Goodyear Tire and Rubber Co.

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goodyear Tire and Rubber Company and Herbert Nedd. Case 29-CA-2489 June 16, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On March 9, 1972, Trial Examiner George Turitz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed cross- exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Goodyear Tire and Rubber Com- pany, Akron, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TuRITz, Trial Examiner : Upon a charge filed by Herbert Nedd on August 12, 1971, and served that day on r The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3). We have carefully examined the record and find no basis for reversing his findings 2 In affirming the Trial Examiner's conclusions, we find that Nedd was the most active adherent of the Union among Respondent's employees 197 NLRB No. 110 Goodyear Tire and Rubber Company ("Respondent" and, at times, "the Company"), the General Counsel of the National Labor Relations Board ("the Board"), through the Regional Director for Region 29, on October 29, 1971, issued a complaint and notice of hearing which was duly served on Respondent. Respondent filed its answer in which it denied all allegations of unfair labor practices. A hearing on the complaint was held before me in Brooklyn, New York, on January 5, 1972, at which the General Counsel and Respondent were represented by their respective counsel . The General Counsel and Respondent have submitted briefs. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, Goodyear Tire and Rubber Company, is an Ohio corporation having its principal office, place of business, and plant in Akron, Ohio, and various other places of business in various States of the United States, including a retail store located in the town of Lawrence, County of Nassau, State of New York ("the Lawrence store"), where it is engaged in the manufacture, sale, and distribution of automobile and truck tires and related products. In the course and conduct of its operations, Respondent annually sells and ships from its Akron plant directly to its customers located in foreign countries and in States of the United States other than the State of Ohio products valued at in excess of $50,000; it annually purchases and causes to be transported and delivered to its Akron plant, directly from foreign countries and States of the United States other than Ohio, goods and materials valued at in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended ("the Act"). II. THE LABOR ORGANIZATION INVOLVED Local 518, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union") is, and at all times material has been; a labor organization within the meaning of Section 2(5) of the Act. based on Nedd's uncontradicted and credited testimony that he alone arranged for the Union to commence organizing among Respondent's employees, he spoke in favor of unionization and encouraged the other men to support the Union at a meeting held on February 25 which was attended by five of the approximately six unit employees, he was the shop steward as well as the Union observer at the May 14 Board election, and after consultation with the Union he single-handedly instigated the 1-day work stoppage among Respondent's employees and was the employees' only spokesman during the stoppage GOODYEAR TIRE AND RUBBER CO. 667 III. THE UNFAIR LABOR PRACTICES The issue litigated at the hearing was whether Herbert Nedd, the Charging Party, was discharged because he had falsified his employment application or because he had led a 1-day stoppage and engaged in other union activities. A. Nedd's Employment History with Respondent In about the middle of January 1967, Respondent hired Nedd as a full-time mechanic in its Englewood, New Jersey, store.' He was interviewed by Jack Velzy, then assistant district retail manager,' and by Smothersgill, manager of the Englewood store. During the previous 1 or 2 years, he had worked for Respondent part-time in various New Jersey stores in the New York metropolitan area. On November 1, 1967, with the cooperation of Kelly Marsh, then manager of the service department in Respondent's Jamaica store, he was transferred to the latter establishment. Marsh and Nedd apparently became friendly. About a month after his transfer, Nedd told Marsh that some of the men were stealing company property and he suggested that Marsh talk to them. He explained to Marsh that he did not want to become involved in something like what had happened on his last job, one with Sears Roebuck-and Company, where he had been accused of stealing an oil filter and had been arrested and discharged. He told Marsh that he had not taken the filter and that the criminal charges against him had been dropped. Marsh did not report this information to his superiors. Nedd's employment application, under a heading in large, heavy, type, reading, "ACCOUNT FOR ALL YOUR TIME REGARDLESS OF HOW SPENT," called for a listing of employers, with dates of employment and, among other things, "reason for leaving job-explain." Nedd named as his "present or last employer" Shea Chevrolet and gave as dates from September 1965 to December 1966. Two previous jobs were listed, one held from January 1959 to August 1965, and the other from July 1957 to December 1959. The reason for leaving was stated in each case to be "more money." Nedd's employment with Sears from 1962 to about 1966 was omitted. The application had been filled out by J. R. Shea, the credit manager, who also witnessed Nedd's signature. The difference in the two handwritings is obvious. Nedd testified that he informed Velzy of the Sears incident when he was interviewed. Velzy, understandably, had no recollection of the interview and therefore could not contradict Nedd. However, Nedd's testimony as to his hiring was unconvincing. He did