Keystone Ship Engineering Co.

596 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD Thomas Winters, Herman Kosove and Aisik Brener, Co-Partners d/b/a Keystone Ship Engineering Company and Edward J. Hollins. Case No. 4-CA-1061. August 11, 1955 DECISION AND ORDER On February 15, 1955, Trial ,Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondents filed exception and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has' considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the Respondents' exceptions. The Trial Examiner found that the Respondents unlawfully dis- charged the complainant, Edward J. Hollins. The Respondents ex- cepted to this finding on two grounds: (1) That Hollins was dis- charged for his "blackmail" threat to Respondent Winters and that for this reason the discharge was for "cause"; and (2) that the Gen- eral Counsel did not sustain the burden of proof that Hollins was dis- charged for engaging in protected activities. Hollins was elected a shop committeeman for the riggers at noon on- March 18, 1954. At that time, Richards, who was the union steward' for the whole yard, informed Hollins that his duties as shop com- mitteeman would consist of reporting the riggers' grievances to Rich- ards for presentation to the Respondents. In the absence of Richards from the yard on March 22, Hollins met Respondent Winters, a partner in charge of personnel and operations, and asked him if he knew that Hollins had been elected shop steward for the riggers. Winters re- plied that he did not. Hollins then submitted to Winters a list of grievances. The list included grievances with respect to "filthy 'toilets," delay in delivering paychecks, and the failure to pay machin- ists for half an hour time which they claimed to have spent at work. Winters asked Hollins a few questions about these grievances, said that he "would take care of this" and would let him know, and walked away. Winters at once sought out a pipefitter in the yard, whose duty was to maintain the toilet facilities, and asked him to examine them. Winters also telephoned Union Agent Loughney and informed him of 'his conversation with Hollins. Loughney assured Winters that Hol- lins had no official status and told him not to take grievances from Hollins. Winters did not inform his partners of Hollins' presentation. 113 NLRB No. 64. KEYSTONE SHIP ENGINEERING COMPANY 597 of grievances until after his second meeting with Hollins the same afternoon. At 3: 30 p. m: that same day Hollins again approached Winters and inquired about the grievances. Winters replied that the Respondents would have to hire another girl to expedite the distribution of pay- checks and that he would advise Hollins on this matter later. Hollins then called Winters aside beyond the hearing of nearby workers and said to him, "You better be a good boy or else." Winters asked, "What do you mean [by] or else?" Hollins replied, "Or I'll tell your partners about you and that droop [Winters' brother] stealing the boiler scrap down on that Carter Street job." Disturbed by Hollins' threat Winters at once sought out his partners. At a conference among the partners, which took place at about 3: 45 that afternoon, Winters informed his partners of Hollins' threat and the partners reached the decision to discharge Hollins. Hollins was discharged the next day, March 23. The Trial Examiner found that Hollins' threat to Winters to inform his partners of his brother's alleged participation in the theft of the boiler scrap was "a motivating factor" in Hollins' discharge, and that since it was a "form of insubordination" the discharge would have been justified even though Hollins at the time of making the threat was, acting in the capacity of shop committeeman. However, the Trial Examiner also found that Hollins' threat was not the sole motivation for the discharge, but that Hollins' collection and presentation of grievances as shop committeeman "loomed at least as important, if not more so than the threat of March 22 in the [Respondents] decision to discharge him." He concluded therefore that because one of the motivating causes of the discharge was based on an unlawful reason,, the discharge was in violation of Section 8 (a) (3) of the Act. In arriving at the conclusion that Hollins' presentation of grievances. was a contributory cause of his discharge, the Trial Examiner relied primarily upon : (a) His finding that although this matter was not discussed by the Respondents at their March 22 conference until after they had reached the decision to discharge Hollins for his threat to Winters, the Respondents, or at least Winters, was aware of Hollins" election as shop committeeman for the riggers and his subsequent ac- tivities in that capacity, and therefore the fact that he presented grievances directly to Winters must have entered as a factor in the Respondents' decision to discharge Hollins; and (b) his conclusion that Winters' and Brener's reference to Hollins' conduct in the shop as "pulling his weight" among riggers, "agitation," "buzzing" around, and inciting complaints against the Respondents, and reliance by the, Respondents upon such conduct as an additional reason for the dis- charge, warrant a finding that it was Hollins' collection and presenta- tion of grievances which in their minds branded him an "agitator." We do not agree. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assuming that all the partners knew of Hollins' election as,,shop committeeman and his subsequent activities in that capacity before they reached the decision to discharge him, it does not follow that Hollins' protected activities furnished additional motivation for his discharge. Hollins' misconduct was serious enough to foreclose any speculation that it was used as a "pretext" to get rid of Hollins be- cause of his protected activities or because the Respondents needed any additional motivation for the discharge. Indeed, the Respondents took a very serious view of the incident. Winters reported to his partners that Hollins was trying to hold the scrap deal and Winters' brother's part in it as a club over his head. Respondent Kosovo observed that whether or not Winters' brother sold the scrap and failed to account for the money was beside the point, that they did not want any employee around who would talk to his Employer that way, and that they must get rid of Hollins. Questioned at the hearing by the Trial Examiner as to what it was about the incident that "perturbed" him so much, Winters testified that Hollins was "trying to bully [him] the employer, and that it was more than [he] can stand," and further : "I, as his employer . . . don't want no employee to speak to me along the lines that I had better be a good boy for himself or anybody else. And when he told me that I had better be a good boy or he would speak to my associates to try and get my brother and I in trouble, as he thought, that is all the pressure I need to discharge any man in my employ." Nor does the record indicate that the Respondents were unduly disturbed by Hollins' collection and presentation of grievances so as to warrant an inference that Hollins' discharge might have been in retaliation for his protected activities, or that they in fact, interfered with, or denied him, his right to engage in such activities. When informed by Hollins that he was elected shop committeeman for the riggers, Winters not only accepted Hollins as a spokesman for the group and dealt with him concerning these grievances, but took im- mediate steps to satisfy one of them. Winters continued to deal with Hollins as a spokesman for the group even after he was informed by Union Agent Loughney that Hollins had no official status, and was told not to deal with him. When Hollins approached Winters for the second time and asked Winters what he was going to do about the grievances and particularly the request for earlier payments, Winters said that they would have to hire another girl to expedite such payments, and he would let Hollins know. Thus, there was nothing in Winters' behavior in dealing with Hollins to suggest that the subsequent discharge of Hollins was in retribution for his pro- tected activities. While it may be true that the Respondents were annoyed by Hollins' activities as a spokesman for the riggers, yet, this would not be entirely unjustified. The Union had already desig- nated Richards as steward for the whole yard, and Loughney ad- vised Winters that he need not deal with Hollins. KEYSTONE SHIP ENGINEERING COMPANY 599 Moreover, contrary to the Trial Examiner, we find no sufficient basis for equating Hollins' "agitation," to which Respondents Winters and Brener referred in their explanation for the discharge, with Hollins' protected activities. There is nothing in the record to show that Hollins had engaged in any protected or union activity prior to his election as shop committeeman for the riggers. Yet there is evidence, credited by the Trial Examiner, that Respondents Winters and Kosove looked upon him as an "agitator" even before his election to that position. Hollins' election as shop committeeman took place a few hours after his reinstatement following his layoff the day before for alleged drinking and sleeping on the job. Although the charges were not proved, Winters and Kosove opposed Hollins' reinstatement on the ground that he was a "troublemaker" and "agitator." They finally gave in to Brener's insistence on- reinstatement -because of his contention that Hollins would profit by his experience. However, they consented with the reservation that they would watch his behavior. We also note that Hollins testified that he was informed by Brener on March 19, apparently following the partners' discussion of Hollins' reinstatement, that Winters had called him "an agitator." That Winters' and Kosove's references to Hollins' "agitation" at the con- ference at which the decision was reached to discharge Hollins, were intended to describe Hollins' unsatisfactory behavior as an employee rather than