Michigan Lumber Fabricators, Inc.

MICHIGAN LUMBER FABRICATORS, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 579 The activities of Respondent, set forth in section 111, above, occurring in con- nection with its operations, described in section 1, above, have a close, intimate, and cuhstantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act I shall also recommend that the election in Case 21-RC-3404 be set aside. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (IATSE) and National Associa- tion of Broadcast Employees and Technicians, CIO (NABET), are labor organiza- tions within the meaning of Section 2 (5) of the Act 2 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication I MICHIGAN LUMBER IaAI5RICA'1'ORS, INC. and LOCAL 128. INTERNATIONAL UNION, UNITED AU'I'O31 OBI1,11, « ()RICERS OF A-m i RI('A, AFL. Case No. 7-CA -901. Febi,wti,y 10, 1955 Decision and Order On September 14, 1954, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, recommending that the complaint herein be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel filed exceptions i to the Intermediate Report with a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations except as modified herein. We find, as did the Trial Exannner,l that the work stoppage of March 19, 1953, during the working hours was not for the purpose of -No exceptions were taken by the General Counsel to the Trial Examiners recom- mendation that the complaint as to 11lattice should be dismissed. 2 In agreeing with the Trial Examiner's finding that the concerted activity in which Tiitz was engaged was not protected, nne do not rely on his finding that the Union de- 111 NLRB No. 95. 344056-55-vol. 111-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking as a means of bringing pressure upon the Respondent con- cerning the satisfactory settlement of the pending grievance, but was for the purpose of informing the union membership of the latest offer of the Respondent concerning that grievance." Moreover, assuming arguendo that the work stoppage was in the nature of a strike, the Union's contract with the Respondent provides that no work stoppage may be authorized by the Union until the final step of the grievance procedure has been utilized or while a grievance is being adjusted.' Upon the facts of this case, it is clear that no final impasse had been reached and that the grievance procedure had not yet been exhausted, as evidenced by the fact that the purpose of the meeting was to give the employees an opportunity to accept or reject the Respondent's com- promise offer on settlement of the grievance. We find, therefore, that the stoppage was in violation of what was in effect a no-strike agree- ment, which action the Board has held to be unprotected activity.' As the activity spearheaded by Fritz was not protected, his discharge for having participated therein cannot constitute a violation of the Act. In view of the above, we find, as did the Trial Examiner, that the Respondent did not commit any violation of the Act. We shall, ac- cordingly, dismiss the complaint in its entirety. [The Board dismissed the complaint.] ceded to employ the technique of holding special meetings during working hours to force the Respondent to terms on the grievance," or that "it was the intention of the Union to hold as many unannounced work stoppages during working hours as necessary until the grievance was settled," as these findings are not supported in the record. 3 The Board has ruled that the holding of union meetings away from the plant during working hours and without the Employer's permission is not protected concerted activity. Gulf Coast Ott Company, 97 NLRB 1513, 1516. See also Richardson Manufacturing Com- pany, 109 NLRB 136. ' Section 11. "The Union and its members agree that it will not authorize or ratify any strike, slowdown, sitdown, picketing, cessation of work or acts affecting production, or stoppage of work with respect to any grievance or dispute until the final step of the grievance procedure, as set forth in this Agreement, has been utilized in an effort to reach a mutually satisfactory settlement." Section 9: "The settlement of all grievances shall be reduced to writing, in words agreeable to both parties, and shall be written on or at- tached to each copy of the written grievance and signed by the representatives involved. It is clearly understood that there must be no stoppage of work during the discussions and while a grievance is being adjusted." c Wagner Electric Corporation, 105 NLRB 1; Stockham Pipe Fittings Company, 84 NLRB 629. Intermediate Report STATEMENT OF THE CASE Charges having been filed by Local 128, international Union, United Automobile Workers of America , AFL, herein called the Union, a complaint and notice of hear- ing having been issued and served by the General Counsel , and an answer having been filed by Michigan Lumber Fabricators , Inc., herein called the Respondent, the hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein called the Act, by the Respondent was held before W. Gerard Ryan, the duly designated Trial Examiner at Bay City, Michigan. At the hearing full opportunity to be heard , to examine and cross-examine wit- nesses, to introduce evidence pertinent to the issues , to argue orally upon the record, MICHIGAN LUMBER FABRICATORS, INC. 581 and to file briefs, proposed findings, and conclusions, was afforded all parties. Mo- .tions by the General Counsel and the Respondent to conform the pleadings to the proof with respect to minor matters such as the spelling of names, and dates were granted. At the conclusion of the hearing, oral argument was waived. The Re spondent has filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is now and at all times herein mentioned was a corporation, duly organized under and existing by virtue of the laws of the State of Michigan, main- taining its principal office and place of business in Elkton, Michigan, herein called the Michigan plant, where it is engaged in the manufacture, distribution, and sale of lumber products. During the calendar year 1952, which is representative of all times herein material Respondent, in the course and conduct of its business opera- tions, sold and shipped in interstate commerce from its Michigan plant to customers located outside the State of Michigan, products valued at $116,000. I find the Respondent is engaged in commerce within the meaning of the Act and that the purposes of the Act will be effectuated by asserting