Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Nov 25, 1969

179 N.L.R.B. 724 (N.L.R.B. 1969)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firestone Coated Fabrics Company , Division of the
Firestone Tire & Rubber Company and Local
Union No. 607, United Rubber , Cork , Linoleum
and Plastic Workers of America , AFL-CIO. Case
26-CA-3279
November 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS.
On August 8, 1969, Trial Examiner George Turitz
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 Trial Examiner's
Decision. Thereafter, the General Counsel ' filed
exceptions to the. Trial Examiner's Decision and a
supporting 'brief, and the Respondent filed
cross-exceptions and a supporting brief, a brief in
support of the Trial Examiner's Decision, and an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 this 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 adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
May 27, 1969, Respondent filed its amended' answer to
the Complaint in which it denied all allegations of unfair
labor practices and alleged as an affirmative defense that
the identical matters alleged in the Complaint were subject
to the grievance procedures provided for in a
collective-bargaining agreement between Respondent and
the Union, that Respondent and the Union had in fact
agreed that the dispute be arbitrated, and that the
arbitration hearing had been scheduled for May 28, 1969
The Amended Answer prayed that the Board defer to such
arbitration. On May 28, 1969, Respondent filed a motion
to defer to arbitration, making substantially the same
allegations and prayer with respect to the arbitration On
May 27, 1969, the Regional Director issued an order in
which, treating Respondent's affirmative defense as a
motion, he directed that it be referred to the Trial
Examiner for ruling, and on May 28, 1969, the Regional
Director issued a further order referring Respondent's said
Motion to Defer to Arbitration to the Trial Examiner for
ruling, Counsel for the General Counsel opposed the
Motion to Defer to Arbitration On May 29, 1969, Trial
Examiner Charles W Schneider issued an order denying
the "motion to defer" contained in Respondent's
Amended Answer
A hearing was held at Magnolia, Arkansas, on June 5
and 6, 1969, before the Trial Examiner first named above
The General Counsel and Respondent were represented by
their respective counsel, and the Union by an international
field representative At the opening of the hearing, and
again at the close of its case, Respondent renewed its
motion that the Board defer to the arbitration proceeding
or, in the alternative, that the hearing be continued until
the arbitrator's decision was rendered, and at the close of
the hearing Respondent moved to keep the record open
for receipt of the arbitration award when rendered. All
these motions were denied ' Respondent and the General
Counsel have submitted briefs to the Trial Examiner
Upon the entire record= and from his observation of the
witnesses, the Trial Examiner makes the following-
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation having a place of business
and plant in Magnolia, Arkansas, where it is engaged in
the manufacture, sale and distribution of fuel cells and
rubberized coated fabrics. In the course and conduct of its
operations at the Magnolia plant Respondent annually
purchases and causes to be delivered to said plant directly
from points outside the State of Arkansas goods and
materials valued at in excess of $50,000, and annually sells
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner Upon charges filed
by Local Union No 607, United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO ("the
Union"), on February 7 and March 21, 1969, respectively,
and served on said dates upon Firestone Coated Fabrics
Company, Division of The Firestone Tire & Rubber
Company ("Respondent" and, at times, "the Company"),
the General Counsel of the National Labor Relations
Board ("the Board"), through the Regional Director for
Region 26, on March 28, 1969, issued and served a
complaint and notice of hearing against Respondent. On
'On August 5, 1969, after this Decision had been prepared in its present
form for issuance, the Trial Examiner received a motion by Respondent to
reopen the record for the purpose of receiving in evidence the arbitrator's
award and opinion , dated July 24, 1969, a copy of which was attached to
the Motion The document indicates that the arbitrator , dealing with the
same incidents as gave rise to the present proceeding , found , as has the
Trial Examiner, that there is no merit in the contention that Respondent
had violated the Act The arbitrator , for reasons not material to the
present case , directed that written reprimands issued to two employees be
reduced to oral reprimands In this situation to reopen the record in order
to ascertain whether the arbitrator's award should be deferred to would
serve no useful purpose and would cause needless delay The Motion is
therefore denied The Motion , marked Resp Exh 20, has been placed in
the exhibit file
'Respondent ' s unopposed motion to correct the transcript is hereby
granted The corrections have been made and the Motion, marked Resp
Exh 21, has been placed in the exhibit file
179 NLRB No. 118
FIRESTONE COATED FABRICS COMPANY 725
and ships from said plant directly to customers located
outside the State of Arkansas goods and materials valued
at in excess of $50,0,00 It is found that Respondent is an
employer engaged in commerce within the meaning- of
Section 2(2), (6),.and (7) of the National Labor Relations
Act, as amended ("the Act")
ii THE LABOR ORGANIZATION INVOLVED
Local Union No. 607, United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES
The issues litigated in this case revolved about
Respondent's application of a no-smoking rule to the
women's restrooms The General Counsel contends that
the rule had been abrogated so far as the women's
restrooms were concerned through long nonenforcement
and (a) that Respondent revived it as a reprisal against the
employees for striking and (b) that in any event its
reinstitution without giving the Union an opportunity to
bargain on the subject was violative of Section 8(a)(5)
Another issue was whether Respondent's issuance of
warnings for violation of the rule to an outstanding shop
steward and to an employee who happened to accompany
her had a discriminatory motivation.
