
periods were normal.
' The name of Robinson. among others, was mentioned to
Sellers as one employee who did not follow timeclock procedure
prior to the tine Sellers and Frazier decided upon surveillance by
The third report.
June 7, 1966. Robinson and Wilson went out on their
break at 9:38 and both went to punch back in at 9:47.
Wilson went back into the locker room and Robinson
was right behind him. Robinson stayed about
30 seconds and then came out and Wilson stayed in
about 1 minute and then he came out.
The fourth report:
June 12, 1966. B. L. Robinson checked back in after
lunch at 11:42 a m. and went back into the locker
room and came back out at 11:47 a.m. He was alone at
this time."
Upon review of Butto's reports, Sellers and Frazier
decided that violations were not sufficiently widespread to
require collective action, the problem could be handled
with individual discipline, and they would discharge the
next reported violator as an example to the other
employees of the seriousness of the offense.
Sometime after 3:30 p.m. on June 12, 1966, after
Robinson was observed violating the rule, he was called to
Frazier's office and discharged in a meeting or interview
attended by Frazier, Plant Engineer Styx, and Supervisor
Jones. During the course of this interview Frazier charged
Robinson with the violations noted by Butto; Robinson
claimed to have returned to the lunchroom on June 12 to
talk with Jones, Jones denied this; and Robinson then, it is
said, conceded that he "must be guilty."
B. Robinson 's Work, Facts Regarding His Charge of
Discrimination
Cecil L. Robinson first was employed at the
Respondent's Russellville plant on November 6, 1964, one
of the first eight employees hired by the Company at that
plant. He was employed in the maintenance department,
was trained as a splicer mechanic, did welding, trained
men to be splicer mechanics, trained four other
maintenance men, and also gave training to two of the
Company's supervisors and welding training to two of the
maintenance supervisors. Among those to whom he gave
training, he said, were Henry Butto in the splicing
department, and La Moyne Jones in the maintenance
department.
At the time of his discharge, he was working in the
maintenance department where he had, until his
discharge, been working from 7 a.m. until 3 p.m. on a
regular 40-hour workweek plus approximately 20 to 25
hours a week overtime. He testified that approximately 3
months before the election held on December 16, 1965, he
attended two out of six or seven meetings of the Union and
signed a union card; that he did not solicit anyone else to
sign cards or talk to any employee about joining the Union;
and that he voted in the election. At all times the quality of
his work performance was good, this fact being confirmed
by the Respondent. He was on excellent terms with some
of the supervisory personnel of the plant and friendly with
them both on and off the job. He testified that he had
entertained Hoffman at his home on at least three
occasions, Butto two or three times and Styx "a couple of
times." He loaned Hoffman a pony to keep in his yard to
ride on weekends, and when Hoffman and his family
Butte At the time, and before, Butto made his written reports to
Frazier , Robinson was training Wilson on the maintenance and
repair of machines
FIRESTONE TIRE & RUBBER CO.
visited his home, Hoffman's children rode the horses at his
place.
Robinson testified to several conversations he had with
the supervisors of the Company concerning the Union.
The first one he mentioned was one which he said
occurred about 3 months before the election when the
Union was trying to organize the employees. He said that
Jones, his supervisor, approached him while he was at
work, said that he had just returned from Frazier's office
and that Frazier was very much concerned about his union
activities. Robinson then told Jones, he said, that he had
no more to do with the Union than Jones had and that
Jones replied "I didn't think you had." This reported
conversation occurred after Robinson had signed a union
card. He related the substance of the second conversation
he said he had with Hoffman, who approached him and
requested him to accompany Hoffman to the warehouse,
where Hoffman "told me that the Company has me
spotted as the one that had gotten the Union to come in."
He said that at that time . the Teamsters had just
entered, along with the Rubber Workers, and he
mentioned they had me spotted as the one that had got the
Teamsters to come in. I told Hoffman I had not done that."
He said he told Hoffman at the time that "they had had
four or five meetings before I even knew there was a Union
around."
Robinson testified concerning five conversations he had
with supervisors after the election. Since his case really
depends upon the accuracy of his testimony, these
conversations deserve consideration of his testimony as to
each. As to the first conversation, he said:
About a month after the election, I was working on a
machine in the Splicing Department and B. L.
Frazier, the Personnel Manager, came to where I was
working and asked me to go to the office with him. He
said he wanted to talk to me as the noise was too great
out in the plant. When we got to the office, we was
talking about a job we had done a few days prior to
that on making some changes in a steam line. The
supervisor that was in charge, who is no longer with
the Company, stated that he thought another fellow, a
maintenance man, and myself hadn't done the job as
quickly as we should have, and Mr. Frazier discussed
this. He said that I should forget about it and dismiss
it from my mind. He said, `I guess you know we have
been having and are having some labor problems, and
if I can win you over on my side, I want you to know I
will be trying to do so.' I told him that I didn't blame
him for that, that I thought that was part of his job, but
if he could find anyone in the plant that would tell him
that I tried to get him to go to a union meeting, sign a
card, and pledge himself in any way, I would like for
him to go bring him in to his office and have him tell
me that in front of me. He just laughed and said, `well,
if you have any more problems, come in-or if you
have any problems, come in and talk to me about it.