jurisdiction over it. II. THE LABOR ORGANIZATION INVOLVED It has been stipulated and I find that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleged that the Respondent on or about March 29, 1953, and May 27, 1953, did discharge, lay off, and/or terminate the employment of Matthew Fritz and George Albert Mattice, respectively, and thereafter did fail and refuse to reinstate and/or reemploy either of them for the reason that they joined, assisted, and maintained membership in the Union, engaged in activities in its behalf, and en- gaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8 (a) (3) and (1) of the Act. The answer admitted that on or about March 20, 1953, and May 27, 1953, the Re- spondent discharged and terminated the employment of Matthew Fritz and George Albert Mattice, respectively, and that it has refused to reinstate or reemploy them, because (a) Matthew Fritz was discharged by the president of the Respondent for leaving the plant during working hours on March 19, 1953, without first having ob- tained permission from his foreman, contrary to company rules; and because he was the leader of an unauthorized work stoppage on March 19, 1953, and, as an official of the local Union, failed to take steps to prevent said unauthorized walkout and/or to terminate the same as soon as possible after it occurred; and (b) George Albert Mattice was discharged with the approval of the union-shop committee because his wages with the Respondent had been garnisheed for the sixth time, subsequent to prior warning to him by the Respondent that further garnishee process would result in his discharge. The answer denied the commission of any unfair labor practices. Following an election ordered by the Board in the early part of 1951, the Union was certified as the collective-bargaining agent. Thereafter, the Union and the Re- spondent entered into collective-bargaining agreements in June 1951, February 1952, and February 1953. In the agreement, a grievance procedure was included which provided that the Union and its members would not authorize or ratify any strike, slowdown, sitdown, picketing, cessation of work, or acts affecting production or stoppage of work with respect to any grievance or dispute until the final step of the grievance procedure, as set forth in the agreement, had been utilized in an effort to reach a mutually satisfactory agreement. On March 2, 1953,1 the Respondent discharged employees Thompson and Keller- man. The record fully contains the reasons why they were discharged but there is no reason to discuss the merits of the situation for the purposes of this Intermediate Report. It is sufficient that a grievance existed between the Union and the Respond- ent as a result of those discharges. Paul Lorentzen, treasurer and a director of the Respondent, testified that on Mon- day, March 2, the union-shop committee consisting of Matthew Fritz, president of the Union, George Albert Mattice (at times referred to as Albert Mattice), vice pres- ident of the Union, and Walter Hanke, met with him and Leonard Fritz, the Re- 'All dates hereinafter mentioned refer to the year 1953, unless otherwise indicated. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's superintendent, to discuss the discharge of Thompson and Kellerman. After Lorentzen told the committee why they had been discharged, the committee filed a grievance with Lorentzen.2 Lorentzen testified that the next meeting on the ,Thompson grievance was on March 5, that he was supposed to have known of the meeting for the 5th but for some reason did not know of it and was not prepared for the meeting that he told Kenneth Wells, the International union representative, several times that he was not prepared for the meeting whereupon Wells became angry and stated, "You take them back, or else"; that after Wells "cooled down," March 9 was then selected as the day when Lorentzen would either get in touch with the committee to give them a decision on the matter or to arrange another meeting. On March 9, Lorentzen arranged with the committee to hold a meeting on the matter on March 13. Lorentzen testified that the meeting was held on March 13, lasted li/ hours, and the Respondent offered to take Thompson back without pay for his lost time. Lorentzen testified that the committee discussed the offer while the meet- ing was in recess for a short time and then they returned to say the Union's final offer was reinstatement with loss of pay only for 3 days. Lorentzen testified that the meeting of March 13 was the last formal meeting, other than the meeting of March 16 when the committee came in and informed Superintendent Fritz and Lorentzen that the entire Union had met on March 13 and after a vote had been taken authorized a strike to be called any time within 6 months. Matthew Fritz, the president of the Union, testified that on March 2, he with other members of the bargaining committee 3 met with Lorentzen and Leonard Fritz in the company office to discuss the Thompson and Kellerman discharge. The Respondent refused to do anything about it, so Matthew Fritz prepared a written grievance slip, but Lorentzen and Leonard Fritz refused to sign it, stating that the board of directors had voted on the discharges. Matthew Fritz testified that on March 3 the union bargaining committee met with Lorentzen and the Respondent's attorney, Thomas McAllister, in an attempt to settle the grievance. The Respondent refused to reinstate Thompson and the Union's position was that he should be rein- stated with full back pay Nothing was accomplished at that meeting. Matthew Fritz testified that the next meeting was on March 4 at which time the committee and Kenneth Wells were present on behalf of the Union; but except for Thomas McAllister who was there, Fritz did not recall who the others were who represented the Respondent. Fritz testified that at the meeting on March 4, the Union contended for reinstatement but the Respondent refused. Fritz testified that he could not remember the exact date of the next meeting on the grievance but it was approxi- mately a week or two later; then he testified he thought it occurred in the following week, then he finally fixed the date as March 12 at which time Wells and the bargain- ing committee represented the Union and Thomas McAllister represented the Re- spondent. Fritz testified that the Respondent at that meeting refused to reinstate Thompson, and the Union suggested that he be reinstated with a loss of 3 