A The No-Smoking Rule
Respondent and the Union have had a long bargaining
history The most recent contract, entered into on January
8, 1969, and expiring November 30, 1971, did not require
union membership as a condition of employment
However, at least 425 of Respondent's 575 unit employees
were members of the Union
For some years Respondent had a stated policy of
permitting smoking only in a few designated areas, and on
February 5, 1966, Respondent posted the following notice.
February 5, 1966
NOTICE TO ALL EMPLOYEES
THERE WILL BE NO SMOKING IN THE RESTROOMS AT
ANY TIME ANY VIOLATION OF THIS RULE WILL BE SUBJECT
TO DISCIPLINARY ACTION.
The notice remained posted on one bulletin board up to
the time of the incidents at issue in this case Respondent
also posted numerous no-smoking signs at various points
throughout the plant, including the restrooms. From time
to time signs were torn down or mutilated and were
replaced. The thoroughness of enforcement, at least in the
restrooms, varied at different times, but for a substantial
period prior to the events here in question the no-smoking
rule was adhered to in the men's restrooms. In addition
Daisy Britt, a female supervisor, testified credibly that in
the summer of 1967 again at some time subsequent to
January 8, 1969, she reported employees for smoking in a
women's restroom. In neither of those cases did
Respondent take any formal disciplinary action. Moreover
Britt's actions, which she took on her own initiative, were
exceptional; there is no evidence that prior to the events
here in question any other female supervisor ever reported
an employee for smoking in a women's restroom. On the
contrary the evidence is overwhelming that women
disregarded the no-smoking signs and smoked there freely,
and that Respondent was fully aware of the situation On
October 2, 1967, the Union complained to Respondent
that it had heard rumors to the effect that Respondent
was hiring a matron for the purpose of enforcing the
no-smoking rule in the women ' s restrooms A meeting was
held at which Taylor, the Union ' s field representative,
while acknowledging the existence of the rule , claimed
that smoking had nevertheless been "condoned" in the
women ' s restrooms and therefore protested against hiring
the matron Respondent stated that the hiring of the
matron did not represent any change in policy, that it had
no plans to delegate authority to her to report violations,
and that she was being hired solely to keep the restrooms
clean The Union was apparently satisfied '
Street, Respondent ' s manager of industrial relations at
the Magnolia plant , testified credibly that at another of
Respondent ' s plants where he had worked prior to coming
to Magnolia , two serious accidents to employees had
occurred as a result of fires caused by smoking, one of
them in a women's restroom He also testified that since
coming to the Magnolia plant in 1965 he had been aware
of the fact that women were smoking in their restrooms
because the drains were frequently found to be clogged
with matches and cigarette butts He stated that
enforcement had been lax because of the small number of
female supervisors - only four or five 4. - in a position
to patrol the restrooms He also testified that in 1967
there had been a fire in a restroom which broke out when
someone dropped a lighted match or cigarette into a waste
container in which swabs of cloth soaked in highly
inflammable solvents had been thrown As a result of the
fire Respondent instructed various supervisors to try to
keep their employees from taking solvent-soaked swabs
into the restrooms , but no steps were taken at that time to
enforce the no-smoking rule more effectively . Street
testified that because of the small size of the swabs it was
virtually impossible to police the rule against carrying
them into the restrooms.
The January 8, 1969, contract followed a 5 -week strike.
