The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 723 (N.L.R.B. 1975)

THE FIRESTONE TIRE & RUBBER COMPANY
The Firestone Tire & Rubber Company and Bobby
Gene Meeks. Case 11-CA-5884
September 25, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On March 27, 1975, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel sub-
mitted an answering 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 briefs'
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 the Respondent, The Firestone Tire &
Rubber Company, Wilson, North Carolina, its offi-
cers, agents, successors, and assigns , shall take the
action set forth in the said recommended Order, ex-
cept that the attached notice is substituted for the
Administrative Law Judge' s notice.
i Respondent has requested oral argument on the statistical evidence it
presented regarding the use of panel ratings and references as a basis for
hiring at the plant involved herein. However, we agree with the Administra-
tive Law Judge 's conclusions relative to the evidence presented here. Fur-
thermore, we find the record , exceptions , and briefs adequately present the
positions of the parties , and therefore Respondent 's request for oral argu-
ment is hereby denied.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
APPENDIX
723
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice.
WE WILL NOT deny employment to applicants
because of their activities on behalf of any
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their right to self-organization, to form,
join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed by Sec-
tion 7 of the Act, or to refrain from any and all
such activities.
Since the Board found that we violated the
law when we refused to employ Bobby Meeks,
WE WILL offer him employment upon satisfactory
completion of his prehire physical examination
and, in such event, we will pay him for any loss
of pay he suffered because we did not employ
him earlier.
All of our employees are free to become, remain,
or refrain from becoming or remaining members of
any labor organization.
THE FIRESTONE TIRE & RUBBER COMPANY
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This case
involves allegations that the above-named Respondent vio-
lated Section 8(a)(1) of the Act by engaging in unlawful
interrogation of employees and Section 8(a)(1) and (3) of
the Act by refusing to employ Bobby Gene Meeks, the
Charging Party herein, because of his union activities. The
proceeding was initiated by a charge filed on October 2,
1974,1 which was amended on November 27. Pursuant
thereto complaint issued on December 18 and hearing was
held on January 13 and 14, 1975, in Wilson, North Caroli-
na.
i Unless otherwise indicated all dates hereinafter are in 1974.
220 NLRB No. 111
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Factual Setting
Respondent is a manufacturer of automobile tires in var-
ious States of the United States .2 In the beginning of 1974,
Respondent was in the process of building and staffing a
plant in Wilson , North Carolina , for the manufacture of
tires . Applicants for employment would submit applica-
tions to the North Carolina Employment Security Com-
mission and the commission would notify them when to
report to Respondent for an interview . In the beginning,
applicants would first meet Personnel Representative
James Gandy and he would review the application to make
certain it was correctly and completely filled out and ad-
vise the applicant that he was to be interviewed by a panel
of three departmental managers . After each interview, the
panelists would separately rate the applicant on a scale of I
to 7. Applicants receiving an average or above average rat-
ing would be advised they would hear from the Company
in the near future . In the beginning, such applicants were
scheduled for physical examination immediately after the
panel interview . If they passed that hurdle , their personal
references were then checked . If those were average or
above , applicants were then offered employment as job
openings occurred . After a period of time , precisely when
is not clear , the procedure was varied so that a check of
personal references was made before the physical examina-
tion.
Bobby Gene Meeks was employed for 15 years by Inter-
national Paper Company of Farmville , North Carolina. In
October 1969, he became president of Local 12745, United
Steelworkers of America , AFL-CIO, the labor organiza-
tion which represented the employees of International Pa-
per Company. He occupied that position until September
1973, when International Paper Company closed its plant.
On February 27, Meeks was interviewed for employment
by Respondent and was rated 7-7-7, the highest rating
available .; Meeks did not indicate that he spoke to Gandy
after the interview , but he testified that interviewer John
Keely told him he would hear from them in 7 to 10 days.