not describe his inteiview by Smothergill, the store manager, or his conversation with Shea, who filled out and witnessed his application; 2 his account of Velzy's interview was sketchy and included nothing about any employment other than with Sears. It seems improbable that Velzy would have hired Nedd so readily in the face of the Sears incident without carefully inquiring about his other employment. Velzy, it will be recalled, did not have Nedd's application before him. Nor did Nedd explain why, if he did disclose the Sears incident, he deliberately concealed that employment on his applica- tion. I find that the General Counsel has failed to establish that Nedd, prior to his hire, informed Velzy or any other representative of Respondent of the circumstances of his discharge by Sears. About February 1, 1968, Marsh was promoted to store manager of another store. Before he left the Jamacia store, he discussed with Nedd the question of Nedd becoming service manager, but Nedd said he was not interested. In about November 1970, Marsh returned to the Jamacia store as store manager . That store was then plagued by an inordinate amount of stealing and even burglary, and Respondent suspected that its own personnel were in- volved. On January 21, 1971, Respondent opened a new store in Lawrence, Long Island. It was staffed at least to some extent by personnel from the Jamacia store, which was permanently closed. Among those transferred were Marsh, who became manager of the Lawrence store, and Nedd, who was still a mechanic. Shanley, the assistant district retail manager, testified that there was nothing which led him to believe that Nedd had been involved in the stealing and that before learning of the Sears episode he considered Nedd a good employee. At the time of his discharge, Nedd's monthly earnings came to about $1,000. B. The Special Personal Progress Report on Nedd Meanwhile, in late December 1970, Richard Bowman, Respondent's regional personnel manager, had requested of Retail Credit Company a "special personal progress" report on every person working at the Jamacia store, with "special attention" to be given to matters bearing on inventory shortage and on the finances and any new purchases of the person investigated. In early January, Retail Credit Company submitted a report on Nedd. According to the report, neighbors stated that Nedd lived in a quiet, modest manner, spending his leisure time with his family and friends in "normal leisure time activities" and that he was cooperative with neighbors and was well-liked and "regarded as a personable individual". It also stated that there was no evidence of any tendency to splurge or to extravagance in living, nor of any financial drain through family illness, gambling, heavy indebtedness, or otherwise. The report included the following, referring to Nedd's employment with Sears: He was released, however, on 4-21-65 due to a violation of company policy and he would not be eligible for rehire on this basis. Upon further question- ing of company officials and contacting the proper management sources, it was eventually learned from thorough questioning that the reason for his dismissal was due to stealing. He had been kept under surveil- lance by a security guard and he was caught on 4-21-65 with a $2.50 item and was discharged. He was apprehended by the Union City Police Department, charged with petty larceny and was in jail overnight and then released. Management sources, however, felt that he had stolen a much greater amount of merchan- I While Nedd's employment application was dated January 31, 1967, he contradicted testified that he had already been working as a full-time employee about 2 2 Nedd did testify that he did not tell Shea about the Sears job at that or 3 weeks when he executed it, and this testimony was not effectively time. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dise than this single item, however, they were unable to prove anything outside the $2.50 item with which he was finally caught. Police records were checked in that vicinity and the following information obtained: Herbert Nedd of 135 Richards St., Brooklyn, N.Y., date of birth 7-24-37 was arrested on 4-21-65 and charged with grand larceny. On 4-23-65 the case was sent to the Grand Jury and on 11-15-65 he was given No Bill from the Grand Jury and released ... . C. Respondent's Reaction to the Report The report reached Bowman3 between January 10 and 15, 1971,4 and on January 26 he caused it to be stamped "Disapproved." He forwarded one copy to Shanley, the assistant district retail manager, and kept one copy in his own office. The report reached Shanley in late January or early February. Respondent's procedure required that, upon receiving a report marked "disapproved," Shanley terminate the man or explain why not. Nedd was not discharged and he was not told of the adverse report. Shanley first testified that the only call he received from Bowman specifically relating to Nedd was on August 6, instructing him to discharge Nedd. His recollection refreshed, he stated that Bowman had earlier informed him of the adverse report on Nedd and had told him to "sit tight" at that time. He f.:ed the time of that call as 4 to 6 weeks after instituting the credit check, adding, "It could be into February." Later in his testimony, he would not commit himself as to the date, stating that he could not even affirm or deny that it was in January or February. He also testified: When I got this one in, I don't remember exactly what I did with it; probably called Bowman, I think, and discussed it with him. He was unable to explain why he did not discharge Nedd promptly. He testified: I believe I attempted to call Sears. But when, I don't remember the exact date. And I didn't get any information on the telephone. They don't give any out on the phone. s s s s I didn't check into it as quickly perhaps as I could. I maybe sat on it a little too long. There was a period of time when I first got it, that I made an attempt to do a little checking and I did not, and it could have been a couple of weeks, and I am not sure the period of time involved between when I got this, and then a phone call with Mr. Bowman that told me to sit tight on it, not to take any action on it. 3 As regional personnel manager, Bowman was responsible for about 7,000 employees. 