Street agreed that it "represented a respectable gain."
Sometime after the strike, and 2 days to a week before
January 22 , 1969, Respondent reached a decision to take
steps to eliminate smoking in the women's restrooms A
procedure was devised whereby the foremen could call
upon designated female personnel through whom they
could check the women's restrooms. On January 22
Respondent posted a notice on various bulletin boards
reading as follows
January 22, 1969
NO SMOKING
New "No Smoking" signs are being posted in the
restroom areas Smoking in the restrooms is hazardous
and is contrary to Company policy. Effective January
'Taylor testified that Respondent also stated that the existing policy of
allowing smoking in the women 's restrooms would continue , Schneider, the
plant manager, testified that what was said was that the existing policy of
no smoking would continue There was no need in the circumstances for
Respondent to make either statement , they apparently represent the two
witnesses ' partisan interpretations of the "no-change-in-policy" statement
which it has been found was actually made At an intra-company meeting
the next day the statement was made that smoking created a fire hazard,
that the policy of not permitting smoking in the restrooms would continue,
and that violations would not be condoned However the Trial Examiner
has credited Taylor's testimony that Respondent made no statement to him
about the no-smoking policy after October 2, 1967, until the events giving
rise to this case, and it is found that the October 3 statement of policy was
not conveyed to the Union
'The record shows that the percentage of female employees was
substantial .
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
24, 1969; this policy will be-enforced and any violation
will result in disciplinary action
That same day, as indicated in the notice, Respondent
posted new no-smoking signs. Whereas the old signs had
borne the simple 'legend, .,',no smoking," by far the most
outstanding' feature of the new signs was the word
"danger" printed in letters 2 inches tall on a 'red
background, which was set off by a black border.' The
signs also bore, in raised black letters three quarters of an
inch high, the following
THERE WILL BE NO SMOKING IN THE RESTROOMS AT
ANYTIME. ANY VIOLATION'OF THIS RULE WILL BE SUBJECT
TO DISCIPLINARY ACTION ' • ' ' '
That same day but after the'notice and signs had been
posted,. Taylor, who happened to be in Respondent's office
on • some" union business;- was informed by 'Ribble,
Respondent's assistant manager of industrial relations, ^of
the new signs and of Respondent's intention'to enforce the
no-smoking rule. Taylor asked. Ribble if he had informed
the local union and Ribble replied that he had not done
so Taylor told Ribble, "Well, my advice to you is that
you meet with the local union and discuss this' before you
put' it into effect ..•I feel this thing should, be bargained
between the parties " The . record does . not disclose
Ribble's reply except to the extent that 'he testified that he
did .not offer Taylor an opportunity to come in and
discuss. the matter -Ribble also informed Hayes, president
of the local, ' that the notice and new signs had been
posted On January 23, Taylor and Hayes met with Street
and Ribble 'Taylor asked if Respondent, would bargain
with the Union about the matter and, Street refused;
stating that Respondent did not have to do so
'B. The Discriminatory Reprimand
Notwithstanding the January 24 deadline fixed in the
notice, no steps 'were taken to carry out 'the' 'new
procedures until February 4 Shortly after 8 o'clock in the
morning on that day Johnny Dees, general foreman of the
coated fabrics department; saw Joy Tipton, Louise Pipkin,
Shirley Hanson, and Marv Jean Holt go towards the
restroom abutting his department Holt had been shop
steward in Dees' department since about June 1968 and,
according to her testimony, had handled some '125
grievances,- some oral and some written, 12 to 15 between
the end of the strike and February 3 Among the' latter
group was one which ultimately resulted in the
resignations of the respective wives of the chief of plant
protection and the plant manager Dees admitted that
between the end of the strike and February 3 Holt had
prosecuted 8 'or 10 grievances, while only l or 2 grievances
had been filed am'ongall other steward's in his department
Holt had generally had success with the grievances she
filed Holt had also been outstandingly , active, to
Respondent's knowledge, in the conduct of the strike
Holt habitually visited the women's restroom' in her
department every morning at the same' time and had a
smoke. On February 4, after seeing Holt and Hanson go
towards the restroom, Dees went to the office and
summoned Sarah Bridges, an office employee who had
been designated to make restroom checks for him. '
There actually were two women's, ' restrooms there,
separated by a common' wall 'and with a connecting door
between them, one restroom opening into Dees' coated
fabrics department and the other into the fuel cell
department. Dees instructed Bridges to enter from, the fuel
cell deparment, proceed through both restrooms, and then