When he didn't he arranged a meeting with Gandy on
March 27. Meeks explained the purpose of his visit and
Gandy told him that someone had come by and told him
2 The complaint alleges, the answer admits, and I find that Respondent
meets the Board 's direct inflow and direct outflow standards for the asser-
tion of jurisdiction
Meeks was interviewed and rated by John Keely , Bob Singer , and Gene
Barstow According to Meeks, one Charles Van DenVender was also one of
the panelists Van DenVender could not recall participating in Meeks' inter-
view, Respondent 's records contain no rating of Meeks by Van DenVender,
and it was stipulated Van DenVender was on another panel on February 27
Whether or not Van DenVender was on the panel is unimportant, Meeks
did not attribute any remarks of any significance to him and had no reason
to lie in stating he was one of the panelists . It appears, however, he was
mistaken.
that Meeks was more than a regular member of the Union
at International Paper Company, that Meeks had taken an
active part in the Union there. Gandy said, "We don't
want a third party in this plant." Meeks rejoined that he
didn't either, that he wasn't an organizer and had not
helped vote the Union in at International Paper. He ex-
plained that he had joined the Union only after urging by
the management at International Paper and after his auto-
mobile had been vandalized. Gandy remarked that he be-
lieved him and expressed the view they could work togeth-
er. When Meeks asked where he stood on his application
Gandy told him he'd have to check with Respondent's
home office in Akron, Ohio.
At the end of the meeting, Meeks asked if it would be all
right to speak to Plant Manager Boettner and Gandy told
him yes. Meeks arranged for a meeting with Boettner on
April 2.4 After introducing himself, Meeks explained to
Boettner that he was an applicant for employment and that
it looked like he had a little problem, that what he could
gather from Gandy was that he had a union problem.
Meeks disclaimed any intention of organizing the plant
and explained all he wanted was a job. Boettner told him
he had heard of his application, had heard some talk about
it, and that he appreciated the efforts Meeks was making to
obtain employment with Firestone.
Boettner's version of the meeting differed from Meeks'
in certain respects. First of all, he placed the meeting on
April 16. His appointment calendar confirmed the date
and I find the meeting took place on April 16. The date is
unimportant. In addition, Boettner testified that he assured
Meeks that Respondent had a policy of nondiscrimination.
He testified Meeks promised to do all in his power to keep
a union out of the plant, that he had been contacted by
telephone by an anonymous caller about helping organize
the plant and had told the caller no. Meeks did not deny
receiving assurances from Boettner, but he denied telling
him about an anonymous telephone call, because he
claimed the call occurred after his meeting with Boettner
and that he related the call to Gandy at a meeting thereaf-
ter. I credit Boettner. Meeks was an unreliable witness on
dates, and I can perceive no reason for Boettner to lie on
this point, because Meeks admitted telling Gandy about
the call and expressing a willingness to help keep a union
out of the plant.
According to Meeks, at his meeting with Gandy on
March 27, Gandy had told him to check back once a week
and thereafter Meeks proceeded to do almost that. He test-
ified he spoke to Meeks about his application on April 11
and 25, May 2 and 13, June 1 and 18, July 3, 8, and 18, and
August 1 and 8. During most of this period, Meeks was
working on construction of the plant as an employee of the
contractor Yeargin Construction Company, so it was easy
for him to drop by to see Gandy. There is no dispute about
the frequency of these visits. Gandy did not deny telling
Meeks to check with him with such frequency, and admit-
tedly he did not tell Meeks to stop coming to him.
The meetings all had a basic similarity with Meeks ask-
ing if anything had been heard on his application and Gan-
The transcript indicates the date as April 7, but General Counsel has
moved to correct the transcript to April 2. Respondent has made no objec-
tion The motion is hereby granted.