My door is always open.' I told him I had better go
back to work, and I left the office. I was in there about
10 minutes.
Concerning the second conversation, Robinson
testified:
About a month prior to my dismissal, I was working in
the Splicing Department and La Moyne Jones, my
foreman, came to me. He said he had just returned
from Frazier's office and he was very much disturbed.
He said Frazier had him in on the carpet and had eat
439
him out for working me overtime, me being a known
union supporter and agitator, and not working some of
the other men that were working for the Company.
Jones said he told Frazier that he hadn't been
convinced that I was a union supporter and agitator
and he worked me when he had to have a certified
welder, and that was the reason he worked me. He
said Frazier still couldn't see why he couldn't work
the other men instead of me.
He said Jones appeared to be very much upset at the
time. Concerning the third conversation, Robinson
related:
About a month before I was discharged, a day or two
after I had had the conversation with Jones, and I was
working in the Splicing Department, and Ralph
Hoffman came in to-where I was working. He said he
had been called in on the carpet by Jim Sellers, the
Plant Manager, and said Mr. Sellers told him it had
been reported to him by Frazier that he, Hoffman, was
showing too much favoritism towards me, me being a
union supporter and agitator, and not showing enough
cooperation to the other employees.
Concerning the fourth conversation and when it took
place, Robinson testified:
A day or two later I was working in the same
department, Splicing Department, repairing a
machine, and Hoffman was sitting and working with
me. He told me to watch myself. He said, "They are
after you."
Concerning the fifth conversation and when it took
place, Robinson testified:
Approximately three weeks before I was dismissed, I
was working in the Curing Department doing some
welding on the mold. Ralph Hoffman and Henry Butto
was close by. Hoffman said, "How are you doing?" I
said, "Well, its kind of hard to work for a man that has
been reprimanded for even associating with you."
Henry Butto spoke up and said, "Me, too." He said,
"the Company has a list of men that they do not want
Company personnel to associate with or show any
favoritism ." I said-I asked him if my name was on
the list , and he said yes.
Robinson related the circumstances of his discharge
when he was called to Frazier's office when Jones and Styx
were present; said that after his discharge Styx and Jones
both said they would be glad to give him a
recommendation, said that Styx stated that he had made a
good hand and had been agreeable and that his being laid
off was not Styx's decision; that Jones said the same thing;
that after he left the office he saw Hoffman and Butto
outside the door, told them he would be seeing them,
Hoffman wanted to know what was wrong, he told
Hoffman that Frazier had just fired him and told them the
reason "that he said a Company personnel man had told
him I had went back in the lunchroom after clocking my
card to go back to work." According to him, both Hoffman
and Butto denied being the person who had turned him in;
that then, as he was on the way to the maintenance shop to
get his tools he was overtaken by Styx, who told him that
he wanted Robinson to know that his being laid off was
none of Styx's doing, that personnel matters had been
turned over to Frazier so that he, Styx, no longer had
anything to do with the firing and hiring of men, at which
time Robinson told Styx "I told him that I' was going to
turn this over to the Labor Relations Board, that I had not
done what they accused me of, and he said `if you need any
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
help, my name will be in the phone book ."' Robinson said
that Styx then told him that "he just wanted me to know
that I made him a good hand , and was a good welder and
good splicer mechanic , and he said me being laid off
wasn 't his idea."
Robinson testified in detail concerning his use of time
on the days on which he had been accused of cheating on
time and , as to June 12, he denied that he clocked in after
lunch and instead of going to work went to the locker
room . As to his time on June 12, he said that prior to going
to lunch he was working on a mold on which the shaft had
become bent and he and his leadman , Derrick , had applied
heat to it and were attempting to straighten it; that after
the shaft was red hot Derrick suggested that they go to
lunch while the shaft was cooling off and they did so,
checking his card in the presence of Derrick . After lunch,
he said , he came out of the lunchroom , clocked his card,
and returned to the place where he and Derrick had been
working before lunch and Derrick joined him within a
minute. At that time Derrick wanted Robinson to help him
check out some soapstone dusters and said that they
would let the other two maintenance men finish the shaft
job; they worked on the soapstone dusters for
approximately an hour and a half and when they had
finished Kennedy, a maintenance man who was working
on the giant splicer, asked him if he could have some help
installing and making some repairs and checking out that
machine; Derrick told him to go help Kennedy, and he
worked with Kennedy until 3 o'clock , at which time Jones
instructed him to go to accompany him to Frazier 's office.
Robinson denied that on June 12, after lunch , he clocked
in and instead of going to work went to the locker room.