days' pay. Fritz testified that the grievance was not settled and did not recall if anything was decided with respect to future processing of the grievance. Fritz continued to testify that a regular union membership meeting was held on March 13 at which time the members voted to authorize a strike on the Thompson grievance but left the actual calling of the strike to the discretion of the union bargaining committee and the International. Fritz testified that on the Monday (March 16) following the union meeting, he and other members of the committee notified the Respondent of the instructions that had been given by the Union at the meeting of March 13. Fritz testified that on Tuesday or Wednesday of the week following the union meeting (March 17 or 18) the bargaining committee and Wells met with Lorentzen and McAllister, at which time the Respondent "again" agreed to take Thompson back with a 2-week layoff 4 but the Union still contended 3 days' loss of pay was sufficient discipline. Fritz testified that at that meeting, the Respondent was notified that a strike vote had been taken, and also notified by Wells that "the union meetings would alternate the time of the day and the night shift" but the representatives of the Company said nothing in reply. Fritz testified that on March 19, a special meet- ing of the union membership was held in order to inform the Local of what had taken place at the meetings with the Respondent on March 17 or 18 2 The Union dropped the Kellerman grievance when it was discoveied that he could not legally be employed because he was under age 3 The committee is iefeired to as the bargaining committee at times and also as the shop committee S March 16 would have been 2 weeks from March 2, the date when Thompson was dis- charged MICHIGAN LUMBER FABRICATORS, INC. 583 Kenneth Wells, International representative of the Union, testified that he first met with the Respondent on the Thompson grievance on or about March 4 The Union was represented by Wells and the bargaining committee, and the Respondent was represented by Lorentzen, McAllister, and Smith .5 The Union took the position that Thompson should be immediately returned to work with full back pay. The Re- spondent took the position that he had been discharged after the board of directors had agreed upon it and he would not be reinstated Wells testified that the next meeting on the Thompson grievance was held on March 11 or 12, at which time he remembers McAllister or Lorentzen as the only one present. At that meeting the Company still refused reinstatement but the Union modified its position to suggest he be reinstated with loss only of 3 days' pay. The Company refused to consider the proposal. Wells testified that he told the Respondent at that meeting that until the Thompson grievance was processed and settled it would be necessary for the Union to hold meetings at intervals in order for the membership to consider what- ever proposals the Company might have; and, because the Union felt it necessary, those meetings would be alternated as far as the starting time of the meeting was con- cerned between the day shift and the night shift. Wells testified that on March 13 a regular meeting was held and a report made to the membership with respect to the status of the grievance and that the membership took a strike vote and also author- ized the executive board and the International Union to call such meetings as might be necessary to consider any future proposals or changes in the Company's attitude. Wells testified that after the union meeting of March 13, a further meeting was held with the Company on March 18, at which time Wells and the bargaining committee met with Lorentzen.6 The Company then said it would return Thompson to work without any back pav as of that date or "approximately that date, or approximately a two-week layoff for him." The Union maintained its position that 3 days' loss of pay was sufficient discipline Wells testified that he reiterated the fact that the Union would have to take to the membership the change of the position on the part of the Company who would have to act in the matter, but as far as he and the committee were concerned they would not accept the Respondent's proposal. Wells testified that during the meeting with the Company on March 18 he notified it that a strike vote had been taken and if necessary a strike would ensue; and that the strike vote was good for a period of 6 months. Matthew Fritz testified that on March 19 the executive board and the stewards met at 2.30 p m., during a 10-minute rest period and decided to hold a special union meeting at 3 o'clock that day in a theater in town in order to inform the Local as to what had taken place in connection with the Thompson grievance. Fritz testified that with respect to the calling of regular union meetings the practice had been that they were called at 4.30 p m. (the end of the day shift) and if the meetings ex- tended beyond 5 p m , the starting time for the night shift, then the night shift would work late in order to make up such lost time; and that this arrangement had been in effect for approximately 1 year. On cross-examination, Fritz admitted that never before March 19 had there been a special union meeting during working hours 7 Fritz testified that at the regular union meeting held on March 13, it had been de- cided that the committee and the International would hold meetings to inform the Local of whatever was necessary; and it was left to the committee and the executive board to decide the time of those meetings. At the meeting at 2:30 p. m., during the rest period on March 19, it was decided that the committee and the stewards would notify the employees of the special meeting to be held that day. George Hill, called_by the Respondent, testified that he first knew there was to be a special union meeting on March 19 at 15 minutes before 3 p. m., when Matthew Fritz said, "We are going out at 3 o'clock or when I put my hat and coat on." Hill worked in the saw room in the same department with Fritz. Phaon Bennett, called by the Respondent, testified that he is recording secretary of the Union and worked in the saw department with Matthew Fritz; that be did not participate in the conference during the rest period from 2.30 p. m. to 2:40 p. m. and knew nothing about it; that Fritz told him at 2:45 p. m. on March 19 to go out, that there was going to be a union meeting. John Taylor, called by the Respondent, testified that he worked