The Firestone Tire & Rubber Co.

THE FIRESTONE TIRE & RUBBER COMPANY The Firestone Tire & Rubber Company and Bobby Gene Meeks. Case 11-CA-5884 September 25, 1975 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On March 27, 1975, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel sub- mitted an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The Firestone Tire & Rubber Company, Wilson, North Carolina, its offi- cers, agents, successors, and assigns , shall take the action set forth in the said recommended Order, ex- cept that the attached notice is substituted for the Administrative Law Judge's notice. i Respondent has requested oral argument on the statistical evidence it presented regarding the use of panel ratings and references as a basis for hiring at the plant involved herein. However, we agree with the Administra- tive Law Judge's conclusions relative to the evidence presented here. Fur- thermore, we find the record , exceptions, and briefs adequately present the positions of the parties, and therefore Respondent's request for oral argu- ment is hereby denied. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. APPENDIX 723 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. WE WILL NOT deny employment to applicants because of their activities on behalf of any union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Sec- tion 7 of the Act, or to refrain from any and all such activities. Since the Board found that we violated the law when we refused to employ Bobby Meeks, WE WILL offer him employment upon satisfactory completion of his prehire physical examination and, in such event, we will pay him for any loss of pay he suffered because we did not employ him earlier. All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. THE FIRESTONE TIRE & RUBBER COMPANY DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This case involves allegations that the above-named Respondent vio- lated Section 8(a)(1) of the Act by engaging in unlawful interrogation of employees and Section 8(a)(1) and (3) of the Act by refusing to employ Bobby Gene Meeks, the Charging Party herein, because of his union activities. The proceeding was initiated by a charge filed on October 2, 1974,1 which was amended on November 27. Pursuant thereto complaint issued on December 18 and hearing was held on January 13 and 14, 1975, in Wilson, North Caroli- na. i Unless otherwise indicated all dates hereinafter are in 1974. 220 NLRB No. 111 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Factual Setting Respondent is a manufacturer of automobile tires in var- ious States of the United States .2 In the beginning of 1974, Respondent was in the process of building and staffing a plant in Wilson, North Carolina, for the manufacture of tires. Applicants for employment would submit applica- tions to the North Carolina Employment Security Com- mission and the commission would notify them when to report to Respondent for an interview . In the beginning, applicants would first meet Personnel Representative James Gandy and he would review the application to make certain it was correctly and completely filled out and ad- vise the applicant that he was to be interviewed by a panel of three departmental managers. After each interview, the panelists would separately rate the applicant on a scale of I to 7. Applicants receiving an average or above average rat- ing would be advised they would hear from the Company in the near future . In the beginning, such applicants were scheduled for physical examination immediately after the panel interview. If they passed that hurdle , their personal references were then checked . If those were average or above, applicants were then offered employment as job openings occurred . After a period of time , precisely when is not clear, the procedure was varied so that a check of personal references was made before the physical examina- tion. Bobby Gene Meeks was employed for 15 years by Inter- national Paper Company of Farmville , North Carolina. In October 1969, he became president of Local 12745, United Steelworkers of America, AFL-CIO, the labor organiza- tion which represented the employees of International Pa- per Company. He occupied that position until September 1973, when International Paper Company closed its plant. On February 27, Meeks was interviewed for employment by Respondent and was rated 7-7-7, the highest rating available.; Meeks did not indicate that he spoke to Gandy after the interview, but he testified that interviewer John Keely told him he would hear from them in 7 to 10 days. When he didn't he arranged a meeting with Gandy on March 27. Meeks explained the purpose of his visit and Gandy told him that someone had come by and told him 2 The complaint alleges, the answer admits, and I find that Respondent meets the Board's direct inflow and direct outflow standards for the asser- tion of jurisdiction Meeks was interviewed and rated by John Keely , Bob Singer, and Gene Barstow According to Meeks, one Charles Van DenVender was also one of the panelists Van DenVender could not recall participating in Meeks' inter- view, Respondent's records contain no rating of Meeks by Van DenVender, and it was stipulated Van DenVender was on another panel on February 27 Whether or not Van DenVender was on the panel is unimportant, Meeks did not attribute any remarks of any significance to him and had no reason to lie in stating he was one of the panelists . It appears, however, he was mistaken. that Meeks was more than a regular member of the Union at International Paper Company, that Meeks had taken an active part in the Union there. Gandy said, "We don't want a third party in this plant." Meeks rejoined that he didn't either, that he wasn't an organizer and had not helped vote the Union in at International Paper. He ex- plained that he had joined the Union only after urging by the management at International Paper and after his auto- mobile had been vandalized. Gandy remarked that he be- lieved him and expressed the view they could work togeth- er. When Meeks asked where he stood on his application Gandy told him he'd have to check with Respondent's home office in Akron, Ohio. At the end of the meeting, Meeks asked if it would be all right to speak to Plant Manager Boettner and Gandy told him yes. Meeks arranged for a meeting with Boettner on April 2.4 After introducing himself, Meeks explained to Boettner that he was an applicant for employment and that it looked like he had a little problem, that what he could gather from Gandy was that he had a union problem. Meeks disclaimed any intention of organizing the plant and explained all he wanted was a job. Boettner told him he had heard of his application, had heard some talk about it, and that he appreciated the efforts Meeks was making to obtain employment with Firestone. Boettner's version of the meeting differed from Meeks' in certain respects. First of all, he placed the meeting on April 16. His appointment calendar confirmed the date and I find the meeting took place on April 16. The date is unimportant. In addition, Boettner testified that he assured Meeks that Respondent had a policy of nondiscrimination. He testified Meeks promised to do all in his power to keep a union out of the plant, that he had been contacted by telephone by an anonymous caller about helping organize the plant and had told the caller no. Meeks did not deny receiving assurances from Boettner, but he denied telling him about an anonymous telephone call, because he claimed the call occurred after his meeting with Boettner and that he related the call to Gandy at a meeting thereaf- ter. I credit Boettner. Meeks was an unreliable witness on dates, and I can perceive no reason for Boettner to lie on this point, because Meeks admitted telling Gandy about the call and expressing a willingness to help keep a union out of the plant. According to Meeks, at his meeting with Gandy on March 27, Gandy had told him to check back once a week and thereafter Meeks proceeded to do almost that. He test- ified he spoke to Meeks about his application on April 11 and 25, May 2 and 13, June 1 and 18, July 3, 8, and 18, and August 1 and 8. During most of this period, Meeks was working on construction of the plant as an employee of the contractor Yeargin Construction Company, so it was easy for him to drop by to see Gandy. There is no dispute about the frequency of these visits. Gandy did not deny telling Meeks to check with him with such frequency, and admit- tedly he did not tell Meeks to stop coming to him. The meetings all had a basic similarity with Meeks ask- ing if anything had been heard on his application and Gan- The transcript indicates the date as April 7, but General Counsel has moved to correct the transcript to April 2. Respondent has made no objec- tion The motion is hereby granted. THE FIRESTONE TIRE & RUBBER COMPANY dy answering no but assuring Meeks everything would be all right. At least this much appears not to be in controver- sy. There is controversy, however, on certain specific mat- ters, resolution of which is not critical to decision . For ex- ample, according to Meeks, on April 11 he advised Gandy he had been offered a job, by Allied Maintenance, and Gandy told him to forget about it because he felt sure everything would be all right with his application with Re- spondent. Gandy could not recall any mention by Meeks of an offer of a job by Allied Maintenance and denied advising him not to take it. The record does not support Meeks' assertion of an offer of a job by Allied Mainte- nance, and while he may have construed conversations with a supervisor of Allied Maintenance as an offer and for this reason reported it to Gandy, on balance, Gandy's testi- mony on this point is more deserving of credence. According to Meeks, at a meeting with Gandy on July 3, Gandy told him he had received word from Respondent's home office in Akron to handle the situation as they saw fit and they were going to hire him. Gandy did not expressly deny the occurrence of this meeting or the remarks attri- buted to him . He denied offering Meeks a job , but his denial does not create any issue. It is clear that any hiring was subject to a satisfactory physical and satisfactory refer- ences. Nothing in Meeks' testimony suggests that this was not also true in his case. It was sometime thereafter that Gandy began to check Meeks' references. Meeks had given two personal refer- ences on his application and these were checked by tele- phone. One was by a Conrad Mayingo, an official of a local bank. Gandy's notes of his conversation were as fol- lows: Close last seven years-Worked at Int. Paper Co.