his collection and presentation of grievances is indicated also by Superintendent Kirchoff's uncontradicted testimony as to Hollins' conduct before March 18. Kirchoff testified that on one oc- casion when he ordered Hollins and other employees engaged in an argument to leave the ship on which they were working, Hollins said : "What you need is a punch in the nose" ; that on another occasion when he told Hollins and others to 'calm down, "break up the group," and go back to work, Hollins swore at him and told him to "scram"; that still on another occasion Hollins said that he would throw him (Kirchoff) off the drydock; and that on several occasions he asked Winters to discharge Hollins. As we'•agree with the Trial Examiner's finding that Hollins' threat to Respondent Winters to' expose to his partners his brother's alleged participation in a theft was a motivating reason for his discharge and as we find that the record fails to establish that Hollins' collection and presentation of grievances was an additional reason for his discharge, we do not adopt the Trial Examiner's finding that Hollins was dis- charged in violation of Section 8 (a) (3) of the Act. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 3 7 9 2 8 8-5 6-v of 113--39 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE The sole issue in this case is whether or not Thomas Winters, Herman Kosove and Aisik Brener, Co-Partners d/b/a Keystone Ship Engineering Company, herein called the Respondents, discharged Edward J. Hollins on March 23, 1954, because he engaged in concerted or union activities, in violation of Sections 8 (a) (3) and (1) and 2 (6) and (7) of the National Labor Relations Act, as amended,'61 Stat. 136, herein called the Act. The issue arises on a complaint issued-October 6, 1954, by the General Counsel of the National Labor Relations Boafd, herein called General Counsel and the Board, through the Board's Regional Director for the Fourth Region (Philadelphia, Pennsylvania), on the basis of a charge duly filed by Edward J. Hollins, and the answer of Respondents which denied the com- mission of any unfair labor practices and contended that they discharged Hollins for good cause.' Pursuant to notice a hearing was held in Philadelphia, Pennsyl- vania, on November 10, 12, 18, and 19, 1954, before the duly designated Trial Examiner, at which all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to make oral argument and file briefs. At the close of General Counsel's case-in-chief, the Trial Examiner denied Respondents' motion to dismiss the complaint for lack of proof. At the close of the General Counsel's rebuttal testimony, the Trial Examiner denied Respondents' offer of cer- tain proof in sun ebuttal. The Trial Examiner reserved decision on Respondents' final motion to dismiss the complaint on the merits; that motion is disposed of by the findings and conclusions in this report. Both parties presented oral argument on the merits, but did not file written briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT J 1. THE BUSINESS OF RESPONDENTS AND STATUS OF THE UNION At all times material herein, Respondents Thomas Winters, Herman Kosove, and Aisik Brener have been copartners duly existing and doing business und'er-the name and style of Keystone Ship Engineering Company in accordance with the laws' of Pennsylvania, with their principal office and place of business in Philadelphia, Penn- sylvania, where they have been and are engaged in the repair and maintenance of ships, including ships of the United States Navy. During the 12 months' period since September 1953, when the partnership was created, Respondents have per- formed repair and maintenance work on United States Navy ships amounting in value to more than $300,000. I find from these facts that Respondents have been and are engaged in commerce within the meaning of the Act. Local 803, International Brotherhood of Boilermakers. Iron Shipbuilders, Black- smiths, Forgers and Helpers of America, AFL, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act, which admits to membership employees of Respondents? II. THE UNFAIR LABOR PRACTICE At the time of his dischage in March 1954, Edward J. Hollins was employed as a rigger in Respondents' shipyard. He was a member of the Union, which repre- sented employees of all crafts in the yard. Anthony J. Loughney, also known as "Whitey" Loughney, was the business' agent of the Union, and Myles W. Richards, a machinist employed by Respondents and known among the men as "Smokey" Richards, was the union-shop steward for the whole yard. Respondents contend that Hollins was discharged for various reasons connected with his work, which will be considered in detail below. General Counsel contends that he was discharged because he processed grievances as shop steward or commit- teeman for the riggers and other crafts on March 19 and 22, 1954, following his election to that job on March 18, 1954. A subsidiary issue is, whether that election was legal and Hollins' subsequent processing of grievances was legal, bona fide, and protected union activity, as claimed by General Counsel, or was illegal and un- protected because it was contrary to the terms of a collective-bargaining agree- ment with the Union which Respondents claim was in existence and controlling at the time of discharge. These issues require a review of Hollins' entire employ- "The charge, complaint, and notice of hearing thereon were duly served on Respond- ents and the Charging Party. 