Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Jul 25, 1975

219 N.L.R.B. 492 (N.L.R.B. 1975)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firestone Steel Products Company , a Division of Fire-
stone Tire & Rubber Company and Clark Trow-
bridge. Case 7-CA-10693
July 25, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On November 15, 1974, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Members Jenkins and Penello agree with the Ad-
ministrative Law Judge that employee Clark Trow-
bridge was discharged because of his protected activ-
ities as union steward rather than for falsification of
his employment application, the pretextual reason
given by Respondent. Only after Trowbridge incur-
red the wrath and displeasure of Foreman Hubbard
and General Foreman Fields by the serious and ag-
gressive performance of his steward responsibilities
did Fields initiate an investigation of Trowbridge's
prior employment based on information disclosed
by an unidentified employee. Until that time,
Trowbridge's record of prior employment appears to
have been of little concern to Respondent. Indeed,
although Trowbridge's application listed four former
employers, three of whom were his most recent, there
is no evidence that Respondent made inquiries
of any of these former employers regarding Trow-
bridge's employment history.
Our colleague, Member Kennedy, notes with ap-
proval the Administrative Law Judge's observation
that there are 50 union stewards in Respondent's
plant and that "in all likelihood, a number of them
have been at least as active as Trowbridge . . . with-
out being penalized for their activities." However,
the Administrative Law Judge also observed that this
does not necessarily negate an inference of discrimi-
nation against Trowbridge since there is no evidence
that Hubbard and Fields found any other steward as
objectionable as Trowbridge, and there is no indica-
tion that any other active steward was guilty of con-
duct, such as the falsification of an employment ap-
plication, upon which Respondent could convenient-
ly have seized as justification to discharge him.
Member Kennedy also contends that Thomas
Wukovits, the company official who made the deci-
sion to discharge Trowbridge, did not know that
Trowbridge was a union steward, and that "Wuko-
vits' only direct link with Trowbridge was within the
context of performing his administrative duty of in-
vestigating Trowbridge's employment application."
However, we agree with the Administrative Law
Judge that it is improbable that both Fields and
Hubbard failed to convey to Wukovits their displea-
sure with Trowbridge's repeated employee com-
plaints as steward. In further support of the inference
that Wukovits was aware of Trowbridge's steward
activities, we note, as did the Administrative Law
Judge, that there is uncontradicted testimony that
before the discharge decision was reached Chief
Union Steward Mink had discussed with Wukovits
Trowbridge's complaints relating to Hubbard. Thus,
we believe that the record supports a finding that
Wukovits was aware of Trowbridge's steward activi-
ties before he investigated his employment applica-
tion and decided to discharge him.
Finally, we note that Respondent had previously
discharged three other employees assertedly for falsi-
fying their job applications. Although Respondent
actually considered the performance of each of these
employees to be unsatisfactory for other reasons,
such as excessive absenteeism, violent assault on an-
other employee, and poor attendance record and bad
attitude, it conveniently relied upon the falsification
of the job applications instead of citing the real rea-
sons in each instance. In view of Respondent's prior
practice of utilizing the discovery of falsified job ap-
plications as a pretextual explanation for discharges,
we consider it significant that Trowbridge did not
suffer any shortcomings in work performance, such
as those characteristic of the three earlier dischar-
gees . In the absence of such legitimate consider-
ations , we believe that the conduct which prompted
Respondent to employ that pretext in this case was
Trowbridge's vigorous execution of his duties as
union steward. Under these circumstances, we adopt
the Administrative Law Judge's finding that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
discharging employee Clark Trowbridge.
Members Kennedy and Penello find no merit in
Respondent's contention that the complaint should
be dismissed for reasons related to the Collyer doc-
trine. Respondent, although citing Collyer Insulated
Wire, A Gulf and Western Systems Co., 192 NLRB
837 (1971), in its brief to the Board and in its brief to
the Administrative Law Judge attached thereto, re-
quests only that the Decision of the Administrative
FIRESTONE STEEL PRODUCTS CO.
Law Judge be reversed and that the complaint be
unconditionally dismissed in its entirety rather than
deferred to arbitration under the Collyer principle. In
support of its request, Respondent asserts that the
Board should not exercise jurisdiction over a matter
cognizable under the grievance procedure unless the
collective-bargaining representative has been shown
to have violated its duty of fair representation in its
refusal to take a grievance to arbitration, citing Vaca
v. Sipes, 386 U.S. 171 (1967).
Members Kennedy and Penello find that this argu-
ment was properly rejected by the Administrative
Law Judge as an unwarranted extension of the
Board's Collyer doctrine. The Union refused to pro-
cess Trowbridge's grievance, filed after his discharge,
to arbitration. The contract does not give an employ-
ee the right to final and binding arbitration. Neither
the Company nor the Union is willing to arbitrate.
Moreover, the contract provides that if written notifi-
cation of an intent to arbitrate is not given within 30
days after the Employer's final disposition of the
grievance the grievance shall be closed. Thus, as the
written notice was not given in this instance, in their
view it is apparent that at this time the grievance
cannot be submitted to an arbitrator. Therefore,
Members Kennedy and Penello would not defer this
proceeding under Collyer in any event.
Member Jenkins agrees with his colleagues' rejec-
tion of Respondent' s argument that the instant com-
plaint should be dismissed because Trowbridge (1)
failed to exhaust through his bargaining representa-
tive certain alleged remedies assertedly available to
him under the parties' contractual grievance-arbitra-
tion procedures, and (2) failed to show that the
Union had breached its duty of fair representation.
As they observe, however, the Respondent did not
specifically request that the Board defer to arbitra-
tion under Collyer. But even if there were such a re-
quest, Member Jenkins would deny it for the reasons
stated in his dissenting opinion in Collyer and subse-
quent cases. In brief, it is his view that whether the
alleged discriminatee has pursued, or exhausted, al-
leged private remedies under the collective-bargain-
ing contract is wholly irrelevant to the vindication of
statutory rights provided for in the Act. Member Jen-
kins' views on this subject are well documented,' and
need not be pursued further to demonstrate our dif-
ferences on this subject.
On the other hand, Member Jenkins is troubled by
the fact that his colleagues deem it necessary to even
consider the Respondent's novel argument, and then
add that "at this time" deferral would be inappropri-
i See, in particular , Member Jenkins ' dissenting opinions in U. S. Postal
Service, 210 NLRB 560 (1974 ), and United Aircraft Corporation (Pratt &
Whitney and Hamilton Standard Division ), 204 NLRB 879 (1973).