- Loans with him. Credit good-doesn't mind work- ing-maybe a quick temper but social habits & family background good-wouldn't mind hiring-doesn't mind work. Has been known to fly off handle-Hot temper-but other traits which would offset this situa- tion. Honesty unquestionable-man of his word- In addition to checking personal references, Gandy checked with Meeks' former employer, International Pa- per. As indicated earlier, International Paper had closed its North Carolina plant and Gandy contacted the former plant manager, Robert Thompson, in Wiggins, Mississippi. Thompson would not give a reference over the telephone and Gandy sent him a form letter requesting a reference. In responding, Thompson rated Meeks average on all the criteria listed on Respondent's form except attitude. As to attitude, he rated Meeks below average. He entered the following comments: Bobby is an aggressive individual with firm convic- tions. His attitude has been rated below average based upon his working relationship with supervisors and a cavilling influence on fellow employees. Upon receipt of Thompson's letter, Gandy, his assistant, Marshall Boykin , Industrial Relations Manager Beaudoin, and Plant Manager Boettner held a meeting where it was decided not to offer employment to Meeks . On September 6, Respondent advised Meeks by letter that it could not offer him employment at that time. 725 B. Analysis and Conclusions The central issue in this case is Respondent's motive for not hiring Meeks. Respondent asserts that it did not hire him because the references he received were below average. General Counsel contends it was because Meeks had been president of a union local at his prior place of employment. I am persuaded that the record as a whole preponderates in favor of the General Counsel's position. A threshold question is whether Respondent has in fact refused to hire Meeks. Respondent asserts it has not; that it has merely placed him in a temporary reject category which means that he is eligible for employment at some indefinite future date when the supply of more qualified or satisfactory applicants has been exhausted. In my judg- ment, the distinction which Respondent seeks to make is meaningless. The record indicates Respondent had a va- cancy for which it considered and rejected Meeks. Whether the rejection was permanent or temporary is not control- ling. An analysis of Respondent's motive in refusing to em- ploy Meeks must begin with Respondent's attitude toward unionization of its Wilson plant. It is clear that Respondent was opposed to unionization. Respondent was attempting something new at its Wilson plant. All employees were to be salaried and the plant would operate on a 7-day rotating shift basis. As Gandy admitted, while Respondent could work with a union utilizing this new concept, it would pre- sent a problem, and he told Meeks, as Meeks testified, that Respondent did not need a third party. (Similar observa- tions attributed to other supervisors and allegations of in- terrogation are discussed below.) The significant question arising out of Gandy's expres- sion of animus towards unionization of the plant is how unionization of the plant and Meeks' presidency of the union at International Paper became a topic of conversa- tion between him and Meeks. As noted earlier, according to Meeks, it was on March 27 that the subject of his union activities at International Paper first came up and it came up, because Gandy told him that someone had come by and told him Meeks was more than a regular member of the union at International Paper, that he had taken an ac- tive part in the union there. Thus, if Meeks is credited, it was Gandy who interjected the subject of his union activi- ties into the employment process. Gandy was an impressive witness who appeared honest and truthful. Meeks was not nearly as impressive; as indi- cated earlier, he was clearly mistaken on the dates of cer- tain incidents, and he appeared on occasion to have inter- polated the remarks made to him and proffered his interpolations as the statements made to him. Despite these observations, I cannot credit Gandy about several aspects of this case. I am persuaded that Gandy was very careful in his testimony and sought to avoid testifying falsely; howev- er, he did so by testifying in general terms, or equivocating, or evading. For example, when asked if he ever brought up the issue of Meeks being in the Union in any of his meet- ings with Meeks, he replied "that issue only arose out of context of what Mr. Meeks was saying." This answer was not responsive. Gandy could have said yes or no and then explained if he thought necessary. He did explain his an- 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD swer to add that Meeks stated he was president of the union at International Ppaer and thereby implied Meeks volunteered the information, but he never addressed him- self to the specific assertion of Meeks. In effect, Gandy did not contradict Meeks' testimony about how the subject of the Union came up on March 27 and I accept Meeks' ver- sion as essentially accurate.' According to Meeks, at his April 25 meeting with Gan- dy, Gandy asked him if he had had any contact with the local union since leaving International Paper. Meeks told him no and told him of the anonymous telephone call de- scribed earlier. Gandy did not expressly deny this conver- sation (in fact, he admitted to three conversations about unions with Meeks) and I credit Meeks. What significance is there to Gandy's inquiries on the two occasions just described? They show an inordinate in- terest in Meeks' past union activities which must be weighed in deciding