in the saw depart- ment with Matthew Fritz and believes it was Steward Ellicott who told him when Wells did not identify which Smith in the Respondent's employ he referred to a Wells testified that he particularly remembers the date was March 18 because (1) the grievance was still being processed, (2) he checked his record consisting of his itinerary sheet, and (3) the Company on that particular day changed their previous position. IThe iecoid does not show that the night shift worked late on March 19 to make up the li/•_. hours time lost by the day shift 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he saw Fritz put on his coat to follow him. Taylor punched out with the rest and went to the meeting. Norman Armstrong , called by the Respondent , testified that Matthew Fritz told him when he put his hat and coat on to follow him , that there was going to be a special meeting held at 3 p. in Maynard Martin, called by the Respondent , testified that Matthew Fritz told him there was to be a union meeting; that he was not told to leave, but followed the crowd when it went out and attended the meeting . He worked in the saw depart- ment with Fritz Hazen Parker, called by the Respondent , testified that he is the janitor and was told by either Ellicott or Matthew Fritz there was to be a special meeting and that when the rest went he should go too. He left at 3 p. in., with the others. Robert Maurer, called by the Respondent , testified that he did not know at any time prior to March 19 that the men were going to leave at 3 p. in. Lee Rockefeller, called by the Respondent , testified that a few days prior to March 19 he was told there would be a union meeting but did not know exactly when it would be; that word was not passed to him about the meeting but when he saw the others punching out he followed , concluding that this must be the meeting. Wesley Scott, called by the Respondent, testified that he did not know anything- about the meeting on March 19 until he reported for work that night at 5 p . in., and his steward then told him that the day crew went out. Sanborn Smith, called by the General Counsel, testified that he has been a mem- ber of the Union since it was organized ; that he is now vice president , having suc- ceeded Mattice when Mattice was discharged , that Matthew Fritz called the meeting of the committee and the stewards for the rest period from 2 30 to 2:40 p. m.; and that Fritz suggested that a special meeting he held when the meeting opened at 2:30 p. in. Bernard Stiebe, called by the General Counsel, testified that he had been em- ployed by the Respondent from October 15 , 1952, until he left its employ on July 26, 1953; that he did not attend the meeting at the theater on March 19 because he did not work after 12 o'clock noon, but had been told by Tom Welch, a union member who scaled lumber, that there was going to be a special meeting that day. At 3 p . m., accordingly , on March 19 , all the employees who were working at that time (over 60 on the day shift ) stopped work 11/2 hours before the end of the day shift, punched out their timecards , and left the plant A meeting of the day shift employees was held from approximately 3:15 p. in to 4 : 45 p in. at a theater in the town. None of the 25 employees on the night shift attended the meeting or knew that it had been called. Matthew Fritz, together with all the employees on the day shift who had walked out of the plant on the previous afternoon , returned to work the next morning at 8 o'clock. Matthew Fritz testified that Alex Fligger , his foreman, said nothing to him about the meeting on the previous day but about 11:30 a. in., Fligger told him that Webb (the president of the Respondent ) wanted to see Fritz, adding, "take your boots and all of your belongings with you." Fritz replied, "No , I want to see the committee before I do that." Fligger stated that Webb wanted to see only Fritz, so Fritz went in to see Webb. Also present with Webb were the Respondent's treasurer, Lorentzen , Vernon Holcomb, secretary of the Respondent, Leonard Fritz, superintendent, and Fligger. Matthew Fritz testified that Webb handed him a dis- charge slip and some paychecks.8 He testified that when he inquired about filing a grievance, Webb refused, saying, "You don't work here anymore , the committee has work to do. You are fired"; and that Webb concluded his statement by saying, "you are not talking to Ken Wells now , you are talking to Jim Webb, how do you like that?" Fritz testified that he thereupon left the plant but returned again about 2 p. in. that same day in an attempt to file a grievance, but that Webb again refused to entertain a grievance, repeating that Fritz was fired and the committee had work to do. Fritz testified that Lorentzen 'and Holcomb were also present at that time, and that Webb told him if he came into the plant again to make sure that he came into it through the office. Following the discharge of Fritz on March 20, Albert Mattice, vice president of the Union and a member of the bargaining, shop, and grievance committee , testified that he notified Foreman Charles Cummins that he wanted to arrange a meeting with Webb. The meeting was arranged and Mattice and the committee went to s The discharge slip addressed to Matthew Fritz and signed by James R Webb stated : You are discharged for the following reasons : Should it become necessary for you to leave the plant duting working hours, obtain permission from your foreman This, you did not do on March 19, 1953 MICHIGAN LUMBER FABRICATORS, INC. 585 Webb's office where, besides Webb, Lorentzen and Holcomb were present. Mattice was spokesman for the Union and informed Webb that they had come to find out if Matthew Fritz had been legally discharged. Webb replied that was a foolish question to ask and said that Fritz knows why he was discharged. Webb said that Fritz had a slip of paper to show it and inquired why the committee did not return to work. Laverne Ellicott, a member of the committee, testified that Webb also said the committee had more important work to do and they better get back to it before somebody else would go. Mattice testified that as they arose to leave, Webb asked who was vice president of the Union and when Mattice replied that he was vice president, Webb said he wanted to have a word with him personally. The committee then went out and Webb said to Mattice, "You know the rules of the company, don't you?" When Mattice replied that he knew the