Firestone Tire and Rubber Co. of California

In the Matter Of FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA and UNITED RUBBER WORKERS OF AMERICA, LOCAL 100 Case No. C-570.-Decided March 30, 1940 Tire and Rubber Products Manufacturing Indastry-Interference, Restraint, and Coercion: continuation of company-dominated Plan after passage of Act; anti-union statements by supervisory employees; espionage;' interference with formation and administration of and support to company-dominated union; and entering into and giving effect to contract therewith;- discrimination in regard to ;hire and tenure of employment; ordered to cease and desist from such practices- 'Discrtm2nation: charges of, sustained as to se.-en employees; not sustained'as to three; violation of plant rules in connection with concerted protest against alleged discrimination held not to justify discharge-Reinstatement: ordered as to six employees; denied one'employee because of aggravated assault upon his supervisor-Back Pay: awarded only from date charge filed where long delay in filing unexplained; otherwise from date of discharge, except where reinstatement not recommended by Trial Examiner, in which case no back pay awarded for period between issuance of Intermediate Report and issuance of Decision- Company-Dominated Union: principal organizer urged by supervisor to form ; membership in and advocacy of, by employees found to be supervisory ; organizer for, furnished names and addresses of employees ; organizing campaign marked by discrimination against members of affiliated union; difference in treatment accorded committees of affiliated union; ordered to disestablish and to cease giving effect to contract with-Procedure: continuance held properly denied; objection complaint exceeds charge : not available where not raised at hearing ; also rejected on merits; exceptions, absence of no bar to review by Board onr'own motion of alleged discrimination. Mr. Charles M. Brooks and Mr. William R. Walsh, for the Board. Gibson, Dunn & Crutcher, by Mr. J. Stuart Neary, Mr. S. M. Haskins, and Mr. Henry B. Ely, of Los Angeles, Calif., for the respondent. Mr. George B. Roberts, of Los Angeles, Calif., for Local 100. Miss Margaret B. Bennett, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by United Rubber Workers of America, Local #100,1 herein called Local 100, the National Labor 1 Local 100 was chartered on April 1, 1937 The original charge herein was filed on March 13, 1937, by United Rubber Workers of America, herein called the International Amended and second amended charges were filed by Local 100 on October 19 and December 21, 1937, respectively 22N L.R B, _No 25 580 FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 581 Relations Board, herein called the Board, by Towne Nylander, Re- gional Director for the, Twenty-first Region (Los Angeles, Cali- fornia) issued its complaint dated December 27, 1937, against Fire- stone Tire and Rubber Company of California, Los Angeles County, California, herein called the respondent, alleging that respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein .called the Act. The complaint, as thereafter amended at the 'hearing, alleged in substance with respect to the unfair labor practices (1) that the re- spondent had discharged and refused to reinstate 10 named employees 2 because they had joined and assisted Local 100 or the union's prede- cessors thereto and engaged in concerted activities with other employ- ees for the purpose of collective .bargaining and other mutual aid and protection; (2) that the respondent had urged, persuaded, and warned its employees to refrain from becoming members of,Local 100 or the union's predecessors thereto, and. had ,threatened said employees with discharge. of they became or remained members thereof ; (3) that the respondent had engaged in espionage and surveillance with respect to the organizational activities of its employees.; and (4) that the re- spondent had dominated and interfered with the formation and ad- ministration of, and had contributed financial and other support to a .labor organization of its employees, known as,the Independent Rubber Workers Union, Inc., herein called the Independent. Copies of the complaint, accompanied by notice of hearing thereon to be held on January 4, 1938, were duly served upon the respondent, Local 100, and the Independent.3 . On December 27, 1937, the Regional Director denied an application made by counsel for the respondent for a continuance.4 Pursuant to notice, a hearing was held. in Los Angeles,-California, on various days between January 4, 1938, and March 11, 1938, before Clifford D. O'Brien, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and, Local 100 was represented liy its agent;` they Independent" did'h6t appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all the parties. - 2 The names were in some instances misspelled As corrected during the hearing they were Edwaid L Barnes , Thomas H Brittain , Peter Uzelac , John Skolich , Edward` W. Springer , Stanley Jenkins , Norvel C Humphreys, Harrison P Turnbull , Louis E Reneau, and Harl K Louis Louis was not named in the ougmal complaint On January 5, 1938, Local 100 filed a third amended charge which included Louis , and on the same day the Board issued an amendment to the complaint to add his name 3 Copies of the complaint and notice were also served upon Los Angeles Industrial Union Council, and Los Angeles Central Labor Council 4 The request for a continuance did not specify the length of the continuance sought. 283043-41-N of 22--18 -582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the commencement of the hearing on January 4, the respondent filed its answer, and thereafter filed an amended answer. In its an- swers the respondent denied certain of the allegations with respect to the nature of its business, denied, the jurisdiction of the Board, and denied that it had engaged in any of the unfair labor practices averred in the complaint. As affirmative defenses, the respondent in its answers alleged that the Act was unconstitutional, that the Inde- pendent was a necessary party to the proceedings, that certain of the allegations of the complaint were barred by lathes by reason of delays in filing charges with respect thereto, and that other allegations therein were barred by reason of delay in the issuance of the complaint with respect thereto. At the commencement of the hearing, the respondent also filed a motion for a continuance, a further pleading termed a demurrer, and a motion to dismiss certain allegations of the complaint. In its motion for a continuance filed on January 4, the respondent moved that the proceedings "be continued for a period of not less than three (3) days" to allow respondent properly to prepare a defense. After hearing argument on the motion the Trial Examiner adjourned ''the hearing until the next day. At the opening of the hearing on January 5, the Trial Examiner granted a further adjournment until January 7, but otherwise denied the motion for a continuance. At the commencement of the hearing on January 7, the respondent moved for a further continuance "at least until" January 11. The Trial Examiner denied the application, but stated that the hearing would be adjourned from noon on January 8 until January 11. Testimony was heard on January 7. However, at the commencement of the hearing on January 8, the Trial Examiner adjourned the hearing until January 11, and subsequently ordered a further adjournment until January 13. As stated above, the respondent at the commencement of the hearing on January 4, filed a motion to dismiss and a demurrer. The motion to dismiss averred that certain of the allegations in the complaint of discriminatory discharge were barred by lathes. The demurrer averred that all of the allegations in the complaint of discriminatory discharge were barred by lathes, that the complaint failed to state a cause of action, that the Independent was a necessary party, and that certain allegations were lacking in necessary particularity. At the beginning of the hearing on January 7, the respondent asked that the demurrer, in so far as it alleged the complaint to be lacking in particularity, be considered, in the alternative, as a motion for a bill of -particulars. The Trial Examiner thereupon denied the motion to dismiss. The Trial Examiner also overruled the demurrer, except in so far as orally amended to constitute a motion for a bill of particulars, and ruled that the complaint should be made more specific in certain FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 583 respects. Thereafter, on January 13, the complaint was amended, and a further motion for a bill of particulars was denied. The respondent urges that it was denied a full and fair hearing be- cause of the rulings upon the applications for a continuance and because of the ruling denying a bill of particulars. The contention is without merit. The first of the applications for a continuance, made to the Regional Director, did not purport to state the period of adjournment deemed necessary. The application made to the Trial Examiner at the com- mencement of the hearing on January 4 was definite only to the extent that it requested an adjournment for "at least" 3 days. The taking of testimony was thereafter adjourned until January 7. At the begin- ning of the hearing on January 7, the respondent again asked for an adjournment, but did not specify the period desired except by stating that it wanted "at least" until January 11. While testimony was begun on January 7, only two witnesses were called, and the hearing was adjourned until January 13. Moreover, one of the two witnesses called on January 7 was C. L. Smith, the respondent's factory man- ager; he was available and subsequently was recalled by the respondent for further examination. The second witness who testified on Janu- ary 7 was George Roberts, an official of the International ; he had only completed his direct examination on January 7 and his cross- examination was not begun until February 13. The record clearly shows that the rulings upon the applications for continuances and a bill of particulars did'not embarrass the respondent in the conduct of its cross-examination of witnesses called by the Board, but discloses that on the contrary such cross-examination was most exhaustive. The record further shows that the respondent had ample opportunity to prepare the defense through its own witnesses and.that, as found by the Trial Examiner in his Intermediate Report, "respondent's counsel fully prepared and presented that (the) respondent's case." During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evidence. At the close of the hearing the Trial Examiner, after hearing argument on motions to dismiss the complaint, denied said motions. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 8, 1938, counsel for the respondent and counsel for the Board entered into a stipulation for the correction of certain typo- graphical errors in the transcript of the hearing. The stipulation is hereby made part of the record herein. On April 22,1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all the parties. In his Inter- 584 DECISIONS OF 'NATIONAL LABOR' RELATIONS BOARD mediate Report, the Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and of Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from engaging in the activities constituting the unfair labor practices; that it withdraw all recognition from and disestablish the Independent as the bargaining representative of its employees; that it reinstate to their former or equivalent positions with back pay the five employees found by him to have been discriminatorily discharged; 8 and that it take certain other affirmative action to effectuate the purposes of the Act. Thereafter the respondent filed its exceptions to the Intermediate Report and a brief in support of its exceptions. On May 31, 1938, pursuant to notice to all parties, oral argument was had before the Board at Washington, D. C. The respondent and Local 100 appeared by counsel and were heard.° On May 31, 1938, the respondent filed with the Board a motion to strike certain allegations from the complaint, and certain of the recom- mendations of the Trial Examiner, on the ground that they "were not based upon any charge" filed. Since the motion is otherwise without merit, we find it unnecessary to point out in what respects the matters sought to be stricken thereby are within the allegations of the charge. The motion to strike averred that it was not made prior to the hearing on January 4, 1938, "for the reason that no copies of the numerous charges filed with the Board were served upon Respondent until after the said hearing had commenced." The unverified'statement of counsel is without support in the record. As appears therein, a copy of the second amended charge filed by Local 100 on December 21, 1937, and upon which the-complaint herein was issued, was duly served upon the respondent on that date together with and annexed to the complaint. Assuming that the objection would otherwise be available, certainly a party may not, after such notice, sit by silently during a hearing lasting for approximately 2 months and then for the first time raise such an objection. Moreover, as we have recently pointed out with respect to such a motion in another case, The motion rests upon the mistaken assumption that proceed- ings before the Board are in the nature of adversary proceedings 5 I e, Baines, Brittain , Humphreys. Reneau , and Louis The Trial Examiner found that the respondent had not discriminatorily terminated the employment of Uzelac, Skolich . Jenkins , Turnbull , or Spirnger On May 2, 1938, Local 100 filed with the Regional Director a letter in the nature of exceptions to the Intermediate Report Thereafter, on motion of the respondent, the Board , on May 23 , 193S, issued an order striking the letter from the record in the case as not haN nig been filed and served as provided by Ai ticle II, Section 34, of National Labor Relations Board Rules and Regulations-Series 1, as amended The order pro- sided that Local 100 might file a statement of exceptions on or before May 31, 1938; none, however, was filed The Board , of course, is not precluded from reviewing the record with respect to any of the allegations of the complaint upon its own motion FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 585 between the person filing the charge and the person charged with' engaging in unfair labor practices. It is true that the Board cannot initiate proceedings itself, and it is the purpose of charges to institute proceedings. When, however, charges are filed the Board proceeds, not in vindication of private rights, but as an administrative agency charged by Congress with the function of enforcing the Act and bringing about compliance with its provisions. Accordingly, when in the course of an investigation begun upon charges duly filed evidence is disclosed that a respondent has engaged in unfair labor practices not specified in the charges, public policy, as well as the policies of the Act, require the Board to proceed with respect to such unfair labor practices, and if, after a full hearing it is found that such respondent has engaged in such unfair labor practices, to order it to cease and desist therefrom, and to take such affirmative action as will remedy the effects thereof. The Board would be failing -iii its duty as a public agency if it chose to do otherwise.' Accordingly, the notion to strike is denied. Owing to the subsequent expiration of the term of one of the members of the Board who sat at the oral argument, the parties were granted an opportunity to request further oral argument. Further argument was thereafter requested by the respondent, and on July 25, 1939, was held, pursuant to notice to the parties. The respondent appeared by counsel and was heard; Local 100 did not appear. There- after, pursuant to leave granted, the respondent filed a supplemental brief on August 5, 1939. The Board has considered the exceptions filed by the respondent and the brief and supplemental brief filed by it. We find the excep- tions to be without merit in so far as they are inconsistent with the- findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Firestone Tire & Rubber Company of California, is a Delaware corporation having its only plant in Los Angeles, California, where it is engaged in the manufacture of tires, tubes, tire-repair materials, battery cases,' and a small line of mechanical goods. In addition to 'Matter of Killefei Manufaetminq'Compaej and Steel IVorhe> s 0>ganizinq Committee, 22-N. L ,'R. B, No 22. Cf. Amalgamated Utility TPoi kei s v Consolidated Edison, et al, 309 U. S 261 , National Licorice Company v N L R. B . 309 U S 350 $ Until the discontinuance of its battery division on of about September 1, 1937, the respondent also manufactuied complete batteries 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foregoing operations, the respondent owns all of the capital stock of Xylos Rubber Company of California, a Delaware corporation, which owns and operates a plant on the same general grounds as the respondent but in a separate building, and which is engaged in the manufacture of reclaimed rubber. The respondent is one of several companies whose common stock is wholly owned by The Firestone Tire & Rubber Company, an Ohio corporation, herein called Firestone Ohio. The parent company owns and operates, directly, a factory in Akron, Ohio, and, through subsidiaries, whose common stock it owns, other than the respondent, factories in Memphis, Tennessee; Hamilton, Ontario, Canada; Brent- ford near London, England ; Buenos Aires, Argentina ; and Port Elizabeth, South Africa; cotton mills in New Bedford, Massachu- setts ; Gastonia, North Carolina; and Woodstock, Ontario, Canada; rubber warehouses in Singapore, Straits Settlements; cotton ware- houses in New Bedford, Massachusetts, and Gastonia, North Caro- lina; and a rubber plantation in Liberia, West Africa. Firestone Ohio also owns a substantial portion of the common stock of corpora- tions which own and operate factories in Bilbao, Spain, and Prattein, Switzerland. Raw materials used in the business of the respondent are rubber, fabrics, pigments, and other supplies. During the fiscal year ending October 31, 1936, the cost of these raw materials purchased by the respondent in States other than the State of California and foreign countries, was $9,882,400, and in the fiscal year ending October 31, 1937, was $12,774,986.9 Since June 6, 1932, the respondent has had a contract with Fire- stone Tire & Rubber Company, a West Virginia corporation, herein called Firestone West Virginia, all of whose common stock is owned by Firestone Ohio, pursuant to which contracts the respondent has sold its entire production to Firestone West Virginia, f. o. b. the respondent's plant. Such sales amounted to $11,801,214 in the fiscal year ending October 31, 1936, and to $15,393,349 in the fiscal year ending October 31, 1937. From 75 to 80 per cent of the products bought by Firestone West Virginia from the respondent during these two fiscal years were sold by Firestone West Virginia in States other than the State of California. On January 4, 1938, the respondent employed 1858 employees. II. THE ORGANIZATIONS INVOLVED United Rubber Workers of America, Local 100, herein called Local 100, is a labor organization chartered by the United Rubber Work- "On the basis of cost these purchases represent approximately 90 per cent of the respondent 's purchases in each of these fiscal years FIRESTONE TIRE AND RUBBER C01s.IPANY OF CALIFORNIA 587 ers of America, herein called the International. The International is a labor organization which was originally chartered by the Ameri- can Federation of Labor, herein called the A. F. of L., on September 12, 1935, but which since about October 1, 1936, has been affiliated with the Committee for Industrial Organization, now the Congress of Industrial Organizations, herein called the C. I. O. Non-super- visory workers in the rubber and allied products industries are eligible for membership in the International and in Local 100. Independent Rubber Workers Union, Inc., herein called the Inde- pendent, is an unaffiliated incorporated labor organization, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background In July 1933 the American Federation of Labor chartered Tire and Rubber Workers Union No. 18304, herein called Local 18304, to organize rubber workers in the Los Angeles area. J. L. Lewis, one of the respondent's employees, was a charter member of Local 18304, and Edward L. Barnes, another of the respondent's employees, was a mem her of the executive board. In the last week in July 1933, C. L. Smith, until then the assistant works manager of the Firestone Ohio plant in Akron, arrived at the respondent's plant. A few days after his arrival, Smith called to his office the department managers and other supervisors, including Armand Angel, the respondent's chief clerk. Smith admitted he, "might have" asked some of them about union activity in the plant. 'When questioned as to whether he had told them "that it would be a good thing for the plant if that [i. e. union activity] could be stopped," Smith professed to be unable to recall. The nature of the interviews, however, is apparent from the conference between Smith and Angel and between Smith and some of the members of Local 18304 who were called to his office at this time. Thus Angel was asked by Smith whether he had heard of any union organization in "his department. When Angel replied that he had not, but that he had heard of organiz- ing in the plant, Smith declared, "There is organization going on, and we don't want it to go on, and if you hear anything, just let me know." Among the general employees called to Smith's office were Barnes and Lewis. The latter testified that Smith declared that he had been sent to the respondent's plant to break up the union, that Harvey Firestone had millions of dollars to spend for that purpose, and that, while, under the National Industrial Recovery Act, Lewis could not be discharged for union activities, there was nothing to prevent Smith from discharging him and ascribing the discharge to "excess labor." 