why Respondent decided not to em- ploy him. In my judgment, they also explained Respondent's delay in processing Meeks' application. It is undisputed that after Meeks' interview and outstanding rating nothing was done about his application and that one reason for delay was that Respondent sought legal advice from its home office. It is not clear precisely when it was decided to seek legal advice, but as I understand Boettner's testimony the decision to do so was prompted by Meeks' seeking him out on April 16 and expressing fears of being discriminated against, and by his volunteering to work against unionization of the plant. Assuming, arguendo, this behavior was out of the ordinary, what legal advice were Boettner and Gandy seeking? Since Meeks had received an outstanding rating, there was no question then of denying him employment and thereby fulfilling Meeks' fears and provoking an unfair labor practice charge. Moreover, ac- cording to Boettner, it is Respondent's corporate policy not to discriminate for any reason prohibited by law including union membership .6 Guided by this policy, Boettner should have needed no advice other than what he asserted- ly received at a later date, namely, to treat Meeks like all other applicants. An interesting observation on this point, which General Counsel makes, is that if Boettner's and Gandy's concern was provoked by Meeks' behavior, why would Gandy tell Meeks about seeking advice from Ak- ron? Under Respondent's reasoning, Meeks should have been the last person it would have wanted to know about its asking legal advice in regard to handling his application. In my judgment, the record supports the inference that, after they learned of Meeks' past union activities, Boettner and Gandy wanted to know whether they could refuse to hire him. Since he had received the highest rating accorded 5 There is corroboration of a sort of Meeks' version that Gandy told him that someone had come by and told him Meeks was more than a regular member of the union at International Paper . Employed at the plant site by Allied Maintenance was one Phillip Harrison , another former employee of International Paper, whose name Meeks had given to Gandy as a reference. Gandy admitted contacting Harrison and that Harrison told him Meeks was president of the Union. This was precisely what Meeks testified Gandy confronted him with on March 27. 6 But see The Dayton Tire & Rubber Company, a Division of Firestone Tire & Rubber Company, 216 NLRB No. 173 (1975), 207 NLRB 624 (1973), and 206 NLRB 614 (1973); Firestone Textile Company, a Division of Firestone Tire & Rubber Company, 203 NLRB 89 (1973). any applicant, the inquiry could only have been caused by the fact that Meeks had been president of the union at International Paper. I base this judgment on the fact that it was Gandy who brought up the subject of Meeks' past union activities. It was he who gave cause for concern to Meeks so that Meeks asked to see Boettner and there was no basis for Boettner and Gandy to believe Meeks was setting them up because he asked to speak to Boettner and expressed a willingness to oppose unionization. Meeks' frequent visits to Gandy were adverted to as though they explained Respondent's exceptional treatment of Meeks' application. Of course, as of the date Respon- dent decided to seek legal advice Meeks had only made three visits since his interview (March 27 and April 11 and 16). Apart from that, Meeks' visits either as of April 16 or any time thereafter could hardly be reviewed with suspi- cion inasmuch as it is undenied that Gandy told Meeks to check with him every week or so. Respondent appears to suggest that there was something sinister in Meeks' fre- quent visits because he was being considered for employ- ment in the tuber or calendaring department in which em- ployment was not scheduled to start until sometime in August, and Gandy was "positive somewhere along the line I indicated to him that he would be given due consid- eration sometime in August of this year.... " Assuming that to be the case, what did that have to do with pro- cessing his application? The record indicates that it was Respondent's practice to build up a pool of qualified appli- cants in advance of an actual requisition. This was referred to by tuber department Manager John Keely as an O.K. file. Keely selected an applicant from the O.K. file for the tuber department in June and hired him on June 28. Meeks' name was not in that file because his application had not yet been processed. In my judgment, the delay in processing Meeks' application cannot be attributed to the late start-up of the tuber department. Another explanation offered for not processing Meeks' application is the fact that he was employed by the con- tractor building the plant and Respondent had assertedly assured the contractor it would not hire away its employ- ees. This reason was never given to Meeks although he was allegedly making a nuisance of himself. Apart from that, the explanation stands in the same footing as the one about late start-up in the tuber department. It might explain not offering a job; it does not explain the delay in processing. In short, it is clear as Meeks in effect testified in describ- ing his July 3 conversation with Gandy that Meeks' appli- cation was not processed until after July 3, because Re- spondent had requested legal advice on his application. Putting aside the question of delay (even