rules, Webb con- tinued, "Well, I am warning you that any more garnishees and you are going to be discharged." Webb then added, according to Mattice's uncontradicted testimony (Webb did not testify), "You know these G- d- communists, you look like one, you act like one and that's what you are, Fritz is the same as you are and the rest act like it " Mattice replied to Webb, saving, "I never was and never will be, I don't have to take that kind of talk." Webb answered, "That's what you think. What are you going to do about it?" Mattice replied that he was going to leave there and thereupon left Webb's office. The General Counsel produced the testimony of several witnesses whose testimony is uncontradicted that Webb had never before discharged an employee and that no other employee, except Matthew Fritz, had been reprimanded, disciplined, or dis- charged for participation in leaving the plant early on March 19. The Respondent produced testimony, also uncontradicted, that Webb was taking over the duties of Norbert J. Smith, vice president and general manager, who was on vacation during the month of March; and that Norbert J. Smith, in the course of his duties in the past had discharged several employees; and that the superintendent and foremen had discharged employees in the past Laverne Ellicott testified that the executive board of the Union met at his home in the evening of March 20 and voted to call a strike to be effective on the next working day, Monday, March 23; and that the strike was called specifically because of the discharge of Matthew Fritz, the president of the Union. Matthew Fritz testi- fied that he also attended that meeting and they voted to strike because of his dis- charge. Kenneth Wells testified that he was not present at the meeting, but it was voted to call the strike because there was a grievance that had been compounded by the discharge of the union president, and the Respondent had refused to allow a grievance to be filed. Wells explained that the membership had previously author- ized a strike by vote on March 13, and if the situation had become more compli- cated and there were more grievances it did not change the fact that the member- ship had authorized a strike. He testified further that the primary reason for calling the strike on March 23 was the discharge of the union president and the contiibut- ing reason was that he was not allowed to file a grievance and they had no way to file a grievance. Wells also testified that the Thompson grievance had no bearing on the strike. Wells testified that on April 8, a meeting was called by a State mediator for a dis- cussion on the Thompson grievance at which time the Respondent withdrew its prior offer to reinstate Thompson without pay and refused to reinstate him. At the same time the Union requested the Respondent to reinstate Matthew Fritz; but the Re- spondent refused and declined to submit either case to arbitration The strike continued from March 23 to April 13 when the men returned to work following a letter from the Union dated April 12 informing the Respondent that on that date the Union had voted to end the strike and return to work on April 13, with the case of Matthew Fritz pending. George Albert Mattice became a member of the Union in April 1950 or 1951 when it was first organized and continued as a member thereafter He was a member of the union bargaining committee (also called the shop committee and the grievance committee ) At the time of the discharge of Matthew Fritz on March 20, he was vice president of the Union. The conversations on March 20 between Webb and Mattice have already been set forth above, particularly Webb's inquiry as to who was vice president of the Union and followed by his warning to Mattice that if another garnishee process were filed involving Mattice that he would be discharged. Prior to March 20, Mattice had been the defendant in 4 garnishment proceedings and after that date he was involved in 2 more. On March 20 the Respondent notified him in writing- This is to advise you, if any further garnishments are served against you, you will be discharged. 586 DECISIONS OG NATIONAL LABOR RELATIONS BOARD On April 28, Mattice's wages were garnisheed for the fifth time by a creditor, Walter Bittner; and on May 26, Mattice's wages were garnisheed for the sixth time by another creditor. He was discharged on May 27 by Lorentzen. Sanford Smith of the shop committee and other members of the committee were consulted by the Respondent before the discharge of Mattice and they approved his discharge. Mattice filed no grievance as a result of his discharge From October 1951 to November 20, 1953, the Respondent had been served in garnishee proceedings on 11 occasions involving its employees. Mattice was the only one who was involved in more than one proceeding. Phaon Bennett, recording secretary of the Union, was involved in garnishee proceedings in November 1953, but he was not discharged However, that was the only time that Bennett had been in- volved in such proceedings with the Respondent. In addition to the foregoing, the General Counsel introduced uncontroverted evi- dence of the personal animosity of James Webb, the president of the Respondent, towards the Union. As early as March 1951 during a conference with a Board field examiner, Webb stated, in reply to a question as to whether he intended to comply with the law regarding the election and the results, that he would do anything, legal or illegal, to keep the Union out of the plant. During the negotiations following the election, his presence was not conducive to harmonious relations and it was not until after he stopped attending the bargaining sessions that they progressed to the point where an agreement was effectuated. Webb, however, took no part in labor relations matters in the plant from February 1952, until he discharged Matthew Fritz on March 20, 1953. The fact that Webb discharged Fritz loses some of its significance because of the fact that Webb was performing the duties of Norbert J. Smith during the month of March while Smith was on vacation; and it further ap- pears that the Respondent's board of directors were consulted in the matter of the discharge of Fritz. A. Conclusions and findings with respect to the discharge of Matthew Fritz and George Albert Mattice While an employer may not discriminate against his employees because they have engaged in activities protected by the Act, he retains complete freedom to discipline or discharge