THE FIRESTONE TIRE & RUBBER COMPANY
dy answering no but assuring Meeks everything would be
all right . At least this much appears not to be in controver-
sy. There is controversy , however, on certain specific mat-
ters , resolution of which is not critical to decision . For ex-
ample, according to Meeks, on April 11 he advised Gandy
he had been offered a job, by Allied Maintenance, and
Gandy told him to forget about it because he felt sure
everything would be all right with his application with Re-
spondent. Gandy could not recall any mention by Meeks
of an offer of a job by Allied Maintenance and denied
advising him not to take it . The record does not support
Meeks' assertion of an offer of a job by Allied Mainte-
nance , and while he may have construed conversations
with a supervisor of Allied Maintenance as an offer and for
this reason reported it to Gandy, on balance , Gandy's testi-
mony on this point is more deserving of credence.
According to Meeks, at a meeting with Gandy on July 3,
Gandy told him he had received word from Respondent's
home office in Akron to handle the situation as they saw fit
and they were going to hire him. Gandy did not expressly
deny the occurrence of this meeting or the remarks attri-
buted to him . He denied offering Meeks a job , but his
denial does not create any issue . It is clear that any hiring
was subject to a satisfactory physical and satisfactory refer-
ences . Nothing in Meeks' testimony suggests that this was
not also true in his case.
It was sometime thereafter that Gandy began to check
Meeks' references. Meeks had given two personal refer-
ences on his application and these were checked by tele-
phone. One was by a Conrad Mayingo, an official of a
local bank . Gandy's notes of his conversation were as fol-
lows:
Close last seven years-Worked at Int. Paper Co.-
Loans with him. Credit good-doesn't mind work-
ing-maybe a quick temper but social habits & family
background good-wouldn't mind hiring-doesn't
mind work. Has been known to fly off handle-Hot
temper-but other traits which would offset this situa-
tion . Honesty unquestionable-man of his word-
In addition to checking personal references, Gandy
checked with Meeks ' former employer , International Pa-
per. As indicated earlier , International Paper had closed its
North Carolina plant and Gandy contacted the former
plant manager , Robert Thompson , in Wiggins, Mississippi.
Thompson would not give a reference over the telephone
and Gandy sent him a form letter requesting a reference.
In responding , Thompson rated Meeks average on all the
criteria listed on Respondent 's form except attitude. As to
attitude , he rated Meeks below average. He entered the
following comments:
Bobby is an aggressive individual with firm convic-
tions . His attitude has been rated below average based
upon his working relationship with supervisors and a
cavilling influence on fellow employees.
Upon receipt of Thompson 's letter , Gandy, his assistant,
Marshall Boykin , Industrial Relations Manager Beaudoin,
and Plant Manager Boettner held a meeting where it was
decided not to offer employment to Meeks . On September
6, Respondent advised Meeks by letter that it could not
offer him employment at that time.
725
B. Analysis and Conclusions
The central issue in this case is Respondent's motive for
not hiring Meeks. Respondent asserts that it did not hire
him because the references he received were below average.
General Counsel contends it was because Meeks had been
president of a union local at his prior place of employment.
I am persuaded that the record as a whole preponderates in
favor of the General Counsel's position.
A threshold question is whether Respondent has in fact
refused to hire Meeks. Respondent asserts it has not; that it
has merely placed him in a temporary reject category
which means that he is eligible for employment at some
indefinite future date when the supply of more qualified or
satisfactory applicants has been exhausted. In my judg-
ment, the distinction which Respondent seeks to make is
meaningless . The record indicates Respondent had a va-
cancy for which it considered and rejected Meeks. Whether
the rejection was permanent or temporary is not control-
ling.
An analysis of Respondent's motive in refusing to em-
ploy Meeks must begin with Respondent's attitude toward
unionization of its Wilson plant. It is clear that Respondent
was opposed to unionization. Respondent was attempting
something new at its Wilson plant. All employees were to
be salaried and the plant would operate on a 7-day rotating
shift basis. As Gandy admitted, while Respondent could
work with a union utilizing this new concept, it would pre-
sent a problem, and he told Meeks, as Meeks testified, that
Respondent did not need a third party. (Similar observa-
tions attributed to other supervisors and allegations of in-
terrogation are discussed below.)