Robert Wilson was transferred out of the production to
the maintenance department approximately 6 weeks
before Robinson ' s discharge , at which time Foreman
Jones asked Robinson to take Wilson into the splicing
department and train him to be a splicer mechanic.
Robinson said he trained Wilson for a period of about 6
weeks, in making adjustments and repairs to the machines
and the use of all types of tools, and stopwatches , essential
to the timing and fine adjustments of a machine, Wilson
also learning stock material and the making of repairs and
changes, modifications , and other work in the department
to increase production , quality, and quantity . Robinson
said he worked with Wilson all day every day, and took
lunch and breaks with him.
He denied ever clocking in at lunch and going back into
the lunchroom except for three or four times in the year
prior to his discharge when , he said , "at the end of my
lunch period , I would be leaving the lunchroom and my
foreman , La Moyne Jones would enter and he would ask
me to come back in the lunchroom to tell me about some
job he wanted me to do, and I would go back for
approximately two or three minutes for him to explain
what he wanted done . That is the only time I ever returned
to lunchroom , was when I was asked."
Robinson related a conversation he said he had with
Hoffman at his home about a month after his discharge:
It was on a Sunday afternoon , one month from the
date of my discharge , and Ralph Hoffman and his
family came to my home. He visited for approximately
2 hours, and the subject was brought up about me or
my being laid off, and he wanted me to know that he
didn 't have anything to do with it , that I had made him
a good hand and done good work and that my being
fired was not his decision in any way. He said
that-he said , "Why don 't you have the Labor
Relations man ask Henry Butto if he wasn 't set up on
a special assignment for this case ." He said the
morning after I was laid off, Frank Henry, the
Production Manager , came to him and wanted him to
go out on the floor and tell the employees that I had
been working with the reason I was laid off, that I had
continuously broken the rules and had been warned
and reprimanded , and they had to terminate me.
He also said this was cut and dried and my being laid
off was a long thought -out affair . He said Mr . Sellers
reported-told him if it had been reported to him by
Frazier that at the end of my shift I was sabotaging the
machines so that the next shift would be in trouble.
He said he told Mr. Sellers that there wasn 't one word
of truth in that, that I was doing everything I could to
try to keep the machines a'going. He said they also
tried to get him to take the special assignment that
had been given Butto and he told them that he would
not do it because I had made him a good hand and
done good work. He said, "I want you to know that
this is not Firestone 's policy." He said he had been
with them for 19 or 20 years and never seen them pull
anything this low.
Robinson testified that he had never been reprimanded
for poor work but on the contrary had been commended
for good work and specifically mentioned that when Styx
had asked him about a week before he was discharged how
Robert Wilson was progressing , he replied that Wilson
was doing fine as were all the others and Styx said "well,
you have made a good hand in the Splicing Department,
but I need you worse in the shop for your welding ability
and he wanted to know if I would work out of the
shop-maintenance shop . I told him whatever he wanted
me to do that it was okay with me."
Max W . Humphrey , an electrical maintenance man,
testified concerning a conversation, said by him to have
been started by Frazier , which took place after the election
and shortly before Christmas at a time when Humphrey,
together with one Marvin Harbin was installing Christmas
lights or decorations . He testified:
Mr. Harbin and I was installing Christmas lights of
the main entrance of the plant , and Mr . Frazier came
up and went talking to us, and we talked about
Christmas decorations that we were putting up. He
said , "well, we've voted it down-we voted the Union
down , didn 't we?" I said , "yes, sir , we did." He said,
"do you all have any idea how the maintenance, the
other maintenance men went for the election?" and I
told him I didn ' t, and he came back and said , " I have
my doubts about one man ," and Mr. Harbin and I
didn 't say anything, and he said , "Mr. Robinson." I
said that I didn 't know whether he did or didn't, that I
couldn 't prove it either way how he voted on it.
Humphrey said that he had punched in at the timeclock
and then went back into the lunchroom . He testified:
I had been in the lunchroom and Mr . Jones and I were
discussing a job that I would be working on, or would
be going to next , and my time would run up and I
would get ready to leave and he would say, "come
back and we will finish discussing the job ."; He had
taken either a lunch break or a regular break with
FIRESTONE TIRE & RUBBER CO. 441
Robinson several times and that he never had known
Robinson to punch back in coming back from either
break or lunch and then not reporting immediately to
work but go back to the lunchroom or the locker room.
Robert Dean Wilson was called as a witness for the
General Counsel and his testimony confirms the training
given to him by Robinson. He testified that he and
Robinson always took their breaks together and that he
had never seen Robinson clock back in after lunch and not
immediately report to work. As for himself, he testified
concerning a week in which he was having trouble with his
hands when he clocked back in after his break and did not
immediately report back to work, explaining that it took 3
or 4 minutes to rub a hand cream for the correction of a
skin rash, using it three or four times a day, "so I would
clock out and I didn't have time on my break to do it, so I
would go back and rub some cream on my hands and then
go back to work." He did not recall whether he had worked
with Robinson on May 28, June 4, or June 7.