his employees for any other or no reason at all. (Associated Press v N. L. R. B , 301 U S. 103, 132.) To establish discriminatory motive on the part of the Respondent herein, the General Counsel has the burden of proof to establish such fact, by the preponderance of all the evidence. While there is evidence as to union animus on the part of the Respondent's president, and while it may be sus- picious that Fritz was discharged in the setting already described and denied an op- portunity to file a grievance, and that the warning to Mattice concerning future garnishments followed immediately upon Webb's hearing from Mattice that he was vice president of the Union, I am not persuaded that either Fritz or Mattice was dis- charged because either was a member of the Union or active in its behalf. Mem- bership in a union, or activity in its behalf does not immunize an employee against discharge. It is only if such membership or activity is the moving cause for the discharge that it falls within the proscription of the Act. I find that Mattice was discharged by the Respondent for cause, in that, after be- ing warned that he would be discharged if there were any more garnishments, he was discharged on May 27, 1953, because the Respondent was served for the sixth time in garnishment proceedings involving Mattice. I find that the General Counsel has failed to prove by the required preponderance of the evidence that he was discharged for discriminatory reasons violative of the Act. The complaint with respect to George Albert Mattice should therefore be dismissed. While the Respondent's rule against an employee's absenting himself from work without permission may be valid insofar as it concerns individual employees, it is not applicable to employees leaving their work if such work stoppage be concerted activity protected by the Act The question thus presented is whether or not Matthew Fritz could legally be discharged for unexcused absence from the plant when the reason for his absence was to participate in concerted activity with the other em- ployees leaving their work for the purpose of attending a special meeting during working hours. It is clear from numerous divisions that a strike in violation of a no-strike clause in a contract is not activity protected by the Act. In the instant case, it is unnecessary to decide whether the work stoppage and walkout of the day shift violated the "no-strike" clause contained in the grievance procedure in view of the Board's decision in the case of Gulf Coast Oil Company, 97 NLRB 1513. In that case, where no "no-strike" clause was involved, instead of reporting for work at the usual time of 7 a. in., all 11 of respondent's truckdrivers went to the union hall for MICHIGAN LUMBER FABRICATORS, INC. 587 a meeting and then returned to the plant between 9:45 and 10.15 a. in. Around 9 a. in., after having attempted, and failed, to ascertain the whereabouts of the drivers, the employer arranged to obtain new drivers and replaced eight drivers be- fore he knew the old drivers had returned. In that case, the General Counsel con- ceded that the employer was privileged to replace all 11 drivers when they failed to report to work but contended that the employer, 3 days later, unlawfully refused to reinstate 3 of them who had not been so replaced, with knowledge by then that they, together with others, had abstained from work for the purpose of going to the union hall. The Board found no merit to the General Counsel's contention. In its decision, the Board stated: Nor do we believe that, apart for any element of discriminatory motivation, the concerted activity of the old drivers was of a type which immunized them against discharge. (Cases cited.) The activity here amounted to an unwar- ranted usurpation of company time by the employees to engage in a sort of union activity customarily done during non working time. In election to go to the union hall when they were supposed to be at work, the drivers, for their own con- venience, violated the Respondent's known established reporting rule. In these circumstances, we find applicable those cases holding that employees who violate valid nondiscriminatory company rules in connection with their union activity are vulnerable to discharge. (Cases cited.) In view of the foregoing, we find that the Respondent's refusal to give employment on August 21, 1950, to three of the old drivers did not violate Section 8 (a) (3) of the Act. Applying the decision in the Gulf Coast Oil case, supra, to the facts in the instant case, it follows that the Respondent could lawfully have discharged and refused to reinstate the entire day shift for their unauthorized walkout on March 19 to attend a special meeting.9 I do not consider the fact that Fritz was the only one of more than 60 employees who participated in the walkout to be reprimanded or discharged to be of particular significance . In Kaiser Aluminum and Chemical Corporation, 104 NLRB 873, the Board found no merit in the General Counsel's contention that the discharge of cer- tain employees for striking in breach of the no-strike clause was violative of the Act in view of Respondent's reinstatement of others who had engaged in the same con- duct. I do not believe that Fritz was selected for discharge because he was the pres- ident of the Union. The evidence shows that, notwithstanding his denial, Fritz was the leader in the unauthorized walkout of the day shift ; all the others joined him at the given signal when he put on his hat and coat, punched out at the time clock, and left the premises. It is clear to me from this record that when the grievance concerning Thompson was not progressing as favorably as the Union had expected, the Union decided to employ the technique of holding special meetings during work- ing hours to force the Respondent to terms on the grievance . In other words, it was the intention of the Union to hold as many unannounced work stoppages during working hours as necessary until the grievance was settled. Upon all the evidence and upon the entire record, I find that Matthew Fritz was discharged for cause and that the General Counsel has failed to prove by the required preponderance of the evidence that he was discharged for discriminatory reasons violative of the Act. The complaint with respect to Matthew Fritz should therefore be dismissed. B. Interference, restraint, and coercion The complaint alleged that the Respondent violated Section 8 (a) (1) of the Act since October 