emerge on the coated fabrics side, where he would be
waiting Bridges found no one in the first restroom She
opened the connecting door and, after seeing that several
women were smoking, went back'out into the fuel cell'
department 5 Bridges proceeded round to the coated
fabrics' side, where she spoke to Dees and then entered the
restroom from the coated fabrics side Within she found
Holt and Hanson, both smoking, and Frances Parker,
who was not smoking Tipton and Pipkin, both of whom
had been smoking when Bridges first looked in, had in the
meantime finished their cigarettes 'and 'left the -restroom
Bridges told Holt and Hanson that Dees wanted to see
them outside. Parker asked if she 'was wanted- and was
told no. Bridges went out and informed Dees that two
employees were coming out and she left
Holt and Hanson emerged shortly and -admitted to
Dees that they had been smoking He took them to the
industrial relations department office where, Holt told
Ribble that they had always smoked in the restrooms and
asked why it,was now being stopped The two employees
were then taken to the office 'of Allen, Respondent's
production manager: They admitted to Allen that they
had seen the no-smoking signs but they denied having seen
the new no-smoking notice which he showed them Holt
asked Allen if he would bargain-with the Union about the
matter Allen replied.,that he would not 'and that
Respondent could, institute any'policies he saw fit,' and 'he
read the management-prerogative clause in the contract
Allen informed the two employees that they-would- be
suspended for 3 days They protested that they did not
think that the disciplinary action' referred to on the new
signs .meant' more than a talking to They said that they
would not repeat the offense and 'that a suspension was
unnecessary Hayes, president of the .local was called in
He pointed out that' when Ribble-had informed him on
January 22 of the posting of the notice'and the new signs,
he had said that he did not know what disciplinary action
would 'be imposed Eventually.' Allen and Ribble-were
convinced.that• the two girls would 'not repeat the offense
On February 5 written "employee, interview reports': were
issued to the two employees The reports stated that
suspension, which was the usual step before an employee
would be discharged,' would be waived on, the' employees'
understanding, however, that, a repetition would result in
automatic discharge The coitract provided in' section
11 09 that reprimands for offenses not repeated within 12
months would be disregarded in' the ad'ministr'ation of
discipline 1 , '
On February 6, 1969, the Union' filed a,'grievance
referring to Articles I, 11, Vl,,'and X of the contract and
stating as follows: ' , ' -' '
We protest • the drastic ' disciplinary procedure
instituted by the Company on or,abe'it Feb. 5; 1969,
concerning working conditions 'and other conditions of
employment we protest the continued'.harrassment of
Union Representatives by its 'officers and agents,' and
other acts of intimidation and coercion and in
particular Union Representative M.J Holt who was
reprimanded and warned next offense would be
automatically discharged' for ' alleged violation of
Company rule of no-, smoking in 'ladies rest room ',We
request-,this unjust disciplinary action be removed'from
M.J. Holt and S. Hanson record and the; Company
'Five employees testified that they saw Bridges enter - a stall ' in the second
restroom for a , moment before leaving Holt, one of them, testified that she
saw Bridges enter but was in a stall , when Bridges left ' Bridges denied
entering the second restroom at all' It-is unnecessary to resolve this
conflict
' , _-FLRESTONE COATED, FABRICS COMPANY
meet with accredited representatives of the Union and
bargain on all matters before the Company unilaterally
institutes work rules pertaining to, conditions of
'empl'oyment '
The grievance , numbered 1.19, was ' signed by Howard
Hayes as union 'representative and by Holt as employee
On February 7, '1969, the ' Union filed the original charge
in'this case alleging violations 'of Section ' 8(a)(1), (3), and
(5) of the Act and stating , as 'the basis ' of, the charge the
following '' ' ' ' ' ' ; ' ' '_• I I 0
On or a6out ' Jari6ary 22, 1969, and at'all times since,
''Firestone has refused ,' and continues to ' refuse, to
negotiate and discuss with the Rubber Workers matter's
with respect - to unilateral ' changes in working conditions
instituted by Firestone
'Firestone reprimanded Mary Jean , Holt on
February 4 and ' S, 1969, because said employee joined
or assisted or' engaged in . other union activity or
concerted activities for 'the , purpose of collective
bargaining or mutual ' aid or protection By the above
and other acts, 'the above -named employer 'has
inte'r'fered with, restrained , `and coerced employees in
the exercise of the rights guaranteed in'Section Vof the
Grie6ahce No 119 was quickly processed to' the "final
stage ' of the contractual grievance ' procedure and the
matter was heard by an arbitrator on May 28, '1'969' At
the, close of the hearing inthe present case 'the'arbitrator
had not yet rendered his award'
.