Wilson testified to two conversations he had with a
supervisor concerning Robinson's discharge. The first
discussion was with Frazier on the Thursday following
Robinson's discharge, in Frazier's office. He said that on
this morning his hands were in bad shape and he had been
waiting in the cafeteria when the nurse told him to go into
Frazier's office to get a couple of magazines, that he went
in there and told them he was waiting to see the doctor and
wanted to pick up a couple of magazines and that Frazier
said not to worry about it, that Firestone had plenty of
time-"not worry about it, you got plenty of time," he said,
and then he said, "just one thing we won't take though,
and that's-pardon the language-but that's the screwing
Robinson's was trying to screw us" and that was all.
The second conversation he said, took place on the
following Saturday. On the Friday after the Thursday on
which he related the conversation with Frazier, he went to
Little Rock to consult a doctor "and he pulled me off work,
so then the next morning I went down to pickup my check,
and La Moyne Jones had just called the maintenance men
in his office and called me in there, too, and told us the
reason they had let `Red' go, that he was reported seen, or
reported going back in after he had clocked out on his
break." In summarizing Wilson's testimony, it may be said
that it shows that he was with Robinson constantly during
the period in question, as Robinson testified; that Wilson
admitted that he had returned after clocking in to the
locker area at various times including a period covering
the first 2 weeks in June 1966; but could not state whether
Robinson was with him on these occasions.'
On its side of the case, the Respondent called as
witnesses Plant Manager Sellers, Industrial Relations
Manager Frazier, and Foremen Butto and Jones.
Sellers testified that he had been manager of the
Russellville plant of the Respondent for 2 years, the period
in which the plant has been in operation, and that he had
been employed by the Firestone Tire & Rubber Company
for something over 20 years as supervisor, foreman,
general foreman, and department manager. He testified
with respect to company policy initiated at the opening of
the plant which, he said, was contained within an
Employees' Handbook covering breaks for personal
reasons and for lunch, and to the facts set forth above in
my preliminary statement and under the heading covering
the Company's breaktime rule. He described the physical
arrangement of the plant, the relation of the lunchroom
and locker room to the central part of the plant and its
conjunction with Line "E", and the place there where
Butto stationed himself to observe employees who used
the clock in punching in and out on their breaktime.6
Prior to the posting of the notice on August 23, Sellers
testified, there had been a number of actions taken in
respect to violations of the breaktime rule. Several
employees had been reprimanded and written reprimands
put into their folders at particular times, but withdrawn
after the posting of the notice. He testified to the meeting
where management stressed the importance of punching
the timeclock at the entrance to the lunch and locker room
area.
Questioned as to whether he had ever been presented
by anybody with any information to the effect that
Robinson played any significant part in the, campaign to
organize, he replied that he had "heard it both ways, for
and against," and that Robinson was strong for the
Company, a strong company man and also a prounion
man. It was Sellers' opinion that because of Robinson's
personal relationship with Hoffman, Butto, Styx, and
Jones, Robinson's feelings were more toward the
Company than for the Union, and that anything the
foremen had ever said to him had been to the effect that
Robinson was procompany. Personally, Sellers testified
that he had been in organized plants before, and it made
no difference to him whether a person was a member of
the union or not and that here, in this case, where the
employees are not organized, he did not consider it
important to try to find out anything about Robinson being
a union supporter and agitator. Sellers denied that he had
ever called Hoffman "and put him on the carpet" because
Hoffman was showing too much favoritism to Robinson
because Robinson was a union supporter and agitator, and
that he had no reason to do this "because Mr. Hoffman's
opinion to Mr. Robinson that he was definitely against the
Union, and there is one thing that I do think I should call to
your attention, the over-friendly attitude between the two
and something which affected company policy was the
bringing in of beer by Robinson into the plant grounds and
being then given to several members of supervision,
including Hoffman." He said he mentioned to Hoffman
that "when you become too involved with the employees
sometimes you do not use good judgment and, in fact, I
was hoping that I was giving Mr. Hoffman some good
advice in citing a couple of cases which happened to me
back in other cases, where I became friendly with a couple
of employees and it was very difficult for me at that time to
make the right decisions." Sellers denied that he had ever
' Counsel for the General Counsel rested his case in chief on
the testimony of Robinson, Humphrey, and Wilson, and such
documentary evidence as had been introduced During the course
of oral argument , after all parties had rested , and after counsel for
the General Counsel in argument made reference to the fact that
Hoffman did not appear as a witness in the case, counsel for the
Respondent noted that he had observed that Hoffman was
subpoenaed by counsel for the General Counsel and had appeared
in the hearing room Counsel for the Respondent commented in
argument that the "sole evidence in this case upon which counsel
for the General Counsel must rely is double hearsay elicited from
Mr Robinson and not supported by a single one of the individuals
to whom these statements were attributed "
" In this connection, Sellers testified from a floor plan of the
plant, in evidence as Resp Exh I
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at any time referred to Robinson as a union supporter and
agitator; the reports concerning Robinson's work were
good except for one employee, who since quit the
Company, who worked on the same job as Robinson and
felt that Robinson was more or less sabotaging machines
so that when he came to work on the next shift the
machines were not in good working order. He said it was
very difficult for him to believe the story about Robinson
sabotaging the equipment and there was nothing in the
way of information given to him which caused him to cause
his supervisors to set out to "get Mr. Robinson." Sellers
was emphatic in stating that the only reason for
Robinson's discharge was that he continued his breaks
after he had punched the timeclock. On cross-
examination, Sellers was asked whether he ever
confronted Robinson with any of these violations. He
replied:
No, sir, and due to the nature of the offense it was
decided that there was-it was decided that this was
such an underhanded trick in the way of cheating that
we would have to treat it this way, that we would have
to pull underhanded methods of observance, which
we didn't like.