though it prevent- ed Meeks' application from being in the O.K. file in June when Keely was looking for someone) one might argue that a finding of discrimination is negated by the fact that Gandy was instructed to treat Meeks like everyone else and to process his application. Meeks' application was processed thereafter, but the manner in which it was processed is itself proof that the decision ultimately made not to offer him employment was unlawfully motivated. As noted, Respondent contacted personal references listed by Meeks on his application and one of these (Mayingo) described him as having a quick THE FIRESTONE TIRE & RUBBER COMPANY 727 temper. While Respondent asserts that this reflected ad- versely on Meeks, I cannot believe that this reference car- ried any significant weight with its officials. Mayingo had not been an employer of Meeks and knew little , if any- thing, about his work capabilities, and whatever prompted him to attribute a quick temper to Meeks , he nevertheless indicated he wouldn't mind hiring him. Mayingo's refer- ence was favorable. (If Meeks had a quick temper, he did not show it by his extreme patience and persistence to ob- tain employment from Respondent.) Respondent's own conduct in going to great lengths to obtain a reference from Robert Thompson, former plant manager at Interna- tional Paper, is an indication that it did not regard Mayingo's reference as sufficient to justify it in rejecting Meeks' application. Insofar as Thompson's reference is concerned, I am per- suaded that Respondent's reliance on it was a pretext to avoid hiring a former union official . I form this judgment for several reasons . In the first place, of all the applicants who were formerly employed by International Paper, only in Meeks' case was a reference obtained from the plant manager. Meeks' immediate supervisor was not contacted, nor is there any showing of an attempt to do so. There is no satisfactory explanation for this exceptional treatment. Re- spondent asserts that it is not its practice to contact the immediate supervisor of an applicant ; rather, its practice is to obtain information from the personnel department of the applicant's former employer. This is understandable when the former employer is still in operation and has a personnel department in operation . But where the plant is closed one would expect a variance from the practice. Ac- tually, Respondent did vary its practice; it contacted a plant manager, not a personnel manager or department. Respondent asserts Thompson was the only individual they had been able to locate. Query: What did Respondent do in the case of all the other applicants formerly em- ployed by International Paper? In any event, assuming Thompson was the only source Respondent could locate, Thompson could have told Respondent where the person- nel records were kept because he indicated in his written reply that the personnel records were in Mobile, Alabama. Apparently, neither Gandy nor his assistant asked. While Thompson might understandably refuse to give a reference by telephone, it seems reasonable to assume that , if asked, he would have told Gandy or Boykin where the personnel records were kept and there would have been no need to pursue the matter of a reference from Thompson . It is clear that Respondent chose to deal with Thompson and, after receiving his reply, Respondent made no further reference checks. It may be argued that in Respondent's judgment, in view of Thompson's remarks, there was no need to pursue the matter further. In different circumstances , one might be persuaded by such an argument. In the circumstances of this case, such an argument would be unpersuasive. The record indicates clearly that Thompson was in no position to rate Meeks' job performance because he had no oppor- tunity to observe him. Thompson was manager of a plant with about 215 employees and he was not Meeks' supervi- sor. He did not have the personnel records. On what basis, then, could he rate Meeks? Respondent's officials had to know this. (If there was any question about Thomspon's lack of knowledge of Meeks as an employee, it was an- swered by the rating he gave Meeks for attendance. Thompson rated as average an attendance record of one absence in 15 years!) Experience in labor relations teaches that the officers of the union in contractual relationship with an employer, in particular the union president, are the ones who come into contact with higher levels of management and that normal- ly they do so in the processing of grievances. It is evident that Thompson's deprecatory remarks about Meeks were based on experiences with Meeks in his capacity as union president. The phrases "aggressive individual with firm convictions" and "a cavilling influence on fellow employ- ees" are none too subtle references to Meeks' attitude in his capacity as union president and not to his work attitude. I cannot believe that Respondent's officials, experienced in labor relations, were blind to the meaning of Thompson's remarks. It appears that Gandy placed the remarks in proper perspective because he recommended that Meeks be hired.? (Thompson had also indicated that Meeks was eligible for rehire.) Respondent asserts that Meeks' references were below average. Of course, there is a substantial degree of subjec- tivity in denominating references as either average, above average, or below average. When Gandy was asked for the first time whether