4 Unless otherwise stated, all dates mentioned in this Decision from this point forward were in 1971 5 On March 30, the Union filed a petition for certification in Case Bowman's testimony as to his course of action in connection with his receipt of the report and its dispatch to Shanley was as follows: He was surprised to learn that the Company had hired a man with an arrest record. He stated: "This is one of those things that initially I tried to do a little research on, as to why an employee like this would have been employed. Unfortunately the people that did it, the store manager, was no longer with the Company." The next thing that happened after he sent the report to Shanley was that in April, as part of his routine examination of all adverse reports each calendar quarter, one of his secretaries placed the Nedd report on his desk. By that time the Union's petition had been filed and Respondent had already been the subject of charges filed with the Board in conjunction with that circumstance based on the discharge of certain other employees.5 Lacking complete confidence in the correctness of all Board decisions in cases of alleged discrimination, he instructed Shanley, ". . . that in view of the situation at this store, of a union [petition] . . . for an election, the fact that there were already two unfair labor practices filed in conjunction with this, why muddy up the water any more." Bowman's testimony continued: In July the report on Nedd was once more routinely placed on his desk. Struck by the fact that Nedd was still employed after 6 months, he reread the report with a view of possibly reevaluating it. This time he was bothered by the statement in the report that the Sears management felt that he had stolen a much greater amount of merchandise than the oil filter. To aid him in his reevaluation, he got out Nedd's card showing his previous employment as disclosed by his application. Noting that no employment with Sears was mentioned, he called that firm and verified that Nedd had indeed worked there and now he realized for the first time that Nedd's application was probably inaccurate . He telephoned the Akron office, which informed him that the application did not list Sears, whereupon, he immediately notified Shanley that if what he then believed turned out to be true, Nedd would have to be discharged. He ordered a photocopy of the application, which he received on August 5 or 6. With firsthand evidence before him that Nedd had not listed Sears as a previous employer, he called Shanley and instructed him to release Nedd. Shanley asked, "What reason shall I give him?" Bowman replied, "Tell him he is being released for falsification of his hire application." Bowman stated that, except for the fact that he knew that only one vote had been cast against the Union in the election, he had no knowledge regarding any union activity by Nedd. Bowman also testified that company practice was as follows: Where there has been a falsification of an employment application "of major type" which appears to be intended to cover up "adverse activity," the Company would release the individual automatically. Where it is learned prior to employment that an applicant has been released by a former employer as not eligible for rehire because of violation of the former employer's policy, but 29-RC-1074 Pursuant to stipulation, an election was held on May 14, with Nedd as the Union's observer The Union won by a vote of 4 to I and I vote was challenged , the Union was certified on May 24. Respondent recognized the Union. The charges referred to by Bowman were dismissed poor to the hearing, but the record does not disclose when. GOODYEAR TIRE AND RUBBER CO. the assistant district retail manager nevertheless recom- mends hire, Bowman would investigate the facts and make a judgment based upon the total picture as to whether to hire the person. D. The Stoppage; Respondent's Knowledge of Nedd's Activities On a Saturday in July, the employees, numbering five or six, did not report for work but picketed the Lawrence store. Weldon, the service manager,6 saw Nedd reprove an employee who was entering the shop and said to Nedd, "You ought to cut that nonsense out." Marsh, the store manager, observed Nedd appeal, with some success, to customers not to patronize the store.? Marsh telephoned to Shanley and reported that all the men were on strike. He summoned Nedd and put him on the telephone. Shanley asked Nedd what the strike was about. Nedd replied, "We don't have a contract." The following Monday, the men came to the shop but neither picketed nor worked. Shanley again called and Marsh again had Nedd speak to him. Shanley again asked Nedd what it was about, and Nedd repeated what he had said on Saturday. Shanley then said, "Well, I will speak to Mr. Bowman and get the contract going ; will you go back to work in good faith?" Nedd agreed and the men returned to work. Shanley did speak to Bowman that day. He told him about the walkout and requested him to ascertain the current status of the contract. Bowman testified that he was the one who made the decision to discharge Nedd and that he had no knowledge at the time of Nedd's union activities. As Nedd had acted as union observer in the Board election on May 14, he necessarily stood out among the employees as a leader, more