493
ate because Trowbridge has no right, under the con-
tract, to final and binding arbitration and the Union
and the Respondent-the parties possessing this
right-have either refused or are otherwise unwilling
to submit Trowbridge's grievance to arbitration.' To
Member Jenkins this approach is at best confusing
because, as he understands his colleagues' position, if
the Respondent committed the violation with which
it is charged, then deferral to a grievance-arbitration
procedure is perforce inappropriate. This is so, be-
cause, as they have reasoned, such conduct "strikes
at the foundation of that grievance and arbitration
mechanism upon which we have relied in the formu-
lation of our Collyer doctrine." Joseph T. Ryerson &
Sons, Inc., 199 NLRB 461, 462 (1972).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Firestone Steel Products
Company, a Division of Firestone Tire & Rubber
Company, Wyandotte, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
MEMBER KENNEDY, concurring in part and dissenting
in part:
I concur in Member Penello's opinion that the
complaint in the instant proceeding should not be
dismissed on the Collyer-related grounds urged by
Respondent. I dissent, however, from the majority's
conclusion that Respondent violated Section 8(a)(3)
and (1) of the Act when it discharged Union Steward
Clark Trowbridge. I find no substantial evidence to
support such a finding.
The record shows that Clark Trowbridge failed to
disclose two prior places of employment on his em-
ployment application before being hired by Respon-
dent. He had been discharged previously by one of
those employers for poor attendance, and he was al-
lowed to resign by the other employer before being
discharged for his falsification of medical records.
Upon learning that he had falsified his application,
Respondent discharged Trowbridge pursuant to a
long-established companywide policy. He had been
employed only for about 3-1/2 months. He subse-
quently filed a grievance with his union representa-
2 In such circumstances; Member Jenkins believes that his colleagues
have learned that an employer's unwillingness to arbitrate must be treated
seriously . See Medical Manors, Inc, d/b/a Community Convalescent Hospi-
tal, 199 NLRB 840 (1972), reconsidered North Shore Publishing Co, 206
NLRB 42 (1973). Likewise , as stated , they have recognized that the interests
of the employee and the union must be in harmony if deferral is to be
meaningful . See, eg., Kansas Meat Packers, 198 NLRB 543
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives who, correctly in my view, refused to take the
matter to arbitration because of their belief that an
adverse decision would result.
Trowbridge was 1 of 19 union stewards on his shift
and 1 of 50 union stewards in a unit of 2,500 employ-
ees at a plant where the parties have had contractual
relations for about 34 years. The Administrative Law
Judge noted with respect to these stewards that "in
all likelihood, a number of them have been at least as
active as Trowbridge, . . . without being penalized
for their activities." Indeed, the record shows that
many grievances have been filed and ultimately set-
tled in an amicable fashion.
With respect to the discharge itself, it is clear that
the official of Respondent who made the decision to
discharge Trowbridge, Industrial Relations Manager
Thomas Wukovits, did not know that Trowbridge
was one of many union stewards. Wukovits was not
personally acquainted with Trowbridge, and he did
not consult with any of Trowbridge's supervisors
about Trowbridge at any time prior to his decision to
discharge Trowbridge. Although Wukovits did dis-
cuss the "Hubbard problem" with Union Steward
Harold Mink, the record does not show that
Trowbridge's name came up in that discussion. Thus,
Wukovits' only direct link with Trowbridge was with-
in the context of performing his administrative duty
of investigating Trowbridge's employment applica-
tion. In this case, it is beyond question that Trow-
bridge deliberately falsified his employment applica-
tion.
The majority attempts to impugn the integrity of
Respondent's policy on a theory that past discharges
based on that policy might not have occurred if the
employees involved had not been undesirable for
other reasons . But it is the General Counsel's burden
in this case to prove that Respondent did in fact dis-
charge Trowbridge for a reason other than violation
of its policy, and for a reason improper under the
Act.
I do not believe there is a preponderance of evi-
dence to support a finding of a violation in this case.
This employer has dealt with the Union for over 30
years. It has on its plant premises literally dozens of
union stewards. Indeed, it appears that the employer
has never before discharged a union steward. No le-
gitimate inference of unlawful motivation can be
based on such scant evidence. At best it raises a sus-
picion of wrong motive, but suspicion is not equiva-
lent to substantial evidence.3 I would therefore not
7 "Substantial evidence is more than a scintilla, and must do more than
create a suspicion of the existence of the fact to be established . ' It means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion ' .. ." N L.R.B. v. Columbian Enameling and Stamp-
ing Company, Inc., 306 U.S. 292, 300 (1939).
adopt the Administrative Law Judge's finding that
Respondent discharged Trowbridge in violation of
Section 8(a)(3) and (1) of the Act.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all parties represented, was heard on July 25 and
26, 1974, in Detroit, Michigan, on the complaint of the
General Counsel issued on May 28, 1974,1 and the answer
of Firestone Steel Products Company, a division of Fire-
stone Tire & Rubber Company, herein called the Respon-
dent or Company. The questions presented are whether (1)
the Board should find that the Respondent, in violation of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended,2 discriminatorily discharged employee
Clark Trowbridge because of his union steward activities
or (2) the Board should decline to exercise its jurisdiction
because the employees' bargaining representative refused
to submit Trowbridge's discharge grievance to the arbitra-
tion procedures prescribed in its collective-bargaining
agreement with the Respondent. At the close of the hear-
ing, the parties argued their positions orally. A posthearing
brief was received only from the Respondent.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Firestone Steel Products Company, an Ohio corpora-
tion, is a division of Firestone Tire & Rubber Company
which has its general and corporate offices and a place of
business in Akron, Ohio, and other plants and facilities in
various States throughout the United States. At the Wyan-
dotte, Michigan, plant of Firestone Steel Products Compa-
ny, which is the only facility involved in this proceeding,
the Respondent is engaged in the manufacture, sale, and
distribution of rims and wheels for motor vehicles. In the
course and conduct of these operations, the Respondent
annually purchases steel and other materials valued in ex-
cess of $50,000 which are shipped to the Wyandotte plant
1 The complaint is based on a charge filed by Clark Trowbridge on Octo-
ber 31, 1973, a copy of which was duly served on the Respondent by regis-
tered mail on November I, 1973.
1 Sec . 8(a)(1) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent , Sec. 7 provides that "[e]m-
ployees shall have the right to self-organization, to form, join or assist labor
organizations , to bargain collectively through representatives of their own
choosing. and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . "
Sec. 8 (a)(3). with certain qualifications not material herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization ... "
FIRESTONE STEEL PRODUCTS CO.
directly from sources outside the State. It also annually
ships finished products valued in excess of $50,000 directly
to points located outside the State.
The Respondent admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Il. THE LABOR ORGANIZATION INVOLVED
It is undisputed that Local Union No. 174, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), herein called the Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction: Questions Presented
Since 1941 the Respondent and the Union have main-
tained contractual relations. Article V of the agreement,
which was in effect at the time of the events herein, con-
tained familiar grievance-arbitration provisions for the res-
olution of disputes, including employee dismissals. On Sep-
tember 18, 1973, employee Clark Trowbridge was
terminated under circumstances related below assertedly
for falsifying his original employment application. He
promptly filed a grievance in protest of his dismissal which
the Union prosecuted through the various contractual steps
short of arbitration. There is testimony indicating that the
Union elected not to pursue binding arbitration for the
reason that it believed that the arbitrator would probably
consider only the narrow issue of Trowbridge's falsification
of his job application and that, since the falsification was
undisputed, it would result in an adverse decision.