On cross-examination, Sellers iterated that Frazier and
he had decided to terminate Robinson because they felt
that there was no widespread violation of a rule; and "the
mere fact that a man would be terminated would spread
through the plant and if there are any others that might be
guilty it would be an effective way of stopping infractions
of the rule. Sellers was emphatic in stating that he
regarded time stealing by misuse of the timeclock to be
nothing more nor less than common dishonesty.
Frazier was assigned to the Russellville plant as
industrial relations manager on the opening of the plant in
October 1964, at the time this employment being
superintendent of schools at Havana, Arkansas. Before
that he had been employed by the Firestone Tire &
Rubber Company at Los Angeles, California, for 9 years in
the capacity of chief chemist. Frazier described
circumstances leading to the discharge of Robinson
beginning with the introduction of timeclocks in all areas
in June 1965. He testified to the assignment of Butto to
survey the situation concerning the use of the lunchroom
and locker room area timeclock, described the reports
made to him by Butto and his subsequent discussions with
Sellers, and the final decision as to the action to be taken
to stop continued violations of the breaktime rule. Frazier
described the meeting resulting in the discharge of
Robinson. He testified in part:
And I advised him of the observations and Mr.
Robinson indicated on this particular date that he had
gone back into the cafeteria to see Mr. Jones, and Mr.
Jones remarked quite vehemently, I would say, that
"you're not going to say this because I went home this
lunch time to get ready to go on vacation." Red then
modified his statement to say that "on occasions, I
have," to which Mr. Jones agreed, but not in this
particular case. Then Mr. Robinson stated that-he
asked who was watching the clock, and I replied that
it was a member of supervision and I would not
divulge who was placed on this assignment, and Mr.
Robinson said, "well, if you had someone watching,
then I must be guilty," and so then, based on the facts
and the evidence that we had at hand, I agreed with
him and thereby asked for his key and badge, that he
was terminated effective this date.
In regard to the making of the decision to discontinue
the audit or surveillance by Butto it was, according to
Frazier, the feeling that, based on such data, "the people
who are violating the rule or the person who is violating it
most consistently, had been caught and punished, proper
action taken, and therefore this should discourage any
subsequent violations of the rule," and second, Butto was
needed in the production unit because of vacations. He
said that the action was made known to other employees of
the Company and the reasons for it and the Company's
position on this type of conduct in that:
First of all, we held a meeting with four men, advised
the four men that if they were asked a question as to
why Mr. Robinson was terminated that they would be
able to advise such employees asking the question of
the reason why. Then, subsequent to this, in our
regular safety meeting, where we bring out factors of
production, quality, cost, and, in addition to safety,
employee relations, all of the employees were advised
of this termination without Mr. Robinson being
mentioned by name. The principle was explained as
to why this did occur.
Frazier explained company policy in connection with such
violations or similar violations-if an employee would take
time over that allotted to him and it showed on his card he
is warned orally the first time, the second time he is given
a written reprimand and cautioned about observing
established policy, and on the third offense the employee
is given a written reprimand plus a couple of days off to
think about it "and the next time it happened he is
terminated." In one case, it was mentioned that there was
a violation of the same character when the employee had
overstayed his break and had taken his pencil and made
an erasure of the time and had inked in a value that would
show he was within limits, which instance the Company
regarded as bad and the employee discharged without
written reprimand or disciplinary layoff. On cross-
examination, in an answer to a question as to whether he
personally had observed or had any information come to
his attention suggesting that any union activity occurred in
or about the plant or in the community in relation to the
plant from the time of the election until June 12 (the date
of Robinson's discharge), he replied in the negative. He
testified that the only personal contacts he had had with
Robinson concerned work in the plant, principally
regarded safety and another time when Robinson called at
his office for insurance blanks in connection with the
illness of Robinson's wife.