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lewis further testified that Smith had sought to illustrate that unions were no good by citing an alleged instance where a painter's union in Chicago had required Firestone Ohio to pay the Union $100 a day for permission to do spray painting. Barnes testified that in the course of his visit to Smith's office the latter stated that a union was not needed at the respondent's plant, and that Smith made the same threat as testified to by Lewis regarding the breaking up of Local 18304. Smith denied that he had told either Barnes or Lewis that Firestone would spend a large sum to break up Local 18304. He admitted that prior to these interviews he had heard from Cope, president of the respondent, "that they had organized some A. F. of L. affiliation out here," that he might have said in interviewing Barnes, "I understand the boys have organized a union out here," and that he might have related to Lewis the story with respect to difficulties with the painter's union in Chicago. When asked whether he had mentioned that Fire- stone "would fight unions," Smith's answer was, "I don't recall any such statement as that." Smith further testified that he had no recol- lection of any conversation with Lewis relative to his discharge, and further testified that at this time he was not then employed by the respondent, and consequently had no power to discharge any 'of the respondent's employees. The Trial Examiner, who heard the witnesses testify and observed Their demeanor, found that the facts as to what occurred during Smith's interviews with Lewis and Barnes were as testified to by those employees. When Smith was, first called as a witness he testified that he "had been with the Firestone people at Los -Angeles," "since about August 1933; the last of August 1933." Subsequently he testified that he had remained an employee of Firestone Ohio until becoming factory man- ager at the respondent's plant on or about October 1, 1933. According to Smith his 9-week stay at the respondent's plant beginning in July was solely for the purpose of securing information to enable him to decide whether he would accept the job of factory manager, the posi- tion having been unfilled since the fall of 1933 except that Joe Meek, the respondent's personnel director, had been acting factory manager in the interim; and that he had then returned to Akron, decided to accept the job and had moved his family to Los Angeles. On the other hand Angel, who was then the respondent's chief clerk, testified that Smith became factory manager in August 1933, and, as we have noted, at that time directed Angel to report to him any union activity. More- over, when Barnes was sent to Smith's office in August 1933 by his foreman, Norman T. Bruber, the latter "explained that he [Smith] had come out to take the position of Factory Manager." When Smith was first called to the witness stand lie was also ques- tioned concerning the formation by the respondent, in 1933, of a labor FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 589 organization of its employees known as the Firestone Employees' Con- ference Plan, herein called the Plan. Smith at that time testified that the Plan was started about October 1933, but that he did not know at whose suggestion. Asked whether the Plan had been started at his suggestion, Smith answered, "I don't recall that it was. I was inter- ested in its inception, but I don't think it was my original suggestion." Subsequently Smith, claiming to have refreshed his recollection, testi- fied that prior to coming to the respondent's plant he had heard that Meek was interested in inaugurating a plan of employee representa- tion, that in coming to Los Angeles, Meek had told him that "certain employees" had requested such a plan, that although at first he "wasn't very anxious to do it," he had finally given his approval. When ques- tioned as to the person from whom, while still in Akron, he had learned of Meek's interest in a plan of representation, Smith stated he could not recall. Meek, though called as a witness by the respondent, was not interrogated as to the institution of the Plan at the respondent's plant, nor did the respondent call any witness to establish that there had been employee requests for the inauguration of a representation plan. Irrespective of whether, as claimed by him, Smith was first placed upon the respondent's payroll in -October 1933, it is clear from the record that upon his visit to the respondent's plant beginning in the last week in July he exercised the authority and was regarded not only by general employees but also by supervisory employees as in fact the factory manager. This is established not only by the fact that Smith directed Angel to report union activities to him and by the fact that to the foremen he was the factory manager, but also by the fact that, on Smith's own admission, the Plan was not instituted until his approval was secured. Although Smith testified that the Plan was not inaugu- rated until October 1933, which would have been subsequent to the date when Smith testified he was added to the respondent's payroll, the rec- ord shows that the Plan provided with respect to the election of em- ployee representatives that "the first primary election shall be held on Monday, September 11, 1933, and the-general, election, on Thursday, September 14, 1933." Obviously, therefore, the Plan was instituted during Smith's first 9 weeks at the plant, and during that period he exercised authority superior to Meek's. - Upon the basis of the foregoing we conclude that immediately fol- lowing the beginning of organization by Local 18304, the parent company of the respondent sent Smith to Los Angeles for the purpose of forestalling and obstructing the organization of the respondent's employees. We further find that Smith, acting at least in the de facto capacity of factory manager of the respondent's plant, carried out this purpose by giving instructions that union activities be reported to him, by telling employees that unions were unnecessary, by dis- 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paraging unions, by making known that the respondent would seek to,destroy Local 18304, by threatening to discharge an employee for union activity, and finally by instituting the Plan. About 2 months after the Plan was established, Local 18304 resolved that all its members who had been elected representatives under the Plan should resign in a body. One of these representatives, S. Clem Evans, testified that before the resolution had been acted upon his foreman sent him to Meek's office; that the latter sent him to Smith; and that Smith stated he "knew about" "everything that went on" in Local 18304 and knew that Local 18304 had adopted the resolution. Evans further testified that Smith had also said that he had been in- structed by Harvey Firestone and J. Walter Thomas, chairman of the board of directors and president of Firestone Ohio, respectively, to discharge Evans if, he, resigned, and that"Firestone and Thomas had promised, if necessary, to back Smith up all the way to the Supreme Court of the United States. Smith was not questioned with respect to Evans' testimony. How- ever, he testified that on one occasion he had heard from "one of the (department) managers" that the employee representatives were in- tending to resign from the Plan, and that he then "might have" threatened one of the employee representatives with discharge in the event of resignation. Smith also testified that on hearing that the employee representatives planned concerted resignation, he had told one of the employee representatives : I didn't think that was the right way to go at the thing; that as far as the Joint Conference was concerned,, that was part of our method of management of the business, our method of [sic] what was going on in the factory, and we liked it and wanted it to continue; that if there was any member of that Conference that didn't want to stay on, that it was his privilege to resign and their constitution provided that they could have a bi-election [sic] all right. But I told him that I didn't think it was Cooper- ating very well with the management if they were all going to get together and come up in a body and resign at the same time. Although Smith testified that he believed that he made the statement quoted above to Frank C. Hickey, an employee, he was uncertain whether Hickey was an employee representative at the time he al- legedly heard of the impending resignations. Hickey, although called as a witness, did not testify to this incident. Moreover, it is apparent from Smith's testimony that there was only one occasion upon which the imminence of resignations of the employee representatives was brought to his attention prior to April 1937 when the Plan was aban- doned. Further, while Smith testified that he believed the incident occurred in 1936, he stated that he was unable to fix the date. Inas- FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 591 , much as Evans was a representative only in 1933-34 we conclude Smith's testimony had reference to the events which occurred in the fall of 1933. The Trial Examiner credited Evans' account of this conversation with Smith and, in view of Smith's prior conduct and in the light of the entire record, we conclude that the facts were as stated by Evans. In so concluding, we take into account the fact that Smith was in the instance referred to above and in many other instances to which we will refer below, plainly not a truthful witness. The Plan established by the respondent was aptly characterized by Smith as "part of our method of management of the business." No provision was made for meetings of the employees; their participation was limited to the submission of grievances to employer representa- tives and to voting for such representatives in annual elections. The employees paid no dues and did not otherwise contribute to the sup- port of the Plan ; employee representatives were paid by the respond- ent at the rate of a dollar an hour for all "time spent at regularly called meetings" with management representatives, and were paid 25 cents daily to compensate them for any other time "spent on duties as committeemen." The Plan divided the employees into 10 districts, each of which chose a "Senior Committeeman" and a, "Junior Com- mitteeman," who were required to be employees in the district in which elected and who ceased to hold office "upon severing connection with the district he represents." Thus, in selecting committeemen to rep- resent them in meetings with the respondent, the employees were re- stricted to employees of the respondent. These committeemen looked to the respondent, not to the employees, for compensation for their time spent in connection with their duties as committeemen. Em- ployees had no effective or certain voice in the determination of issues or in decisions on policy-; no opportunity was provided whereby they might formulate their demands and instruct their representatives. Moreover, by its structure the Plan, in other respects, assured that the respondent would maintain a controlling voice in its operation. The Plan provided that any employee unable to obtain a satisfactory adjustment of a grievance with his foreman might refer the matter to an employee representative. The latter then took the grievance to a weekly meeting with the head of the department, and failing ad- justment, to the personnel manager. In the event the matter was not adjusted with the personnel manager, it was to be referred to the Joint Conference held monthly, presided over by the respondent's fac- tory manager, consisting of the "senior committeemen" and "repre- sentatives of the management not to exceed the number" of employee representatives. When the grievance could not be decided by the Joint Conference, the majority of the employee representatives would "request the President of the Firestone Tire & Rubber Company of 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California [the respondent] to attend the meeting and express his opinion." The Plan further provided that, "If such disposition of the matter is still not satisfactory, the facts may be set forth in writing and submitted to the President of the Firestone Tire & Rubber Com- pany" [the parent corporation] and in the event the latter's "decision" was not acceptable to the employee representatives, they might submit the matter to arbitration.' e Finally, the Plan provided that it could be amended only "by a majority vote of the Joint Conference,"" thereby insuring that the Plan would not be altered without the con- sent of the respondent. Such control of the form and structure of the Plan obviously subjected the operation of the Plan to the will and domination of the respondent. The Plan was patently the creature of the respondent; it was not, and was never intended to be, a real bargaining agency for the employees. In December 1933 Barnes was suspended from work for 3 days by Smith under circumstances which we will consider more fully in con- nection with the evidence directly relating to the allegation that Barnes was, discriminatorily discharged in August 1935. For the reasons there set forth, we conclude that Barnes was suspended because of his union activltles.lla - On February 21, 1934, an election was conducted by the National Labor Board, pursuant to the National Industrial Recovery Act, to determine whether respondent's employees wished to be represented for the purposes of collective bargaining by Local 18304, or by the Plan. Local 18304 won the election, receiving 695 out of a total of 784 votes cast. Despite this repudiation of the Plan by the employees the respondent continued, as before, to conduct its labor relations through the Plan. Such conduct by the respondent was an unmis- takable expression of hostility to the self-organization of its employees, and again emphasized its determination to deal only with a company- dominated labor organization, which it regarded as "part of our method of management of the business." In March or April 1934 Angel attended a union meeting with two of the respondent's employees, the first part of the meeting being open to the public. A few days later, according to his testimony, Angel saw on Meek's desk a written report of this meeting which mentioned the names of some of they persons present and was signed "E-51." Angel testified that Meek subsequently asked him whether he had attended 10 Emphasis supplied The provisions for an "opinion" by the respondent's president and for a "decision " by the president of Firestone Ohio, further belies Smith 's claim that employee relations were not determined by the parent corporation , and corroborate the various statements admitting such control which were attributed to Smith by witnesses "Pursuant to this pro\ ision , the Joint Conference about January 1937 added the position of committe-man-at-large , and Hickey was elected to that position by the "senior committeemen." I'- See Section III, C, infra. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 593 the meeting and, having received an affirmative reply, said: "If I ever hear that you have been to another meeting, I'll fire you out of here and you'll never get another job anywhere else in Los Angeles." Ac- cording to Angel's testimony, about 15 minutes later Smith called Angel to his office and told him that he could attend as many meetings as he liked so long as he reported what went on to Smith. Neither Meek nor Smith directly contradicted Angel's testimony, but testi- mony given by them earlier in the hearing should be considered. Both Smith and Meek, had previously testified that no supervisor had, to their knowledge, attended a union meeting. Meek had also testified that he had never received an oral report of such a meeting, and that he did not "recall" receiving a written report. Slnith, who had al- ready denied receiving a written report on union meetings, had been asked on cross-examination whether he had ever told a supervisory employee that it was "all right to go to these union meetings providing he would report back to you what happened." Smith's answer was, "I don't recall such a conversation at all." The Trial Examiner credited Angel's testimony. We also find that the facts were as stated by him. About this time, as will be pointed out more fully in considering the allegation of discriminatory discharge, the respondent indicated to Barnes that he would be promoted to the job of inspector if he gave, up his affiliation with Local 18304, which Barnes refused to do. In July 1934 the membership of Local 18304 divided into separate locals, each with jurisdiction limited to a single plant. As a result, on July 11, 1934, United Rubber Workers Federal Local Union No. 19746, herein called Local 19746, was chartered as the successor or- ganization of the respondent's employees. Among its charter members were Barnes and Lewis. In August 1934, a committee representing Local 19746 met with Smith, informed him of the reorganization, and asked for recognition. The respondent, however, continued as before to deal with its employees through the Plan, and about January 1935 Local 19746 ceased to hold meetings, although it was not formally dissolved. B. Interference, restraint, and coercion The enactment of the National Labor Relations Act on July 5, 1935, did not bring about any modification in the respondent's labor poli- cies. On the contrary the Plan which it had instituted and which obstructed the self-organization of employees continued to function without change in either its formal structure or actual operation, and without cessation of the respondent's financial support 12 ' Viewed 12 The circumstances under which the Plan was abandoned on April 30, 1937, are considered in connection with the formation of the Independent See Section III D, infra. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the background set forth above, the respondent's continued recognition and support of such a company-dominated labor organiza- tion despite the passage of the Act amounted to urging and persuading of the respondent's employees not to become members of or to assist any other labor organization, and thereby the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. On August 6, 1935, literature was distributed„ at the g ites,,of the respondent's plant announcing that a move had begun to organize its employees. The next day the respondent discharged Barnes, who, as we have pointed out above, had been one of the leading figures in the organization of the respondent's employees in Local 18304, and subsequently in Local 19746. Barnes, we find, was discharged for the purpose of discouraging membership in a labor organization.- On September 12, 1935, United Rubber Workers of America, herein called the International, was chartered by the American Federation of Labor to organize employees in the rubber and allied products industries. On March 15, 1936, the International held an open meeting in the Los Angeles area. Thomas H. Brittain, one of the respondent's employees, attended the meeting where he was observed by one of the respondent's policemen. During the next day or two Brittain dis- cussed unionization in the shower room at the respondent's plant. On March 19, 1936, he was discharged. The discharge, we find, was dis- criminatory.' On or about October 1, 1936, the International changed its-affiliation from the American Federation of Labor to" the Cominittee for Indus- trial Organization,15 herein called the C. I. O. On January 31, 1937, the International held a public mass meeting in Los Angeles to start, an organizational compaign for that area. Among the respondent's employees attending the January 31 meet- ing was Fred W. Osburn. Osburn testified that he had previously worked for Goodyear, at Los Angeles, that during his employment by Goodyear he had taken a Communist publication to work, that he had loaned the publication to a fellow employee in the plant, that the latter had reported him to the foreman, and that he, Osburn, had been discharged. After his discharge at Goodyear Osburn secured employ- ment at which he earned only 40 cents an hour, and part of the time had no work. In December 1935 he was employed by the respondent. Osburn testified that because of his experience at Goodyear, "I made up my mind that I owed it to my family to hold my job, and be a boss' man." Accordingly, Osburn testified, when he heard of the January 31 meeting of the International, he approached his shift fore- 18 The evidence upon which we reach this conclusion is set forth in Section III C, infra. "The evidence upon which we reach this conclusion is set forth in Section III C, infra. "Now the Congress of Industrial Organizations FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 595 man, H. O'. Craddock, and told Craddock that he was interested in crushing the C. I. O. and that if there was anything which he could do to help the respondent he would be glad to do it. Craddock, Osburn testified, expressed appreciation and suggested that lie see Phillip K. Fussell, general foreman over several divisions including the mill room in which Osburn was employed. Osburn testified that the next day he saw Fussell in the latter's office, told Fussell of his hostility to the C. I. 0., asked Fussell if he would like him to go to the January 31 meeting, and was -told by Fussell . that the-respondent appreciated Osburn's attitude toward the C. I. O. and that he thought Osburn could "do a lot of good" by attending the meeting. , Osburn testified that at the January 31 meeting he met and spoke with Peter Uzelac, a cleaner in the mill room and employed under Fussell's supervision, and Stanley Jenkins, who was employed as a janitor by the respondent, and that both men expressed their intention of joining the International. The next day, Osburn testified, he re- ported this to Fussell, in the latter's office, but expressed doubt as to the advisability of going to Fussell's office and proposed that, in order to keep their conversations secret, Fussell in the future should speak to him at his mill. Osburn testified that Fussell agreed to this arrange- ment and thereafter went to Osburn's mill and asked him "what he knew." On one of these occasions, which he fixed as probably the first week in February, Osburn testified he informed Fussell that Uzelac and Jenkins "were very active in obtaining members," and that Jenkins had'.obtained his''name',and :address and, that he, -Osburn, had" received a card from the International. According to Osburn, at another time, which he fixed as "probably the second or third week in February; more likely the second," Fussell had come to his mill and lie had told Fussell that Norvel C. Humphreys,, an employee repre- sentative under the Plan, was talking unionism although purporting to be "coming around . . . -for the grievances of the-different men." At this time, Osburn testified, he stated to Fussell that he "hated to be responsible for any man losing his job on account of -my reports, and that ,Fus^ell replied, "Of :course, it is bad for a, man, to 'lose his, job, but don't -you think it is better for one or two to lose their' j As 'rather than the whole plant to shut down? The company has a six-month supply of tires, and they could shut down any time-they want to." After this, Osburn testified, he made no further reports -because Fussell "didn't seem to be interested much." 16 Craddock, who was called as a witness by the respondent, testified that in the early part of 1937 Osburn had approached him with the statement that he thought some of the employees in the department is in December 1937 Osbnrn joined Local' 100 which had been chartered by the Inter- national on April 1, 1937, and on joining related the story set forth in the text 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belonged to the C. I. O. and that he, Osburn, "wanted to do everything he could to crush it." According to Craddock, he told Osburn that if he had anything to report "that he was to go in and see Mr. Fussell, that I didn't want to have anything to do with it, that I wasn't inter-' ested." Craddock testified that he reported the conversation to Fussell, that he never had any further conversation with Osburn, and that he at no time expressed any appreciation to Osburn. Fussell, who was also called by the respondent to contradict Osburn,' testified that "along the last of January" Craddock "reported to me that Mr. Osburn wanted to talk to me about some union matters or something," and that he told Craddock that Osburn "could come in and see me, as all fellows do when they have something they want to talk over." According to Fussell, Osburn came to see him the next morning, stated that "there was a lot of organizing going on in the plant, and that an employee named Dykes had tried to sign him up: Fussell testified that he told Osburn that if Osburn was making a complaint, he would call Dykes in and tell him that organizing in the plant was against the rules, and that he "would give Osburn the pro- tection he needed if he was asking for it." According to Fussell, Osburn went on to say that he, did not like the C. I. 0., that it was the same thing as the Communist Party, that a fellow employee had engaged in "communist talk" with him at Goodyear with the result that he began "talking it" himself, "and that that was the reason he wasn't working for Goodyear." Fussell further testified that Osburn' showed him a card announcing a C. I. O. meeting, that he told Osburn he was not interested, that Osburn then, said he thought he would attend the meeting, and that he then told Osburn "that is all right," that it was "entirely up to" Osburn and that his, Fussell's, authority extended only to Osburn's work. Several days later, Fussell testified, Osburn sent word that he wanted to see Fussell again and Fussell allowed him to come to his office. On this occasion, Fussell testified, Osburn stated he had gone to the meeting, and had seen "some janitors or tire builders" whose names Osburn did not know. Fussell testified that he then told Osburn, "I wasn't particularly interested in it if he wanted to go, but that that was his business, and that my statement still stuck and his work was the thing I was interested in." Fussell further testified that" about 30 minutes after this conversation Osburn had telephoned him and said he thought it best not to come to Fussell's office' again and proposed that they communicate by phone and that Qsburn use a fictitious name on such occasions. Fussell testified that he, told Osburn, "I wasn't interested in any conversations over the phone with him, or any of his dealings, that if I wanted him I would call' him up or if I wanted him I would go and look for him, and that I didn't want anything to do with it." Fussell denied that he had' ever FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 597 had any other conversation with Osburn regarding union activities, and specifically denied that Osburn had reported seeing Uzelac and Jenkins at the January 31 meeting or Humphrey's discussion of unionism in the plant. The Trial Examiner who heard the witnesses testify and observed their demeanor found that the facts with respect to Osburn's rela- tions with Craddock and Fussell were as stated by Osburn. In addi- tion to the fact that Fussell was in other respects, not a credible wit- ness;' the fact of the respondent's hostility to union organization, including its utilization of espionage in 1934, and several circum- stances appearing in Craddock's and Fussell's testimony discredit their accounts of Osburn's conduct. Thus when Fussell agreed to see Osburn he had no reason to believe that Osburn wished to make a complaint against solicitation for membership in the International. On the contrary he had been told by Craddock that Osburn had volunteered that he wished to crush the C. I. O. A conference with such an employee plainly could have for its purpose only the con- sideration of his usefulness in that direction. Again, there was obviously no legitimate occasion for Fussell agreeing to the conference with Osburn -which followed the January 31 meeting. We find that the facts regarding espionage ii ere as testified to by Osburn. We further find that the respondent, by encouraging and approving Osburn's espionage and by seeking and securing reports from him regarding the union activities of its employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 19, 1937, Uzelac was discharged.by the respondent, and on March 2, 1937, Jenkins was laid off out of order of seniority. In both instances, we find, the respondent discriminated against these employees because of their union activities.'8 In March 1937 the International began an active campaign to or- ganize employees of the respondent and on April 1, 1937, chartered Local 100 for its members among the respondent's employees. De- spite the respondent's prior anti-union conduct, including the con- tinuance of the Plan, it became clear during March and April that the union organizational campaign would be pressed. At this time, Humphreys and Vernon Davidson, another employee representative under the Plan, joined the International, began openly to advocate