probably the leader, in their union activity. On the day of the stake, he was observed by both the store manager and the service manager being agressively active on the picket line. That he was recognized by Respondent's representatives on the spot as the leader and the spokes- man of the employees was demonstrated when Marsh, the store manager, selected him to speak to Shanley; and Shanley and Nedd made an agreement that Shanley would talk to Bowman "and get the contract going" and the men would go back to work. The men did go back and Shanley did speak to Bowman. I do not credit Bowman's denial that he knew of Nedd's union activities and I infer that he was aware that Nedd was acting as leader and spokesman of the employees in the stoppage. E. Nedd's Discharge On Sunday, August 8, Marsh appeared at Nedd's house at about 8 o'clock in the morning and told Nedd that he 9 The service manager was in charge of the shop . He scheduled jobs, assigned work to the employees , telling them what to do, and on occasion discussed jobs with the men The store manager conferred with the service manager about the men under him. r My findings as to what Marsh and Weldon observed of Nedd 's picket line activities are based on testimony of Nedd which was not denied. 8 Nedd and his wife testified, and Marsh denied, that Marsh also said, "But you know as well as I do that it is because of the Union [but] if this come up again, I would have to deny everything " There is no evidence that Marsh had been consulted about Nedd's discharge. For that reason his 669 had been discharged because he had falsified his employ- ment application by omitting something about his past employment. Nedd said, "Discharged? You're kidding." He summoned his wife and asked Marsh to repeat what he had said, which Marsh did. The three sat in silence for at least 3 minutes and Nedd's wife then left. Nedd then said that he "was not going for this" and would show up for work on Monday.8 That same day, Marsh reported to Shanley on his visit to Nedd and told Shanley that Nedd was upset and would be coming in to work on Monday. Nedd did show up on Monday and he changed into his work clothes. Shanley came and the three went to a nearby restaurant where Nedd gave a lengthy explanation of the Sears episode and his application. Shanley promised to discuss the matter with Bowman and let Nedd know the result later that week, but he instructed him not to go to work. Nedd commented, "If I had not been involved in the Union activity . . . this would not have happened." Shanley replied that that was not true. The following Thursday, Shanley telephoned Nedd and told him that his discharge stood. On August 18, Bowman met with Semano, a union representative, in connection with the negotiation of a contract. Shanley and Nedd were also present. During the meeting, the subject of Nedd's discharge was raised and the Union requested his reinstatement, but it was refused. Nedd asked Bowman why he had been fired. Bowman replied that the bonding company refused to bond him. Nedd asked for the name of the bonding company and Bowman said he could not give the information then but that Nedd should call him later. Nedd did so on August 20 and Bowman referred him to Retail Credit Company.9 Nedd contacted that company and learned that it was not a bonding company but only checked credit, and Nedd learned for the first time of the adverse report which had been furnished to Respondent. He was referred back to Respondent with reference to the bonding problem, but he did not pursue the matter. Concluding Findings Nedd worked for Respondent full time for 4 1/2 years. He was considered a good employee; his store manager even considered him good material for service department manager; and at the time of his discharge he was earmng about $1,000 a month. In the middle of January 1971, in the course of an investigation to ascertain the identity of employees who had been stealing merchandise from the Company, Bowman learned that in 1965 Nedd had been arrested for larceny of merchandise from a former employer, Sears, and had been jailed overnight. On January 26, on the basis of that 1965 incident, he sent statement of opinion that it had been caused by Nedd's union activities, while arguably an unfair labor practice, would not be persuasive that that had been the actual cause As the complaint does not allege that the remark by itself constituted a violation of the Act, and it was not litigated as an independently coercive statement, it is unnecessary to resolve the question of whether Marsh made the remark. 9 These findings as to Bowman telling Nedd that a bonding company refused to bond him are based upon Nedd's testimony, which neither Shanley nor Bowman denied. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions to Shanley to discharge Nedd or explain why not. This was before there was any union activity in the store. Nedd was not discharged. In July, the employees engaged in a 1-day stoppage to prod Respondent in its negotiations with the Union and Nedd, who had been the Union's observer in the May 14 election, was now known by Bowman to be the employees' leader and spokesman in the stoppage. On August 6, Bowman again directed that he be discharged. This time the stated basis was different, namely his failure in 1967 to disclose the 1965 incident in his application, and no qualification was attached to the direction. This final action was taken against Nedd without giving him an opportunity to defend himself with respect to the Sears incident or to explain his employment application, which was not in his own handwriting. The foregoing facts constitute a prima fade case of discrimina- tion and, if not refuted or explained, would establish a violation of Section, 8(a)(1) ands (3) of'the Act. Respondent contends that Bowman's