C Concluding Findings
I' The'unilate'ral institutidn -Of a no-smoking rule'" ,rt"
The Trial ' Examiner ";has not credited Respondent's
testimony to the, effect that it acted as -. it did on ' January
22, 1969, primarily because of considerations of safety and
only incidentally to" .reduce I loafing ; ,'Obviously the
curtailing of smoking under ahy circumstances represents
a diminution of fire hazard . However, if Respondent had
considered the dangers arising from , smoking in the
women ' s restrooms as serious as claimed'at the hearing, it
would have taken , effective steps 'to stop the practice ,muc,h
earlier Moreover , it had experienced years ' of utter failure
with no-smoking signs, it is not ' credible ' that so serious a
fire' hazard would ' be dealt ' with merely ", by 'a slightly
improved version ' of '-:the ' same , impersonal general
admonition The report of 'the Defense Supply Agency; s
safety officer is'not ' persuasive ' It was made in April 1969,
well after the e'vehts here ' in question , and the ' evidence
discloses 'that the issue of ' smoking came to the officer's
attention only because `, of Respondent ' s new no-smoking
signs . A'similar 'inspectida, apparently by thesame' safety
officer, in ''September 1968, when ' conditions 'were' much
worse, ' liad not resulted in, any. comment by' him on
smoking ' Even a ' fire; in a ' restroom - in 1967 h"ad riot
resulted in ' any effort to' curtail smoking . Several of
R'espondent ' s` supervisors who' testified , w`hile'paying due
respect to the safety factor allegedly involved, ' made plain
that what was uppermost in their ' minds in'regard,to
smoking was the loss of °;worktrme ' involved' Thus,
'Gardner testified . ' ' ", '
I told her as' far as my part;'I wouldn't care for "her
going into the restroom and going in "and 'smoke' the
cigarette if they would smoke the cigarette 'and come
back out on'the,job and not gather in'the bathroom '
It got to that point down there in 'that, particular unit
'the foreman called' my knowledge 'to' it,, as to my
7 27
'particular unit looking like a lunch room up and down
the ' hall. They would take • time about going to the
restroom. One would,watch for the other and one would
maybe prolong and just like this particular case,,here
f„ three of my,employees were in the restroom,at one time
,smoking That's what it develops into.
Gardner also testified that immediately after the, strike
Dees had assembled his supervisors and ,told them to keep
employees on the slob and out of the restrooms so that
Respondent could keep its commitments and so that the
older employees would set a proper example.for the new
employees to', be, hired ., He added, "He did bring up
smoking " Hail,. a general foreman, testified that after the
strike but before the new no-smoking notices and signs
were , posted, he,, had, instructed Smothers, ., one . of his
supervisors, to speak to employees about,smoking in, the
restrooms He testified that he had brought, the matter up
with, Smothers because`,so many of his employees were
away from their work stations, stating, "He has about 25
people' in his unit I counted at one time and he had 10
people out at one time " There, is no credible evidence that
anything related to fire hazards occurred at that particular
time .which would have'called for stricter enforcement of
the no-smoking, rule On the other hand, the timing of
Respondent's action, immediately, after the Union had
obtained a , favorable, i e more, , costly,
collective-bargaining agreement, points to inefficiency-and
loss,of worktrme-as the factors which impelled it to,take
the action it took .