On October 31, 1973, Trowbridge filed an unfair labor
practice charge against the Respondent, alleging that he
was terminated because of his union steward activities. The
General Counsel issued the complaint herein but deferred
proceeding thereon on the basis of the Board's Collyer doc-
trine 3 until advised by the Union of its determination not
to submit Trowbridge's discharge to arbitration. For this
reason , the General Counsel urges the Board to adjudicate
the real reason for Trowbridge's discharge which he asserts
was Trowbridge's militancy in the performance of his stew-
ard functions. The Respondent, on the other hand, argues
that the Board should abstain from exercising its jurisdic-
tion in this case because the validity of the discharge was
cognizable under the grievance-arbitration procedures and
it was not shown that the Union's refusal to pursue arbitra-
tion was in breach of the Union's duty of fair representa-
tion. In any event, the Respondent contends that the dis-
charge was not unlawfully motivated ; rather it resulted
from its enforcement of a long-established, companywide
policy of terminating employees guilty of wilfully falsifying
their job applications.
3 Collyer Insulated Wire, A Gulfand Western Systems Co 192 NLRB 837
( 1971); see also National Radio Company, Inc, 198 NLRB 527 (1972).
B. The Evidence
495
1. Trowbridge's employment and steward activities
On May 29, 1973,4 Trowbridge applied for a job in the
Respondent's Wyandotte plant and was handed a standard
job application form to complete. In answering the ques-
tion dealing with prior employment and the reason for his
separation, Trowbridge omitted mentioning two of such
employers.5 One of them was Revere Copper and Brass,
Incorporated, for whom he had worked from April 27,
1971, until his discharge on April 7, 1972, for poor atten-
dance, and the other was Ford Woodhaven Stamping Plant
where he worked from August 17 to November 13, 1972,
when he was permitted to resign, instead of being terminat-
ed, on account of an alleged allergy to steel . Notwith-
standing this omission, Trowbridge signed an affirmation
statement in the application form that "all the information
contained in this application is true and complete and that
any misrepresentation, falsification or wilful omission,
herein, shall be sufficient reason for dismissal from, or re-
fusal of employment." At the hearing, Trowbridge admit-
ted that he intentionally withheld information concerning
two of his former employers lest he jeopardize his chances
for employment with the Respondent.
After submitting his completed application, Trowbridge
was interviewed, given a medical examination , and was
hired for an unskilled job in the production department on
the afternoon shift, subject to a 60-day probationary peri-
od. Upon finishing his probation on or about August 1,
Trowbridge was permanently assigned as a spot welder on
Line 440, working under the immediate supervision of
Foreman Hubbard. A week later, the employees on Line
440 decided that they needed a union steward to handle
their job problems and complaints and elected Trowbridge
to that post 7 Trowbridge thus became I of approximately
19 union stewards on the afternoon shift and of some 50
stewards on all shifts.
After receiving instructions regarding his steward re-
sponsibilities from Louis Friend, the chief steward on his
shift, Trowbridge soon seriously undertook to perform
those functions . Admittedly, Foreman Hubbard, General
Foreman Fields and Production Manager Reese were
aware of Trowbndge's efforts, as a steward , to secure satis-
faction of employee complaints, grievances, and problems.
Indeed , Hubbard, Fields, and Reese were the supervisory
hierarchy to whom these complaints were presented. It is
Unless otherwise indicated , all dates refer to 1973
5 Trowbridge, however, did mention four former trucking company em-
ployers. Although there is testimony given by the Respondent 's witnesses
that reference inquiries are routinely mailed to an applicant's former em-
ployers either before or after the applicant is hired , whenever convenient,
Trowbridge's personnel file did not contain any responses from his dis-
closed employers or any notation that inquiries had been sent out or that
followup letters were sent because no answers had been received.
6 Trowbridge testified that he was not allergic to steel and for this reason
did not mention that he had any allergies in answer to a medical question in
the employment application The Respondent evidently concedes that
Trowbridge's purported steel allergy did not enter into its discharge deci-
sion . Indeed, it does not appear that his work performance , which involved
handling steel items, suffered by reason of any allergy.
i It appears that prior to this time Line 440 did not have enough employ-
ees to be entitled to a union steward of its own.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also clear. as discussed below, that Hubbard and Fields did
not view Trowbridge's activity with favor.
To demonstrate Trowbridge 's aggressiveness in the per-
formance of his steward duties , the General Counsel relies
on undisputed evidence, which I credit, establishing the
following: On August 10, at the instance of two employees,
Trowbridge protested to Acting Supervisor Nestor Ameri-
cana 8 that he was doing unit work in violation of the
bargaining contract.9 When Americanza disagreed with
Trowbridge and ignored the complaint, Trowbridge asked
to see Chief Steward Friend. Americanza then left the pro-
duction line and returned, saying that he was unable to
locate the chief steward. Later, during a lunch break,
Trowbridge brought Friend to the production line where
Friend warned Americanza that he would file a grievance
against him if he continued to do unit work. Americana
thereupon stopped this activity but resumed it the next
day. Although Trowbridge again reminded Americanza
that a grievance would be filed against him if he persisted
in doing unit work, Americana disregarded the warning.
As a result, Trowbridge reported him to Friend who, in
turn, complained to Americanza's superior, General Fore-
man Fields. There is no evidence that Americana subse-
quently did unit work while serving as a temporary super-
visor.
A second incident occurred in the middle of August. At
that time, Line 440 had broken down and Trowbridge and
other members of the crew were temporarily transferred to
another line. While on their new assignment, a number of
Trowbridge's fellow employees pointed out to him a pile of
scrap steel which created what they regarded to be a dan-
gerous working condition. Trowbridge promptly reported
this situation to Foreman Hubbard and requested him to
have that area cleaned up. Hubbard refused to do so and
ordered Trowbridge to return to work. Trowbridge re-
sponded by asking to see the chief steward 10 and the union
safety representative. Using foul language, Hubbard de-
nied Trowbridge's request and repeated his order to return
to work. Trowbridge thereupon asked to see General Fore-
man Fields and both Trowbridge and Hubbard proceeded
to Fields' office. There, Trowbridge explained to Fields the
dangerous condition; Hubbard's refusal to have it re-
moved; and Hubbard's denial of his request to confer with
his chief steward and the union safety representative.
Fields assured Trowbridge that Hubbard would get the
chief steward for him. As Trowbridge was leaving the of-
fice to return to work, Fields inquired how long had he
been a steward. When Trowbridge replied that it was at
least a week, Fields remarked that he "sure [raise[d] a lot of
hell" during that week's stewardship. Despite Fields ' assur-
ance, Hubbard did not arrange for the chief steward to see
Trowbridge. As a consequence, Trowbridge, during a regu-
lar break the same evening, located Acting Chief Steward
Mink and related his conversations with Hubbard and
8 Amencanza was a bargaining unit employee who substituted for Fore-
man Hubbard in the latter's absence.
9 Art. 1, sec . 3, prohibits supervisory employees from performing work on
hourly rated jobs except in special circumstances
10 At the time of this and ensuing events Chief Steward Friend was on
vacation (August 17 to September 4) and different stewards temporarily
replaced him on various days
Fields and their failure to comply with his request to notify
the chief steward and safety representative that he wanted
to speak to them. Mink stated that nobody had contacted
him.