membership in the union, and, together with other employees, began to wear union buttons in the plant. Under these circumstances, the respondent turned to advocacy of the formation of an "independent" 17 Fussell 's testimony with respect, to several other incide nts is reviewed in Section III C, infra, in connection with the discriminatory discharges 18 The evidence with respect to the discharge and the lay-off is considered in Section III C, to fro As noted below , Humphreys was discharged on May 1 :5, 1937 283033-41-vol 22--30 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization, coupling its counsel with disparagement of the International and subsequently Local 100, and threats to those engag- ing in union activities. Davidson testified that in March, H. H. Weidenmann , his depart- ment manager, came to his machine and asked him why he did not start a "little independent union," declaring that he had "quite a bit of respect for John L. Lewis, but ... the organizers and so on within the organization are a bunch of radicals." Davidson testified that Weidenmann went on to suggest that if he "would start up?' an independent union it could have dues of 50 cents a month and obtain an outside hall, and that Smith would bargain with such organiza- tion "more so than with the C. I. 0." According to Davidson, Weidenmami referred to the railroad brotherhoods as instances of independent organizations. Davidson further testified that when he went to «Teidenmann's office 2 days later to discuss a grievance, Weidenmann talked to him for about an hour concerning the undesirability of having an "out- side group come in," and the desirability of respondent's employees forming an independent organization of their own, and reiterated several times that in his opinion Smith would recognize an independ- ent union, but not the C. I. 0. According to Davidson, Weidenmann then offered to give him a list of names of employees who would help him sponsor an independent union. Davidson testified that he told Weidenmann that he did not want the list, that if he sponsored any organization it would be an organization sponsored by the em- ployees in his department, and that he would talk to them and find out how they felt about Weidenmann's suggestion. However, before the conversation concluded, Davidson testified, Weidenmann asked him not to tell the employees of the conversation "or they will think it is a company union," but suggested that Davidson talk to another employee, Frank Hickey, who was a representative at large under the Plan. Davidson further testified that, as he left Weidenmann's office, the latter remarked, "it might be a good idea for me (Davidson) to think the way they do, unless I wanted to be an organizer for the C. I. 0." Davidson testified as follows with respect to a further conversation with Weidenmann about April 7 or 8: Weidenmann came to David- son's machine and called him to the office. There he gave Davidson an article to read which, according to Weidenmann, "was more or less mob rule, what could happen, what would happen, if any body of men got together like the C. I. 0." When Davidson had looked at the article, Weidenmann repeated his previous suggestion that an independent union be organized, that dues be 50 cents a month, that a hall be hired, and added that the organizers could retain their own FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 599 lawyers. He argued that after an independent union had been started at the plant it could go over to the C. I. 0. in a body. Davidson answered that he would not sponsor such an organization, and that the respect of the men who worked with him was more important to him than anything the respondent had to offer. Weidenmann replied that he had a lot of respect for Davidson and that Davidson "could go a long way in the plan if he could see eye to eye" with Weidenmann, and that he knew that Davidson had a big, following among the em- ployees and that they respected Davidson, since they had elected him an employee representative under the Plan when he was out of town and could do no compaigning. Then Weidenmann asked Davidson if he would take off his union button. When Davidson said he would not, Weidenmann asked him if he would stop organizing for the International. Davidson replied that he would not organize while he was in the plant. He said, "If the rest of the fellows want an inde- pendent okay by me, but I am C. I. 0., and I am going to keep the button on as long as I am a member." Weidenmann denied that he had suggested the formation of an independent union, that he had offered Davidson a list of employees who would help him organize it, that he had told Davidson that he did not think Smith would recognize the C. I. 0., or that he had told Davidson he "could go a long way in the plant if he could see eye to eve" with Weidenmann. Weidenmann testified that lie did not recall having made any statements to the effect that the C. I. 0. was radical, or that it was undesirable for "an outside group to come in." According to Weidenmann his conversations with Davidson began when the latter in March had come to his office and asked "how does a guy resign from" the Plan, that Davidson said he felt "that the management always had the final say-so," and that he, Weidenmann, sought to dissuade Davidson from resigning "because at that time that was our bargaining agency, and the way we handled all our grievances." Weidenmann testified that "I agreed with him, that there were some defects in our Joint Conference System, and we dis- cussed that quite at length," that Davidson "all of a sudden . . . said, 'Well, what we need around here is a real union,"' and that the talk drifted into a discussion of "the merits and demerits" of the A. F. of L., the C. I. 0., and the railroad brotherhoods. Weidenmann testified that because of this conversation he subsequently called Davidson to his office to show him an article in the Readers' Digest entitled "Democ- ratize the Unions." The thesis of this article, according to Weiden- mann, was that unions started out as democratic organizations but tended to become dictatorial, that the article seemed to him like "an argument in favor of the C. I. 0. over the A. F. of L.," because the A. F. of L. was the older of the two labor organizations, and, there- 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore, had "more experience of that nature." Weidenmann stated his reason for showing the article to Davidson was that : "The thing was just an article for democracy of unions, because during one of the Unions '19 why, we talked about the fact that by all means men should retain control of their union. We were agreed on that, and I thought that because we had discussed it that he would be interested in seeing how the thing was stated in this particular magazine article.'' The Trial Examiner found that Davidson was a credible witness aid that Weidenmann was not. We are also of that opinion with respect to the credibility of Weidenmann and Davidson and we find that the facts were as testified by Davidson. It will be noted that Weidenmann testified that he and Davidson had agreed "that by all means men should retain control of their union," and that he had, therefore, shown Davidson the article. However, as we have pointed out above, the Plan, which the respondent had set up and was con- tinuing, completely deprived the employees of any control. Moreover, Weidenmann, after denying he had proposed the formation of an independent union, sought to corroborate his denial by adding, "You see, at that time we were functioning under our Joint Conference Plan, and-so far as I knew, why that was going to stay in effect from ,then on, and I wouldn't get myself out on a limb that far because the Joint Conference was our bargaining agency, and I was the one to see, in so far as possible, why it should stay in." Weidenmann testified, "I don't recall any such remarks" as "Don't go down and tell them I told you about that or they will think it was a company union." He admitted, however, that he "might have" referred Davidson to Hickey,` but explained "what I was trying to do was to sell Verne (Davidson) on staying in the Joint Conference, and I thought if he would talk to Frank Hickey that Frank Hickey knew Mr. Smith front his contacts over a period of years, and he might be able to interpret the situation a little better than I . . . I felt that coming from a fellow workman, why, it might mean more to Verne too." Weiden- niann's explanation for referring Davidson to Hickey can hardly be reconciled with the testimony of Hickey who was called as a witness by the respondent, that he had expressed to Weidenmann his prefer- ence for an independent union to replace the Plan. Finally, Weiden- mann's credibility is sharply impeached by a comparison of the article he called Davidson to his office to read and Weideninann's description of the article. As we have stated above, Weidenmann testified that one of the rea- sons he showed Davidson the article was that it seemed to be an argu- ment in favor of the C. I. 0., yet the article begins by referring to a proposal to expel William Green from the United Mine Workers and 10 Evidently a stenographic mistake in the transcript. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 601 purports to recite the number of members of that union disciplined in one year and the fines which they were required to pay. It states that penalties "may depend entirely on the caprice of Mr. John L. Lewis," and declares, "This sort of thing, of course, is pure terrorism, constituting a first-class menace not only to the workers whom Lewis dominates, or seeks to dominate, but to the entire labor movement and to the country's political and industrial freedom." The article no- where refers to the A. F. of L. by name, but attacks unions generally. 'thus, the article states, "As often as not, thanks to their form of organization, or its lack of public accountability, or both, they [the rank-and-file members of any union] find themselves the prey of racketeers who sell them out for a price and pocket their funds. Or they become the victims of ambitious leaders like Lewis who may com- mit them to any mad schemes of conquest without a vote, meanwhile assessing them and juggling the resultant income as he sees fit." The article concludes with the admonition that public registration and supervision of unions is necessary. About March 15, according to Edwin Miller, an employee in the mold engraving department of the machine shop, Curt Uschman, the head of the department, proposed that he start an independent union. On this occasion, Miller testified, Uschman called him to the office and asked him whether he was a member of the union, and whether he "had heard of any of the boys in the shop talking union," that he answered both questions negatively, and that Uschman asked him whether he "didn't feel it would be better if we had an organization in there that was just us fellows independently from any International or any out- side organization." Miller testified that he replied that he thought the employees had an equal right to be organized "in an International union, just as the bosses were, or the manufacturers were" and that such a union would be more effective. Thereupon, Miller testified, Uschman had said, "Well, he didn't feel that we should have a bunch of radicals in there causing strikes and stoppage of work, and such as that." Miller testified that he then told Uschman, "I wasn't for that myself; that I felt that through a democratic organization, it would be eliminated" and the Uschman then said something to the effect that "It hasn't been done." Uschman denied the statements attributed to him by Miller. He further testified that he had never spoken to Miller about unions prior to an occasion early in 1937 when according to him Miller had come to his office and declared, "I have come up to tell you I don't intend to join any union." Uschman testified that he "was wondering" why Miller had come to him to make such a statement, but that he did not ask the reason, and that he told Miller "It was immaterial to me what union he would join or whether he would join any, it wouldn't make 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any difference as far as his work was concerned ." According to Usch- man, Miller then said, "he had just come up to tell me that," and that lie had then observed to Miller that "he did not approve of sit-down strikes personally , and that I thought all labor questions could be set- tled by arbitration and by personal contact." Uschman testified that nothing further was said , and that Miller then returned to work. The Trial Examiner found Miller a credible witness and did not credit Uschman's denials. Uschman's account of what transpired in his office is not persuasive , and upon the entire record we find that the incident was correctly described by Miller. We find that by the statements and acts of Weidenmann and Usch- man described above, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. James Lewis, a tire builder, testified that in April W. T. Bruber, general foreman of the tire room , told him that a union "would never get us any place, that the company would never stand for it." David- son testified that on another occasion in April Bruber had told him that he "wasn't getting anything out of the union , that I was paying my money out for something that I wasn't getting anything out of." Bruber testified that he did not "remember of ever saying " this to Davidson or anyone else. He was not asked whether he had made the statement which Lewis attributed to him and which we have quoted above. The Trial Examiner credited the testimony of Lewis and Davidson. Upon the entire record, we find that Bruber made these statements . Thereby the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. When Murry R. Pierson and John E . Davison, employees in the warehouse department, came to work in April wearing their union buttons, H. J. Griley, the department manager, asked them whether they had joined the union , and upon being told that they had joined, asked them whether they were dissatisfied or had a grievance about their work. Davison testified that Griley also stated to him that the union "won't get you anywhere." The next day Meek, who had known Davison for many years and as a friend had secured Davison's em- ployment, called Davison into his office. According to Meek, he merely told Davison that he had noticed his union button, explained that he thought many people became promoters of a union because they had a grievance, and asked Davison if he thought that the re- spondent was being unfair to him. Meek testified that Davison stated he had no complaint and that he had joined Local 100 because he believed labor should be organized. Meek testified that he concluded the interview by stating that he was glad to hear that Davison had no FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 603 grievance and by advising him to feel free to speak to Meek if he became dissatisfied in any way . Davison's version of the conversation, which was denied by Meek, was as follows : Meek told Davison that he did not think Davison much of a gentleman to join Local 100 after Meek had helped him to get his job, that he was "running around with the wrong bunch of fellows; that they were red-eyed," and that Meek was scratching Davison off his list as far as getting anywhere in the plant was concerned . Among the "red-eyed" "fellows" named by Meek were Pierson and Humphreys . Meek also reminded Davison that Firestone was building a plant at Memphis and warned him that if Local 100 succeeded in organizing the respondent 's employees at Los Angeles the respondent might move its plant elsewhere. The Trial Examiner found that the facts with respect to the conversation between Meek and Davison were as testified to by the latter. Meek was in other respects plainly not a credible witness,20 and his version of this conversation , as well as Griley's questioning Pierson and Davi- son as to their membership in Local 100 and as to whether they had any grievances , were calculated to undermine the organization of the respondent's employees . In view of the foregoing , and upon the entire record, we find that the conversation occurred as testified to by Davison , and that thereby, and by Griley's questions, the respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. As more fully set forth below,21 the Independent was organized on April 26; on April 28 the organizers who were employee representatives under the Plan informed Smith of their resignations; and on April 30 the respondent posted a notice announcing that it would no longer support the Plan . As we find below the respondent, in connection with the formation and administration of the Independent , in various ways interfered with, restrained, and coerced its employees in the exer- cise of their rights guaranteed by Section 7 of the Act. Among the means employed, as we find below, was a campaign of intimidation and suspensions of members of Local 100 beginning at the end of April and culminating in the discharges on May 15 of Humphreys and Harrison P. Turnbull, the latter being the president of Local 100.22 Thereafter, on November 18, 1937, the respondent discriminatorily dis- charged Harl K. Louis, one of the most active members of Local 100.22 is We refer particularly to his testimony with respect to a visit by a committee to Smith on May 15, 1937 , the evidence with respect to which is discussed in Section III C, infra, and to Meek's evasive testimony with respect to espionage reports in 1934, to which we have referred in Section III A, supra 21 See Section III, D, infra. 22 See Section III, C, infra 23 The evidence ,N ith respect to the discharge is considered in Section III, C, infra. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Discrimination as to hire and tenure of employment Edward L. Barnes As we have stated above, Barnes was one of the charter members of Local 18304, which was organized in July 1933, and became a member of its executive board and one of its active organizers. We have also noted above that Barnes was one of the employees singled out by Smith for an interview in August 1933, and that upon this occasion Smith had told Barnes that no union was needed at the plant and that the respondent would spend such money as was necessary to destroy Local 18304. The warning did not cause Barnes to discontinue his union activities, a fact which, we conclude, explains Barnes' suspension by the respondent in December 1933. During December 1933 Barnes, on overhearing Homer Varner, an inspector, tell an employee that he was liable to discharge for a mistake, commented jokingly that "a fellow wouldn't lose much if he lost his job." About 20 minutes later Barnes was called to Smith's office where, in the presence of Varner and the department manager, Smith charged Barnes with making the remark. Barnes admitted he had done so and explained that he had spoken in jest and had thought Varner, with whom he had associated for 8 or 9 years, -,vas ,,t friend of his. As Smith admitted, Barnes "seemed to feel quite penitent about it." Neverthe- less Smith laid Barnes off and told Barnes to return and see him in 3 days. According to Barnes, when he returned Smith sent him back to work "under one circumstance," that there be no "more talking down there in that department." Inasmuch as Barnes had been outspoken in the plant in favor of Local 18304, the import of such a condition is clear. Smith, on the other hand, denied that he had said anything about Barnes' talking in the plant. He testified, "Well, I just told Barnes that I thought that if he would get over that belligerent atti- tude and wanting to bop somebody all the time, and walk over and interfere and all that sort of thing when a supervisor was talking to a man, I thought he would get along fine; that he was a good workman." We do not credit Smith's denial. On cross-examination Smith was asked the basis for his characterization of Barnes as belligerent. His testimony was that at a picnic, which evidently was a picnic of the respondent's employees, he and Meek had watched Barnes boxing, and that Meek had remarked that Barnes had once struck one of the respondent's policemen. Smith was then asked whether this incident, which had occurred in 1929, was the "only instance when Mr. Barnes' belligerent attitude had been called to your attention" prior to Decem- ber 1933. Smith said one of Barnes' supervisors had reported "that he didn't like Barnes' attitude "in various things," specifying that what was wrong with Barnes' attitude was that "he had a chip on leis FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 605 shoulder, and was willing to enter into arguments with very little excuse." However, when asked point-blank whether most of the argu- ments were about unions, Smith's answer was, "I don't think they were." Moreover, he advanced no other explanation for the cause of the arguments, and it appears from Barnes' uncontradicted testimony that he frequently engaged in discussions with Bruber on the subject of unions. Furthermore, Bruber did not testify that he had made any complaints as to Barnes' conduct, but, on the contrary, admitted "he was always very nice to me and anything I wanted him to do he was very willing to do it." We have pointed out above that in February 1934, in an election for representatives for collective bargaining held under the National In- dustrial Recovery Act, Local 18304 received an overwhelming ma- jority of the votes, but that the respondent continued to deal with its employees through the company-dominated Plan. A month after the election Smith called Barnes to the office, told him that he was one of the best workmen in the plant, and that lie would "go a long ways in this company if you could see my ways." Smith testified that Bruber had recommended to him the promotion of Barnes to one of the va- cancies then open for inspectors, that Bruber had stated that Barnes "had behaved himself" since the December 1933 lay-off, but that he, Smith, had called Barnes in "to find out for myself if Barnes had changed." Smith further testified that Barnes "talked very nice in my office," but that nevertheless lie "wasn't a hundred per cent sold on Barnes," but advised Bruber that lie might offer Barnes the job, al- though he did not think Barnes would accept it because it was his understanding Barnes would thereby cease to be eligible to member- ship in Local 18304. Bruber also testified that he had recommended the promotion and that Smith had expressed doubts as to Barnes' at- titude, had asked that he be sent to the office, and that Smith had later said that Barnes had "seemed to be awfully nice in here" but that he was "not sold on it." Bruber further testified that Smith then told him that he could offer the job to Barnes but that he doubted whether Barnes would accept it since he, Smith, understood that the constitu- tion of Local 18304 precluded members from holding supervisory positions. We place no credence in the explanation advanced by the respondent for summoning Barnes to Smith's office in connection with the pro- posed offer of promotion. As we have noted above, upon examination, Smith's statement that he regarded Barnes as a "belligerent" indi- vidual in December 1933 is entirely unpersuasive. His testimony that he still so regarded Barnes in March 1934, allegedly in the face of Bruber's report of good conduct, is, we believe, incredible. Moreover, Smith, in his testimony, when asked about his conversation with 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barnes, not only could not "recall the exact words we used," but in no other way indicated in what manner he had sought to obtain as- surance as to Barnes' non-belligerency. On the contrary, it appears that he simply told Barnes that he would "go a long ways in this Com- pany if you could see my ways." Smith's "ways," as we have found, were to get rid of any legitimate union and to treat only with the company-dominated Plan, the wishes of the employees notwithstand- ing. Plainly Smith was holding out a very considerable promise upon the condition that Barnes would abandon Local 18304. That this was Smith's plan and that he was not concerned with any doubt as to whether the constitution of Local 18304 would permit Barnes to accept the promotion and remain a member, is further revealed by the evi- dence with respect to the manner in which the offer was made to Barnes and Bruber's attempted explanation therefor. Shortly after Barnes' return to his machine following his visit to Smith's office, Bruber approached him, reminded him that he had once been an inspector, and asked whether Barnes "would consider giving up the union." Barnes answered that lie would not. That concluded the conversation. As will be noted, Bruber did not refer to any belief on his part or on Smith's that promotion might, by reason of the con- stitution of Local 18304, result in exclusion of Barnes from member- ship therein, or that Barnes might on that account be unwilling to accept the promotion. On the contrary, the conversation itself shows, and confirms the fact disclosed by the preceding interview in Smith's office, that the promotion was to be offered, and was offered, Barnes in exchange for his abandoning the union. That this was the motive for the offer is further shown by Bruber's attempted explanation. When asked whether he had offered Barnes a supervisor's job, Bruber testified : Well, I didn't offer it to him, unless you would call that-I asked him ,if he would consider giving up the union if he was put on supervision, and I didn't discuss it any further because I more or less felt on the spot, anyway. Mr. Smith wasn't sold on him 100 percent, and from the impression I got I thought I was more or less holding the sack on the whole deal, and after he wasn't willing to cooperate I didn't feel that I could discuss it any further with him. (Italics supplied.) Later Bruber was asked, "What was your purpose in inquiring whether he [Barnes] would give up his union activities for this supervisory position." Bruber's answer to this question leaves no doubt that respondent was willing to promote Barnes only if he agreed to relin- quish the Union. In answer to the question, Bruber testified : Well, it was two things that brought that up: One thing was that Mr. Smith wasn't sold on Barnes as an inspector, and he FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 607 more or less left it up to me; and it was always my understanding that-I don't know where I got this, but it was my understanding that a man couldn't be in the union and still be on as a supervisor. When a man becomes a supervisor he must be loyal . We do have certain secrets. We have production outputs and things like that that we don't feel that all of the people on the floor should know about. I gathered the idea that a man that was a member of the union or an executive of the union couldn't also be a supervisor for the company , because I just didn't feel that he could be loyal to both. As we have noted above , in July 1934, Local 18304 was reorganized into a number of Locals, the members employed at the respondent's plant transferred to Local 19746 , and in August 1934 a committee' advised Smith of the reorganization and requested recognition. Upon the reorganization Barnes became a treasurer of Local 19746 and a member of its executive board, and was a member of the committee which visited Smith and requested recognition . As we have also noted above, the respondent continued to deal with its company -dominated Plan. On August 6, 1935, as the first shift was leaving the plant, copies of the Western Worker , described in the record as a Communist news- paper, were distributed at the entrance to the respondent's plant, containing three articles relating to the respondent . One of the ar- ticles , signed "By a Rubber-Neck," purported to set forth the history of the organization of the respondent's employees by American Fed- eration of Labor unions , and to describe inequitable wage, hour, and employment policies of the respondent. The article concluded with the query, "What next? " to which it gave the following answer : We want to organize . Every one is afraid to start for fear of losing his job. The place is overrun with stool pigeons-you don't know who is who. But we are going to organize. The second article, signed "By Karp," was entitled "Rubber Barons Grew Rich at Workers Expense ," and purported to describe large profits of the respondent and other large rubber companies , the intro- duction of the "speed-up" and wage cuts , and the organization and decline of unions in the rubber industry . The article concluded with the declaration that : . . . the workers have learned their lesson . Everywhere there are rank and file groups forming. These are appealing to the Communist Party for advice. . . . Quietly these rank and file groups are making contacts . So deeply have they penetrated that the rubber barons have taken fright . Harvey Firestone, Jr.21 24 Vice president and director of Firestone Ohio. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has become one of the organizers of the Junior Chamber of Com- merce Coordinating Committees against Communism. The issues are finally emerging into the open. The rubber barons are openly backing fascism. It remains for the working people to openly back and join the Communist Party. The third article referred to the painting of signs in red paint on the sidewalk in the vicinity of the respondent's plant and on its adjoining wall by employees from various plants, including the respondent's. Smith testified that on looking out of his office window, on August 6, he noticed the papers being distributed, saw several employees, includ- ing Barnes, take one, and saw Barnes hand the distributor what he concluded was money; that he telephoned the respondent's policeman stationed at the gate and learned the name of the paper, and that later in the day a copy was brought to his office. Smith further testified that he, gave instructions for Barnes to be sent to his office the next morning in order to interrogate him as to whether he had a part in the painting of the respondent's property or in the authorship of the afore-mentioned articles. Shortly after Smith arrived at the plant on August 7 Barnes, whose work had begun at 6 a. in., was sent to his office. The testimony of Barnes, Smith, and Bruber with respect to what occurred during the interview in Smith's office and the events which immediately followed is in some respects conflicting. For the reasons which appear below, we think that, even apart from Barnes' version, the record establishes that Barnes' dismissal from the respond- ent's employment on August 7 was in violation of the Act. According to Smith, the interview took the following course: I asked Mr. Barnes pointblank if he knew anything about these radical things that had been going on around the plant, and writing radical articles for the Communist paper, and he got pretty mad and denied it. And then I asked him if he knew any- thing about this painting on the sidewalk and the fences outside. He swore he didn't know anything about that, and he could lick anybody that said that he did. And then I think I asked him if he was a Communist, and he denied that. And I said, "Isn't it a fact that you gave this woman money for the paper out there?" "Well, what the hell if I did? That is my damn business what I do with my money. Besides that, it was only a few cents, any- how." And he became very sore and exhibited quite a bit of temper in my office. I didn't know whether he was going to take a poke at me or not. Smith, testified that "the only other thing that I could recall [as to the interview] was that I told him he should go back to work." After Barnes had returned to his work, Smith summoned Bruber to his FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 609 office. Smith testified that he repeated the conversation to Bruber "and told him that I didn't like the answers and attitude of Mr. Barnes, and that the next time there was a lay-off in that department it was all right with me if Barnes was let out on a lay-off." When asked why he suggested a lay-off, Smith testified that it was "Barnes' attitude and the impression I had that Barnes wasn't doing the right kind of job for the company, and we would be better off without him." Sub- sequently, upon cross-examination by the Board's counsel, Smith testi- fied that he had told Bruber upon calling him to the office that : I talked with Mr. Barnes, and I still wasn't convinced that he told me the truth, and I, in my mind, had doubts as to whether-had some suspicions as to whether he had been doing the things I accused him of, although he denied them. And I told him that due to Barnes' attitude, and due to my suspicions of him, that the next time there was a lay-off it was all right with me if he let Barnes go out on that lay-off. Although Bruber was questioned as to this conversation, both upon direct and cross-examination, he did not refer to any statement by Smith that he continued to suspect Barnes' participation in the paint- ing or in the authorship of the articles. According to Bruber, what Smith told him was to "consider Barnes in the next lay-off" because "I had quite a talk with him about these different articles and red paint on the sidewalk, and he got insolent and tough as hell. I didn't know for a minute whether he was going to take a poke at me or not." In the course of further examination by counsel for the Board, Smith was asked why he felt that Barnes was writing for the West- ern Worker. Smith testified as follows : A. Well, I just had the impression that some of these more radical men in the plant must be doing it, because they had enough half-truths in their paper to convince me that somebody on the inside was doing it. Q. And Mr. Barnes was one of the more radical men in the plant? A. Well, from what I had been told about him, and what I had noticed about him, I thought he was one of the radicals. Q. In what way was he radical? A. Just didn't seem to be in favor of the company, the company policies, sort of belligerent, and wanting to stir up trouble now and then. Q. Would an agitator for unions be a person who was against company policy? A. No, sir ; not necessarily. Q. Did Mr. Barnes' union membership and activities have any- thing to do with your belief that he was radical? 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Nothing whatever. Q. Wasn't Mr. Barnes' belligerent and cocky attitude causing you to think he was a radical? A. No, that was part of it; and then the reports that I got of how he was on the job, and then just to see Mr. Barnes, just to see him walk around and talk with people, you got the idea that he was cocky. When asked whether he had any other reason which caused him to believe Barnes had been writing articles in a Communist paper, Smith's answer was : His attitude the morning I talked to him, getting sore and not talking as a workman should to a superior made me feel that he had something on his mind, that he was guilty of something or other because he certainly displayed a nice temper anyway. As we have noted, in his explanation of his reasons for instructing Bruber to "consider Barnes in the next lay-off," Smith referred to his "impression" that Barnes wasn't doing the right kind of job for the company. Smith did not purport to advance any reason why he should have entertained such an "impression." On the contrary, the. record-establishes that Barnes' work was considered very good. So far as Barnes' "attitude" during the interview was concerned there was upon Smith's own account nothing which would have warranted his statement that he concluded therefrom that Barnes "had some- thing on his mind, that he was guilty of something or other." On the contrary, Barnes' reaction to the accusations was characteristic of resentment rather than guilt, and we conclude that Smith did not think otherwise. In so concluding we take into account the fact that Bruber did not support Smith's account of the latter's report of his alleged suspicion. The actual motive for Smith's action in directing Bruber to dismiss Barnes is, we believe, disclosed by Smith's at- tempted explanation for his "impression" that Barnes had been writ- ing for the Western Worker. As we have noted, Smith said he based this impression upon his belief that Barnes was a "radical." Smith's concept of a "radical" requires analysis. According to him, it consisted of the fact that Barnes "didn't seem to be in favor of the company, the company policy, sort of belligerent, and wanting to stir up trouble now and then," because of "the reports that I got of how he was on the job," and because he judged Barnes to be "cocky" from the way he walked around and talked with people. Smith did not name the "members of the supervision in his [Barnes] department" from whom he claimed to have received these reports, and none of the supervisors were called to corroborate Smith. On the contrary, there is no proof that Barnes had in any way acted untoward since the incident in FIRESTONE TIRE AND - RUBBER COMPANY OF CALIFORNIA 611 December 1933 and, as we have noted above, Bruber the following March had reported to Smith that Barnes' conduct was entirely satis- -factory, and Smith himself had thought that Barnes had acted "nice when interviewed at that time." Thereafter Bruber had continued to be satisfied with Barnes' conduct and there is no reason to believe that any other supervisory employee would have reported anything ,unfavorable concerning Barnes without the matter being brought to Bruber's attention. While Barnes' speech and 'demeanor at the August 7 interview was, as described by Smith, quite forceful, the accusations to which Barnes was replying were serious and, just as we do not believe that his conduct left Smith "suspicious," we also are satisfied that Smith did not instruct Bruber to "consider Barnes in the next lay-off" because of any personal affront. The true explanation for Smith's action is to be found, we believe, in the fact that he regarded Barnes as an employee who "didn't seem to be in favor of the company, the company's policies." Al- though Smith did not purport to state "the company's policies" which he thought Barnes opposed, it is clear that they were the respondent's anti-union policies, and that the "belligerent attitude" to which Smith had reference was Barnes' steadfast interest in union organi- zation, and unwillingness to relinquish his union membership even at the price of a promotion:` In short, from an examination of the testimony of Smith and Bruber alone with respect to the August 7 interview, considered in the light of the record with respect to the respondent's, and particularly Smith's, prior conduct, we find,that Smith, following the interview, decided to dismiss Barnes because he felt that Barnes would be a potential and influential organizer in the campaiign for reorganization Which appeared to be imminent. That this was the real reason for the instruction to dismiss Barnes is further established by the testimony of Barnes that at the conclusion of the interview Smith declared : Well, . . . you know, Barnes, ever since I have been out here you have been a puzzle to my mind. I have tried to show you your way straight around here, and you are too bullheaded 'to take it. Smith did not deny making the statement, and in view of his testi- mony, and the entire record, we find that he was correctly quoted by Barnes. As we have stated above, it is Bruber's and Smith's testimony that Smith told Bruber "to consider Barnes in the next lay-off." This Bruber testified he considered an order, and we have no doubt that it must have been so intended. At the end of the shift, with Smith's approval, Barnes was told he was laid off and Was paid for his work to date. The dismissal was contrary to the seniority practice pre- 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vailing, and it is entirely clear that but for Smith 's instructions Barnes would not have been dismissed. The respondent claims that Barnes was laid off rather than dis- charged. We are, however , convinced that, while the dismissal was in form of a lay-off, in fact it was a discharge. In its formal aspects, the dismissal differed from the usual discharge in that Barnes was per- mitted to continue to work until the end of the shift , was told that he was laid off, and his release slip marked "Laid Off . . . Reason Excess Help." The avowed reason was palpably false ; had there been involved only a reduction in personnel , Barnes, it is clear, would have continued to work. Moreover, had Smith intended only a dis- ciplinary lay-off, it is apparent in view of his conduct on a previous occasion that he would have infored Barnes when he might reapply for work. Furthermore, a dismissal contrary to seniority and, upon Smith's version for no stated reason which Barnes could have been expected to credit , was plainly tantamount to a declaration that his services were no longer desired by the respondent . Finally, by the dismissal, whether a lay-off or a discharge, the respondent intended to and did discourage membership in a labor organization ; the purpose and effect of the dismissal was to prevent concerted activity by em- ployees for the purposes of collective bargaining and other mutual aid and protection, by warning that such activity would result in the lay-off or discharge of employees participating therein. We find that the respondent, by dismissing Barnes on August 7, 1935, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization. We further find that the re- spondent by terminating Barnes' employment on August 7, 1935, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The respondent contends that it sought to offer Barnes reinstate- ment after August 7, 1935. The record does not support the conten- tion. Bruber testified that about December 1935 he asked Barnes' brother, who was employed by the respondent, how "Barnes was getting along," and learned that Barnes was then employed at the Los Angeles plant of Goodyear Tire & Rubber Company, herein called Goodyear. Bruber had not been instructed to make any such inquiry, had no reason to believe that respondent was willing to re- employ Barnes , and did not indicate to Barnes' brother that the re- spondent entertained any such willingness . Indeed, there was no showing that Barnes was ever informed that he would be given reem- ployment upon application , or proof that the respondent ever sought so to inform Barnes. Moreover, we are unable to perceive the rel- evance of the claim that the respondent, on learning that Barnes had secured employment at Goodyear , at which he was earning more per FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA. 613 day than he had earned when employed by the respondent, thereupon concluded that he would not accept reinstatement if offered. Such belief on the part of the respondent is obviously immaterial in the absence of proof, and there is none, that otherwise an offer of rein- statement would have been made. Moreover, having discriminatorily terminated Barnes' employment, the respondent assumed the risk that it was correct in its belief, if, indeed, it entertained such a belief, that Baines would not have accepted reinstatement. That Barnes would have accepted reinstatement is apparent from his testimony. He would have preferred reinstatement because at the respondent's plant he had been employed on the first shift while at Goodyear he worked on the night shift, and for the further reason that his seniority at the respondent's plant assured him of steadier employment. On August 7, 1935, Barnes was earning about $30 a week. His regu- lar employment was at the rate of $1 an hour, 6 hours a day, and 5 or 6 days a week. In addition, he occasionally worked overtime. During the first 2 months after he left respondent's employ, Barnes was in the cafe business and lost $500. On October 10, 1935, he was employed by Goodyear. What he earned there between that, date and January 1, 1936, is not clear; however, he was paid approximately 90 to 95 cents an hour, worked from 6 to 8 hours a day, and from 5 to 6 days a week. From January 1, 1936, to December 1, 1936, Barnes worked 1,7431/4 hours at Goodyear and earned $1,847.65. From December 1, 1936, until January 30, 1937, he worked for the General Motors Company at 55 cents an hour. The number of hours he worked at the General Motors Company do not appear. From February 18, 1937, until February 25, 1938,,when he was laid off, Barnes was employed by the U. S. Tire & Rubber Company; from February 18,1937, until January 1, 1938, he worked 1442.1 hours and earned $1,570.98; and from Janu- ary 1, 1938, until January 14, 1938, during the hearing, he worked 7 days, 41.3 hours, and earned $49.64. During his employment subse- quent to his discharge, Barnes worked on night shifts. Thomas H. Brittain Brittain worked for Firestone Ohio, in Akron, from November or December 1915 until January 1930, during which period he did various jobs, including curing tires, beads, and die bags, and working in the tube room. He was first employed by respondent on May 20, 1931, as a tire builder on drums. On November 7, 1931, he was reemployed by respondent and assigned to the molding division. He was immedi- ately transferred to the battery department, the manager of which was Ennis G. Scott, under whom he had worked in Akron. Brittain was assgned to battery-charging work and continued to work at that job until he was discharged again on March 19, 1936. 283033-41-vol. 22-40 (614 • - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brittain joined Local 18304 but never paid his dues, because he was interested in the organization of a union for battery workers only. Apparently he did not become a member of Local 19746. Soon after the Act was passed in 1935, Brittain mentioned its pas- -sage to Scott and told Scott that he thought labor would go ahead and organize. Scott replied that he thought the workers were foolish to put their money into an organization and pay for high-priced execu- tives and organizers and get nothing in return. After this conversa- tion, Brittain occasionally, before work began, talked in the plant in favor of unions. He did not, however, join the International. On March 15,1936, Brittain attended an open meeting of the International, at which he saw and talked to one of the respondent's policemen, James L. King. Within the next 2 or 3 days, Brittain engaged in a discussion in the plant washroom about unions at the end of the day's work. When Brittain reported for work on March 19, 1936, Scott told him that he was discharged for improperly charging batteries. Scott testified that the batteries in question were brought to his attention by Johnson, a foreman, that he, Scott, showed them to Brittain and that the latter admitted that the batteries had not been -properly formed. Scott further testified that in the summer of 1935, the respondent had received numerous complaints about batteries which it manufactured, and that after investigation he had 'repri- Ynanded Brittain because the batteries had not been charged enough; that he had again reprimanded him for the same reason in the latter part of the year or in January 1936, and that he had finally dis- charged Brittain on March 19, 1936, because he had again disregarded instructions. Brittain testified that he had never received any com- plaints about his work, but that at one time, Johnson, his foreman, had told him that customers were complaining that the batteries were being underformed and had instructed him to carry the charge longer - so that all traces of sulphate were removed from the positive plates ; that thereafter Johnson had instructed him to resume his former methods; that he had done so, and that when Scott had shown him the batteries on March 19, he had explained that he had followed John- son's instructions. Johnson was not called as a witness, and the Trial Examiner who heard the witnesses testify and was able to observe their demeanor, found that Brittain was, and that Scott was not, a credible witness. After consideration of their testimony, and in the light of the entire record, and particularly the events hereinafter set forth with respect to Brittain's discharge, and his efforts to obtain reemploy- ment, we find that Brittain's afore-mentioned testimony correctly states the facts. After Scott had given Brittain his discharge slip the latter took the slip to J. A. Moore, the respondent's assistant personnel manager whose FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 615 approval was necessary before a dismissal was considered final, and through whom persons were hired and reemployed. When Brittan presented his dismissal slip, Moore asked him the reason for his dis- charge and Brittain explained that he had been "accused of ruining 90 batteries." Moore's reply was: Well, that is too bad . . . under ordinary conditions, when a magi is dismissed, they are not rehired, they are not eligible for rehiring for 30 days, but in your case, why, you come back and see me in a couple of weeks. I think I can fix you up. At this point in the conversation Scott passed by the office and Moore went outside and spoke to him. On his return Moore told Brittain "that is all I can do for you." Brittain applied for reemployment two weeks later, and again a month later , but on both occasions was told by Moore that there was "nothing doing." Shortly thereafter Brit- tam's wife saw Moore about obtaining employment for herself. After Moore told her that there was no work for her, she asked him whether there was any likelihood that Brittain would be rehired. Moore re- plied that Brittain would not be reemployed either in the battery department or in any other part of the plant; that "as far as he knew, Mr. Brittain's work was satisfactory, but he couldn't go over the heads of the higher-ups." Mrs. Brittain then volunteered that Brittain had attended only one union meeting and that lie did not belong to a union. Moore replied, "You know, Mrs. Brittain, Firestone will not stand for any outside union activities." Brittain did not thereafter seek reem- ployment by the respondent. We find that the respondent discharged Brittain because of his attendance at the meeting of the International on March 15, 1936, and because of his discussion thereafter of unions in the plant . In so con- cluding, we are not unmindful of the fact that Brittain was not particularly active in his union interests. On the other hand, we find no other credible explanation for his discharge after nearly 5 years of continuous service at the same job . As we have found above, this was the first occasion during that period when Brittain had been repri- manded for his work. Moreover, he told Scott that he had followed his foreman 's instructions . Under these circumstances we do not believe that had the condition of the batteries been the sole considera- tion Scott would have discharged Brittain. Finally, the statements made by Moore to Mrs. Brittain , particularly in view of his prior statement to Brittain himself on March 19, establish that the respond- ent discharged and refused Brittain reemployment because of his union activities. We find that the respondent discharged Brittain on March 19, 1936, and thereafter refused to employ him because he participated in the activities