Firestone Tire & Rubber Co. v. N.L.R.B.

• Citation: 539 F.2d 1335
• Decision Date: 04 August 1976
• Docket Number: No. 75-1891,75-1891
• Parties: 93 L.R.R.M. (BNA) 2625, 79 Lab.Cas. P 11,742 The FIRESTONE TIRE AND RUBBER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1335

539 F.2d 1335

93 L.R.R.M. (BNA) 2625, 79 Lab.Cas. P 11,742

The FIRESTONE TIRE AND RUBBER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 75-1891.

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1976.

Decided Aug. 4, 1976.

Walter B. Connolly, Jr., Asst. Counsel, Akron, Ohio, The Firestone Tire and Rubber Co. (Lester S. Hyman, John S. Hoff, Leva, Hawes, Symington, Martin & Oppenheimer, Washington, D. C., on brief), for petitioner.

John C. Rother, Atty., N. L. R. B., Washington, D. C. (Alan D. Cirker, Atty., N. L. R. B., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on brief), for respondent.

Before WINTER and RUSSELL, Circuit Judges, and FIELD, Senior Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The employer, The Firestone Tire & Rubber Company, has petitioned to review and set aside, and the National Labor Relations Board in turn has cross-petitioned to enforce, an order of the Board finding that Firestone violated § 8(a)(3) and (1) of the Act by discharging one Clark Trowbridge. ¹ We deny enforcement.

Trowbridge applied for and secured employment at the Wyandotte plant of Firestone on the basis of a written application which required the applicant to state whether he had ever been "discharged or asked to resign by an employer" and which warned in bold-face type that any misrepresentation or falsification on the form would constitute "sufficient reason" for dismissal. In answer, Trowbridge denied he had been discharged by any previous employer. This answer was concededly false; he had actually been discharged by his last two employers. Following his employment by Firestone, after his 60-day probationary period, he affiliated with the U.A.W., which was the collective bargaining agent at the plant, and was subsequently selected as a union steward. Some ten weeks after Trowbridge had been employed, his supervisor was told by another employee that Trowbridge had been discharged or asked to resign by two recent employers. After verifying this information, Firestone discharged Trowbridge. Trowbridge then invoked the grievance processes under the terms of the collective bargaining agreement prevailing in the plant. He proceeded unsuccessfully through the several steps provided in such agreement for resolving the propriety of a discharge, short of final arbitration. The union, however, declined to seek final arbitration and did not seek relief on Trowbridge's behalf before the Board. Trowbridge individually, however, did file a charge with the Board and it was on the basis of this individual charge that the Board entered its order.

At the outset, it should be noted that Firestone advanced a legitimate, non-discriminatory reason for Trowbridge's discharge. Firestone offered uncontradicted evidence that its practice was to discharge any employee upon discovery of a falsification of answers on his employment application. It supported this evidence with proof of several prior instances at this plant where, in applying this rule, it had discharged employees. ² On this evidence, the administrative law judge made a finding, adopted by the Board, that Firestone had a "long established, company-wide policy" of discharging employees for falsifying their employment applications. ³ Such a policy is neither unusual nor unreasonable. As the Court said in N.L.R.B. v. Mueller Brass Co. (5th Cir. 1975), 509 F.2d 704 at 713, "(A)ny employer has the right to demand that its employees be honest and truthful in every facet of their employment. Absent an antiunion motivation, any employer has the right to discipline an employee for his dishonesty or untruthfulness." Nor does the Board really dispute this right of an employer to discipline for "untruthfulness" in an employee's employment application. ⁴ The basis of its finding is that, though a permissible ground for discharge existed, such ground was in this case "pretextual" and that the discharge under review was actually motivated by Trowbridge's aggressive union activity.

It is the well-settled rule in this Circuit that when an employer demonstrates, as does Firestone here, that it had a good ground for the discharge of an employee apart from any antiunion animus or activity, it is not sufficient to establish a violation of the Act for the Board to declare that the discharge was "pretextual." ⁵ As the Court aptly put it in Famet, Inc. v. N.L.R.B. (9th Cir. 1974), 490 F.2d 293, 296, " 'it is all too easy to say that adequate cause for discipline was seized upon as pretextual in the case of union representatives. * * * When good cause for criticism or discharge appears, the burden which is on the Board is not simply to discover some evidence of improper motive, but to find an affirmative and persuasive reason why the employer rejected the good cause and chose a bad one.' " ⁶ "Were the rule otherwise, any employee who had been guilty of conduct warranting discharge could protect himself by openly engaging in union activities, and run for luck, a procedure well illustrated in Billen." ⁷ It is accordingly clear that "illegal motive (in a discharge) cannot be based merely on the discharged employee's union organizational activity; and by offering only such proof," the Board cannot sustain the burden of proof which it must assume in a case such as this. ⁸ And this is particularly so, when "analysis reduces the record to mere suspicion to support the Board's charges" of pretextual discharge, and the record "fails to provide sufficient integrity to sustain the examiner's and Board's finding" of pretextual discharge. ⁹

In applying these rules to this case, we begin with the fact that the record is completely devoid of any evidence of antiunion animus on the part of the employer. To the contrary, the record indicates that Firestone had been long habituated to unionism and that there had been a good harmonious working relationship between it and the union over a period of many years. There was no credible evidence in the record of any antiunion conduct on the part of Firestone. The sole ground on which the Board seeks to support its finding of "pretextual discharge" is that Trowbridge had been a union steward and as such had been abrasive in his representations to his employer in that capacity. This suggestion loses persuasiveness when it is observed that there were some fifty other union stewards in this plant. It is not to be supposed that they were any less vigilant or aggressive in the performance of their function as a union steward than Trowbridge; indeed, the Board found that other stewards were equally or more aggressive in their performance as union stewards than Trowbridge. Certainly, they had been longer engaged in such activity and were more expert in it than Trowbridge. There was no suggestion in the record that any one of these other stewards had ever been disciplined on pretextual grounds because of their zeal in the performance of their duties as union steward. No reason is intimated why the employer should have been inclined to act any differently in its treatment of Trowbridge than in that of any of the other stewards. Nor could the employer have had any reason to assume that Trowbridge's successor as steward would have been any less aggressive. Actually, Trowbridge's activity as a steward seems to be exaggerated in the administrative law judge's findings, as approved by the Board. He was unfamiliar with the collective bargaining agreement by his own admission and had to seek advice from other stewards in making any complaints. A person with so little familiarity with his role as a steward hardly fits the role of an aggressive advocate of rights under the collective bargaining agreement.

The only circumstance which the Board latches onto in support of its conclusion is that the employer did not discover the falsification of the employment application by Trowbridge until after he had become a union steward. Firestone concedes that it did not discover the falsification in Trowbridge's prior employment record until after he had been working a little over two months and after he had become a union steward. Firestone apparently had no reason to question the accuracy of Trowbridge's representation until a fellow employee told a supervisory official of Firestone that Trowbridge had recently been "fired" from two other prior jobs. That information naturally triggered an immediate investigation which resulted in the discovery of Trowbridge's prior discharges. We do not consider the delay in investigating Trowbridge's prior employment provides a basis for a genuine suspicion, much less a substantial basis for a belief, of impropriety in Firestone's action. The Board recognized, as we have already stated, that,...