At Mink's suggestion, he and Trowbridge went to Fields'
office where Mink questioned Fields why he had not been
contacted, as Trowbridge had requested. Fields answered
that they looked for the chief steward in the Union's plant
office but were unable to find him, adding that he had no
intention of chasing around for the chief steward or any-
one else . In response to Mink's further inquiry why Fields
had not summoned the union safety representative, Fields
stated that the company safety representative had checked
the pile of steel scrap and concluded that it was not a safe-
ty hazard. Mink and Trowbridge then left. Dissatisfied
with Fields' lack of cooperation, Mink advised Trowbridge
to confer with the Union's plant chairman, J. W. Kelly,
who was the highest union representative in the plant."
The next day, Trowbridge unsuccessfully searched for
Kelly but instead met Union Safety Representative David
R. Stafford. After briefing Stafford on the steel scrap situa-
tion; his futile efforts to have that condition rectified; the
lack of cooperation by Hubbard and Fields to secure for
him the chief steward and the union safety representative;
and the other pertinent events which had transpired, Staf-
ford and Trowbridge proceeded to Fields' office where
Fields greeted them with the query, "What is it this time?"
Stafford asked why the chief steward and the union safety
representative were not made available to Trowbridge.
Fields denied that such was the case, asserting that he had
unsuccessfully attempted to contact the chief steward and
that the company safety representative found that the pile
of scrap steel did not create a dangerous situation. This led
to an angry verbal exchange between Stafford and Fields
in which Stafford insisted that Fields was, nevertheless, ob-
ligated to call him and Fields retorted that he was not re-
quired to recognize Stafford as a safetyman because he did
not wear earplugs. Stafford replied in kind by noting that
he was not required to recognize Fields as a general fore-
man because he didn't wear his earplugs either. This en-
counter ended with Fields calling Stafford "a damn liar"
and ordering him and Trowbridge out of the office. Staf-
ford and Trowbridge then departed. It appears that the pile
of scrap steel was removed the next day. f2
When Trowbridge reported for work the day following
the above-Stafford-Fields-episode, he was met at the time-
11 Kelly was also the chief steward on the day shift and performed other
important union functions.
2 The foregoing findings reflect Trowbridge's uncontradicted testimony,
which I credit . Stafford 's version of this episode , which is also specifically
uncontradicted , includes a conversation he had with Foreman Hubbard
concerning Hubbard's refusal to summon the chief steward and union safe-
tyman whom Trowbridge had requested. Regarding Stafford's and
Trowbridge's subsequent meeting with General Foreman Fields, Stafford
testified that, although Fields initially expressed annoyance with
Trowbridge's requests for a chief steward , he ultimately agreed that the
chief steward would be made available to him. Stafford furnished further
undisputed testimony that Fields complained to him on the same occasion
that Trowbridge was leaving his work too much to attend to union business
and was a troublemaker since he had become a union steward Stafford also
testified that, after he and Trowbridge left Fields' office , he instructed
Trowbridge to remain on the job unless he was given permission by his
supervisor to leave to handle union business. I credit Stafford 's above testi-
mony
FIRESTONE STEEL PRODUCTS CO.
clock by Plant Chairman Kelly, Mink, and Stafford. In
answer to Kelly's inquiry, Trowbridge recounted the above
incidents. Kelly and Trowbridge thereupon went to Pro-
duction Manager Reese's office to discuss the matter.
Reese invited Fields to be present and both Fields and
Trowbridge gave their accounts of their meeting and, in
particular, Fields' refusal to recognize Stafford as the
union safetyman and Fields' ushering Stafford and Trow-
bridge out of his office. The upshot of this discussion was
that Reese agreed with Kelly that Trowbridge was entitled
to a union safetyman and the chief steward whenever they
were requested .13 Kelly also brought up the subject of
Hubbard's repeated use of profanity towards his subordi-
nates. Reese replied that he would talk to Hubbard about
it. At another point in the discussion, Fields asked why
Trowbridge "had a chip on his shoulder" and always acted
that way whenever he came to his office. Trowbridge de-
nied this accusation, insisting that he was only interested in
his fellow employees' health, safety, and welfare . Reese, in
response, indicated that Trowbridge should also have some
consideration for Firestone which pays him. Thereafter,
Trowbridge was dismissed from the meeting and Kelly re-
mained to transact other union business.
As a result of attending the Kelly-Reese-Fields confer-
ence, Trowbridge was 15 minutes late starting work and so
explained his lateness to Foreman Hubbard. At the end of
the shift, Hubbard credited the crew with less piece work
than they claimed they were entitled to and informed them
they were being docked because of Trowbridge's lateness.
Trowbridge protested to Hubbard that Hubbard's action
was unwarranted and reminded him that he (Trowbridge)
had previously advised him of the reason for his lateness.
However, Hubbard declined to cancel the penalty. Trow-
bridge then discussed the' matter with General Foreman
Fields who, after checking into the dispute, told Trow-
bridge that the men had actually not been docked but that
Hubbard made an error in computation, resulting in
"shorting" each man $2. Fields assured Trowbridge that
the mistake would be rectified, which it apparently was.
Another episode involving Trowbridge and Hubbard oc-
curred on or about September 5 and concerned Hubbard's
performing unit work. Upon observing Hubbard grinding
wells on rims on an assembly press , Trowbridge reminded
Hubbard that he wasn't supposed to do such unit work.
Hubbard angrily disagreed and Trowbridge stated that he
would file a grievance against him. It further appears that
on one or two other occasions Trowbridge had similarly
voiced his objection to Hubbard regarding his performance
of unit work and that the chief steward had also discussed
this problem with Hubbard.
During his break period the same evening, Trowbridge
called Hubbard's conduct to Chief Steward Friend's atten-
tion. Friend thereupon drafted a grievance which Trow-
bridge and another employee signed, alleging Hubbard's
performance of unit work , harassment of the men on Line
440, and his refusal to "get anyone" to repair anything on
the line.14
13 Kelly testified that he received several complaints a month from differ-
ent stewards that foremen other than Hubbard have denied them the right
to have a chief steward summoned to assist them in resolving grievances.
497
Later in the evening, Hubbard approached Trowbridge
while he was working on the line and declared that he
would make it rough for Trowbridge; that he (Hubbard)
worked for the Company; and that Trowbridge did not
belong-there and should watch his step. Trowbridge retort-
ed that he could not be threatened, adding that he could
make it rough for Hubbard by filing grievances against
him for doing prohibited unit work. Hubbard disputed that
Trowbridge could cause him any trouble because he (Hub-
bard) was acting in the Company's interests . After filing
the above grievance, Trowbridge did not notice Hubbard
perform unit work.
As steward, Trowbridge on four or five occasions also
asked Hubbard for heat passes for the men on his line.