of and assisted the International and engaged in concerted 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection , thereby discriminating with regard to his hire and tenure of employment and discouraging membership in a labor organization ; and that by such acts the respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7. About 2 weeks after his discharge , Brittain obtained 16 hours em- ployment with General Motors Corporation at 500 an hour. From July 20, 1936, until November 12, 1937, he worked 44 hours a week for the H. W. Thermo Control Company. From July 20, 1936, until the end of June 1937, he received 45¢ an hour, and thereafter until Novem- ber 12, 1937, he received 500 an hour. Since November 12, 1937, he has had no employment. When he was discharged by the respondent in March 1936 Brittain was earning 72¢ an hour and working 6 hours a day and 6 days a week. He wishes to be reemployed by the respondent. Peter Uzelac Uzelac was first employed by the respondent on June 11 , 1928. He was discharged in March 1932 on the ground that he had fallen asleep at his job. The following December Uzelac was rehired as a janitor, and in the spring of 1933 was transferred to cleaning the Banbury mixers and the floor space around them. He worked at the latter job until his discharge on February 16, 1937. Uzelac was a member of Local 18304 in 1933 and 1934. He at- tended the mass meeting held by the International on January 31, 1937, and thereafter, until the time of his discharge, solicited members for the International in the shower and locker rooms at the respond- ent's plant. As we have found above, Uzelac's attendance at the meet- ing, when he declared his intention of joining the International, as well as his solicitation of members , was reported by Osburn to Fussell, general foreman of the department in which both Osburn and Uzelac worked. Uzelac testified that shortly after his attendance at the meet- ing of the International, Haug, his supervisory inspector , cautioned him against stopping and talking with other employees while at work, and that he thereafter, for the first time , required Uzelac to signal when leaving the plant to take scrap to the incinerator , so that he might know Uzelac's whereabouts . Haug testified that he had in- structed Uzelac to sound a horn on leaving the building, stated he did so in order to facilitate his finding Uzelac because he frequently was not available when wanted on his job, and fixed the time when such instructions were given as October 1936. The Trial Examiner who heard the witnesses testify and observed their demeanor found that the facts were as testified to by Uzelac. The Trial Examiner did not advert to other evidence which strongly corroborates Uzelac's testi- FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 617 niony, which we also credit, that he was closely observed by Haug, following the meeting of the International. Harrison P. Turnbull, an employee who also worked under the supervision of Fussell and Haug, testified that in February, after a conversation between himself and Uzelac in the plant, Haug had called him aside and asked him what Uzelac "was trying to instigate." While Haug denied the incident, the fact is that Turnbull at the time warned Uzelac that Haug had queried him as to Uzelac's activities, and he hardly would have so advised Uzelac unless he had been so interrogated by Haug. We find that Haug on this occasion did question Turnbull as to Uzelac's activities, and we further find that, as testified to by Uzelac, the incident occurred 2 or 3 days before his discharge, which was approximately the time fixed in Uzelac's testimony as to the time when he was instructed to signal when he left the building.25 As we have stated above, Uzelac was discharged on February 16, 1937. The Trial Examiner, in his Intermediate Report, concluded, that "while the case is not free from doubt" the evidence did not establish that Uzelac was discharged because of his union activities. In so concluding the Trial Examiner found that there had been con- siderable trouble with the Banbury mixers, and although unconvinced that Uzelac's work had caused the trouble, found that Uzelac's super- visors believed that he was not doing a good job and that his failure "was a factor contributing to the trouble." Upon this analysis of the facts the Trial Examiner regarded as "persuasive" the respondent's evidence that Uzelac was discharged for failure to clean the Banbury mixers properly. However, the evidential facts as found by the Trial Examiner, considered together with other evidential facts which appear from the testimony of the respondent's own witnesses, but to which the Trial Examiner does not advert, demonstrate that the Trial Examiner erred in his ultimate finding of 'no discrimination. As we have noted above, Uzelac was employed in cleaning the Ban- bury mixers from the spring of 1933 until his discharge on February 16, 1937. The job was common labor. In addition to removing the rubber from the rings of the mixers, Uzelac was required to pick up and assort the droppings from the machines and to clean up the space around their bases. The job was an exceedingly dirty and unpleasant one, and appears to have required no skill. Irrespective of the num- ber of shifts on which the mixers operated, only one cleaner, Uzelac, was employed, so that when production increased in the latter part of 1936 and remained high until some time after Uzelac's discharge, it was necessary for him to clean and pick up during one shift the refuse resulting from three other shifts as well. Admittedly the increase in 25 Turnbull fired the date as "February as near as I could say" Uzelac, to whom the incident was, of course, of more immediate consequence, fixed the date as 2 or 3 days before his discharge 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production also made more difficult the job of properly cleaning the rings of the mixers. Warren, the respondent's chief electrician, testified that he had al-. ways complained about the condition of the rings and that the con- dition became worse after the increase in production. Haug and Fus- sell also fixed the increase in complaints as beginning in the latter part of 1936. Haug testified that he complained to Uzelac every day throughout this period about not cleaning the mixers properly, and that he also complained to Fussell "all through the winter" about Uzelac's work. According to Fussell, he spoke to Uzelac about his work three or four times during this period. Fussell further testified that there were three stoppages in December, January, and February from 6 to 12 hours to make repairs that the mechanical department said were due to failure to clean the rings of the mixers properly. The Banbury mixers are the "bottle-neck" of production in the department. Stoppages for repairs are consequently very costly, as other work must wait upon the resumption of operation. Under the circumstances it is incredible that if the respondent had believed that Uzelac's work, which was paid at a labor rate, materially contributed to such stoppages that he would have been retained for several months, or that additional cleaners would not have been added, or that, as admitted by Fussell, Uzelac's hours were increased from 6 to 7 hours a day in order that he might be, assigned to additional work in clean- ing around the calenders. While Fussell also testified that Uzelac thereafter complained that he did not have time enough to clean the mixers and that his hours were therefore increased to 8 daily, the fact is that cleaners who succeeded Uzelac were employed on 7-hour shifts. Furthermore, the respondent offered no explanation for reducing Uze- lac's hours from 8 or 7 to 6 a few days before his discharge. Whatever the respondent's dissatisfaction with Uzelac's work, upon its own version the situation had existed for many months prior to February 16. Certainly if his alleged deficiencies were seriously re- garded he would have been replaced or other cleaners added, and his hours of work would not have been reduced or additional duties as- signed to him. Furthermore, although he had been employed as a cleaner almost 4 years, Uzelac was discharged without any warning that he would be dismissed unless his work improved, and his plea for 2 days in which to seek to do a better job was refused despite the fact that the respondent had no one available to replace him, with the result that for several days the mixer operators on all three shifts were kept 2 hours beyond their regular working hours in order to clean their machines. Upon these facts we do not believe that Uzelac's discharge is to be accounted for on the ground of bad work. On the contrary, in the light of the entire record, and particularly the respondent's FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 619) hostility to union organization, the report to it of Uzelac's union ac- tivities, and the surveillance which immediately followed, we have no- doubt, and accordingly we find, that Uzelac was discharged because. of his union activities. We find that the respondent discharged Uzelac on February 16,. 1937, because lie participated in the activities of and assisted the International and engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, and that the respondent thereby discrimi- nated with regard to his hire and tenure of employment to discourage membership in a labor organization; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of' rights guaranteed in Section 7 of the Act. At the time of his discharge Uzelac was earning 71 cents an hour- and about $29 a week. In March 1937 Uzelac obtained 2 weeks' em- ployment from a contractor at 40 cents an hour, for about 8 hours a day and 5 days a week. In April 1937 he worked 4 days for another con- tractor at 40 cents an hour for 43 hours, and 4 days making fertilizer,, at 40 cents an hour, 8 hours a day. About November 1937 he worked 34 days for Los Angeles County Flood Control at $4 a day. Since then, he has had no employment. Stanley Jenkins and John Skolich Both Jenkins and Skolich were employed as janitors at the time of their lay-off on March 2, 1937, Jenkins having been employed by the respondent as a janitor since June 2, 1936, and Skolich since July 14, 1936. Both of them had attended the meeting of the International on January 31, 1936, and Jenkins had there expressed the intention of becoming a member. Thereafter both of them discussed unions in the plant, and Jenkins actively solicited members. As we have found above, Jenkins' attendance at the meeting of the International and his subsequent activities were reported to the respondent by Osburn. Jenkins testified that shortly thereafter he was told by Westhead his supervisor to "keep my mouth shut. If you keep on organizing around here, you are going to get kicked out, Mr. Smith says so." Jenkins testified that the warning was repeated several times before his lay-off. - Westhead denied warning Jenkins. The Trial Examiner did not credit Westhead's denials. We are also of the opinion that Westhead was not a credible witness, and that Jenkins' testimony is in accord with the facts.26 26 The Trial Examiner concluded , however, that little significance was to be attached to the warning, since he deemed it to be the known company policy not to permit organiza- tional activity either at work or on company time . We do not think the record , at least prior to the end of April or the first part of May ( see Section III C, antra) warrants such a refinement of the respondent's opposition to any union activity by its employees Moreover, Westhead testified that it was not until after May 1937 that he had any idea 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Skolich and Jenkins were admittedly good workers. Skolich, however, had a skin condition, it was discovered about a month after his employment, which made impossible his assignment to work in certain departments and had prior to March 2 resulted in three trans- fers to different parts of the plant. On March 2 the janitorial force was reduced by two, and Skolich and Jenkins were laid off and five other janitors with less seniority were retained. The respondent's practice permitted such exceptions to be made where the employees with less seniority possessed qualifications which made their continued employment preferable. The respondent contended that because Skolich's physical condition limited his availability he was chosen as one of the employees to be laid off. The Trial Examiner found that the evidence supported this contention, and we have reached the same conclusion. The Trial Examiner, while stating in his Intermediate Report that "the case is not entirely free from doubt," concluded that Jenkins' lay-off was not caused by his union activity. In so concluding the Trial Examiner found that, as in the case of Skolich, the respondent "advanced persuasive reasons for the retention of the five men who had less seniority on the list." Upon this latter finding the Trial Examiner plainly erred as appears from an examination of the testi- mony of the respondent's own witnesses. On the contrary that evi- dence shows that Jenkins' lay-off is accounted for by his union -activi- ties of which, as we have noted above, respondent had been informed and about which Westhead had warned Jenkins. When Jenkins was notified of his lay-off the reason given him by Westhead was a reduction in production at the plant. This reason Westhead asserted was the one given him by his superior Elmer E. Bevans, the respondent's chief engineer. The record completely estab- lishes, however, that this was a period of sustained high production, and at the hearing Bevans advanced an entirely different explanation for the reduction in personnel. According to him the respondent had just completed a painting job for which extra help had been employed and Smith had instructed him to reduce his working force. As ap- pears from Bevans' testimony the janitorial work had been increased because of the painting since the janitors were required to clean up after the painters, and it appears from Jenkins' and Skolich's uncon- tradicted testimony that they had worked extra hours during this period on that account. According to the respondent's version of the manner in which Jen- that the respondent's had any rule against such activity. Consequently it is clear that his warnings to Jenkins in February and March were the result of special circumstances, a conclusion that is further indicated by the fact that Westhead and Jenkins were and, for a considerable time after the period under discussion , remained personal friends. FIRESTONE T-IRE AND RUBBER COMPANY OF CALIFORNIA 621 kips came to be selected for a lay-off, Bevans instructed Westhead to select two men to be laid off and also to ascertain whether a third, one Ciocca who had been transferred from the battery department was scheduled to be retransferred shortly to that department, and that Westhead had then made the selections, deciding to lay off Skolich and Jenkins, retaining Ciocca and four other employees with less seniority than Jenkins but with more desirable qualifications. Of the five janitors retained on March 2, despite Jenkins' seniority, only one, West, had been employed at the time it became necessary to increase the janitorial force because of the painting job, and he was out-ranked by Jenkins in seniority by more than 6 months. West- head testified that West had been employed as sweeper during the week and as a painter on weekends, and that West had been retained in preference to Jenkins because he was a painter. Westhead's testi- mony was palpably untrue. Not only did Bevans testify that the persons added to the janitorial staff because of the painting job did cleaning-up work and not painting, but he made no claim that West • had ever worked as a painter. Moreover, the record shows that em- ployees hired as painters were carried under another pay roll under a different series of clock numbers and were not on the same seniority list as Jenkins and West. While Westhead testified that he chose West, who was at the bot- tom of the seniority list, in preference to Jenkins because West was a painter, the fact was that Jenkins himself was a painter and that his personnel card showed this to be the case. This circumstance is particularly significant since Westhead testified that he chose to retain another janitor, Pickup, in preference to Jenkins because Pick- up was qualified as an office janitor, and that he had ascertained that fact from the respondent's personnel records. Moore, who had charge of the personnel records, admitted discussing the lay-offs with either Bevans or Westhead, and testified that at the time he knew the work for which the janitors, laid off and retained, were qualified. Since Bevans testified that he referred Westhead to Moore, and did not claim to have himself consulted with Moore, it is clear that Westhead was fully informed that Jenkins was qualified as a painter, and, indeed, so was Moore whose approval was necessary before the lay-offs could be made. Accordingly, it is apparent that the reason assigned by the respondent to explain Jenkins' lay-off was neither valid nor one which it ever entertained. In view of that fact, the further fact that Jenkins' activities were reported to the respondent and Westhead's warning that Smith had ordered Jenkins' discharge, and upon the entire record, we are convinced that Jenkins was laid off on March 2, 1937, because of his union activities. 622 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Jenkins was reemployed as a janitor on June 5, 1937.27 Under the respondent's practice he retained his seniority but received no credit for the period of his lay-off. Thereafter, on November 11, 1937, Jenkins was again laid off during a reduction in personnel. On this occasion the lay-off was made entirely according to seniority, and Jenkins would, therefore, have retained his job except for his unem- ployment between March 2 and June 5, 1937. Inasmuch as we have found that his original lay-off was discriminatory, we also find that his second lay-off which was the result of such discrimination was also discriminatory. We find that the respondent laid off Jenkins on March 2 and Novem- ber 11, 1937, because he participated in the activities of and assisted the International and engaged in concerted activities with other em- ployees of the respondent for the purpose of collective bargaining and other mutual aid and protection, and that the respondent thereby discriminated with regard to his hire and tenure of employment to discourage membership in a labor organization; and that the respond- ent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Jenkins worked about 6 weeks for the W. P. A. between March 2 and June 5, 1937, and earned $55 a month. He had no work between November 11, 1937, and the hearing. His earnings before his March 2, 1937, lay-off ranged from about $20 to $28 a week and between his reemployment and discharge from about $18 to $40 a week. Harrison P. Turnbull and Norvel C. Humphreys Turnbull was employed by the respondent from the spring of 1933 until his discharge on May 15, 1937. At the time of his discharge he was employed as a transfer man on the conveyor in the compound room, to which job he had been transferred the preceding December. Humphreys who was also discharged on May 15, 1937, had been employed as compounder since 1931 except for a period during 1933 or 1934 when he was telupor,rily promoted to the job of inspector. Turnbull was a charter member of Local 100 and in April 1937 was elected its first president. Humphreys joined the International on March 26, 1937; and when Local 100 was formed he became a shop steward. Both men spoke in favor of unionism in the shower room of the plant, and both were among the employees who wore their union buttons in the plant. Fussell and Haug, under whom Turnbull and Humphreys worked, admitted that they knew in April that Turnbull 27 A charge of discrimination in Jenkins ' case had been filed by the International on March 13 , 1937, and his case was one of the matters discussed at a conference at the Regional Office on May 18, 1937, between the respondent , Local 100 , and the Regional Director. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 623 was president of Local 100. Humphreys, as we have stated above, was an employee representative under the Plan, and in February 1937 was reported to Fussell by Osburn as utilizing his role as an employee representative to cloak discussion of unionism with employees. As we have also found above, in April, Meek cautioned Davison against "running around with" Humphreys and other "red-eyed fellows." According to Haug and Fussell an epidemic of mistakes began in the compounding room in the latter part of April or early in May 1937. Neither was a credible witness ; Humphreys denied that there was any such epidemic, and we credit his denial. Moreover, it appears that mistakes in the compound room were by no means uncommon. Thus Humphreys testified, without contradiction, that a compounder named Tipps had made 22 errors in one day without being disciplined. While Tipps was not disciplined, three members of the Local 100 were suspended for one day each on May 10, 11, and 14.28 The first of the three union members to be suspended was Charles F. Morrison, a pigment compounder. Fussell testified that he had sus- pended him because instead of adding 54 pounds of an ingredient required by the formula, Morrison had added only 4 pounds and had, without asking the approval of Haug, relied upon other employees to add the 50-pound bag of ingredients. Morrison was called as witness for the respondent, and while he admitted the failure to follow the specifications, testified that he had told Fussell that this was the common practice in the compounding room. Morrison testified that he was afraid that he would next be discharged. That he regarded the suspension as discriminatory is indicated by the fact that he promptly prepared an affidavit of the circumstances of the disciplinary action. On May 11, Humphreys, who had been a rubber compounder for the last 2 or 3 years, was transferred to Morrison's job. During the day he made 3 mistakes, and was sent by Haug to see Fussell who sus- pended him for a clay. Humphreys protested that the suspension was unfair since he had not compounded pigments during the last 2 or 3 years, that the nature of the work had changed and that, therefore, he could not be expected to do a perfect job. Humphreys also asked that he be retransferred to his job as a rubber compounder inasmuch as lie was better fitted for that job than Morrison, and that Morrison be returned to his job as a pigment compounder for which he was the more qualified worker. Fussell refused the request without assigning any reason other than the declaration that lie "was going to make me [Humphreys] stay on the job whether I wanted to or not . . . until someone higher up than him [Fussell] took me off." 28 Tipps continued to work as a compounder liecoids produced by the respondent show that in January and February 1938 he made at least three more mistakes Indeed, admittedly records for part of January and February 1918 showed that 30 or more mistakes had been made in the compound room 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent offered no tenable explanation for the suspension of Humphreys and none at all for the refusal to reassign him to his previous job as a rubber compounder. With respect to Humphreys' suspension, the reason advanced by the respondent fails to withstand scrutiny when it is considered that on cross-examination Fussell was confronted with the fact that McDonald, a pigment compounder, had not been disciplined for making mistakes on January 26 and 27 and February 9, 1937, and offered in explanation the fact that McDonald ". . . was a mill man at one time and he had not been working in the compound room very long, and he is just back from a leave of absence for about six weeks or two months, and he has not been in the com- pound room as long as some of the others, and we take that into con- sideration when disciplining men." In Humphreys' case Fussell refused even to discuss the fact that Humphreys had not worked on pigments for 2 or 3 years. Humphreys was unquestionably a competent compounder. As late as February 1937 he had been offered the job of inspector during the lay-off of the regular inspector, which he had declined in favor of a fellow compounder named Smith, because he considered Smith entitled to the position. Smith, who was suspended for a day on May 14, was the third union man suspended for mistakes. According to Haug and Fussell, at the same time that the alleged epidemic of mistakes began among the compounders frequent stop- pages began to occur on the conveyor on which Turnbull worked. Throughout this period Haug almost daily complained several times to Turnbull and Evans B. Penn, who with Turnbull constituted the conveyor crew. The record, however, discloses no ground for any belief on the part of either Haug or Fussell that the stoppages were any more frequent or of longer duration than was to be expected as the normal result of a peak production period. Penn, who was called as a witness by the respondent, admitted that Turnbull carried out his share of the work, and the mill operators called by the respondent admitted that the stoppages had not caused any of them to fail to "make out" their production quotas. The record, in other respects, discredits the contention that the conveyor was being stopped unduly. For some time Turnbull and Penn in addition to their work on the conveyor had moved sacks of lampblack and had received additional compensation therefor. In