Notwithstanding that it has been found that
Respondent's explanation of its actions was not frank„ the
Trial Examiner finds that the unilateral institution of the
new procedures, to enforce the, no-smoking .rule more
effectively did not constitute-a failure to comply with the
requirements of the: Act 'with respect to, bargaining The
evidence makes plain that since prior,to;,,1966 Respondent
had, a no-smoking rule applicable, to, all. restrooms
Respondent has explained its long failure to enforce the
rule in the women's restrooms by pointing to the low ratio
of, female supervisors, to female employees Especially in
view, of the fact:that the monitoring of,employees' use of,
restroom privileges is a delicate subject in industrial
relations which employees, resent and employers often
hesitate to touch upon, Respondent's, explanation is
reasonable and is credited by the Trial Examiner ,It is
uncontradicted ,that the : 1966, notice, which '„referred
explicitly to restrooms,, remained Posted at all. times on
one bulletin board, and in, October 1967 the 'Union
acknowledged the existence of'the rule Most important,
for a substantial period of time before the events at issue
in this case the rule was fully adhered to in the men's
restrooms. The mere fact that enforcement in the women's
restrooms was lax did ,not constitute abandonment,, or pro,
tanto,abandonment,, of the,,rule' It,is found that, at all
times material the no-smoking rule was in, effect
throughout the plant, including the women's restrooms
See The 'Little -Rock Downtowner, Inc',' 148' NLRB
717,719.
'In view of the. above findings"it is unnecessary to rule
on Respondent's contention , that in,' any event, the
management-prerogative clause of the contract constituted
a waiver by the Union of its right to bargain, concerning
Respondent's institution of, a new rule prohibiting smoking
in the women's -rest rooms i" . ' . ..
While'the no-smoking rule had-not been abandoned, the
institution of definitive provisions' for a 3-day'suspension
for a'first offense,' to be followed by automatic discharge
for a second offense; did 'repr'esent a change in conditions
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment.6 Cf. Tiidee Products, Inc., 176 NLRB
No. 133 However, the management-prerogative clause of
the contract contained the following
Further, it is the exclusive function and responsibility of
the Company to maintain order, discipline and
efficiency and to discharge, . . . or discipline
employees .
In 1966, with, the same clause in effect, Respondent,
with no objection from the Union, unilaterally instituted
and posted a new rule providing for the ultimate discharge
of employees whose wages were garnisheed. As the
contract made no attempt to cover the subject of plant
rules governing such matters as smoking, the foregoing
contract language ;constitutes a clear and 'unequivocal
waiver by the Union of its right to bargain concerning the
manner of enforcing the existing no-smoking rule
Respondent did not refuse to have the issue processed
through the grievance procedure, which included
arbitration.'
It is found that by instituting new, more effective,
procedures for enforcing the no-smoking rules without
offering the Union an opportunity to discuss the matter,
and by refusing the Union's request to negotiate the
matter before placing the new procedures into effect,
Respondent did not violate its duty to bargain
The General Counsel contends that in any event
Respondent made the decision to enforce the rule
effectively in the women's restrooms in order to retaliate
against the employees for striking The record is devoid of
evidence of union animus on the part of Respondent.
Moreover, the allegedly retaliatory action was taken 'at a
time when almost three fourths of the employees were
voluntary members of'the Union and Respondent-had just
signed an agreement ensuring the U nion 's exclusive
representative status through November'30, 1971 While
Respondent's explanation for what it did has not been
credited, the Trial Examiner is not convinced that, with
the Union thus enconced in authority, the employees
would find an antiunion or antistrike lesson in the fact
that Respondent took action to require women smokers to
observe exactly the same no-smoking rules as had been
observed by' male employees, or that Respondent would
utilize such a device in an attempt to undermine the
Union or the employees' right to strike It is found that
Respondent's action was' not taken in retaliation against
the employees for striking. It ' is further found that
Respondent's action did not reasonably tend to coerce the
employees in the exercise of their rights under the Act
'Respondent attempted to prove that employees had in the 'past been
discharged for violation of the rule One instance involved Wimbish, who,
after being spoken to about low production , became upset and retired to
the restroom, where she remained for a prolonged period during which she
allegedly smoked Hamm, her foreman, testified specifically that she had
not been terminated for smoking but that she had left and had never come
back Hamm also testified that Charles Perkins had been discharged for
smoking in the restroom Respondent 's records indicate that Perkins was
not discharged , the most reasonable reading would be that he quit Neither
employee had been first suspended Both incidents occurred in the latter
part of 1966
'A contractual waiver by a union of its statutory right to bargain with
respect to certain terms or conditions of employment is not an issue falling