When Hubbard denied his requests on three or four of
these occasions, Trowbridge sought the passes from his
general foreman.15
In addition to Trowbridge's testimony on which the fore-
going findings are principally based, there is undisputed
and credible testimony by Chief Steward Friend concern-
ing Trowbridge's performance of his steward responsibili-
ties . According to Friend, Trowbridge conferred with him
about various problems he had experienced on his line in-
volving Hubbard's performance of unit work and employ-
ees' down-time. As a result, Friend spoke to Hubbard sev-
eral times about Trowbridge's unit-work complaints and
succeeded in persuading him to refrain from doing such
work temporarily. However, Hubbard would subsequently
revert to his customary practices which Friend acknowl-
edged were a problem to other stewards as well . Moreover,
Friend testified that the problem of supervisors performing
unit work is a persistent one throughout the plant; that he
had discussed this matter with Production Manager Reese
and with Thomas W. Wukovits, the manager of industrial
relations, in the course of grievance meetings ; and that he
had filed many written grievances on this subject only after
his efforts to persuade the offending supervisor to cease
doing unit work proved to be futile and no satisfaction
could be obtained from General Foreman Fields.
Friend further credibly testified, without contradiction,
that he had taken Trowbridge's complaints and gripes to
Fields on a number of occasions and that during one of
these discussions Fields complained about Trowbridge's
leaving his line and his difficulty in getting-along with
Hubbard. Friend answered that he would talk to Trow-
bridge about his absence from the line. Fields also advised
Friend that he-had received information from an employee
that Trowbridge had falsified his employment application
and that he was going to have the information checked out.
Further evidence of Trowbridge's steward activities and
Hubbard's and Fields' reaction to them is found in the
following undisputed testimony of Maintenance Steward
Mink who frequently substituted as chief steward while
Friend was on vacation or otherwise absent. At different
14 It appears that subsequent to Trowbridge 's discharge this grievance
pertaining to the performance of unit work was ultimately settled, along
with 8 or 10 other similar grievances.
15 There is also evidence thot Trowbridge had joined in a gnevance signed
by 40 or 50 employees concerning lost holiday pay. The Company granted
the grievance and reimbursed the employees It does not appear whether the
grievance was presented before or after Trowbridge's election as steward.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times in the latter part of August, Trowbridge brought
complaints to Mink that Hubbard, in addition to doing
unit work, was harassing the men, using profanity against
them and was cheating them on down-time. On the first
occasion, Trowbridge, accompanied by most of the line
crew, came to the Union's plant office before the shift be-
gan and protested to Mink concerning Hubbard's harass-
ment of the men and his performance of unit work.16 When
Mink subsequently informed Hubbard of Trowbridge's
complaint and warned Hubbard that a grievance would be
filed if he did not change his ways, Hubbard chided Mink
that filing a grievance would do no good. Hubbard also
disparaged Trowbridge and his fellow-employees as cry-
babies for making issues over petty matters and for this
reason Hubbard stated that he considered Trowbridge to
be a poor steward. Mink replied that because of Hubbard's
attitude he would write up a grievance on him after talking
to Fields.
The next day, Trowbridge again complained to Mink
that after Mink left the plant the night before, Hubbard
again cheated the men on down-time and harassed them.
The following day, Mink went with Trowbridge to Produc-
tion Manager Reese's office where he informed him that
Hubbard was "shorting" Trowbridge and the men. Reese
called Fields over from another part of the office and
asked him about this accusation. When Fields, in response,
charged that it was the employees who were cheating,
Reese requested to see the master tally card and, after
reading it, ordered Fields to pay the men the disputed sum.
A day later, Trowbridge and two or three other employ-
ees informed Mink that Hubbard was still harassing the
men and "turning the clocks off." Mink again protested to
Hubbard but when it appeared that no satisfaction could
be obtained from him, Mink brought his complaint to
Fields who agreed to take care of the matter. On this occa-
sion , a floorman in charge of supervisors under Fields
named Gargantis, who was in the office, remarked to
Mink, "Mr. Hubbard again" or something to that effect.
Although Mink had discusssed the Hubbard problem
with Fields a number of times and Fields assured Mink
that he would talk to Hubbard about these complaints, the
problem with Hubbard apparently remained unresolved.
Upon receiving another Hubbard complaint from Trow-
bridge about a week or so before Trowbridge's discharge,
Mink discussed the matter with Industrial Relations Man-
ager Wukovits, advising him of his several conversations
with Fields concerning Hubbard. Wukovits thereupon
called Fields on the telephone but Gargantis shortly there-
after entered Wukovits' office In response to Wukovits'
inquiry, Gargantis stated that he was familiar with most of
these complaints about Hubbard. Mink then departed,
leaving Wukovits and Gargantis behind. Later Gargantis
informed Mink that Wukovits had ordered him (Gargan-
tis) "to get on Hubbard heavy" and that he would have
Hubbard apologize to Mink for belittling Mink's status as
an acting chief steward. Hubbard, however, never did apol-
ogize.
16 Mink characterized Hubbard as the Union 's biggest problem with re-
spect to supervisory performance of unit work and testified that this prob-
lem began more than 2 years ago when Hubbard supervised other lines
Some 4 or 5 days before Trowbridge's termination,
Fields summoned Mink to his office and told him, as he
had told Chief Steward Friend, that he'had received infor-
mation from an employee that Trowbridge had falsified his
employment application. Fields also advised Mink that he
was going to have Assistant Manager of Industrial Rela-
tions George Cherpas verify the information. Probably at
this point, Mink referred to Trowbridge as an active union
steward which elicited Fields' comment, "Yes, too active"
and complained about petty things. Mink, whose recollec-
tion was refreshed by his pretrial affidavit, also quoted
Fields as saying, in substance, that Trowbridge was a
"troublemaker" and that they did not need any more prob-
lems in the plant than they already had. The next day,
Mink advised Union Plant Chairman Kelly of his conver-
sation with Fields.