Meeks' references were above average, average, or below average, he answered, "I would say aver- age." It was only after what I would call prompting by counsel that Gandy said the references were "below aver- age" and "mediocre." Gandy's first answer was consistent with his recommendation. The question arises: Why were Meeks' references evalu- ated by four officials of Respondent, including the plant 'manager. Meeks was under consideration for a rank-and- file production job. Admittedly, Respondent entrusted the decision to select applicants for such jobs to its personnel department (Gandy or his assistant, Boykin). Why, then, was Meeks given special treatment? The explanation given is that Respondent feared Meeks would prefer charges against it if he were not employed. This explanation would enjoy some plausibility if Gandy had been told to consult with Boettner before rejecting Meeks; it makes no sense when Gandy was recommending Meeks be hired. The fact of the matter is that Meeks' application received extraordi- nary treatment from the day Respondent learned he was union president at International Paper until the day it was decided to reject him. At the very moment of decision, the fact of his union presidency was discussed. The conclusion is inescapable that this factor was the cause of his being shown a below average rating.8 In short, I conclude that under all the circumstances, including the outstanding rating given Meeks by 7 Gandy was equivocal on this point, but it is clear from Boettner's and Boykin's testimony that Gandy was recommending that Meeks be hired. General Counsel points out that there was no rule which precluded Respondent from hiring an applicant with below average references as shown by the fact Respondent hired one such applicant who had only been rated 5 by the Respondent's interviewers Boettner explained this as an act of compassion and I am loathe to make any finding which would dry up the well of compassion. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's interviewers, Respondent's expressed opposi- tion to dealing with a third party, the delay in processing Meeks' application, the exceptional manner in which it was processed by obtaining references from the plant manager of International Paper only in Meeks' case and subjecting Meeks' reference to evaluation by a committee of four offi- cials, and the fact that the individual most responsible for selecting applicants for employment rated Meeks' refer- ences as average and recommended his hiring , the decision not to employ Meeks was based on unlawful consider- ations, namely, his activities as union president at Interna- tional Paper. In reaching the foregoing conclusion, I have considered the testimony of Professor David Peterson and his statisti- cal analysis of Respondent's employment practices at Wil- son, North Carolina. This evidence is entitled to no weight, because the data supplied to Professor Peterson by Re- spondent was meaningless and bore no relevance to alleged discrimination against an applicant whose union back- ground consisted of being a former union president. I have also considered the evidence that Respondent has utilized as instructors at the Wilson plant employees from its Akron, Ohio, plant who are members of the United Rubber Workers Union. In my view, this fact is entitled to little weight. Union membership alone does not signify anything. Many union members are such because of union- security agreements, and even when that is not the case, their membership is no indication of their ardor. In this connection, there is the admission by Meeks that he ex- pressed to both Gandy and Boettner a willingness to work with them to keep the Wilson plant unorganized and the testimony of Gandy and Boettner that they believed he meant it. I do not believe them. Their behavior throughout the processing of Meeks' application as described above belies their assertion. Finally, there is the question of animus. In my judgment, there is sufficient animus in Gandy's expression of opposi- tion to dealing with a third party.9 Apart from that, it is not 9 The complaint, as amended, alleges interrogation on April 16 by an unknown supervisor and by Supervisor Matt Parisi The allegations are based on conduct alleged to have occurred during the panel interviews of applicants Benny Vines and Clinton Faison on April 16. Both were former employees of International Paper and unsuccessful applicants for employ- ment by Respondent . In addition , testimony was adduced from unsuccess- ful applicant Kenneth Barrett about interrogation during his interview which was not alleged as violative of Sec 8(a)(l) of the Act because it was barred by Sec. 10(b) of the Act I am not detailing the testimony of these three witnesses because I do not credit them . Their testimony had one com- mon thread , namely, inquiries about the union at International Paper and about Bobby Meeks and what kind of a guy he was. Parisi denied the remarks attributed to him and other interviewers denied any form of unlaw- ful interrogation Deciding who to credit in connection with this aspect of the case has been exceedingly difficult Concededly, some applicants were asked why International Paper closed and it seems to me that it takes only a short step to go from there to inquiries about the applicant's union senti- ments. Where I was forced to draw the line was where the witnesses testified they were asked about Bobby Meeks . I have found that Respondent showed an inordinate interest in Meeks' past union activities at International Paper, but that was by Gandy who was processing Meeks' application Parisi, who is alleged to have inquired about Meeks, had no part in the processing of Meeks' application . Why would he ask about Meeks? How would he even know about Meeks9 Conceivably, he and other interviewers could have been advised by Gandy or Boettner and instructed to ask about Meeks when they interviewed applicants formerly employed at International Pa- essential to a finding of discrimination that there be evi- dence of animus.10 The ultimate question is why did Re- spondent refuse to employ Meeks. On the basis of the rec- ord as a whole, that question must be answered: because of his past union activities. 