Frazier denied that he had told Robinson "we are having
labor problems in this plant, and if I can, I am going to win
you over to my side." He further denied that Robinson had
said to him in effect that he challenged Frazier to bring
anybody in to face him and say he had solicited anybody
for membership or offered anybody a card to sign or that
he had in any other respects supported the Union's
organization in the plant. Frazier denied reprimanding
Jones or warning him or otherwise speaking to him on the
subject of giving Robinson overtime, saying that he had
talked with Jones one time and cautioned him that
because of rumors he had heard from the floor, a good
supervisor would see that overtime was distributed
equitably and counseled Jones on seeing that this was
done-that overtime was spread evenly among all of the
maintenance men. He said he did not mention any names
specifically because he had no knowledge of names.
According to Frazier, supervisors were instructed not to
FIRESTONE TIRE & RUBBER CO. 443
become involved in the union organizational campaign, but
should serve merely as listening posts and report back to
Frazier and Sellers anything concerning the campaign.
Asked about the occasion when he had spoken to
Humphrey and Harbin shortly before Christmas 1965, he
said that to the best of his recollection Robinson was on
the Christmas tree, that he (Humphrey) and Harbin had
drilled a hole in the lawn and set the big tree up with no
bracing, and that he was concerned about the safety
aspect of it and came out to check the bracing and to see
that they ran guy wires. He denied having any
conversation with Humphrey and Harbin when he is
alleged to have said "well, we won the election," having
said "well, I think all of them were for us except possibly
for Red Robinson." He recalled a conversation with
Robert Wilson concerning the condition of Wilson's hands
when Wilson had expressed concern about losing time
which, Frazier said occurred in his office after Wilson had
talked with Board Agent Baldovain and given a deposition
to him (which would place it sometime in August) and said
that the conversation was substantially as related by
Wilson. Regarding the case of one employee, Latham, he
said the difference in reasons for the firing of each was
that Latham was being honest in his violations whereas
Robinson was, in effect, stealing time from the Company.
He explained that in the case of employee Anderson, a
presupervisory employee who was seen in the cafeteria
when he did not have business there, he was not
discharged because the occasion was prior to the June 8
policy decision. He said he had told Jones that he was
concerned about some of the maintenance men, about
their opinion and attitude toward the Company, and asked
whether Jones, as a supervisor, had let the men down or
failed to keep them informed, which might lead them to
seek a third party to mediate with them, "or words similar
to that." He said he instructed Jones at the time that he
should treat the maintenance men equally, "more
equitably."7
Henry T. Butto, employed at the Russellville plant of the
Respondent for 2 years and by the Firestone Tire &
Rubber Company for 15 years, when called by the
Respondent, testified that he, in May and June 1966, was
acting shift foreman on the 11 to 7 shift; he was a personal
friend of Cecil Robinson; he had spent at least a dozen
nights at Robinson's house; Robinson had brought in beer
to him from a neighboring county (this having been denied
by Robinson when he testified); Robinson had brought
beer in for Hoffman; and these beer accomodations were
over a period of about 5 months. He said that at some of
the times he was entertained by Robinson, other persons,
including Frank Yarbrough, chief foreman on the 11 to 7
shift, Fred Ryston, area foreman, and Harold Marx, a
supervisor, were entertained.
He testified to having been placed on special
assignment, his instructions as to positioning himself on
the "E" line for observation of the lunch and locker room
area timeclock, and to the reports made by him to Frazier.
As to his knowledge of Robinson's being a member of a
union, he said that Robinson, sometime after the election,
told him in the presence of Hoffman and others, at a time
when they were "just generally speaking of the union,"
that "he placed his vote for the side that won." He had not
seen Robinson after June 12 on which day, he said,
Robinson asked Hoffman whether or not he was the one
who had observed him and reported the violation of break
policy by him to the Company.
La Moyne Jones, also called as a witness for the
Respondent, testified that he had been employed by the
Firestone Tire & Rubber Company since approximately
January 5, 1965, spending all of that time at the
Russellville plant, he had been maintenance supervisor
since about March 1965; he was acquainted with and had
been a good friend of Cecil Robinson; and Robinson had
worked under his supervision since the time Jones became
supervisor until Robinson was discharged. In regard to his
instructions from Frazier, he said:
Mr. Frazier and I had several conversations relative to
the duties of a supervisor prior to the Union election.
Of course, all of us were concerned and we were
anxious also, and there was a conversation that went
on with Mr. Frazier as to whether I was doing my job
as a supervisor to keep the men working with me
happy to where there would be no question or no
reason, naturally, for them to have any dissatisfaction
with the Company and have to seek another party to
mediate any problems, at least as far as my part went
or I would be doing a good job and do it properly and
keep the men to where they were being treated fairly,
and perform the regular good duties of a supervisor.
He denied ever being reprimanded by Frazier for giving
Robinson excessive amounts of overtime and denied that
he had ever told Robinson that he had been reprimanded.