The significant question arising out of Gandy's expres-
sion of animus towards unionization of the plant is how
unionization of the plant and Meeks' presidency of the
union at International Paper became a topic of conversa-
tion between him and Meeks. As noted earlier, according
to Meeks, it was on March 27 that the subject of his union
activities at International Paper first came up and it came
up, because Gandy told him that someone had come by
and told him Meeks was more than a regular member of
the union at International Paper, that he had taken an ac-
tive part in the union there. Thus, if Meeks is credited, it
was Gandy who interjected the subject of his union activi-
ties into the employment process.
Gandy was an impressive witness who appeared honest
and truthful. Meeks was not nearly as impressive; as indi-
cated earlier, he was clearly mistaken on the dates of cer-
tain incidents, and he appeared on occasion to have inter-
polated the remarks made to him and proffered his
interpolations as the statements made to him. Despite these
observations, I cannot credit Gandy about several aspects
of this case. I am persuaded that Gandy was very careful in
his testimony and sought to avoid testifying falsely; howev-
er, he did so by testifying in general terms, or equivocating,
or evading. For example, when asked if he ever brought up
the issue of Meeks being in the Union in any of his meet-
ings with Meeks, he replied "that issue only arose out of
context of what Mr. Meeks was saying." This answer was
not responsive. Gandy could have said yes or no and then
explained if he thought necessary. He did explain his an-
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
swer to add that Meeks stated he was president of the
union at International Ppaer and thereby implied Meeks
volunteered the information, but he never addressed him-
self to the specific assertion of Meeks. In effect, Gandy did
not contradict Meeks' testimony about how the subject of
the Union came up on March 27 and I accept Meeks' ver-
sion as essentially accurate.'
According to Meeks, at his April 25 meeting with Gan-
dy, Gandy asked him if he had had any contact with the
local union since leaving International Paper. Meeks told
him no and told him of the anonymous telephone call de-
scribed earlier. Gandy did not expressly deny this conver-
sation (in fact, he admitted to three conversations about
unions with Meeks) and I credit Meeks.
What significance is there to Gandy's inquiries on the
two occasions just described? They show an inordinate in-
terest in Meeks' past union activities which must be
weighed in deciding why Respondent decided not to em-
ploy him. In my judgment, they also explained
Respondent's delay in processing Meeks' application. It is
undisputed that after Meeks' interview and outstanding
rating nothing was done about his application and that one
reason for delay was that Respondent sought legal advice
from its home office. It is not clear precisely when it was
decided to seek legal advice, but as I understand Boettner's
testimony the decision to do so was prompted by Meeks'
seeking him out on April 16 and expressing fears of being
discriminated against, and by his volunteering to work
against unionization of the plant. Assuming, arguendo, this
behavior was out of the ordinary, what legal advice were
Boettner and Gandy seeking? Since Meeks had received an
outstanding rating, there was no question then of denying
him employment and thereby fulfilling Meeks' fears and
provoking an unfair labor practice charge. Moreover, ac-
cording to Boettner, it is Respondent's corporate policy not
to discriminate for any reason prohibited by law including
union membership .6 Guided by this policy, Boettner
should have needed no advice other than what he asserted-
ly received at a later date, namely, to treat Meeks like all
other applicants. An interesting observation on this point,
which General Counsel makes, is that if Boettner's and
Gandy's concern was provoked by Meeks' behavior, why
would Gandy tell Meeks about seeking advice from Ak-
ron? Under Respondent's reasoning, Meeks should have
been the last person it would have wanted to know about
its asking legal advice in regard to handling his application.
In my judgment, the record supports the inference that,
after they learned of Meeks' past union activities, Boettner
and Gandy wanted to know whether they could refuse to
hire him. Since he had received the highest rating accorded
5 There is corroboration of a sort of Meeks' version that Gandy told him
that someone had come by and told him Meeks was more than a regular
member of the union at International Paper . Employed at the plant site by
Allied Maintenance was one Phillip Harrison , another former employee of
International Paper , whose name Meeks had given to Gandy as a reference.