5, 1952, by engaging in a continuous course of interference, restraint, and coercion by the following particular acts: (a) By threats of reprisal, urging, persuading, threatening, and warning em- ployees to refrain from assisting , becoming members of, or remaining members of the Union. (b) Threatening to discharge employees who engaged in union or concerted ac- tivities and/or activities guaranteed by Section 7 of the Act. (c) Making statements and remarks containing threats of reprisal or force for the purpose of discouraging union membership and activity. (d) Threatening to discharge employees who resorted to the grievance procedure set forth in the existing collective-bargaining agreement. (e) Bargaining individually with and soliciting employees to return to work dur- ing a certain strike conducted on and after March 20, 1953, in derogation of the 9 Cf. Rachardson Manufacturing Company, 109 NLRB 136, Kohler Co, 108 NLRB 207; Textile Workers Union of America, CIO, and Personal Products Corporation, 108 NLRB 743, Pacific Telephone and Telegraph Company, 107 NLRB 1547. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's right to represent such employees although the Union was at all times the duly designated exclusive representative of such employees. Harold W. Renn, called by General Counsel, testified that he has been employed by the Respondent since 1950 and at the time of the hearing was a sawer in the saw- mill department, where he is leadman in the crew. He testified that he is a brother- in-law of Norbert J. Smith, the vice president and general manager of the Respond- ent, and that about June 25, 1953, he had a conversation with Smith outside the plant at the front yard. Renn testified that he was on his way home and initiated a con- versation with Smith by saying there was quite a rumpus going on, to which Smith answered "Yes"; and that Renn then asked Smith what the rumpus was about. At that point in his testimony Renn could not recall anything further, and stated that he had exhausted his memory. He then refreshed his recollection after reading a statement which he had made on July 13, 1953, and testified as follows: Q. Now, will you tell us from your own memory, having refreshed your rec- ollection as to what the conversation was? A. He said some guys were talking smart about things, and I asked him what their names were, and he wouldn't mention no names. Q. Was anything else said? A. He says something about if they don 't play ball there will be more guys get it just like him. Mr. McALLISTER: What was that? The WITNESS' There would be more guys get that just like him, if they didn't play ball. Q. (By Mr. Farkas.) Was there anything else said? A. The rumpus I referred about was the case of Mattice. Q. Was there any conversation about him by name? A. No. Q. Was there anything else said in this conversation either by you or by Mr. Smith? A. No. Norbert J. Smith denied that he had made the statement attributed to him by Renn. Renn's demeanor as a witness and his faulty memory impressed me as one who was not sure of what he was saying. I credit Smith's denial that he made, the state- ment attributed to him by Renn Accordingly I find that the Respondent did not, as alleged in the complaint, violate Section 8 (a) (1) by making statements and remarks containing threats of reprisal or force for the purpose of discouraging union membership and activity. The complaint to that extent should be dismissed Sanborn Smith, called by General Counsel, testified that he has been employed by the Respondent since 1948 in the nailing room; has been a member of the Union since it was organized; and at the time of the hearing was vice president of the Union and also a steward. He became vice president after Mattice was discharged. Sanborn Smith (who is not related to Norbert J. Smith) was called to testify con- cerning a conversation with Norbert J. Smith in support of the allegation in the complaint that the Respondent had threatened to discharge employees who resorted to the grievance procedure set forth in the collective-bargaining agreement. He testified that he did not recall whether or not he had the conversation in May 1953 but did recall a conversation with Norbert J. Smith in connection with loitering in the toilet but did not remember just when it was. He was asked if the date of May 7 would refresh his memory but replied that he did not know the exact date. He did recall being in the office discussing the matter with Norbert J. Smith, together with Albert Mattice and Jack Andrus. Sanborn Smith said that Norbert J. Smith told him he was spending too much time in the rest room but when he wanted to know who told him "they" would not tell him. When asked if they said anything else, Sanborn Smith testified that he could not remember back that far. After testi- fying that his recollection had been exhausted, he read a statement which he had made on July 13, 1953, and testified that the statement refreshed his recollection, "in a way." He was then asked to tell what occurred and he testified: "If we were caught loitering in the restroom any more we would be discharged." Sanborn Smith testified further than he denied the accusation and asked who the person was who had reported him but that Norbert J. Smith refused to tell him. Sanborn Smith was then asked particularly if there was any discussion with respect to the filing of a grievance and replied that Norbert J. Smith told him if he filed a grievance he would be fired Albert Mattice, called by General Counsel, testified that about May 7 he was called into the office by Norbert J. Smith and warned about loitering and smoking in the toilet. Mattice denied the accusation and testified that Norbert J. Smith said MICHIGAN LUMBER FABRICATORS, INC. 589 if he heard any more of it Mattice would be discharged ; whereupon Mattice asked that the person who made such accusation be identified and called in to face him. He testified that Norbert J. Smith refused to identify the person and said if they filed .a grievance they would be discharged anyway. The General Counsel then asked Mattice whether Norbert J . Smith explained what he meant in saying that if he filed a grievance he would be discharged , to which Mattice replied, A. I just didn't get the question. Q. Did he say if you filed a grievance about your being called to the office you would be discharged? A. Well, he mentioned discharge there twice, and the way I took it, that if we-well, he said if we