He mentioned the conversation with Frazier which grew
out of a rumor that suspected sympathizers for the Union
were being given more overtime than the other
maintenance men, this in a conversation concerning other
problems, and that later Frazier repeated the duties of a
supervisor and instructed Jones that he should try as far as
possible to distribute overtime equitably among all of the
men. He said that he had pointed out to Frazier that he
needed Robinson as a welder because he had no other
welder for Sunday work. He pointed out, he said, that the
other men had different skills depending on what kind of a
job they were required to do over the weekend and it
would be necessary for him to use them; Frazier said that
"was well and good but if I did not require the use of
Robinson as a welder, or Humphrey as an electrician, or
Harbin as a refrigeration man the next week," he should
try to schedule the other men in the general routine work
to be done in the plant that did not require the specific
' Questioned by me as to the purpose of this line of cross-
examination (it being between two supervisors ), counsel for the
General Counsel stated that he was not trying to show Jones as
prounion or antiunion , that the point of his case was that by
normal procedure Jones would follow, "his normal and regular
assignment of work," lie would take his best men and assign them
to overtime, because these men were able to do more more
efficiently, because they were getting time and a half and double
time, and that because of Robinson's union activity, the Company
deliberately changed the normal and regular assignment of work
in order to show the maintenance people that even if they were for
the Union they did get these special benefits and this would show
animus against the Union, in connection with all other
demonstrated facts Counsel explained further the point of his
case, " that the Company had a great interest in Mr Robinson
as a prounion employee Admittedly, his Union activity was not
outstanding, but the situation here is that the Company appeared
to take a great interest in his Union activity and because of this,
and because of these other incidents that we have talked about,
and these generally are the bases of our theory on the 8(a)(3)
violations " I fail to f ollow this reasoning
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
skills that these three men had. He said he had never
heard Frazier refer to Robinson as a known union
supporter or agitator , Frazier in his conversations being
principally concerned about the working conditions of the
men, their safety habits, whether they were doing a good
job, "but not as to whether they were involved in any union
activities, or not."
Jones confirmed prior testimony of Sellers and Frazier
concerning the interview with Robinson when the latter
was discharged and said that Robinson denied "having
done this and he was confronted with the statement that
the supervisor had observed him doing this" and "I think
Cecil's response was that if he had been seen doing this by
a Company man, then evidently it must be so, and that was
pretty well the extent of it." Jones confirmed prior
testimony that he had occasion to discuss the break policy
with the maintenance men under his supervision at a
meeting held in the maintenance shop, Robinson being
present . He said the meeting covered several things but
they were primarily interested in the break policy and
violations of that policy . In answer to a question on direct
examination as to whether he ever had occasion to call
employees back into the lunchroom to discuss work he
replied that he had on several occasions with various
employees who worked in the maintenance department:
Let me give a little bit of background , if I may, sir, on
lunch times. As I have stated , the maintenance men
had a 20 minute paid lunch period . Those of us who
work on a salary , have a little longer period but we
have no specific time that we can eat . I eat at
whatever time I can find time to eat . I might come in
and we will make an assumption that Mr. Robinson
was practically through with his lunch . I sit down with
him and we start talking about the problems that we
might have going on at that time. Red would tell me,
or Mr. Robinson would say, "I have to get back and
get on the clock ." I would tell him, "that is fine. Go
ahead , punch in and come back and we will continue
and decide what we are going to do with this
problem." Not only with Mr. Robinson , but this has
occurred with other employees in the maintenance
department.
Jones could recall no more than five occasions since
January 1966 when this happened but did say that none of
these conferences occurred within the month preceding
Robinson ' s discharge . He said he had known Robinson for
about 30 years , had grown up with him, and still
considered him a good friend.
Concluding Findings
Counsel for the General Counsel places great
importance on the fact that the election was held on
December 16, 1965, and Robinson was discharged on
June 12, 1966, "almost exactly six months to the day after
the election ," also contending that there is no showing that
there was no union activity within the plant after the
election until the time of Robinson 's discharge , but that
the union activity merely was "dormant." As I have
indicated above, the 6-month limitation provided in
Section 10(b) of the Act was applicable beginning on or
about February 16, 1966, and therefore , in the absence of
any showing of any kind that Robinson was engaged in any
union activities other than those described which occurred
prior to December 16, 1965, I cannot attach any degree of
importance to the argument.