Gandy admitted contacting Harrison and that Harrison told him Meeks
was president of the Union. This was precisely what Meeks testified Gandy
confronted him with on March 27.
6 But see The Dayton Tire & Rubber Company, a Division of Firestone Tire
& Rubber Company, 216 NLRB No. 173 (1975), 207 NLRB 624 (1973), and
206 NLRB 614 (1973); Firestone Textile Company, a Division of Firestone
Tire & Rubber Company, 203 NLRB 89 (1973).
any applicant, the inquiry could only have been caused by
the fact that Meeks had been president of the union at
International Paper. I base this judgment on the fact that it
was Gandy who brought up the subject of Meeks' past
union activities. It was he who gave cause for concern to
Meeks so that Meeks asked to see Boettner and there was
no basis for Boettner and Gandy to believe Meeks was
setting them up because he asked to speak to Boettner and
expressed a willingness to oppose unionization.
Meeks' frequent visits to Gandy were adverted to as
though they explained Respondent's exceptional treatment
of Meeks' application. Of course, as of the date Respon-
dent decided to seek legal advice Meeks had only made
three visits since his interview (March 27 and April 11 and
16). Apart from that, Meeks' visits either as of April 16 or
any time thereafter could hardly be reviewed with suspi-
cion inasmuch as it is undenied that Gandy told Meeks to
check with him every week or so. Respondent appears to
suggest that there was something sinister in Meeks' fre-
quent visits because he was being considered for employ-
ment in the tuber or calendaring department in which em-
ployment was not scheduled to start until sometime in
August, and Gandy was "positive somewhere along the
line I indicated to him that he would be given due consid-
eration sometime in August of this year.... " Assuming
that to be the case, what did that have to do with pro-
cessing his application? The record indicates that it was
Respondent's practice to build up a pool of qualified appli-
cants in advance of an actual requisition. This was referred
to by tuber department Manager John Keely as an O.K.
file. Keely selected an applicant from the O.K. file for the
tuber department in June and hired him on June 28.
Meeks' name was not in that file because his application
had not yet been processed. In my judgment, the delay in
processing Meeks' application cannot be attributed to the
late start-up of the tuber department.
Another explanation offered for not processing Meeks'
application is the fact that he was employed by the con-
tractor building the plant and Respondent had assertedly
assured the contractor it would not hire away its employ-
ees. This reason was never given to Meeks although he was
allegedly making a nuisance of himself. Apart from that,
the explanation stands in the same footing as the one about
late start-up in the tuber department. It might explain not
offering a job; it does not explain the delay in processing.
In short, it is clear as Meeks in effect testified in describ-
ing his July 3 conversation with Gandy that Meeks' appli-
cation was not processed until after July 3, because Re-
spondent had requested legal advice on his application.
Putting aside the question of delay (even though it prevent-
ed Meeks' application from being in the O.K. file in June
when Keely was looking for someone) one might argue
that a finding of discrimination is negated by the fact that
Gandy was instructed to treat Meeks like everyone else
and to process his application.
Meeks' application was processed thereafter, but the
manner in which it was processed is itself proof that the
decision ultimately made not to offer him employment was
unlawfully motivated. As noted, Respondent contacted
personal references listed by Meeks on his application and
one of these (Mayingo) described him as having a quick
THE FIRESTONE TIRE & RUBBER COMPANY 727
temper . While Respondent asserts that this reflected ad-
versely on Meeks, I cannot believe that this reference car-
ried any significant weight with its officials . Mayingo had
not been an employer of Meeks and knew little , if any-
thing, about his work capabilities, and whatever prompted
him to attribute a quick temper to Meeks , he nevertheless
indicated he wouldn't mind hiring him. Mayingo's refer-
ence was favorable . (If Meeks had a quick temper, he did
not show it by his extreme patience and persistence to ob-
tain employment from Respondent.) Respondent's own
conduct in going to great lengths to obtain a reference
from Robert Thompson , former plant manager at Interna-
tional Paper , is an indication that it did not regard
Mayingo's reference as sufficient to justify it in rejecting
Meeks' application.