within the special competence of an arbitrator to determine , it calls , rather,
for resolution under the provisions of the Act and .by the Board Cf
Eastern Illinois Gas and Securities Company. 175 NLRB No 108, fn l
The uncompleted arbitration is therefore no reason for the Board to defer
action in this matter See Cloverleaf Division of Adams Dairv Co , 147
NLRB 1410
2 Discrimination
The ' General Counsel contends that Respondent
manipulated the initiation of the new checking procedures
on February 4 in such a manner as to trap Holt, the
outstanding shop steward and union adherent So far as
Respondent's higher management are concerned, this
contention can be promptly dismissed in view of the
long-established bargaining relationship and of a record
devoid of evidence of union animus or even of higher
management's participation in the checking 'on February
4
, The picture is different so far as concerns Foreman
Dees, for whose actions Respondent must bear full
responsibility Dees admitted knowing that Holt smoked,
and admitted also that he'acted to make the restroom
check at a time when he knew that Holt was there This
was the first inspection made in the plant under the new
procedure; it took place 11 days after the announced
effective date and was not routine Dees did testify that he
had definitely decided to make the check even before he
saw Holt start towards the restroom, but this testimony
about the operation of his own mind is contradicted by, his
investigatory affidavit, where, referring to the moment
after he saw Holt and Hanson closely follow Tipton and
Pipkin 'towards the restroom, he stated, "I decided that
now would be a good time to make a check since the
restroom was filling up " Bridges, too, sought to establish
that Dees' decision to make a check could not have been
affected by Holt's presence in the restroom She testified
that he had come to the office twice that day about an
inspection , the first time merely to notify her that he
might want her for 'that purpose sometime that morning,
and the second time to summon her to make the
inspection. However there is no reference to such an
earlier visit by Dees either in Dees' testimony or in
Bridges' investigatory affidavit. The Trial Examiner does
not credit Dees or Bridges and finds that Dees decided to
make the check after seeing Holt start towards the
restroom
Turning to the inspection itself, Dees' and Bridges'
testimony does not bear scrutiny. The evidence establishes
that Bridges, before telling any smoker to report to Dees,
made a preliminary inspection and then exited and spoke
to Dees. At the time of her exit Holt was not visible. Dees
testified that he understood Bridges to say the door was
locked. Bridges testified, "I mentioned to him I thought
someone was in there," and that she said nothing else,
more specifically, nothing about cigarettes. In her
investigatory affidavit she stated, "I told him that I
thought there were some girls in that section of the
restroom smoking but that I had not been able to see
them with cigarettes in their hand from the other side."'
In addition, Bridges was unable to explain at the hearing
why she had not gone right through the two restrooms as
instructed by Dees, an action which Dees testified he
found surprising,, saying, "I looked at her funny as she
came around there "
The absence of. explanation of Bridges' unusual action,'
and the contradiction between her testimony, her affidavit,
and Dees' testimony on the4 question of whether. Dees
decided to make an inspection before or after he knew
Holt would be in the restroom, as well as the
'Bridges' instructions were that she was to report violators only if she
actually saw them with cigarettes in their mouths or hands
'Bridges did testify that she was "shook up" and "nervous ," but she did
not connect that with her failure to go right through the two restrooms
FIRESTONE COATED FABRICS COMPANY
contradiction as to what was said between Dees and
Bridges when she emerged from the restroom the first
time, all tend to show that Dees was not making a routine
check but conducted the check in such fashion as to
ensure that Holt would be the one who would serve as an
example to the rest of the plant that Respondent was
'really enforcing the rule Dees was in the situation of
having been "one-upped" by Holt' as shop' steward on
numerous occasions and probably bore some resentment
towards her on this account' The apparently contrived
account of the restroom check throws serious doubt on his
denial However, careful consideration' of all the foregoing
suspicious circumstances does not disclose a sufficiently
solid, evidentiary basis to support a finding that Dees did
discriminate against Holt It is found that the General
Counsel has failed to prove that Dees caused, the warning
to be issued to Holt for discriminatory reasons. It follows,
of course, that the allegations of the Complaint as to
Hanson were not proved. '
Upon the 'basis of the foregoing findings of fact and of
the entire record-in this case the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
729
1. Respondent, Firestone Coated Fabrics Company,
Division of The Firestone Tire & Rubber Company, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act
3 Local Union No 607, United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act
4 Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), or (5) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law; and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the
Complaint herein be dismissed in its entirety.