filed a grievance we would be discharged, and if it was reported any more we were smoking and loitering in the toilet we would be discharged. Jack Andrus was not called to testify. Norbert J . Smith, called by the Respondent , denied that he told Sanborn Smith and Albert Mattice that if they filed a grievance they would be fired. He testified that Sanborn Smith, Mattice, and Andrus were in his office but he could not recall when it was; but that he gave them notices confirming the conversation . The notices .then were received in evidence which establish the date of the conversation as May S, 1953. Norbert J. Smith testified as to his conversations with them as follows: A. I brought them in there to reprimand them for what the note indicates, namely, smoking and loiting in the toilet . They wanted to know how I knew about it, and I refused to tell them . The question of a grievance came up, and I offered them this opportunity to file a grievance , and through the filing of a grievance I would have to prove they were smoking and loitering in the toilet and thereby reveal my source of information. Now that was all there was to the grievance angle in this meeting. Q. Did they file these grievances? A. No. The demeanor of Sanborn Smith and Mattice as witnesses including Sanborn Smith's faulty memory and Mattice's apparent confusion because the word dis- charge was mentioned twice in the conversation leads me to question the reliability of their testimony. I credit the testimony of Norbert J. Smith. His demeanor and testimony persuades me that he had a clear memory of what he said on the occasion. Accordingly I find that the Respondent did not, as alleged in the complaint, violate .Section 8 (a) (1) by threatening to discharge employees who resorted to the griev- ance procedure set forth in the existing collective -bargaining agreement. The com- plaint to that extent should be dismissed. With respect to the allegation in the complaint that the Respondent violated the Act by bargaining individually with and soliciting employees to return to work during a certain strike conducted on and after March 20, 1953, the testimony on that situation consists of that of Albert Mattice and Alexander Fligger. Albert Mattice, called by the General Counsel, testified that he participated in picket duties during the strike which began on March 23; that while he was on picket duty, Foreman Alexander Fligger approached him one morning between 7 and 10 o'clock and said, "Why don't you boys go back to work?" That Fligger said further, "You can go back any time but as far as Matt Fritz is concerned, the com- pany will never take him back." Mattice testified that Bernard Stiebe was standing a few feet away and heard the conversation Stiebe, who testified concerning other matters, was not questioned in this regard. Alexander Fligger, called by the Respondent, testified that while the picket line was there he worked from 4 p. in., to 12 midnight; but on Saturdays his hours were from 4 o'clock in the afternoon to 8 o'clock Sunday morning. He testified that he had a conversation with Mattice one morning about 8 o'clock which was the only time he had seen him there, that Mattice was sitting in an automobile with Stiebe; that Fligger was "kidding" Mattice about looking rough and remarked to Mattice that he looked rough and Mattice answered that he was rough and explained that he had been on a little drinking spree and had been locked up. Fligger testified that there was no conversation had about them going back to work. With the testimony of Mattice and Fligger squarely opposed, and no testimony from Stiebe who might have affirmed one or the other, I conclude that the General Counsel has failed to prove such allegation by the required preponderance of evi- dence Accordingly the allegation in the complaint that the Respondent violated the Act by bargaining individually with and soliciting employees to return to work in derogation of the Union's right to represent such employees should be dismissed. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence in the record to support the allegation in the complaint that the Respondent violated the Act by threats of reprisal, urging, persuading, threaten- ing, and warning employees to refrain from assisting , becoming members of, or remaining members of the Union Accordingly, the complaint to that extent should be dismissed. There is no evidence in the record to support the allegation in the complaint that the Respondent threatened to discharge employees who engaged in union or con- certed activities and/or activities guaranteed by Section 7 of the Act. Accordingly, the complaint to that extent should be dismissed. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not engaged in any unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] DURA STEEL PRODUCTS COMPANY and LOCAL 990, INTERNATIONAL. UNION, UNITED AUTOMOBILE WORKERS OF AMERICA (UAW-AFL), PETITIONER . Case No. 21-RC-3477. February 10, 1955 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election issued by the Board in the above-entitled proceeding on July 16, 1954,' an election by secret ballot was conducted on August 3, 1954, under the direction and super- vision of the Acting Regional Director for the Twenty-first Region, among the employees of the Employer in the unit found to be appro- priate. Following the election, a tally of ballots was' furnished the parties. The tally shows that 118 votes were cast; 4 were cast for the Petitioner and 114 were challenged. No objections to the conduct of the election were filed by either of the parties. As the challenged ballots were sufficient in number to affect the results of the election, the Acting Regional Director, pursuant to the Board's Rules and Regulations, conducted an investigation and, on September 29, 1954, issued and served upon the parties his report on challenges. In his report, the Acting Regional Director recommended that challenges to the ballots of certain individuals be sustained and the challenges to the ballots of other individuals be overruled and that their ballots be opened and counted. Thereafter the Intervenor, United Electrical, Radio & Machine Workers of America (UE), Local 1421, within the time for filing exceptions, filed "An Appeal" from the Acting Regional Director's report, in which it requested the Board to reject the report and order a hearing in this matter. The Inter- venor's requests are hereby denied. 1 ] 09 NLRB 179 111 NLRB No. 100.