Insofar as Thompson 's reference is concerned, I am per-
suaded that Respondent 's reliance on it was a pretext to
avoid hiring a former union official . I form this judgment
for several reasons . In the first place, of all the applicants
who were formerly employed by International Paper, only
in Meeks' case was a reference obtained from the plant
manager . Meeks' immediate supervisor was not contacted,
nor is there any showing of an attempt to do so. There is no
satisfactory explanation for this exceptional treatment. Re-
spondent asserts that it is not its practice to contact the
immediate supervisor of an applicant ; rather, its practice is
to obtain information from the personnel department of
the applicant's former employer. This is understandable
when the former employer is still in operation and has a
personnel department in operation . But where the plant is
closed one would expect a variance from the practice. Ac-
tually, Respondent did vary its practice; it contacted a
plant manager , not a personnel manager or department.
Respondent asserts Thompson was the only individual
they had been able to locate. Query: What did Respondent
do in the case of all the other applicants formerly em-
ployed by International Paper? In any event , assuming
Thompson was the only source Respondent could locate,
Thompson could have told Respondent where the person-
nel records were kept because he indicated in his written
reply that the personnel records were in Mobile, Alabama.
Apparently, neither Gandy nor his assistant asked. While
Thompson might understandably refuse to give a reference
by telephone , it seems reasonable to assume that , if asked,
he would have told Gandy or Boykin where the personnel
records were kept and there would have been no need to
pursue the matter of a reference from Thompson . It is clear
that Respondent chose to deal with Thompson and, after
receiving his reply, Respondent made no further reference
checks.
It may be argued that in Respondent's judgment, in view
of Thompson's remarks, there was no need to pursue the
matter further . In different circumstances , one might be
persuaded by such an argument. In the circumstances of
this case, such an argument would be unpersuasive. The
record indicates clearly that Thompson was in no position
to rate Meeks' job performance because he had no oppor-
tunity to observe him. Thompson was manager of a plant
with about 215 employees and he was not Meeks' supervi-
sor. He did not have the personnel records. On what basis,
then, could he rate Meeks? Respondent's officials had to
know this. (If there was any question about Thomspon's
lack of knowledge of Meeks as an employee, it was an-
swered by the rating he gave Meeks for attendance.
Thompson rated as average an attendance record of one
absence in 15 years!)
Experience in labor relations teaches that the officers of
the union in contractual relationship with an employer, in
particular the union president, are the ones who come into
contact with higher levels of management and that normal-
ly they do so in the processing of grievances. It is evident
that Thompson's deprecatory remarks about Meeks were
based on experiences with Meeks in his capacity as union
president. The phrases "aggressive individual with firm
convictions" and "a cavilling influence on fellow employ-
ees" are none too subtle references to Meeks' attitude in his
capacity as union president and not to his work attitude. I
cannot believe that Respondent's officials, experienced in
labor relations, were blind to the meaning of Thompson's
remarks. It appears that Gandy placed the remarks in
proper perspective because he recommended that Meeks
be hired.? (Thompson had also indicated that Meeks was
eligible for rehire.)
Respondent asserts that Meeks' references were below
average. Of course, there is a substantial degree of subjec-
tivity in denominating references as either average, above
average , or below average. When Gandy was asked for the
first time whether Meeks' references were above average,
average , or below average, he answered, "I would say aver-
age." It was only after what I would call prompting by
counsel that Gandy said the references were "below aver-
age" and "mediocre." Gandy's first answer was consistent
with his recommendation.