2. The Respondent's decision to discharge Trowbridge;
his termination
Manager of Industrial Relations Wukovits made the de-
cision to terminate Trowbridge. He testified that he took
this action following these events: About September ll,
General Foreman Fields informed him that he had learned
from an unidentified employee that Trowbridge had previ-
ously been employed by Revere Copper and Brass Compa-
ny, which Trowbridge failed to mention in his job applica-
tion." Wukovits thereupon called Revere's personnel
office to verify this information and the reason for the se-
paration. The next day, September 12, Revere's Assistant
Personnel Manager Betancourt telephoned Wukovits and
advised him that Trowbridge had worked for Revere and
that he had been discharged for poor attendance. Betan-
court also volunteered information that Trowbridge had
also been employed by the Ford Woodhaven Stamping
Plant. At Wukovits' request, Betancourt sent him a letter
dated September 12, confirming Trowbridge's Revere em-
ployment.'s
Upon learning of Trowbridge's former employment with
Ford Woodhaven, Wukovits telephoned that company and
was informed by Hourly Personnel Supervisor Eldredge
that Trowbridge had worked in that plant a very short time
and was permitted to resign instead of being discharged
because of an allergy to steel. Although Wukovits request-
ed a confirmatory letter, Eldredge expressed a reluctance
to send one but stated that he would do so if Wukovits
needed it at some future time.19
17 According to Wukovrts. Fields did not reveal the employee's name In
addition, there is no explanation how this employee knew that Trowbridge
had omitted the Revere Company from his job application which he had
filed with the Respondent 3-1/2 months previously and that therefore it was
important enough to disclose to Fields.tant
The letter stated that Revere's records showed that Trowbridge was
employed there "from April 27, 1971 until terminated for poor attendance
on April 7, 1972 "
19 Subsequently , during the pendency of the present unfair labor practice
case, Eldredge sent Wukovits a letter dated April 2, 1974, advising that
Trowbridge was employed at Ford Woodhaven Stamping Plant from Au-
gust 17 to November 13, 1972, and that the reason for his separation was
"Voluntary Quit in lieu of discharge for falsification of Company medical
records "
It is not claimed by the Respondent that Trowbridge was discharged on
account of an allergy to steel Indeed, not only is there no evidence that
FIRESTONE STEEL PRODUCTS CO. 499
On the same day, Wukovits apprised Assistant Industrial
Relations Manager Cherpas of the above information and
instructed him to interview Trowbridge to ascertain the
reason for the nondisclosure and whether there were exten-
uating circumstances which would excuse his discharge un-
der the Company's policy relating to the falsification of an
employment application. Accordingly, when Trowbridge
returned to work on the following Monday, September 17,
after a 3-day illness , he was summoned to the personnel
department where he was interviewed by Cherpas2° At
that time, Trowbridge wore his union steward badge on his
shirt pocket, as he had always done. 21 Cherpas opened the
conversation with the statement that he had information
concerning Trowbridge's prior employment which he had
omitted from his job application and that he was therefore
subject to dismissal for falsification of his application.
When asked for specifics, Cherpas mentioned
Trowbridge's employment with Revere and Ford Woodha-
ven. Cherpas then questioned Trowbridge whether he had
worked for Revere and he answered in the affirmative.
When, in reply to Cherpas' inquiry, Trowbridge denied
that he had been discharged from that job, he was shown
Revere's contradicting letter. Trowbridge also admitted his
former employment with Ford Woodhaven, asserting that
he had quit that job. Cherpas then questioned him why his
employment with Revere and Ford Woodhaven was not
disclosed in his application. Trowbridge replied that he had
forgotten it. The interview ended with Cherpas stating that
he would discuss the matter with his superior and would
notify Trowbridge what action the Company intended to
take.
As Trowbridge was returning to his production line, he
met Chief Steward Friend to whom he narrated his conver-
sation with Cherpas and told him that he was going to be
terminated for falsifying his employment application.
Friend indicated skepticism that he would be fired. Trow-
bridge finished his shift that night without being notified of
the Company's decision.
In the meantime, Cherpas reported the results of his in-
terview with Trowbridge to Wukovits who concluded that
no mitigating circumstances were shown to justify with-
holding discharge under the Company's established policy
regarding wilful falsification of an employment applica-
tion. At the hearing, Wukovits categorically denied that
Trowbridge's steward activities entered into his decision.
Although Wukovits disavowed awareness of Trowbridge's
union stewardship at the time he made the discharge deci-
sion, there is uncontradicted, credited testimony by Main-
tenance Steward Mink, discussed above, that several days
before Trowbridge's discharge he had discussed the Hub-
bard problem with Wukovits at which time Wukovits in-
Trowbridge actually suffered from such an allergy , but, on the contrary, it
appears that he worked for the Respondent 3-1/2 months before his dis-
charge handling steel products without manifesting any disability in that
resgect.
Trowbridge testified that he had never previously met Cherpas or Wuk-
ovits.
21 The Respondent stipulated that if Trowbridge wore his steward badge
on this occasion , it would have been impossible for Cherpas not to have
seen it. Cherpas testified that prior to September 17 he was unaware that
Trowbridge was a union steward.
structed General Foreman Fields' assistant, Gargantis "to
get on Hubbard heavy."
There is no doubt that the Respondent has had a long-
established, companywide policy rendering employees vul-
nerable to discharge for wilful omission of information
from employment applications or other falsification 22 In-
deed, this policy is reflected in an affirmation embodied in
the application which the applicant is required to sign. Wit-
nesses for the Respondent also testified that, to their
knowledge, this rule has been enforced without exception.
Moreover, testimony was produced at the hearing regard-
ing three instances where employees at the Wyandotte
plant here involved were discharged on account of wilful
omissions from, or other falsification of their job applica-
tion. However, the evidence indicates that the investigation
of the falsification in those cases was prompted by events
and circumstances not comparable to those in the present
case . Thus, with respect to employee Carroll, the investiga-
tion of his former employment was caused by his violent
assault upon one of the Respondent's employees. After this
assault, the Respondent learned that Carroll had been dis-
charged by his former employer for beating up a supervi-
sor. The reason for that separation was not mentioned in
the employment application. In employee Dorton 's case,
the investigation was inspired by his unusually poor atten-
dance record and his being a workmen's compensation
problem. After the Respondent learned of Dorton 's failure
to include a former employer in his job application, it com-
municated with the former employer and was advised that
Dorton was discharged because he was an unsatisfactory
probationary employee with a bad attendance record. Fi-
nally, employee Krantz, who was a serious problem at the
Respondent's plant on account of absenteeism and atti-
tude, was investigated by the Respondent after it became
aware that Krantz had not disclosed a former employer in
his job application.
C. Concluding Findings
1. Withholding of jurisdiction
At the times of the events herein, the Respondent and
the Union were parties to a collective-bargaining agree-
ment which provided for a five-step grievance procedure,
culminating in "final and binding" arbitration, for the res-
olution of grievances and disputes, including-those involv-
ing discharges23 As indicated above, upon his discharge on
September 18 Trowbridge filed a grievance protesting his
dismissal which the Union unsuccessfully processed
through all the steps short of arbitration. The Union, how-
ever, declined to pursue arbitration, being under the assert-
ed impression that Trowbridge's conceded intentional
omission of two former employers from his job application
would result in an adverse arbitration award which would
probably disregard the alleged pretextual nature of the dis-
charge. Consequently, on October 31, Trowbridge filed an
22 There are documents in evidence indicating that application of this
policy has been the subject of arbitration proceedings and awards involving
other Firestone plants -
23 Art V of the parties ' contract effective from March 15, 1971, to Febru-
ary 4, 1974.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice charge on which the General Counsel
ultimately issued the complaint herein after ascertaining
the Union's determination not to submit Trowbridge's dis-
charge to arbitration.
The Respondent contends that the Board should abstain
from exercising its jurisdiction under the Collyer princi-
ple,24 on the ground that neither the General Counsel nor
the Charging Party has shown that the Union violated its
duty of fair representation owing to Trowbridge by refus-
ing to submit his discharge grievance to arbitration. Other-
wise stated , it is the Respondent's position that Trowbridge
should be bound by the Union's inaction and should ac-
cordingly be precluded from seeking vindication of his
statutory rights from the Board, unless it is shown in the
present case or in a separate unfair labor practice proceed-
ing instituted against the Union that the Union, as the bar-
gaining agent, had breached its duty of fair representation.