January 26 disap- proval of Nedd's continued employment was not carried out by "lower supervision," and it concludes, "It must be apparent that Mr. Shanley goofed in not terminating Mr. Nedd in late January or early February, 1971. " The implication of Respondent's argument is that Bowman had nothing to do with the Nedd matter between January 27 and a day in April when his "tickler" system brought the report on Nedd back to his desk; Bowman, in effect, so testified.10 However, Shanley contradicted Bowman. His testimony supports the conclusion that Bowman was in direct communication with him about Nedd during the period immediately after January 26. He testified that he received the report in late January or early February; that when he received it, he "probably" discussed it with Bowman; and that he received Bowman's instruction to "sit tight" on the report 4 to 6 weeks after institution of the credit check, which meant late January or early February. It is true that subsequently Shanley refused to commit himself as to the time of that instruction; but he also first testified that the only call he received from Bowman specifically relating to Nedd was on August 6. Shanley impressed me as an evasive witness. While I do not credit his later testimony that he could not fix the time of his first talks with Bowman, or his testimony that what Bowman told him 4 to 6 weeks after instituting the credit check was to "sit tight," his testimony as a whole convinces me that he and Bowman discussed Nedd and the Sears episode in late January or early February. This conclusion is supported also by the surrounding circumstances. The report stemmed directly out of the problem of the stealing of merchandise by Jamaica employees, and Bowman testified that he himself had ordered the check on the entire personnel of that store. The report on Nedd included exactly the kind of information with which Bowman was concerned, namely, stealing merchandise from an employer, and he promptly marked it to Referring to the tickler-caused appearance of the report on his desk in April, Bowman did say, "I called Shanley and we discussed again this report . " The "again" was either inadvertent or it refutes Respondent's contention, as well as Bowman's own testimony , that the April tickler action was "what happened next" after he sent the report to Shanley. ii 1 make no finding as to whether Nedd stole the oil filter, since that "Disapproved." He testified that he was surprised to learn that a man with an arrest record had been hired and that he himself made some immediate effort to learn why but was unsuccessful. It seems improbable that a personnel director, even one responsible for 7,000 employees, would, in such circumstances, simply buck a report like that off to Shanley and forget about it for 3 months. This is especially true in the case of Bowman, who impressed me as a forceful, alert individual. I do not credit Bowman's testimony that he did not communicate with Shanley about Nedd between January 27 and April, and I find that in late January or early February he and Shanley discussed the report, including Bowman's instruction to discharge Nedd or explain why not. Shanley and Bowman have not disclosed the substance of the discussion between them which I have found took place. However, the record contains telling evidence of what they decided; they retained Nedd. At that time Nedd had been a full-time employee for 4 years. Respondent valued him for his competence and he earned about $1,000 a month. No claim is made that Respondent felt that any taint was attached to him in connection with the rampant stealing at the Jamaica store to which he had been exposed; Shanley admitted that prior to seeing the report he considered Nedd a good employee. The Retail Credit Company's report as to Nedd's spending and living habits and his financial situation was favorable. Between Respon- dent's own experience with the man and the positive aspects of the report, Bowman and Shanley had before them ample ground to feel, if they were so disposed, that Nedd had outgrown the kind of conduct he was accused of at Sears and was an employee worth holding on to.11 The record thus establishes that Bowman directed Nedd's discharge in the absence of an explanation; that Bowman and Shanley then discussed the matter; that facts were known to them which would cause many employers to feel that, notwithstanding the 1965 episode at Sears, Nedd was a worthwhile employee; and that Nedd was not discharged. I reject Respondent's contention that Nedd's continued employment at that time was the result of a "goof" by Shanley in failing to carry out Bowman's instructions. The most reasonable inference is that, upon weighing Nedd's more recent history against the Sears episode, Bowman was satisfied that Nedd was a valuable employee and he decided that Respondent's policy called for his retention, and I so find. In view of this finding, I also reject Respondent's contention that in April Bowman held off implementing his decision to get rid of Nedd because of the pending representation petition and apprehension of another unfair labor practice charge. I do not credit Bowman's testimony to this effect. Having decided in late January or early February, in the absence of any union activity, to retain Nedd notwith- standing the Sears episode, Bowman decided in July to question was not litigated The report, which was objected to by the General Counsel, was not adautted as evidence of the truth of its contents, but only as a document which could have been a factor in motivating the Respondent. However, Bowman could not be said to have been acting unreasonably when, for the purpose of deciding whether to retain Nedd, he assumed his probable untrustworthiness on the basis of the report GOODYEAR TIRE AND RUBBER CO. 671 discharge