The question arises: Why were Meeks' references evalu-
ated by four officials of Respondent, including the plant
'manager. Meeks was under consideration for a rank-and-
file production job. Admittedly, Respondent entrusted the
decision to select applicants for such jobs to its personnel
department (Gandy or his assistant, Boykin). Why, then,
was Meeks given special treatment? The explanation given
is that Respondent feared Meeks would prefer charges
against it if he were not employed. This explanation would
enjoy some plausibility if Gandy had been told to consult
with Boettner before rejecting Meeks; it makes no sense
when Gandy was recommending Meeks be hired. The fact
of the matter is that Meeks' application received extraordi-
nary treatment from the day Respondent learned he was
union president at International Paper until the day it was
decided to reject him. At the very moment of decision, the
fact of his union presidency was discussed. The conclusion
is inescapable that this factor was the cause of his being
shown a below average rating.8
In short, I conclude that under all the circumstances,
including the outstanding rating given Meeks by
7 Gandy was equivocal on this point, but it is clear from Boettner's and
Boykin's testimony that Gandy was recommending that Meeks be hired.
General Counsel points out that there was no rule which precluded
Respondent from hiring an applicant with below average references as
shown by the fact Respondent hired one such applicant who had only been
rated 5 by the Respondent's interviewers Boettner explained this as an act
of compassion and I am loathe to make any finding which would dry up the
well of compassion.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's interviewers , Respondent 's expressed opposi-
tion to dealing with a third party, the delay in processing
Meeks' application, the exceptional manner in which it was
processed by obtaining references from the plant manager
of International Paper only in Meeks' case and subjecting
Meeks' reference to evaluation by a committee of four offi-
cials, and the fact that the individual most responsible for
selecting applicants for employment rated Meeks' refer-
ences as average and recommended his hiring , the decision
not to employ Meeks was based on unlawful consider-
ations , namely , his activities as union president at Interna-
tional Paper.
In reaching the foregoing conclusion, I have considered
the testimony of Professor David Peterson and his statisti-
cal analysis of Respondent's employment practices at Wil-
son, North Carolina. This evidence is entitled to no weight,
because the data supplied to Professor Peterson by Re-
spondent was meaningless and bore no relevance to alleged
discrimination against an applicant whose union back-
ground consisted of being a former union president.
I have also considered the evidence that Respondent has
utilized as instructors at the Wilson plant employees from
its Akron, Ohio, plant who are members of the United
Rubber Workers Union. In my view, this fact is entitled to
little weight. Union membership alone does not signify
anything. Many union members are such because of union-
security agreements, and even when that is not the case,
their membership is no indication of their ardor. In this
connection, there is the admission by Meeks that he ex-
pressed to both Gandy and Boettner a willingness to work
with them to keep the Wilson plant unorganized and the
testimony of Gandy and Boettner that they believed he
meant it. I do not believe them. Their behavior throughout
the processing of Meeks' application as described above
belies their assertion.
Finally, there is the question of animus. In my judgment,
there is sufficient animus in Gandy's expression of opposi-
tion to dealing with a third party.9 Apart from that, it is not
9 The complaint, as amended , alleges interrogation on April 16 by an
unknown supervisor and by Supervisor Matt Parisi The allegations are
based on conduct alleged to have occurred during the panel interviews of
applicants Benny Vines and Clinton Faison on April 16 . Both were former
employees of International Paper and unsuccessful applicants for employ-
ment by Respondent . In addition , testimony was adduced from unsuccess-
ful applicant Kenneth Barrett about interrogation during his interview
which was not alleged as violative of Sec 8(a)(l) of the Act because it was
barred by Sec. 10(b) of the Act I am not detailing the testimony of these
three witnesses because I do not credit them . Their testimony had one com-
mon thread , namely, inquiries about the union at International Paper and
about Bobby Meeks and what kind of a guy he was. Parisi denied the
remarks attributed to him and other interviewers denied any form of unlaw-
ful interrogation Deciding who to credit in connection with this aspect of
the case has been exceedingly difficult Concededly, some applicants were
asked why International Paper closed and it seems to me that it takes only
a short step to go from there to inquiries about the applicant's union senti-
ments. Where I was forced to draw the line was where the witnesses testified
they were asked about Bobby Meeks . I have found that Respondent showed
an inordinate interest in Meeks' past union activities at International Paper,
but that was by Gandy who was processing Meeks' application Parisi, who
is alleged to have inquired about Meeks, had no part in the processing of
Meeks' application . Why would he ask about Meeks? How would he even
know about Meeks9 Conceivably , he and other interviewers could have
been advised by Gandy or Boettner and instructed to ask about Meeks
when they interviewed applicants formerly employed at International Pa-
essential to a finding of discrimination that there be evi-
dence of animus.10 The ultimate question is why did Re-
spondent refuse to employ Meeks. On the basis of the rec-
ord as a whole, that question must be answered: because of
his past union activities.