the middle of April they were taken off this additional work, on which they had been spending about an hour and a half of their shift. Fussell explained this on two grounds. Accord- ing to his testimony Turnbull's and Penn's earnings had been dispro- portionately high so that it was desirable to divide the work among others, and he wished them to have more time to work on the con- veyors in view of the complaints over stoppages. However, it appears FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 625 that Fussell was not advised of any complaints until the last of April or the early part of May, Haug testifying that he then for the first time regarded the situation, as serious . Indeed, as we have noted above, Fussell himself did not claim that any serious delays had occurred before the end of April or the first part of May . Moreover, the alleged undue stoppages were not referred to by Fussell when he called Turnbull and Penn to his office in May to question them as to the manner in which they had made out their reports of work in moving the lampblack. When Humphreys was notified to go to Fussell's office on May '11, he asked Turnbull and Lebadis , a shop steward of Local 100, to go with him as a committee . In Fussell's office Turnbull attempted to act as spokesman , and stated that they were a union committee to represent Humphreys . Fussell replied that he "hadn't called for them" and that he "had something . . . to talk with Mr. Humphreys about." When Turnbull stated that he thought they had a right to represent Humphreys, Fussell declared that he "hadn 't been advised to that effect," and told Turnbull and Lebadis to leave the room . As we have stated above, Fussell suspended Humphreys and refused to reassign him to the job of rubber compounder . After Fussell had completed his talk with Humphreys, Turnbull and Lebadis returned to the room and again sought to speak to Fussell about Humphreys ' case. Fussell announced that he had made his decision and refused to speak about it. Haug testified that on May 13 he complained several times to Turn- bull and Penn about stoppages . On one of these occasions , according to Haug, Turnbull asked him whether he ever felt sick at his stomach, and when Haug replied that he did not, Turnbull observed "It won't be long when you will be sick at your stomach ." Haug further testified that he reported the incident to Fussell and that the latter advised him to send Turnbull to the office in the event that Haug had any further trouble with him. Fussell corroborated hang as to the report and the instructions . Turnbull denied that he had made any such remark and Penn, who, as we have stated, was called as a witness by the respondent admitted on cross-examination that he had not heard Turnbull make it. On the morning of May 15, Haug complained to Turnbull and Penn several times about stoppages . Turnbull testified that he made no reply but that Penn had answered that they were doing the best they could. Penn testified to the same effect. Later Penn went to the rest room and Turnbull , being alone, found it necessary to stop the con- veyor in order to remove some slabs of rubber . At this point Haug came to the conveyor and complained of the stoppage . Turnbull testi- fied that he told Haug that the conveyor had "gotten ahead of" him because Penn had gone to the rest room. Haug denied that Turnbull 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gave any such explanation , and further testified that when he stated to Turnbull that one of the operators had complained of the delay, Turnbull had accused Haug of being the-real source of the complaint. By this time Penn had returned to the conveyor, and Haug went to Chalmers, one of the employees in the compound room, brought him over to the conveyor, and told him to take Turnbull's place. Haug then told Turnbull to go to Fussell's office. According to Turnbull, Haug not only told him to go to Fussell's office but added "and get your time." Haug denied telling Turnbull to get his time and Chalmers corroborated the denial. Penn testified that he did not hear Haug add the words about Turnbull getting his time, but declined to testify that Haug had not said them. When Haug replaced Turnbull and directed the latter to go to Fussell's office, Turnbull completely lost his head and began an assault upon Haug, which lasted for some time and resulted in an extremely severe beating of Haug who did not fight back. Turnbull had previ- ously concluded that Haug was "riding" him and had told Penn he thought this to be the case. When the assault began Penn went after Humphreys and returned with him before Turnbull ceased his attack. During the assault, according to both Turnbull and Humphreys, Haug pleaded with Turnbull to stop, exclaiming, "I have to do it." Haug denied making any such statement and Chalmers corroborated him. Penn testified that he did not hear any such statement by Haug or anything else that was said between Haug and Turnbull after the assault began. When Turnbull finally calmed down somewhat he seized Haug and started toward Smith's office, declaring, "I'm going to take you up to Smith's office and find out about this." Despite Haug's pleas not to make him go into Smith's office, Turnbull forced him ahead and shoved him into the office where he found Smith in a conference with Meek and Moore. Smith then told Turnbull that he was discharged for assaulting Haug. Turnbull testified that when he brought Haug into Smith's office he declared he "was sick and tired of this damn intimidation, and wanted to know what this man [Haug] was doing, and what his orders were, and something of the nature." Both Smith and Meek testified that Turnbull said, "I want you to see what happens to people that interefere with C. I. 0. Take a look at him." Moore testified that Turnbull had declared "that he was the president of the union and he had been elected to look out for the boys and he was going to do it." Moore added that Turnbull had "elaborated on that theme somewhat." Smith further testified that Turnbull had declared "I just couldn't stand it any longer and I let him have it." Smith was asked on cross- examination whether he had asked Turnbull to what he was referring by the statement that he "couldn't stand it any longer ." Smith's FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 627 reply was, "I don't recall that I did." Yet, on further cross-examina- tion he admitted that he had asked Haug if he had "picked on" Turn- bull. Smith's testimony is also revealing in that it appears therefrom that Haug made no reference to the alleged threat by Turnbull two days previously. The Trial Examiner did not resolve the issue of fact as to whether Haug had told Turnbull to go to Fussell's office "for his time," but did find that there was no "real justification for picking out Turnbull rather than Penn," and also found that Haug had pleaded, "I have to do it," when he sought to stop Turnbull 's assault. The Trial Examiner found that "The evidence does not justify a finding that Turnbull had been so singled out by the management and the supervisors as to have been `framed' into striking Haug." The Trial Examiner stated that, "Though the record leaves room for doubt," as to the cause of Turn- bull's discharge, he was "of opinion that Smith discharged Turnbull because of his'attack upon Haug rather than because of Turnbull's position in and activities on behalf of the Union [Local 100]." The Trial Examiner, in his Intermediate Report, apparently pro- ceeded upon the assumption that a fundamental issue with respect to Turnbull's discharge was whether Turnbull had "been goaded into this attack [upon Haug] because of his position as President of Local 100." We are of the opinion that the Trial Examiner thereby fell into error, and we find that although the evidence does not estab- lish that the respondent sought to provoke Turnbull into an assault upon Haug, the record establishes that Turnbull's employment was discriminatorily terminated. We have pointed out, in Section I above, and in considering the dis- crimination against Barnes, Brittain, Uzelac, and Jenkins, the unre- mittent hostility of the respondent to union activities among its em- ployees. One further event which occurred between Jenkins' lay-off on March 2, 1937, and the events described above, requires mention at this point, although it will be more fully considered below. On April 28, 1937 , a new labor organization, the Independent, was formed among the respondent's employees, many of the organizers being former em- ployee representatives under the Plan. On April 28, 1937, these em- ployee representatives resigned their positions under the Plan, which the respondent 2 days later disestablished. At the same time the or- ganizers of the Independent began an intensive organizational cam- paign in the plant. It will be noted the suspension of three members of the union fol- lowed closely upon the heels of the organization of the Independent, as did the steady stream of complaints against the work of Turnbull, the president of Local 100. The order of these events was not, we conclude, fortuitous, but a result of a deliberate attempt by the re- spondent to obstruct Local 100 and thereby to assist the Independent. 628 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD- Moreover, we think it clear that, except for the unforeseeable assault by Turnbull upon Haug on May 15, Turnbull would as part of the respondent's plan have been discharged on May 15 for alleged bad work. As we have pointed out above, Penn and Turnbull as a result of no longer being engaged in moving lampblack since the middle of April, had more time than before available for their work on the conveyor. Moreover , as appears from the testimony of Penn, there was no ground for any criticism of Turnbull 's work. Furthermore, if, as Haug and Fussell testified, Haug had complained to Fussell around the end of April or the first part of May, it is unlikely that Fussell would not have referred to the matter when lie called Penn and Turnbull to his office in May about their records on the lampblack . Nor, in view of Fussell's treatment of Turnbull on May 11 when he sought to repre- sent Humphreys , do we doubt that Fussell would promptly have sent for Turnbull had the latter been reported by Haug on May 13 as hav- -Ing threatened Haug with a stomach ache. As we have noted above, Penn testified he heard no such threat made. In that connection it should be noted that when Haug was asked on cross -examination why lie had chosen to send Turnbull to Fussell's office rather than Penn, Haug's explanation was that Turnbull had always acted as the spokes= man for the two. Turnbull , on the other hand, testified that when Haug had complained to him and Penn on May 15, only Penn had replied, and in this he was again corroborated by Penn. The record, we find, establishes that the continual reprimands about the conveyor were unwarranted and that their purpose was to estab- lish a • basis for discharging Turnbull . Plainly Penn's absence on the occasion of Haug's last reprimand was sufficient explanation for a stoppage of the conveyor, and we cannot credit Haug's denial that this explanation for the delay was not advanced by Turnbull. We find, as did the Trial Examiner , that there was no valid reason "for picking out Turnbull rather than Penn." That fact, we believe, is strongly corroborative of Turnbull 's testimony that Haug, on putting Chalmers in Turnbull 's place, directed the latter to go to Fussell's office to get his time. Also corroborative is the plea by Haug that "I have to do it." While the Trial Examiner did not deem it necessary to decide the conflict of testimony between Turnbull on the one hand and Haug and Chalmers on the other, with respect to the instruction to Turn- bull to go to the office and get his time, the Trial Examiner did find that Turnbull, and not Haug and Chalmers, testified truthfully with respect to the plea by Haug, "I have to do it." We think this ap- praisal of credibility with respect to an immediately succeeding incident is entitled to weight upon the other issue of fact as well. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA -629 1\1oreover, while Penn professed not to have heard either the instruc- tion or the entreaty , it is impossible to read his testimony without concluding that he was a witness reluctant to testify adversely to the respondent . Furthermore his actions outspeak his words . For Penn promptly ran to call Humphreys as shop steward, and his participa- tion in the committee that sought to see Smith clearly shows that he shared the opinion of the other employees that Turnbull was being ,discriminated against. While there remained the formal confirmation by Fussell and approval by Moore, it is clear, and we find, that Haug stopped Turn- bull from continuing his work, and replaced him by Chalmers, in connection with a contemplated discharge. In ordering Turnbull to cease work and giving his job to another , the respondent dis- criminated against Turnbull with respect to hip hire and tenure of employment because of his membership in and activities on behalf of Local 100, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the -exercise of rights guaranteed in Section 7 of the Act. That there- after Turnbull completely lost his head and subjected Haug, who did not resist, to a merciless beating is not, however , inconsequential. While the assault grew out of a deeply felt and entirely justified ,belief that the respondent was carrying on a campaign of intimida- tion, the record does not establish that the respondent had any inten- tion of provoking such an attack. For that reason, and in view of the character of the assault, we do not believe that the policies of ,the Act would be effectuated by ordering reinstatement of Turnbull or any back pay for the period after his discharge. Meanwhile, after Turnbull had left the compounding room with Haug, some of the employees gathered together and discussed whether they should call a strike or send a committee to Smith's ,office. Humphreys assumed the leadership of the group , and a com- mittee left for Smith's office. Before they arrived Turnbull had been discharged. Humphreys , who acted as spokesman for the committee, testified that on meeting with Smith, he told Smith, "we came up to find out when they was going to stop this intimidation down in the compound room;" that when Smith stated he knew of no intimida- tion, Humphreys declared "maybe he didn't know it, but we certainly ,did because we were the ones on the receiving end of it. " Humphreys testified that after some further discussion Smith had stated, This is no time in all the commotion and everything. You take your com- mittee back to work, come up after working hours, and we'll talk this thing over." Humphreys further testified that he stated this was satisfactory, that he "would like to come to some understanding with Mr. Smith; but I was afraid if we would go down there [i. e., return to work] he would discharge its one at a time." Humphreys testified 283033-41-vol 22-41- 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Smith then declared, "I'll give you my word nobody will be discharged,"' and that the committee then returned to work. Smith testified that he arrived upon the scene after the committee had begun talking with Meek, and that nothing was said in his ? presence about the committee being there "to stop this intimidation." He denied that he had told Humphreys to take his committee back to work and to return after working hours for a conference , and also denied that Humphreys had expressed any fear of discharge or that he had promised Humphreys that no one would be discharged. Smith testified that no one in the committee spoke to him , that their conversation had been with Meek, and that he [Smith] had simply told them to return to work, and that Humphreys had called out,, "Come on, boys, let's get back to work." Meek, with whom. Smith testified the committee had talked , testi- fied that one of the men, probably Humphreys, had declared that he asked the men to return to work, that shortly after he and Craig "caught up with the men ," Smith joined them , that Smith inquired as to the cause of the disturbance and when informed by Meek "talked with the men and asked them to go back to work." Meek was asked whether there was then "anything said by any of the men." His answer was, "I don't recall the words that they spoke, except that they showed some reluctance at first to go back." Meek was also asked on cross-examination whether he heard Humphreys "say anything about intimidation." Meek's answer to the question was, "I don't recall that he said anything about that." Meek testified that he or Craig or Fussell told the committee that Turnbull had been dis- charged and that that was "the only thing that was said about any- body being discharged." Moore testified that he had heard only a part of what transpired when the committee,came to see Smith. He testified that he heard Smith ask the men to return to their work and that Turnbull, who. was in Smith's office, had at this point come to the door and "told them that he thought they ought to go back to work, " and that "you can believe what Mr. Smith says" because Smith had recently been elected a church deacon. Craig professed to be unable to remember anything of the incident other than that Smith had told the men to go back to work and that Humphreys had said, "Let's go back to the job, back to work." Morrison , whose suspension on May 10 we have discussed above, was one of the members of the committee, and, as we have stated above, was called as a witness by the respondent . He described the. visit of the committee as follows : I think they stopped around Mr. Meek's office ... Well, they stopped there, and I don't think they any more than got stopped than Mr. Smith came down the hallway there and he asked, J 4 FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 631 "What is the trouble?" and Humphreys spoke up and said, "How long is this intimidation and riding going to keep up?" And Mr. Smith spoke up and he said, "I know nothing about that. That is strictly against my orders," this riding the men. And so Turn- bull, he came out of that room there about that time, and that is all Mr. Smith said then that I heard. And Turnbull said, "I see you are a deacon of the church, aren't you?" or words like that. That is what I thought he said. Mr. Smith said, "No, I am not a deacon in the church." He said "You should be more sure of your state- ments before you accuse somebody of something like that." He said, "I go to church." So then Craig and Meek were there, and Meek asked me-I was standing there-"How long you been here?" I said "about 4 years." He turned to Humphreys and said, "How long you been here?" Humphreys said, "Oh, 4 or 5 years." And so Meek said, "The best thing for you boys to do is to get back on the job. This is no way to do, get away from your work. If you got any grievance, you can come in, if you are working, or send someone up and we will talk to him." Humphreys says, "What does this mean? That we go back to work and get fired, or taken out one at a time and fired, or what." And Mr. Craig spoke up then and he said, "Well, no, not necessarily." Morrison testified that the committee then went back to work. He was positive that Smith had not said anything about the men not being fired if they did so. According to his testimony, "Mr. Smith left-before that; when they got through with their religious argument. I think he walked off. I think he turned around and walked off. I didn't see anything more of him." Penn, who was also one of the members of the committee, and as we have noted above, had been called by the respondent as a witness, was not interrogated on his direct examination as to the action of the committee. On cross-examination, he testified that Humphreys had "said, in substance, `We came, up to see about trouble we are hav- ing,' that 'Mr. Smith told us to go back to work, and to come up after work and talk it over;"' that Humphreys had demurred, stating, "If I go back to work, you will fire us ;" that Smith had again said, "You go back to work and come up after working hours," but that he had not heard Smith promise that no one would be discharged. At the conclusion of the conversation, the committee returned to> their jobs. After they had done so, Fussell who had been present during part of the discussion between the committee and Smith urged' Smith to discharge the committee. According to Smith, "Mr. Fussell, felt that they had walked off the job and that they should be dis- charged . . . If we let them go back to work without any penalty at all, we won't have any discipline at all." Neither Fussell nor Smith testified as to what, if anything, Smith said in reply. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before Fussell had joined the group near Smith's office he had gone to the mill room and found that all of the mills were down, had gotten the electrician to restart them, and had then gone toward Smith's office where he met the committee. Following his statement to Smith that he thought the committee should be discharged, Fussell, according to his and Craig's testimony, told Craig, his immediate superior, that he was going to return to the mill room to determine who had shut off the mills. According to Fussell, only one employee, Croot, an operator on mill number 34, professed any knowledge of who had shut the mills. Fussell testified that Croot stated he had seen Humphreys pull the safety bar on the back side of mill number 44, the result of which was to shut down all the mills on the same line, and that he was "willing to testify" that he had seen Humphreys pull the safety bar. Fussell further testified that he had then taken Croot to Smith's office, and had returned and brought Humphreys to the office. According to Fussell, Smith had then told Humphreys that Croot was ready to testify that Humphreys had pulled the safety bar but that Humphreys had said that it was unnecessary to have Croot make such a statement as he was willing to admit that lie had done so. Croot's testimony accorded with Fussell's. Craig testified that Fussell reported to him that one of the employees had said that Humphreys had stopped one of the mill lines and that Fussell then "went in to talk to Mr. Smith about it." Smith's version of what happened after the committee had returned to work differed in several respects from the accounts given by Croot, Fussell, and Craig. According to Smith, after the committee had left he went to the office of Cope, president of the respondent, for a con- ference and was gone an hour. On his return, Smith testified his secretary stated that Craig had been in his office to. see him, that he sent word to Craig and that Craig had immediately come to his office. According to Smith, Craig reported that "during the excitement at the time of the assault" "someone" had shut down all the mill lines, that Craig had endeavored to discover who had done this, and that Croot said he saw Humphreys shut down one of the lines. Smith testified that he then asked Craig if Croot would come to the office and make a statement, that Craig replied that he did not know but later reported Croot willing to make the statement, and that he then instructed Craig to have Croot and Humphreys brought to his office. Smith also added that Craig had reported to him that "he understood that Mr. Hum- phreys had run through the building urging the men to come out., that the mill room was on strike." According to Smith, Craig was present, when Croot and Humphreys were brought to the office. Smith further testified that he then asked Croot "in front of Mr. Humphreys" if he had seen Humphreys "pull the mill line switch," and that Croot had replied that he saw Humphreys pull a switch on the mill directly FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 633 in front of the one on which Croot was working. Smith testified that he asked Humphreys whether he had done that and that Humphreys admitted he had but sought to justify doing so on the ground that he had acted because he thought it advisable to stop the mills because of the excitement. Smith testified that he then told Humphreys that it was against the rules for anyone to shut down a mill line unless he worked on the mill or was an electrician, that Humphreys admitted that he knew this to be the case, and that he discharged him "for inter- fering with the operation of the plant other than in his own depart- ment." Asked specifically "the reason for the discharge of Mr. Humphreys," Smith testified "breaking the company rule by leaving his department, pulling the mill line switch, and tending to disrupt the operation of the plant." Humphreys' version of what occurred in the mill room and in Smith's office is flatly contradictory of the account of respondent's witnesses. Humphreys denied that he pulled the safety bar on any mill, and stated that he had pulled the safety cord on a mill because someone had called out in protest as one of those gathered about the group had started to pull the bar. The safety cord, or reset cord as it was also known, acts as a counter to the safety bar so that the mill operator could prevent the mill from being stopped by rubber flying against the bar. Humphreys testified, and the Trial Examiner found, that when he waq called to Smith's office and accused of pulling the safety bar, Humphreys had denied doing so and had insisted that he had pulled the safety cord. According to Humphreys, Smith had replied, "Anyway, that's against the company's policy, so you're dis- charged." Smith did not deny having made such a statement and it is to be noted that by his own testimony