Firestone Tire & Rubber Co.

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