11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section I,
above, occurring in connection with its operations de-
scribed therein, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
III. THE REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
As I have found that Respondent refused to employ
Bobby Meeks because of his past union activities, I shall
recommend that Respondent be ordered to offer him em-
ployment to the position for which he would have been
employed but for the discrimination against him on the
condition, however, that Meeks comply with Respondent's
preemployment medical requirements. In the event he does
so, I shall recommend that he be made whole for any loss
of earnings he may have suffered by reason of
Respondent's unlawful denial of employment by payment
to him of a sum of money equal to that which he normally
would have earned as wages from the date Respondent
hired its first tuber and calendaring department operator
(about June 28) to the date of employment, less net earn-
ings, to which shall be added interest at the rate of 6 per-
cent per annum in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
This backpay period is predicated on the evidence that
Meeks had received 7-7-7 ratings, had been slated for em-
ployment in the tuber department from the date of his in-
terview, and Keely's testimony which indicates that when
he needed his first operator in that department he checked
on Meeks' application and discovered he was not in the
O.K. file, a condition created by Respondent's unlawful
delay in processing his application. While there is a possi-
bility that Meeks would not have been offered the first job
it is equally likely that he would have and any doubt in the
matter is to be resolved against the wrongdoer. Moreover, I
realize that about June 28 Meeks was still employed by
Yeargin Construction, and if Respondent's contention that
it had agreed not to hire employees away from Yeargin
Construction was accepted, Meeks would not have been
available until about August 8; however, I reject that con-
tention because the existence of such a policy was never
per. I simply cannot believe this and, therefore , I do not credit General
Counsel's witnesses
10 See Terry Industries of Virginia, Inc, 164 NLRB 872, 874 (1967), enfd
403 F 2d 633 (C A 4, 1968)
THE FIRESTONE TIRE & RUBBER COMPANY 729
told-to Meeks, nor was it ever announced in any fashion.
The only proof of its existence is Respondent's testimonial
assertions in this case. I give no credence to them.
CONCLUSIONS OF LAW
1. The Firestone Tire & Rubber Company is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 12745 of the United Steelworkers of America,
AFL-CIO, was, at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By denying employment to Bobby Meeks, because of
his past union activities , Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
4. General Counsel has failed to establish by a prepon-
derance of evidence that Respondent engaged in interroga-
tion of employees in violation of Section 8(a)(1) 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, I hereby issue the following recommended:
ORDER II
Respondent, The Firestone Tire & Rubber Company,
Wilson, North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, any labor organization of its employees, by denying
employment to applicants because of their past activities
on behalf of a labor organization, or otherwise discriminat-
ing in regard to the hire or tenure of employment or any
terms or conditions of employment of its employees.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
11 In the event no exceptions are filed as provided by Sec 10246 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.
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as; guaranteed by Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Bobby Meeks employment to the position for
which he would have been employed but for the discrim-
ination against him, provided that Meeks meets the
Respondent's preemployment medical requirements, and,
in such event, make him whole for any loss of pay he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to the amount
he normally would have earned as wages from the date
Respondent hired its first tuber and calendaring depart-
ment operator to the date of his employment in the manner
set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rele-
vant and necessary to a determination of the amounts of
backpay due under the terms of this recommended Order.
(c) Post at its Wilson, North Carolina, plant, copies of
the attached notice marked "Appendix." I Copies of said
notice on forms provided by the Regional Director for Re-
gion 11, after being duly signed by the Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint found not to have been sustained by a prepon-
derance of the evidence be dismissed.
12 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading, "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."