Smith did not claim to have told Humphreys that he was being discharged solely because he had pulled the safety bar but added that Humphreys was discharged "for inter- fering with the operation of the 'plant other than in his own department." The Trial Examiner found that Humphreys had not shut down the mill line, and found that in any case, the respondent had "singled out the committee spokesman for discharge for a reason, which, if true, was directly connected with the concerted activity of numerous of the employees." Accordingly the Trial Examiner found that Humphreys' discharge was discriminatory. Croot's testimony that he had seen Humphreys pull the safety bar on mill number 44 is on its face incredible, and is flatly contradicted by the testimony of Fritz Klintman, another witness called by the re- spondent, who was working on mill 41. Croot testified that a few seconds after his mill had stopped he saw Humphreys alone running down the aisle between the third and fourth line of mills, reach up and pull the safety bar on mill number 44 and then continue alone running 1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toward the office. Inasmuch as the compound room was in the oppo- site direction from that in which Croot described Humphreys as running, his testimony would have Humphreys as a committee of one that visited Smith. Klintman testified that he turned around and stepped into the aisle when his mill stopped and that as he did so he saw Humphreys coming from the direction of mill number 44 and going in the direction of mill 41 and toward the compound -roomYthat Humphreys was about alongside mill 43 or 42 when he saw him and that Humphreys was walking with a group of four or five other com- pounders.29 Fussell had learned by his visit to the mill room, while the committee was away speaking to Smith, that all the mills had been shut down, a situation which could have resulted only from a safety bar having been pulled on one of the mills on each of the several lines of mills or by pulling the switch in the switch room. Fussell had spent 15 or 20 minutes in the mill room while the mills were being started again. We do not believe that in that time Fussell did not seek to ascertain who had shut down the mills, and we are unable to credit the testimony that he resolved for the first time to investigate the stoppage after the committee had returned to work. We are also satisfied that Fussell on his first trip to the mill room learned of Humphreys' lead- ing role in the formation of a committee to visit Smith. The record leaves no doubt that Humphreys acted as the spokesman for the committee which went to see Smith. It also leaves no doubt that Craig, Meek, and Smith were neither straightforward nor truth- ful in their account of what transpired at the meeting with the com- mittee. The record clearly shows that Humphreys told Smith that the committee had come to object to the intimidation to which they believed they were being subjected, that Smith professed ignorance, requested the committee to return to work, and offered to meet with them after work; that Humphreys expressed concern that if the men returned to work they would be singled out for discharge; that-Smith promised that this would not occur; that Turnbull counseled the committee to accept the assurance and to return to work ; and that the committee then did return to work. Then, as we have noted, Fussell, who fully knew of the complete stoppage which had occurred in the mill room, and undoubtedly knew of Humphreys' leading part therein, obj ectedthat there would be no "discipline at all" unless the com- 2 For the purpose of impeaching Humphreys ' testimony, and to corroborate Croot, the respondent sought to establish that the respondent had not installed safety cords on the back side of the mills until December 1937. However , it appears from the testi- mony of another employee, Jacob Horn, that long before this the mill operators had been in the habit of pulling the cord over to the back side and tying it there for their convenience, and that the change in December 1937 had simply provided protection for the cord. When the change was made in December 1937 the cord was run through a pipe and was , thereby, insulated. Previously, as Horn admitted, the use of cords on the back of the mill was not approved. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 635 mittee was discharged. Thereafter Humphreys was recalled to Smith's office and discharged. We find that Humphreys did not shut down one of the mills, and we further find that the respondent did not discharge him in the belief that he had done so. Humphreys' innocence of the charge supports his testimony that he denied that he had shut the mill. As we have noted above, Croot, Fussell, and Smith gave contradictory versions,regarding Humphreys' alleged admission of guilt. Neither of these three witnesses were, as we have pointed out, reliable wit- nesses. Moreover, we find that, as Humphreys testified, he denied pulling the safety bar and stopping the mill, but admitted pulling the safety cord; and that Smith thereupon discharged him with the state- ment, "Anyway that's against the company policy, so you're dis- charged." As a matter of fact, Smith's testimony itself indicates that this was the basis upon which Humphreys' discharge was placed rather than on the ground that Humphreys had admitted pulling a safety bar. Smith's testimony was that after Humphreys had said he shut the mill because "he thought it would be a good idea . . . be- cause there was so much excitement around there," I told him that it was against the rules for anyone to shut the mill down unless they worked on the mill or was an electrician. And he said he realized that. And I told him. I was going to dismiss hire for interfering with the operation of the plant other than in his own department. If Humphreys was to be discharged because he had shut down a mill there would have been no occasion for Smith saying, "And I told him I was going to dismiss him for interfering with the opera- tion of the plant other than in his own department." Furthermore, as we have noted above, Smith, when asked on cross-examination to state the reason for the discharge, testified, "Breaking the company rule by leaving his department, pulling the mill line switch, and tend- ing, to disrupt the plant." Humphreys, as the respondent knew, was not the only compound- room employee who had gone into the mill room during the organiza- tion of the committee to visit Smith, nor did the respondent claim that it thought Humphreys was the only employee who had thus left his own department. Moreover, the respondent did not claim that there was any rule or practice whereby an employee leaving his own department was discharged. On the contrary, it appears from the testimony of Wilbur McGowan, one of the respondent's witnesses, that-,in May 1937 when McGowan, an active proponent of the Inde- pendent, was found talking to employees in a department other than the one in which he worked, Landers, his foreman, and Weidenmann, his department manager, merely told him not to talk to employees 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside of his department. Indeed, Smith was unable to refer to any rule applicable to the charge that Humphreys had pulled the safety bar. True the rules warned employees, "Do not fool with electrical equipment, switch or fuse boxes, or place any articles against or on same." However, the purpose of the rule is obvious and was correctly described by Smith when asked on cross-examination what its purpose was., Smith's answer was: Warning the people that it is dangerous to handle electrical equipment with which they are not concerned ; that they should keep away from it. There is enough high tension electrical power around our plant to electrocute a man if he was fussing with stuff that he doesn't understand, doesn't know anything about. There is no current in the safety bar, and while pulling the bar and thus stopping a mill line would undoubtedly add to the cost of opera- tions, it would not involve the dangers to which this and other "Safety Rules" were plainly directed. In the light of the foregoing, we conclude that'Humphreys was dis- criminatorily discharged. As early as February he had been reported to the respondent as attending a meeting of the International and a& using his position as an employee representative to conceal his dis- cussion of unionism with employees. By April he had already been labelled by the respondent as one of the "red-eyed fellows." In the early part of May he, together with other members of Local 100, had been subjected to a discriminatory suspension and, unlike the others, had sought to present his grievance through representatives of Local 100, only to have the respondent refuse to deal with his representative and arbitrarily refuse to reassign him to his regular job. Then, oii May 15, he had become the leader of a committee to protest to Smith against the "riding and intimidation" to which he and other employees had thought they were being subjected. Not only were they correct in that belief, but Humphreys as their spokesman protested to Smith on that ground. It was thus apparent to the respondent that Humphreys had fully succeeded to the leadership of Turnbull. Moreover, as Smith was informed as soon as the committee had returned to work, if not sooner, the entire mill room, and not merely one line of mills, had ceased operations. Thereafter, and prior to the time Humphreys was recalled to the office, Smith had further been told that Humphreys had called upon the employees to strike. Then Humphreys was called to Smith's office, accused of pulling a safety bar, denied the accusation, and was discharged on the ground that even his action in pulling the safety cord was "against the company policy." Upon these facts and in the light of the entire record, we find that Humphreys was dis- charged because of his membership in and his activities on behalf of FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 637 Local 100 , and because he engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining and other mutual aid and protection. Moreover, we are satisfied that Humphreys' discharge would have been discriminatory even if the respondent had thought , and we find it did not, that Humphreys had pulled a safety bar, and thus had con- tributed to "interfering with the operation of the plant." Even upon this view Humphreys' conduct was patently no more than the leader- ship in concerted action by employees which amounted to a stoppage of work which caused other employees to cease work . Except in duration and extent it did not differ from a strike , and moreover, was concerted action taken as a direct result of a discriminatory termination of Turnbull's employment. Clearly the rules for the normal operation of the plant could not be validly applied to the situation in the instant case where an employee so acted to protest against the respondent's illegal conduct. Nor would the situation be materially different had Humphreys and his fellow employees erred in concluding that Turn- bull's employment had been discriminatorily terminated ; the respond- ent well knew that Humphreys had acted together with his fellow employees in protest against what they believed to be discrimination on account of union activities. Under these circumstances , we would conclude that, whether or not the respondent had believed that Hum- phreys had infringed one or more of its rules, the respondent dis- charged Humphreys not for such technical violations but because of his union activities. We find that the respondent discharged Humphreys on May 15, 1937, because he participated in the activities of and assisted the Interna- tional and Local 100 and engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, and that the respondent thereby discriminated with regard to his hire and tenure of employment and the terms and conditions of his employment to discourage membership in a labor organization ; and that the respondent thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Louis E. Reneau Reneau was hired by the respondent on or about January 10, 1936, as a tread serviceman . On September 14, 1936, at his own request, he was assigned to building tires. He continued as a tire builder until November 6, 1936, when , finding himself unable to master the opera- tion, Reneau requested and was granted a retransfer to his former position . He then continued as a tread serviceman until June 17, 1937, when he was transferred to servicing fabrics. This work was 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heavier and to Reneau less desirable than his previous work. After working for approximately 2 weeks as fabric serviceman, Reneau was absent until August 23, 1937. After his return at that time to his job, on fabrics, he continued in the respondent's employ until September 16, 1937, when he was discharged. Reneau joined the Union on April 6, 1937, and in May or early June,. was appointed shop steward. However, he testified that he never had "occasion" to exercise the duties of his office, and that the extent of his union activity was attendance at some union meetings, and wearing a union button "most all the time." Although several of the respond- ent's supervisory employees admitted that they had observed Reneau's union button, and accordingly knew of his union membership, Reneau's name does not appear on a list of chief stewards given to the respond- ent, and there is no evidence that the respondent acquired any knowl- edge that he was a steward. Ten minutes before the end of the shift on the night preceding his dismissal, Reneau was requested by his inspector to pick up empty liners which had been left on the floor. Reneau refused to do so unless he were paid one-half hour's overtime. When the inspector and there- after the foreman remonstrated, and stated that the work should have been completed before the end of the shift, Reneau persisted in his. refusal, stated that he was required to do too much work, and that an additional serviceman, was needed. When informed that the employ- ment of additional help would result in a decrease in Reneau's earnings,. Reneau replied, "I don't give a , we are not making any money anyway." Reneau was then warned that he would be reported to the manager, but left the plant. The following morning the manager;-td whom the incident had been reported, discharged Reneau. The record does not establish that Reneau was discharged because of his union membership and activities. Edwin W. Springer Springer was employed by the respondent as a tire builder from September 19, 1935, until his discharge on October 16, 1937. Springer joined the Independent on May 5, 1935, and on July 24, 1937, joined Local 100. The record does not show that Springer was an- active member of Local 100. However, his change of affiliation led to a slurring remark by John F. Stewart, a fellow employee who was a member of the Independent, and an acrimonious controversy arose between the two men which ended in Springer attacking Stewart in the locker room on the evening of October 15. The next day both were discharged on the ground that they had been fighting in the plant. We conclude, as did the Trial Examiner, that Springer was not dis- criminatorily discharged. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 639 Harl K. Louis Louis was employed by the respondent from May 21 , 1936, until his discharge on November 18, 1937. At the time of his discharge, Louis was employed on air bags in the curing room; his work was concededly satisfactory ; and he was discharged on the ground that he had-come to work drunk. Louis joined Local 100 in May 1937 and in June 1937 became chief shop steward for his department. On July 1, 1937 , the respondent was given a list of the 10 chief shop stewards of Local 100. Louis' union activities also came to the respondent's attention in other ways. On October 29, 1937, Louis, as a member of a committee of Local 100, met with Smith to protest what they deemed the respondent 's leniency toward organizing activities of the Independent in the plant, and against the respondent's action in entering into a contract with the Independent on October 22. On this occasion , as Smith himself testi- fied, Smith remarked that he understood members of Local 100 had also been organizing in the plant , whereupon Louis admitted that he had solicited on the job but stated that he had stopped when instructed to discontinue such activities . This testimony is particularly signifi- cant in view of the conflict of testimony between Louis, on the One hand, and Kircher and Landers, supervisory inspector and foreman, respectively , of Louis' department, with respect to Louis' union activities. Louis testified that as steward he presented grievances of his fellow employees to both Kircher and Landers; that he talked about unions in_thetplant to 'everyone who acted,as if they - were half interested"'; and that several times Kircher had told him "to shut up" such talk. Both Kircher and Landers denied any knowledge of Louis' talk about unions, and Landers specifically denied that Louis had ever presented a grievance to him. Obviously, if the facts had been as Kircher and Landers testified, Louis would have had no occasion to tell Smith that he had been instructed to stop his solicitation in the plant . We con- clude, as did the Trial Examiner , that neither Kircher nor Landers testified truthfully , and we find that Louis to their knowledge was outspoken in the plant about unions and that he presented grievances to them as shop steward. At the time of his discharge Louis was working on the shift from- 12 p. m. to 6 a. m. He testified that on the afternoon- of November 17 he had not felt well; tinkered a while trying to fix his automobile, without success ; arranged with J. J. Mullins, a friend, to have the latter drive him to work since his own car was not available; and at his wife's and Mullins ' suggestion had, about 6: 30 p. in. drunk a hot toddy containing a small amount of whiskey, and had gone to bed. According to Louis, when Mullins returned to drive him to work. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he still felt ill but decided over the remonstrances of his wife and Mullins, to go to work because he was working only 4 days a week and needed the money. Louis testified that he drank only the single hot toddy. His testimony was in all respects corroborated by Mrs. Louis and Mullins, both of whom further testified that they detected no smell of liquor or sign of intoxication. In the locker room at the plant, Louis spoke to Stevens, an employee whose shift had just ended, and told him he was feeling ill. Stevens testified that he talked face to face with Louis and noticed no alcohol on his breath. Louis then went to his work and for a time worked alongside McDowell. McDowell testified that Louis neither had any alcohol on his breath nor appeared to be under the influence of liquor. Louis testified, "I started stripping some tires out and I had to go over and throw up. I just started to throw up, and the inspector came back and handed me a pass, and he said, `You had better go down to the hospital ...' " At the hospital, Louis testified, the nurse gave him an aspirin, told him he looked "sort of piqued" and said he ought to go home. Louis testified he protested he could not afford to do so, since he was working only 4 days a week, but that the nurse had said he "had better go home anyway." Louis testified that he then took the pass back to his foreman and tried unsuccessfully to be allowed to continue work. Louis testified that neither when he was given the pass to the hospital nor when he was given the pass home was anything said about his drinking. The next morning Louis was called to the plant and told that he was discharged for coming to work drunk. His plea that he had not been drunk was rejected. The respondent's version of what occurred when Louis came to work is as follows : Kircher, Louis' supervisory inspector, testified that he first noticed Louis' condition when Miles, an employee, told him he had "better go see Louis"; that he then went to Louis' machine, where he found Louis holding on to the machine and vomiting into the tank which holds a bag-opening solution; that he walked close enough to Louis "to get a load of that odor and to take a good look at him;" that he concluded Louis was in a "dangerous condition," and went to his desk and made out a hospital slip for Louis, after telling Landers, the foreman, that Louis was "drunk as a skunk," and obtaining Landers' approval of the issuance of the hospital pass. Landers also testified that Kircher had reported Louis was as "drunk as a skunk." How- ever, according to Landers, Kircher did not say that he had vomited into the dip-tank, but had reported Louis had vomited into a garbage can; and Landers further testified that he had later gone to the garbage can, which he found "had a very strong odor of alcohol," and denied that he had inspected the dip-tank. Landers further FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 641 testified, "I looked him [Louis] over" from a distance of 10 to 12 feet before Kircher delivered the pass, and decided "he was sick and looked to me as though he had been chinking and that his sickness was due to drink." Landers testified that he called the hospital after Louis had left, and that he told the nurse, To my opinion he was drunk; if he was sick I wanted her to give anything that she could to settle his stomach, merely verify my opinion, if to her opinion, he was okay to work, to send him back, as I am not qualified to say when a man is too sick to work or not. Landers testified that before or about the time Louis returned from the hospital, the nurse had phoned and "said she was sending him home" and that "she found he had an upset stomach due to excess alcohol." According to Landers, Louis, on presenting for Landers' approval the pass which the nurse had given him and which was necessary to secure egress from the plant, had confessed, "I just can't cut it. I have had one or two too many I guess," and had then gone to the locker room. Mary Vaughn, the nurse in charge of the hospital, testified by a deposition taken in Chicago on March 11, 1938. According to her testimony : Louis had come to the hospital uncertain on his feet, pale, eyes bloodshot, speech thick, and alcohol on his breath, and, in her opinion, not in possession of his mental faculties. She asked Louis what was the matter and he replied he was sick at his stomach. She then asked what he had been eating or drinking which could have upset his stomach, and he answered that he thought he was getting the flu and his wife had given him a hot toddy. She inquired whether he wanted to vomit, and he said he had vomited but that it had not made him feel any better. She then said the only medicine she had for an upset stomach was. soda mint tablets, but that she did not think they would help him and that he should go home and go to bed. Louis agreed that soda mints would not be likely to do him any good but urged her to give him something which would help him, saying that he was working only 4 days a week and could not afford to lose his wages for that night. Vaughn replied that she knew there were only 4 days' work a week, but that she could not conscientiously send him back to work in his condition. Vaughn gave Louis a slip to take to his foreman to allow him to, leave the plant. She testified that in accordance with her usual' practice she made an entry on the pass which Louis had brought to, the hospital noting thereon "G I [gastro-intestinal] upset due to, alcohol" and then telephoned Landers "and told him I was recom- mending Mr. Louis be sent home for the remainder of the shift." "' 30 The pass was introduced in evidence in the hearing at Los Angeles. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vaughn testified that she concluded Louis should go home because he lacked muscular coordination, was not in full possession of his mental faculties, and because "the curing room has a lot of machinery there, and it is very warm." Vaughn further testified when she phoned Landers to say she was sending Louis home, "Mr. Landers said that on several occasions he had come on duty in a similar condition, but not to the extent that he was unable to work before." Landers in his testimony did not say that he had ever made any such remark to Vaughn. However, both he and Kircher testified that Louis had come to work twice shortly before November 18, smelling of liquor and with bloodshot eyes, and Kircher testified that on the second of these occasions he had sent Louis to the hospital for something to settle his stomach. However, Vaughn said she knew Louis by name because he had been coming to the hos- pital for treatment of a skin condition, and it is apparent from her testimony that she did not observe the condition described by Kircher and Landers.31 The Trial Examiner found that the respondent did not discharge Louis because of any belief that he had come to work intoxicated but because of his union activities. Vaughn's description of Louis as a person not in full possession of his mental faculties cannot be squared with the fact that, as appears from her testimony, Louis offered a coherent explanation for his condition and advanced an argument for being allowed to return to work that certainly indicated no lack of sobriety. Moreover, reading of Vaughn's testimony leaves the definite impression that her recollection of the incident was colored by her conversations with Landers and Kircher .32 Furthermore, whether the respondent believed that Louis was drunk turns upon the testimony of Kircher and Landers, for apart from their observations they had, at most, only the report of Vaughn that Louis "had an upset stomach due to excess alcohol." 