In support of its position, the Respondent relies on the
observations made in the Supreme Court's majority opin-
ion in Manuel Vaca v. Niles Sipes 25 where it was held that
a State court had jurisdiction over a suit against a union
charged by a union member with breaching its duty of fair
representation, as bargaining agent, by failing to take his
discharge grievance to arbitration pursuant to the union's
collective-bargaining agreement with the employer. Hold-
ing that the state court action was grounded on Federal
law, the majority analogized the state court action to a suit
for breach of contract, which the plaintiff-employee was
also privileged to bring in a Federal court under Section
301 of the Act, and concluded that, as in a Section 301 suit,
the plaintiff-employee would be required in the state court
action to prove that he was prevented from exhausting his
contractual remedies by the union's breach of its duty of
fair representation in refusing to pursue arbitration.
I find that Respondent's contention that Trowbridge
should be denied a Board adjudication of his charge of
discrimination on account of union activities is based on
an unwarranted extension of the Board's Collyer doctrine.
It is clear that the Board's Collyer policy contemplates that
the aggrieved party would be entitled to a Board adjudica-
tion of the matter in dispute if that grievance was not re-
solved between the parties themselves or promptly submit-
ted to arbitration or other impartial forum.26 Thus, in the
cases where the Board defers, it expressly and uniformly
reserves jurisdiction over the disputed subject matter for
the purpose of entertaining an appropriate and timely mo-
tion for further consideration upon a showing, inter alia,
that the dispute has not with reasonable promptness been
resolved by amicable settlement in the grievance procedure
or submitted promptly to arbitration. Accordingly, the
Board has reasserted jurisdiction and decided the merits of
a dispute where the Respondent-employer declined to pur-
sue arbitration.27
In the present case, the Union, which had the sole au-
24 Collyer Insulated Wire, 192 NLRB 837 ( 1971); see also National Radio
Company, Inc, 198 NLRB 527 (1972)
25 386 U.S. 171 (1967).
26 See , for example, Gabry-Hobart Water Corporation, 210 NLRB 742
(1974), and Medical Manors, Inc, d/b/a Community Convalescent Hospital
206 NLRB 962 (1973).
27 Ibid
thority to invoke arbitration under the contract on behalf
of employees, undeniably refused to process Trowbridge's
discharge to arbitration. In these circumstances, whatever
the Union's motivation, I perceive no statutory policies to
be served in depriving Trowbridge of access to the Board
in order to seek redress for discrimination the Respondent
allegedly practiced against him. By the same token, I find,
contrary to the Respondent's contention, no justification
for conditioning Trowbridge's right to a Board adjudica-
tion of his charged unfair labor practices on proof that the
Union breached its duty of fair representation owing to
him in refusing to bring his discharge to arbitration 28
Whether or not the Union defaulted in its obligation to
Trowbridge, the disposition of that issue could have no
possible effect on the lawfulness or unlawfulness of the
Respondent's conduct in which the Union certainly played
no part. To leave Trowbridge without a Board remedy un-
less he or the General Counsel proved the Union guilty of
unfair representation violative of Section 8(b)(1)(A) of the
Act would, in my opinion, import a new concept of em-
ployer liability for his unfair labor practices. Nor is the
theory of exhaustion of contractual remedies discussed in
the Vaca case, supra, applicable to the present case. As
indicated above, Vaca involved a civil suit for breach of
contract and the right to maintain that action depended on
the exhaustion of remedies prescribed in the contract. The
instant case, of course, involves the vindication of employ-
ee rights guaranteed in Section 7 of the Act and the
Board's power "to prevent any person from engaging in
any unfair labor practice [cannot] be affected by any other
means of adjustment or prevention that has been or may
be established by agreement, law, or otherwise ...." 29
In view of the foregoing and mindful of the fact that
otherwise Trowbridge "will be left without any recourse
through no fault of his own because his case was not pro-
cessed to arbitration in timely fashion by the Union," 30 I
find that effectuation of the purposes of the Act requires
that this case be decided on its merits under the Act.
2. The merits
As indicated above, the General Counsel contends that
Trowbridge was discharged because of his protected stew-
ard activities while the Respondent maintains that the dis-
charge was due solely to his wilful falsification of his em-
ployment application. In resolving this question, two
well-established principles must be borne in mind; one,
that the Act does not prevent an employer from terminat-
ing an employee for any reason-good, bad or indiffer-
ent-provided the employee's union or other concerted
28 Cf The Detroit Edison Company, 206 NLRB 898 (1973), where the
Board refused to defer to arbitration because the union failed to pursue
arbitration after unsuccessfully processing the grievance through the early
steps of the contractual grievance procedure and the Respondent indicated
in its brief to the Board that it would oppose arbitration on the ground of
untimeliness . In deciding to consider the case on its merits, the Board noted
that "deferral to arbitration [would be] equivalent to handing [the employ-
ee-charging party] an 'empty shell ,' and [the employee would] be left with-
out any recourse through no fault of his own because his case was not
processed to arbitration in timely fashion by the Union, all contrary to the
Cofer policy."
2 Sec 10(a) of the Act
30 The Detroit Edison, supra
FIRESTONE STEEL PRODUCTS CO.
activities do not enter into the employer 's decision ; and the
other principle is that the existence of a "justifiable ground
for dismissal is no defense if it is a pretext and not the
moving cause ." 31 From a careful review of the evidence, I
am led to the conclusion that Trowbridge's termination
was unlawfully motivated , if not entirely then at least in
part , and hence violated Section 8(a)(1) and (3) of the Act.
It is admitted that Trowbridge falsified his job applica-
tion by intentionally omitting two of his prior employers,
Revere and Ford Woodhaven, in order not to prejudice his
chances of employment with the Respondent. However,
Trowbridge's employment history hardly appears to have
been too important to the Respondent. Although Trow-
bridge had listed in his application four former employers,
three of whom were his most recent , there is absolutely no
evidence in his personnel file indicating that during his 3-
1/2 months tenure with the Respondent any oral or written
inquiries had been made of these former employers or that,
if inquiries had been directed to them but were unan-
swered , followup letters had been sent . To be sure, the
Respondent's failure to verify Trowbridge's listed employ-
ment history, standing alone , is not enough to supply an
unlawful motive for the discharge . However , other factors
persuade me that the discharge was discriminatory.
There can be little doubt that Trowbridge performed his
steward responsibilities seriously and aggressively, pre-
senting the complaints and grievances of his fellow em-
ployees on Line 440, as well as his own , to his immediate
supervisor , Foreman Hubbard , whose conduct was the fre-
quent subject of these protests . When Trowbridge was un-
able to secure satisfaction of his complaints , he enlisted the
assistance of his chief steward , or other union official, who
discussed the matter with Hubbard , the latter's superior,
General Foreman Fields, or higher management. Un-
doubtedly , because of his activities , Trowbridge incurred
Hubbard's and Fields ' displeasure . Thus , as shown above,
about 2 weeks before Trowbridge 's discharge, Hubbard
told him that he would make it rough for him if he persist-
ed in his activities ; that he did not belong in the plant; and
that he should watch his step . On one occasion in August,
Fields told Union Safety Representative Stafford that ever
since Trowbridge became a union steward he has been a
troublemaker and was leaving his work too much to attend
to union business . In another conversation with Steward
Mink about 4 or 5 days before Trowbridge 's discharge, in
which Fields advised Mink that he had information that
Trowbridge had falsified his job application , Fields com-
mented that Trowbridge was too active a union steward
who complained about petty things ; that he was a trouble-
maker ; and that "they" did not need any more problems in
the plant than they already had. Moreover , it is not without
significance that it was Fields who instigated the investiga-
tion of Trowbridge's undisclosed prior employment by In-
dustrial Relations Manager Wukovits which purportedly
led to Trowbridge 's discharge for falsification of his appli-
cation . Interestingly , there is no explanation how the uni-
dentified employee who made the revelation to Fields of
Trowbridge 's prior employment with Revere should even
J1 N.L R.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8, 1956).