The testimony of the witnesses called for the
Respondent was substantially in accord with the facts
presented by each of the parties, except that Robinson, on
the day of his discharge , partially admitted that he was
guilty of the offenses charged even though he denied the
statement attributed to him by the Respondent 's witnesses
that he "must be guilty." I find no reason to doubt the
credibility of Sellers, Frazier, Butto, or Jones. There are
inconsistencies or lapses in the testimony of Robinson on
material facts . First , he could not estimate the time to
within several months those occasions when Jones last
asked him to return to the lunchroom to discuss work
progress ; second , he could not recall definitely the details
of conversations alleged to have been had with supervisory
personnel , whereas the supervisors who testified recalled
them clearly ; and third , I think that he clearly departed
from the truth when he denied the extent of his personal
association with various supervisors . Robinson flatly
denied ever buying beer and giving it or selling it to Butto
and Hoffman at the plant whereas Butto, whom I consider
a credible witness, a friend of Robinson , and with no real
reason to invent such events, testified that such beer
transactions had occurred on many occasions over at least
a 5-month period . Robinson , confident on direct
examination , was not so self-assured on cross-
examination . Regarding his credibility , it seems strange, in
view of the seriousness of the charge made (in effect that
his employer plotted his discharge ), that he could not
remember that he had filed , not just one, but two affidavits
with a Board agent in support of his charge . Had he been
flustered or upset while testifying , one could perhaps pass
more lightly over this lapse than I find myself able to do.
The only evidence on which Robinson can rely to show
that he did not return to the locker and lunchroom area as
reported by Butto is his own uncorroborated testimony,
which certainly is not supported by the testimony of
Robert Wilson , relied upon by the General Counsel.
On the basis of the whole weight of testimony in this
case, I cannot find that the discharge of Robinson was
contrived and was for the purpose of discouraging union
activity in the plant. Admittedly , he was a good and
competent employee; certainly he was not a preeminent
employee in the sense that he was a leader of the union
organizational effort , and it is clear enough that his union
activities were minimal . Although the discharge penalty
imposed upon him seems to me to be a hard one,
nevertheless , the Company was entitled to take a serious
view of infractions of the breaktime rule in dealing with
the situation as it saw fit , so long as its action was not
connected with any union activity in the plant. The
harshness of the penalty must be balanced with the
consideration by management that infractions of the rule
were very serious, being equated by management with
dishonesty , and that the work force of the plant as a whole
was well aware of the Company 's attitude and had been
given notice on several occasions of the Company's view of
the seriousness attached to violations of the rule. I do not
believe that it was for Robinson or any other employee or
any other person to judge whether the nature of the
offense charged to him was something de minimis in
nature. Nor , as the Respondent points out , is there any
rule of law or evidence which makes a discharge of a
technically competent employee subject to a higher
standard of scrutiny than that applicable to discharges of
less capable men. Further , as shown above, at least one
other employee had been discharged for over-staying
breaks and lunch periods.
FIRESTONE TIRE & RUBBER CO. 445
In controversies involving employee discharges, the
motive of the employer is the controlling factor, N.L.R.B.
v. Brown, et at. d/b/a Brown Food Stores, et al., 380 U.S.
278, 287, and, absent showing of antiunion motivation, an
employer may discharge an employee for a good reason, a
bad reason, or for no reason at all. N.L.R.B. v. I.V.
Sutphin, Co-Atlanta, Inc., 373 F.2d 890 (C.A. 5); N.L.R.B.
v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006
(C.A. 5).
In summary, if the real reason for the discharge of
Robinson was his union activity, the Respondent violated
the Act by terminating him. On the other hand, if the real
reason was for his violation of the breaktime rule his
discharge was lawful. As the court noted in N.L.R.B. v.
Solo Cup Co., 237 F.2d 521, 525 (C.A. 8): "A justifiable
ground for dismissal is no defense if it is a pretext and not
the moving cause." See also A. P. Green Fire Brick
Company v. N.L.R.B., 326 F.2d 910, 916 (C.A. 8); N.L.R.B.
v. South Rambler Company, 324 F.2d 447, 449 (C.A. 8);
Osceola County Co-Operative Creamery Association v.
N.L.R.B., 251 F.2d 61, 62, 66 (C.A. 8); N.L.R.B. v. Great
Eastern Color Lithographic Corp., 309 F.2d 352, 355
(C.A. 2), cert. denied 373 U.S. 950; Nachman Corp. v.
N.L.R.B., 337 F.2d 421, 423 (C.A. 7).
As stated in N.L.R.B. v. Melrose Processing Co., 351
F.2d 693, 698 (C.A. 8), it would indeed be the unusual case
in which the link between the discharge and the union
activity could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination
can be proved only by the use of circumstantial evidence.
Furthermore, in analyzing the evidence, circumstantial or
direct, the Board is free to draw any reasonable
inferences.
In the instant case the evidence, in regard to the
discharge of Robinson, is predominantly circumstantial.
The relevant circumstances do not support the contention
that Robinson was discharged because of union activity.
Therefore, it is found, on the preponderance of the
evidence herein, the violations of the Act asserted in the
complaint have not been proved.
On the basis of the foregoing findings of fact, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent did not engage in, and is not now
engaging in, the unfair labor practices set forth in the
complaint.
4. The complaint herein should be dismissed.
RECOMMENDED ORDER
It is recommended that an Order be entered herein
dismissing the complaint in its entirety.