11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with its operations de- scribed therein, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. III. THE REMEDY Having found that the Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent refused to employ Bobby Meeks because of his past union activities, I shall recommend that Respondent be ordered to offer him em- ployment to the position for which he would have been employed but for the discrimination against him on the condition, however, that Meeks comply with Respondent's preemployment medical requirements. In the event he does so, I shall recommend that he be made whole for any loss of earnings he may have suffered by reason of Respondent's unlawful denial of employment by payment to him of a sum of money equal to that which he normally would have earned as wages from the date Respondent hired its first tuber and calendaring department operator (about June 28) to the date of employment, less net earn- ings, to which shall be added interest at the rate of 6 per- cent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). This backpay period is predicated on the evidence that Meeks had received 7-7-7 ratings, had been slated for em- ployment in the tuber department from the date of his in- terview, and Keely's testimony which indicates that when he needed his first operator in that department he checked on Meeks' application and discovered he was not in the O.K. file, a condition created by Respondent's unlawful delay in processing his application. While there is a possi- bility that Meeks would not have been offered the first job it is equally likely that he would have and any doubt in the matter is to be resolved against the wrongdoer. Moreover, I realize that about June 28 Meeks was still employed by Yeargin Construction, and if Respondent's contention that it had agreed not to hire employees away from Yeargin Construction was accepted, Meeks would not have been available until about August 8; however, I reject that con- tention because the existence of such a policy was never per. I simply cannot believe this and, therefore, I do not credit General Counsel's witnesses 10 See Terry Industries of Virginia, Inc, 164 NLRB 872, 874 (1967), enfd 403 F 2d 633 (C A 4, 1968) THE FIRESTONE TIRE & RUBBER COMPANY 729 told-to Meeks, nor was it ever announced in any fashion. The only proof of its existence is Respondent's testimonial assertions in this case. I give no credence to them. CONCLUSIONS OF LAW 1. The Firestone Tire & Rubber Company is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 12745 of the United Steelworkers of America, AFL-CIO, was, at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By denying employment to Bobby Meeks, because of his past union activities, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. 4. General Counsel has failed to establish by a prepon- derance of evidence that Respondent engaged in interroga- tion of employees in violation of Section 8(a)(1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER II Respondent, The Firestone Tire & Rubber Company, Wilson, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, any labor organization of its employees, by denying employment to applicants because of their past activities on behalf of a labor organization, or otherwise discriminat- ing in regard to the hire or tenure of employment or any terms or conditions of employment of its employees. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own 11 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion as; guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Bobby Meeks employment to the position for which he would have been employed but for the discrim- ination against him, provided that Meeks meets the Respondent's preemployment medical requirements, and, in such event, make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date Respondent hired its first tuber and calendaring depart- ment operator to the date of his employment in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records rele- vant and necessary to a determination of the amounts of backpay due under the terms of this recommended Order. (c) Post at its Wilson, North Carolina, plant, copies of the attached notice marked "Appendix." I Copies of said notice on forms provided by the Regional Director for Re- gion 11, after being duly signed by the Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint found not to have been sustained by a prepon- derance of the evidence be dismissed. 12 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading, "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."