501
be aware that Trowbridge had failed to disclose it in his
application which he had filed 3-1/2 months earlier.
Further suggesting that the assigned reason for
Trowbridge's discharge-his intentional omission of for-
mer employment-is really a pretext is the evidence the
Respondent presented of the three employees whom it had
previously discharged assertedly for falsification of their
job applications. It is undisputed that these individuals
were unsatisfactory employees whom the Respondent
wanted to get rid of and conveniently relied upon their
falsification of their job applications as the official ground
for termination. As discussed above, one of these employ-
ees had violently assaulted an employee; a second was guil-
ty of excessive absenteeism and was a workmen's compen-
sation problem; and the third had a poor attendance
record and bad attitude. In the present case , Trowbridge
concededly did not suffer from any of those shortcomings.
What probably prompted the Respondent's reliance on his
omission of two of his former employers from his job appli-
cation was his steward activities which similarly made him
an unsatisfactory employee. It is true that the Union has
had 50 or more stewards in the plant to service employees
on all shifts and that, in all likelihood, a number of them
have been at least as active as Trowbridge, without being
penalized for their activities. However, this does not neces-
sarily negative an inference of discrimination against
Trowbridge, as the Respondent argues, although under
other circumstances not here present this might well be the
case. Not only is there no evidence that any other steward
was as objectionable to Hubbard and Fields as Trowbridge
was, but the record is barren of any evidence that any
other active steward had falsified his job application or was
otherwise guilty of conduct on which the Respondent
could conveniently have seized as justification to discharge
him.
Finally, the Respondent urges that no finding of improp-
er motivation may be made here because Industrial Rela-
tions Manager Wukovits, who made the discharge deci-
sion, was unaware that Trowbridge was a union steward. I
find it difficult to believe that neither Fields nor Hubbard
would not convey to Wukovits their displeasure with
Trowbridge's repeated employee complaints as steward, es-
pecially since Fields had instigated the investigation of
Trowbridge's former employment. In any event, there is
uncontradicted testimony that before the discharge deci-
sion was reached Steward Mink had discussed with Wuko-
vits Trowbridge's complaints concerning Hubbard's con-
duct. In short, while Wukovits was not shown to harbor
any personal animosity toward Trowbridge, it is not an
extraordinary phenomenon for management to yield to its
supervisors' wishes to terminate an employee objectionable
to them as was the case here.
All things being considered, I find that Trowbridge's dis-
charge was due to his steward activities and that his falsifi-
cation of his employment application was but a pretext to
conceal the true reason. Such conduct clearly constitutes
discrimination in employment to discourage union mem-
bership within the meaning of Section 8(a)(3) of the Act. I
further find that Trowbridge 's steward activities , relating
as they did to terms and conditions of employment, were a
form of concerted activity for mutual aid and protection
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
safeguarded by Section 7 of the Act and that therefore his
termination for such reason independently violated Section
8(a)(1) of the Act. Lastly, even were it assumed that
Trowbridge's intentional omission of two of his former em-
ployers from his job application contributed to some extent
to the Respondent's discharge decision , I find that his pro-
tected union and other concerted activities were a substan-
tial cause of his dismissal and that therefore the same statu-
tory provisions were violated.32
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and like and related conduct and to take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that the Respondent unlawfully dis-
charged employee Trowbridge because of his protected
union and other concerted activities. To remedy this unfair
labor practice, it is recommended that the Respondent of-
fer Trowbridge immediate and full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings he may have suffered by reason of his
unlawful discharge by payment to him of a sum of money
equal to that which he normally would have earned from
September 18, 1973, the date of his discharge, to the date of
the offer of reinstatement, less his net earnings during the
said period. Backpay shall be computed with interest on a
quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). To facili-
tate the computation, as well as to clarify the named
employee's right to reinstatement, the Respondent shall
make available to the Board, upon request, payroll and
other records necessary and appropriate for such purposes.
The posting of a notice is also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Clark Trowbridge to discourage member-
ship in, and activities on behalf of the Union, the Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. By discharging Trowbridge for engaging in protected
concerted activities for mutual aid and protection, the Re-
32 N L. R B. v. Elias Brothers Restaurants, Inc., decided May 24, 1974
(C A 6), 86 LRRM 2650 , 2652; J P Stevens & Co. v. N L R B, 380 F.2d
292, 300 (C A. 2, 1967), cert denied 389 U.S. 1005; N L R B v Jamestown
Sterling Corp, 211 F.2d 725, 726 (C.A 2).
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issued the following recom-
mended:
ORDER33
The Respondent, Firestone Steel Products Company, A
Division of Firestone Tire & Rubber Company, Riverview,
Michigan, its officers, agents , successors and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local Union No. 174,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW) or any other labor orga-
nization , by discharging employees or in any other manner
discriminating against them in regard to their hire or ten-
ure of employment or any term or condition of employ-
ment.
(b) Discharging or otherwise disciplining employees for
engaging in concerted activities for mutual aid or protec-
tion with respect to wages, hours, or other terms and condi-
tions of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights which are guaranteed to them in Section 7 of the
Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Clark Trowbridge immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of his unlawful discharge, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful in analyzing the amount of backpay due and
the right to reinstatement and employment under the terms
of this recommended Order.
(c) Post at its Wyandotte, Michigan, plant, the attached
notice marked "Appendix." 34 Copies of said notice, on
forms provided by the Regional Director for Region 7, af-
ter being duly signed by the Respondent's authorized rep-
resentative, shall be posted by the Respondent immediately
77 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
34 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
FIRESTONE STEEL PRODUCTS CO. 503
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, where no-
tices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the receipt of this Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge any employee or otherwise
discriminate against him because of his membership
in, or activities on behalf of, Local Union No. 174,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), or any other
labor organization.
WE WILL NOT discharge any employee or otherwise
discipline him for engaging in concerted activities for
mutual aid or protection with respect to wages, hours,
and other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights which are guaranteed to them in Section 7
of the Act.
WE WILL offer Clark Trowbridge immediate and full
reinstatement to his former fob, or, if that job no lon-
ger exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of earnings
suffered by reason of his unlawful discharge.
FIRESTONE STEEL PRODUCTS COMPANY, A DIVISION
OF FIRESTONiJIRE & RUBBER COMPANY