Firestone Tire & Rubber Co.

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