33 The Trial Examiner did not believe that Landers and Kircher were credible witnesses and we have found they did not testify truthfully with respect to Louis' union activities. We conclude that their testimony with respect to the incident on November 18 is also not entitled to belief. We have noted above contradictions in the testimony of Kircher and Landers. More important, we find it incredible that if Kircher and Landers had believed that Louis "was drunk as a skunk" that si While Louis was not recalled to testify , his wife, who was called in rebuttal, testified that at those times she had not noted the smell of liquor on Louis' breath , and McDowell. who worked near Louis , testified to the same effect. 32 We have referred in the text to her conversation with Landers She also testified that during the next week she had a conversation with Kircher in which "I think he asked what condition Louis was in when he got to the hospital, that he had found him vomiting back in the curing room and he took him on into the hospital." 3 The word "excess" as we have noted does not appear on the hospital record FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 643 they would have left him clinging to a machine while a hospital pass was being made out, or that they would have sent him to the hospital unescorted, or on his return from the hospital left him to dress and find his way home unaided. We find completely incredible Landers' testimony that Louis, who according to Vaughn was reluctant to lose a day's work and explained his condition as due to illness, would have confessed to Landers that he was drunk, especially since he knew the respondent's hostility to Local 100 of which he was an outstanding representative. We are satisfied and we find that Louis was not drunk, that the respondent did not believe him to be, and that Louis was discharged because of his union activities. We find that the respondent discharged Louis because he participated in the activities of and assisted Local 100 and engaged in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, and that the respondent thereby discriminated with regard to his hire and tenure of employment to discourage membership in a labor organiza- tion, and that the respondent thereby interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Until the time of the hearing Louis had received no employment. D. The Independent As we have noted above,'} in March and April, Weidenmann and Uschmann, the heads of two of the departments in the plant had urged employees to form an "independent union," had disparaged "outside" unions and, in the case of Weidenmann, had declared that the respondent would recognize an independent but not an outside union. Weidenmann, as we have also found, proposed to give David- son a list of employees who, Weidenmann stated, would aid Davidson in forming an independent union, and referred Davidson to Hickey. Hickey, who thereafter became one of the principal organizers of the Independent'35 testified that some time between January 1937 and the formation of the Independent, he had told Weidenmann that he thought they "had enough men with enough intelligence within the factory to run a union of our own." While Hickey denied that any person connected with management had ever suggested to him that he organize an independent union, he admitted that Weidenmann had invited him to Weidenmann's home to discuss unions, and Weiden- of Section III B, supra m Hickey was one of the group which met and agreed to form the Independent, and after its formation was the center of organization carried on in the plant He carried membership applications on his person, employees were referred to him at his work to obtain cards, and other employees carrying on organizing came to him to get a supply of cards and delivered signed cards to him at his job 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mann admitted that he had discussed unions with Hickey. In view of the character of Weidenmann's statements to Davidson in disparage- ment of outside unions and in favor of inside unions, and the fact that Hickey participated in the Plan almost continuously since its forma- tion,3e we find under all the circumstances that WVeidenmann's con- versations with Hickey were of the same character as his conversations with Davidson, and that the respondent thereby sponsored and assisted in the formation of the Independent. On April 26, 1937, 19 employees, nine of whom were employee representatives, met at the home of Daniel Douglas, one of the em- ployee representatives, and decided to form an incorporated inde- pendent union. The Independent, which was chartered on April 28, almost to the same extent as the Plan, gave employees generally no voice in its administration. Thus, participation by members in the administration of the Independent was limited to the election of delegates, who in turn elected officers, and to voting upon such "ques- tions of vital importance" to the "membership as a whole" as their representatives chose to submit to them. On April 28 those of the incorporators of the Independent who, were representatives under the, Plan met with Smith, informed him of the organization of the Independent, and resigned their positions as representatives.3' On April 30 the respondent posted a notice stat- ing that it was discontinuing financial support of the Plan, and "would not support . . . interfere with or promote or finance any labor group or organization of its employees." The notice further stated that "The Management will continue its past policy of dealing with indi- vidual employees or whatever representatives they of their own free will choose to represent them." However, as we have noted above,38 when Humphreys on May 11 sought to have a committee of Local 100 represent him with respect to his case, Fussell ordered the committee from his office and refused to discuss with them Humphreys' case or his disposition thereof. Moreover, as we have found above, Hum- phreys' suspension at that time was part of a campaign by the respond- ent against Local 100 which culminated in the discharges of Hum- phreys and Turnbull. Such action by the respondent was plainly calculated to obstruct the organization of employees by Local 100. Moreover, upon the respondent's prior conduct, it was a plain indica- tion that in order to secure representation by a labor organization, employees should affiliate with the Independent. By such action the "Hickey participated in the drafting of the Plan, was an employees' iepiesentative from 1933 until the fall of 1936 and, as we have noted above, was elected by the senior committeemen to the newly created position of committeeman-at-large in January 1937. s' At about this time the Independent began an intensive organizational campaign in the plant. 38 Section III C, supra. FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 645 respondent, therefore, further promoted, assisted, and supported the Inclepen dent. On May 13 Smith met with a committee of the Independent and agreed to recognize it as the representative of its members. There- after, even before granting it exclusive recognition in the fall of 1937, Smith met again with the Independent several times concerning such matters as the use of a bulletin board, rates of pay, vacation policy, job reclassifications, and lay-offs in the event of reduced production. In a conference at the Regional Office, May 18, Smith told Roberts, a representative of the International, "that he had already recognized another group for their members, and that. they [Local 100] could have the same privileges." However, when Roberts and the committee of Local 100 met with Smith on June 10, they were not accorded the same treatment. When the committee of Local 100 asked permission to use plant bulletin boards they were told, "The next time you will be asking to put your literature in our time envelopes." Moreover, when Roberts asked whether the respondent was contemplating any major lay-offs, Smith said that he would not discuss the matter with an "outsider." By these expressions of hostility, the respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and by its discrimina- tory treatment further assisted the Independent. The respondent also assisted the Independent through the acts of Herbert Westhead and Harley Kelso, two of its supervisory employees. Westhead joined the Independent immediately after its formation, and thereafter openly advocated the Independent to employees. While Westhead resigned from the Independent about a month later after a discussion with Bevans, the respondent's chief engineer and West- head's immediate superior,39 the respondent took no action to inform its employees that it disapproved Westhead's activities. Kelso joined the Independent in May or June 1937, wore an Independent button in the plant, spoke to employees in the plant in favor of the Independent and against the C. I. 0., and signed up members for the Independent at the foreman's desk. Kelso, who denied he was a supervisory em- ployee, testified that in August after reading a magazine article about the Board, he concluded that his activities might be deemed improper, and that he, therefore, resigned from the Independent. The respondent contends that neither Westhead nor Kelso was a supervisory employee. We find that the contention is without merit and that the respondent was chargeable with their activities. West- head, though paid on an hourly basis, supervised the work of at least $D According to Bevans and westhead, Bevens told Westhead that he was not regarded by the respondent as a supervisory employee since he was paid on an hourly basis, but that because of his position Westhead's membership in the Independent might influence employees under him to join the Independent. 233083-41-vol 22-42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 26 janitors, and was consulted by Bevans, who had charge of the mechanical departments, in connection with hiring, lay-offs, and dis- charges in the janitorial force. Kelso was an hourly paid inspector in the machine shop who inspected molds for quality and had the power to approve or reject work or to require it to be done over. In the absence of Uschman, the department manager, and Horrocks, the foreman, Kelso had charge of i:he,department.40 We also find that the respondent in May 1937 assisted the Independ- ent by furnishing the home addresses of employees to E. E. Murphy, one of the Independent organizers. Edwin W. Springer testified that on May 15, 1937, he and another employee, Percival, went to Murphy's house to make arrangements for an organizing committee of the Inde- pendent to visit employees at their homes out of working hours. At this meeting, Springer testified, Murphy produced a list of names and addresses from which they made longhand copies. Springer further testified that Murphy had stated that he had had to "pull a lots of strings to get it." Murphy admitted at the hearing that he had procured such a list but denied making the statement attributed to him. He testified that he had copied the names of about 20 employees from the seniority list near the inspector's desk in the tire room and had looked up their addresses in the card file in the office of Bruber, the general foreman; that because he had been an inspector from time to time he knew where the card file was; and that as far as he knew no one saw him using the file. Murphy further testified that when Springer and Percival came to his house, he read the list to them and they took down the names and addresses. On cross-examination Murphy testified that the list from which he had read to Springer and Percival was typewritten, and that he did not own a typewriter. To explain the fact that the list was typewritten, Murphy testified that lie had borrowed a typewriter from a friend who "didn't have much room," after telling his friend that he intended to buy a typewriter if he thought he could still operate one fast enough to make it worth- while. Murphy, by way of further explanation, testified that his interest in a typewriter was due to the fact that "I have quite a bit of correspondence with my eastern friends and relations." We find Murphy's testimony is not entitled to credence. We find that by the foregoing acts the respondent dominated, inter- fered with, and contributed support to the formation and administra- tion of the Independent and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4° Kelso testified that after he had resigned from the Independent, Uschman, on one occasion , while "everything was kind of in an uproar," had said to him, "I want you to remain neutral in this." FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 647 On October 22, 1937, the respondent entered into a collective agree- ment with the Independent, which by its terms continues from year to year in the absence of notice given by either party. While the agree- ment provides for recognition of the Independent as "a bargaining agency" of the respondent's employees, the respondent, in practice, granted the Independent exclusive recognition. The agreement of October 22 was entered..iiAo, after the Independent -had exhibited membership cards of 853 of the 1678 production and maintenance em- ployees. The cards necessary for this narrow majority had been de- livered to the respondent in installments in the period immediately preceding the execution of the agreement. The agreement, moreover, was entered into after the respondent had been advised that charges had been filed with the Board alleging that the respondent had en- gaged in unfair labor practices within the meaning of Section 8 (2) of the Act with respect to the Independent. We find that the respond- ent entered into the agreement for the purpose of, and that the con- tractual relationship existing thereunder has been a means of, utilizing an employer-dominated labor. organization to frustrate the exercise by the respondent's employees of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B, C, and D above, occurring in connection with the operations of the respondent, described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead' to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from certain activities and practices, in -which we have found it to have engaged and, in aid of such order 'and as a means for removing and avoiding the consequences of such activities and practices, that it be directed to take certain affirmative action, more particularly described below. We have found that the respondent has dominated and interfered with the formation and administration of the Independent and con- tributed support to it. The respondent must cease and desist from such practices. Moreover, the effects and consequences of the re- spondent's domination, interference with, and support of the Inde- pendent as well as continued recognition by ,the respondent of the Independent as the bargaining.,representative of, its employees, con- 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stitute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collectively through representatives of their own choosing. The Independent has been utilized by the respondent as an instrumentality to defeat the rights of its employees under the Act. Because of the respondent's illegal conduct with relation to it, the Independent is incapable of serving the respondent's employees as their genuine collective bargaining agency. Accordingly, we will order the respondent to disestablish and withdraw all recognition from the Independent as the representa- tive of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment. We have also found that on October 22, 1937, the respondent entered into an agreement with the Independent and that the contractual relationship existing thereunder has been a means whereby the respondent utilized an employer-domi- nated labor organization to frustrate self-organization among and defeat collective bargaining by its employees. Under these circum- stances, any continuation, renewal, or modification of the agreement between the respondent and the Independent would perpetuate the conditions which have deprived employees of the rights guaranteed to them by the Act and would render ineffectual other portions of our remedial order. We shall therefore direct the respondent to cease giving effect to any contract existing, or claimed by it to exist, between it and the Independent or to any modifications or extensions thereof.41 We have also found that Edward L. Barnes, Thomas H. Brittain, Peter Uzelac, Norvel C. Humphreys, and Harl K. Louis, were dis- charged, and that Stanley Jenkins was laid off, as the result of unfair labor practices by the respondent. We shall order the respondent to offer to these employees immediate and full reinstatement to their for-, mer or substantially equivalent positions, without prejudice to their seniority and other rights and privileges.42 We shall also order the respondent to make whole Norvel C. Humphreys and Harl K. Louis for any loss of pay they have suffered by reason of their discharge by payment to each of them of a sum equal to the amount which he would 41 See N L R B v Newport News Shipbuilding & Dry Dock Company, 308 U. S 241, rev'g 101 F ( 2d) 841 (C. C A. 4), modifying and enforcing Matter of Newport News Shipbuildinq and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of Ainerica, 8 N. L R B . 866: N L R B v Staclpole Carbon Company, 105 F. (2d) 167 (C C A. 3 ), certiorari denied. 308 U . S 605, modifying and enforcing Matter of Staclpole Carbon Company and United Electrical it Radio Workers of America, Local No 50?, 6 N L. R B. 171 ; N L R B . v. Pennsylvania Greyhound Lines , Inc, et al, 303 U. S 261 ; N L R B v Pacific Greyhound Lines, Inc , 303 U S 272 ; N L R B. v Oregon Worsted Company, 96 F (2d) 193 ( C C A 9) ; N L R B v. American Potash & Chemical Corporation , 98 F. (2d ) 488 (C C A 9), certiorari denied, 306 U. S 643 42 The respondent uiges that the battery department in which Brittain was employed at the time of his discharge was abandoned by the respondent on or about September 1, 1937 However, the record shows that at that time all employees in the battery depart- ment were transferred to other work , and does not show that such positions uuere not substantially equivalent FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 649 normally have earned as wages from the date of such discharge to the date of the offer of reinstatement, less his net earnings 43 during said period. Inasmuch as Edward L. Barnes was discharged on August 7, 1935, and Thomas H. Brittain on March 19, 1936, and no explanation appears for the failure to file a ,charge with respect to Brittain's dis- charge until March 13, 1937, and with respect to Barnes' discharge until October 19, 1937, we shall order the respondent to make them whole for any loss of pay they may have suffered by reason of their discharge by payment to Brittain of a sum equal to the amount he would normally have earned from March 13, 1937, until the date of the offer of reinstatement, less his net earnings during said period ; and by payment to Barnes of a sum equal to the amount he would normally have earned from October 19, 1937, until the date of the offer of reinstatement, less his net earnings during said period. Since the Trial Examiner found that the respondent had not discrimina- torily discharged Peter Uzelac or laid off Stanley Jenkins, we shall order the respondent. to make them whole for any loss of pay they may have suffered by reason of their respective discharge and lay-off by payment to each of them of a sum equal to the amount he would normally have earned as wages from ,the date of their respective dis- charge or lay-off until the date of the Intermediate Report and from the date of our Order to the date of the offer of reinstatement, less his net earnings during said period. For the reasons stated above in Section III C we shall not order the respondent to reinstate Harrison P. Turnbull or to make any payment to him. Since we have found them not to be sustained, we shall dismiss the allegations of the com- plaint that the respondent engaged in unfair labor practices within the meaning of Section 8 (3) of the Act as to John Skolich, Louis E. Reneau, and Edwin W. Springer. By engaging in unfair labor practices, the respondent has made serious incursions upon the rights guaranteed to its employees by the Act: In order to insure the full freedom of the respondent's employees to exercise those rights, it is essential that they be informed that the respondent will no longer engage in its unfair labor practices and that it will act in conformity to the provisions of our Order. We shall therefore direct the respondent to post notices stating that it will 43 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers, Local 2590, 8 N L R B. 440 Monies received for work performed' upon Federal , state, county , municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount theieof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other government or governments which supplied the funds for said work -relief projects. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist from certain conduct specified in our order and that it will take the affirmative action therein required. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Rubber Workers of America, United Rubber Workers of America, Local 100, and Independent Rubber Workers Union, Inc., are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent by dominating and interfering with the forma- tion and administration of Independent Rubber Workers Union, Inc., and contributing support thereto, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Edward L. Barnes, Thomas H. Brittain, Peter Uzelac, Stanley Jenkins, Harrison P. Turnbull, Norvel C. Humphreys, and Harl K. Louis thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The respondent by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Independent Rubber Workers Union, Inc., or with the forma- tion or administration of any other labor organization of its employees, and from contributing, support. to Independent Rubber Workers Union, Inc., or to any other labor organization of its employees; (b) Discouraging membership in United Rubber Workers of Amer- ica, United Rubber Workers of America, Local 100, or any other labor organization of its employees, by discriminating in regard to their hire and tenure of employment or any terms or conditions of employ- ment; (c) Giving effect to its contract of October 22, 1937, with Inde- pendent Rubber Workers Union, Inc., or any renewal thereof, or to FIRESTONE TIRE AND RUBBER COMPANY OF CALIFORNIA 651 any other agreement regarding the terms and conditions of employ- ment at any time made with the said labor organization; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of 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 concerted acbivitiessfor the purpose of, collective bargaining or other mutual-aid and protection, as guaranteed in Section 7 of the Act. 2. To take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Edward L. Barnes, Thomas H. Brittain, Peter Uzelac, Stanley Jenkins, Norvel C. Humphreys, and Harl K. Louis immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Edward L. Barnes, Thomas H. Brittain, Peter Uzelac, Stanley Jenkins, Norvel C. Humphreys, and Harl K. Louis for any loss of pay they may have suffered by reason of their discharge and lay-off by the respondent, by payment to Edward L. Barnes of a sum of money equal to that which he would normally have earned as wages from October 19, 1937, to the date of offer of reinstatement ; by payment to Thomas H. Brittain of a sum of money equal to that which he would normally have earned as wages from March 13, 1937, to the date of offer of reinstatement; by payment to Peter Uzelac of a sum of money equal to that which he would normally have earned as wages from February 16, 1937, to April 22, 1938, and from the date of the Or- der herein to the date of offer of reinstatement ; by payment,to Stanley Jenkins of a sum of money equal to that which he would normally have earned as wages from March 2, 1937, to June 5, 1937, and from November 11, 1937, to April 22, 1938, and from date of the Order herein to date of offer of reinstatement; by payment to Norvel C. Humphreys and Harl K. Louis of a sum of money equal to that which each of them would have earned from the respective dates of his discharge to date of offer of reinstatement; less their respective net earnings during said period or periods, deducting, however, from the amount otherwise due said employees, monies received, by said employees during said period or -periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (c) Withdraw all recognition from Independent Rubber Workers Union, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, and completely disestablish said organization as such representative; (d) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) days from the date of posting, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), and (d) and that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; that its employees are free to join and remain members of the United Rubber Workers of America and United Rubber Workers of America, Local 100; and that it will not discriminate against any employee because of membership or activity in said labor organization; (e) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent discrim- inated in regard to the hire and tenure of employment of John Skolich, Louis E. Reneau, and Edwin W. Springer. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.