him. This decision followed closely upon Nedd's leadership of the July stoppage. Respondent contends that the stoppage had nothing to do with the decision, that in July Bowman discovered for the first time that Nedd had falsified his application, and that such falsification, under established company policy, called for his automatic dismissal. There is a degree of improbability in Bowman's testimony to the effect that in January, while he was wondering how Respondent had come to hire a man with a record of having been arrested for stealing from a former employer, it did not occur to him that Nedd might have concealed the former employment when applying to Respondent for the job. I recognize that that could happen, I also recognize that a reasonable employer might have a policy that a history of stealing merchandise from a former employer could be lived down by an exemplary record for 4 years, but that falsification of an employment application as to the same history could not. However, the only evidence offered by Respondent to support these conten- tions was Bowman's say-so. I have already found that he attempted to keep from me the significant fact that he and Shanley had discussed the report on Nedd in late January or early February and had decided that Nedd was a worthwhile employee in spite of his earlier transgression, and I have not credited his denial of knowledge of Nedd's leadership in the stoppage. I do not credit his uncorrobo- rated testimony as to these other matters either. Moreover, I note that at the negotiating session on August 18 Bowman gave a different reason for having discharged Nedd which was false, i.e., that a bonding company had refused bond. Upon consideration of the entire record, I have conclud- ed that Nedd's discharge was not caused by any discovery of his falsified application, but by his union activity, especially his leadership in the July work stoppage, and that Respondent utilized the falsified application as a pretext to justify what in fact was a discriminatory discharge. I find that by discharging Nedd Respondent violated Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth above in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and to take certain affirmative action which will effectuate the policies of the Act. 12 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. It is recommended that Respondent reinstate Herbert Nedd to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and that he be made whole for any loss of earnings suffered by reason of the discrimination against him. The amount of backpay shall be a sum of money equal to what he would have earned from August 9, 1971, to the date of Respondent's offer of reinstatement, less his net earnings during said period, computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, to be computed in the manner described in his Plumbing & Heating Co., 138 NLRB 716. It is recommended also that Respondent preserve and, upon request, make available to the Board and its agents for examination and copying all payroll, time, work, and other records to facilitate the computation of backpay. Upon the basis of the foregoing findings of fact and of the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Goodyear Tire and Rubber Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. Local 518, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily discharging Herbert Nedd, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 12 ORDER Respondent, Goodyear Tire and Rubber Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating against them because they engaged in work stoppages, strikes, or other concerted activity on behalf of Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, or because they engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection. 102.48 of the Rules and Regulations, automatically become the findings, conclusions, decision, and Order of the Board, and all objections thereto shall be deemed waived for all purposes. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Herbert Nedd immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Herbert Nedd whole for any loss of earnings suffered as a result of the discrimination against him in the manner described in section V of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, work records, time records, production records, and all other data necessary to analyze and compute the backpay required by this Order. (d) Notify Herbert Nedd, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its office and place of. business in Lawrence, New York, copies of the notice attached hereto marked "Appendix." 13 Copies of the notice, on forms provided by the Regional Director for Region 29, shall, after being signed by a representative of Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director for Region 29, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.14 13 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of a United States Court of Appeals enforcing an Order of the National Labor Relations Board " 14 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify said Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL reinstate Herbert Nedd to his former job and pay him backpay which he lost as provided in the Board Order. WE WILL NOT discharge employees or discriminate against them in any other manner because theyjoin or assist International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America or any other labor organization, or because they engage in work stoppages or strikes, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except insofar as these rights might be affected by a contract with a labor organization, if validly made in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. GOODYEAR TIRE AND RUBBER COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3750.