2 The name of the Union is stated as it appears in documentary evidence in the record. KEYSTONE SHIP ENGINEERING COMPANY 601 ment, but as the bulk of the testimony and main arguments of the parties center on his activities between March 18 and 22, inclusive, I shall consider the events of that period first. A. The discharge and events preceding it On March 16, 1954, Respondents were engaged in repair and maintenance work on the Cefalu, a cargo vessel tied up at a pier in another part of Philadelphia. In the course of the work, Respondents had removed a broken steam generator casing from the vessel and repaired it in their yard . On the 16th the casing was ready for reinstallation, and on the late afternoon of that day , Thomas Winters selected a crew of three machinists and Riggers Hollins and George V. Bochanski , to do the job. Winters placed Machinist Irving Larsen in complete charge of the job and told the riggers he would be their supervisor . The machinists went to the Cefalu after supper and in the meantime the two riggers hoisted the casing onto a truck at the yard. Thereafter Hollins rode to the vessel in the truck with Al Winters, the truckdriver and brother of Thomas Winters; Bochanski drove down in his own car. While en route, the truck was stopped by Robert Kirchoff, Respondents' yard superintendent, who told Hollins that when the riggers had moved the casing into the engineroom their work was done , they should leave the ship, and that the machinists would handle the job from there on. When Hollins arrived at the ship, he told Bochanski and Larsen of Kirchoff's instructions . Larsen had already received word from another man that he would have to do the job with three machinists already on the boat .3 Dissatisfied with this, he called Thomas Winters on the phone about 7 p. in. and told Winters he wanted to use the two machinists he had brought, as they had the proper tools, and to keep the riggers on the job to help out as long as he felt it necessary, to complete the job . Winters agreed to this, and Larsen then returned to the crew and informed them they would stay on the job. Bochanski then mentioned Kirchoff's order regarding the riggers , and Larsen told him he was in complete charge of the job and would release the riggers when he saw fit. The riggers then transferred the casing from the truck to the deck of the ship and thence down to the engineroom . It took them about 3 hours to do this ; the cas- ing was a heavy, bulky piece, weighing over 500 pounds and measuring about 3 feet high by 3 feet wide and 41/2 feet long; the riggers had to move it on a dolly along the deck to a passageway, and then move it long 2 passageways , through 2 doors, and down 1 flight of stairs into the engineroom by means of chain hoists and falls; in the engineroom , they lowered it into position on a foundation. Then, they had to raise and lower it several times while the machinists filed and checked the bearing surfaces to insure a proper seat and tight fit; after fitting , both riggers and machinists worked together to fasten down the casing with bolts; the riggers then lowered heavy cylinder tops into place with falls and helped the machinists bolt them down, assisted the machinists in replacing and fitting pistons with bearings, replacing other components, and in refitting piping and other connecting items to the unit. The- job was completed about 7 : 30 a. in. on the 17th; the crew re- turned to the shipyard about 9 a. in. and then went home . The riggers worked at all times under the direct supervision of Larsen. When Hollins and Bochanski reported for work the morning of March 18, Thomas Winters discharged both, claiming they had been sleeping and drunk while on the Cefalu job. Both men denied the accusations and Hollins immediately sought out the union business agent, Loughney, who was at the yard, and asked him to inter- cede with management. Loughney gathered together Hollins, Bochanski , Larsen, and, several other members of the crew on that job , and took them to the yard of- fice, where he asked Respondent Brener to reinstate the riggers . Thomas and Al Winters were present during the discussion. Brener charged that the two- riggers had been drunk and sleeping of the job, but they again denied it, saying they had worked all night. Larsen supported them, telling Brener neither man had been drinking or asleep , and Loughney indicated he believed the riggers . Brener then asked those present to tell him who was drunk or asleep on that job, and he would fire him, he did not care who it was. None of the men answered him? Brener then 3 These machinists had worked on the boat during the day and had been left on the job by Kirchoff when he left the boat at the end of the day. * Later that day, Larsen told Winters privately that Al Winters had been the only one asleep and drinking on the job. The same day, Hollins also told Brener privately that Respondents had the wrong information about the job, that Al Winters was the culprit, that Thomas Winters was trying to "take it out on me" instead of his brother, and thus trying to cover up for his brother. I find from uncontradicted testimony of Larsen and Bochanski that Al Winters fell asleep on the ship during the job and appeared to have been drinking. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed the matter with his partners and they finally agreed to reinstate the rig- gers, which was done about 9 a. m. that morning. The above findings are based on credible and mutually corroborative testimony of Hollins, Bochanski, and Larsen, which is supported in part by testimony of Kirchoff and admissions of Brener, Win- ters; and Kosove; other testimony of the three partners and Kirchoff in conflict there- with is not credited because none of them were present during the operation, and their testimony on it was mostly opinion and conclusions not supported by facts or testimony of officers of the vessel on whose reports they relied in charging Hollins with misconduct. About 10 a. in. the same morning, Bochanski and Hollins approached Shop Stew- ard Richards in the yard and asked if a meeting could be held for the election of a shop committeeman for the riggers. Richards agreed to hold it, saying he would get the men together in the washroom at dinnertime. Richards then notified all the riggers, painters, and a sandblaster of the time and place of the election. Seven riggers, two 'painters, and a sandblaster gathered in the washroom at 11:30 a. m. with. Richards. Charles. Kirby, a rigger foreman, was present but was not allowed to take part in the election. Richards conducted the meeting. He announced that there would be an election of shop committeeman for the riggers, and said 9 rig- gers, 2 painters, and 1 sandblaster were eligible to vote. When he called for nomi- nations, Rigger Joe Sigovich was nominated by Rigger Paul Peterson, but declined the nomination. Hollins was then nominated by Riggers Bochanski or William Nolen. There being no other nominations, Richards asked the men if they wanted a written or oral vote, and they requested an oral vote. When he called for the vote, there was a chorus of "ayes" for Hollins and none opposed. Richards declared Hollins elected and the men returned to work. Richards at once outlined to Hol- lins his duties as shop committeeman, stating that he was supposed to make note of any grievances that came up among the riggers, bring them to Richards, and then they could "iron it out with the company." These findings are based on credited and mutually corroborative testimony of Hollins, Bochanski, and Richards; other testimony of these witnesses at variance therewith is not credited. Hollins took no action as shop committeeman that day or the next. However, on the evening of the 19th, he and Rigger Nolen were paid off about 5:10 p. m. in- stead of at 4:30 p. m., their usual quitting time, due to some delay in the preparation of their particular checks. On Monday, March 22, 1954, while the riggers were in the lockerroom before 8 a. m., preparing to go to work, Nolen mentioned to Hol- lins the delay in receiving their checks on Friday and suggested that Hollins take up the matter with management for the riggers. Hollins said he would write it down and tell Shop Steward Richards about it when he saw him. Rigger Bochanski also suggested that Hollins speak to Respondents about the filthy condition of the toilets. Hollins noted both complaints on a slip of paper as follows: "Pay at 3 o'clock on Friday" and "Filthy toilets." All the riggers were present during this discussion. Hollins went to work on an aircraft carrier then in the shipyard. When he got aboard, he was stopped for 4 machinists, 1 of whom, Palisca, told him of a discus- sion he had that morning with Respondent Kosove about the machinists' hours of work 1 day the previous week, in which Palisca had claimed he had worked 4r hours, but Kosove disagreed, saying he had worked only 4 hours and would be paid for 4. Palisca told Hollins that Respondents were trying to "do" him out of a half hour's pay. Hollins told Palisca to see Richards about it. Palisca replied that he did not see Richards around and had heard that he would not be at work that, day. Palisca also said he had heard that Hollins was a shop committeeman, and thus asked him to take care of the complaint for him. Hollins then noted the names of four machinists (Palisca, Jankevics, Taylor, and Hurd) on the paper containing the riggers' complaints, and told Palisca he would turn them over to Richards. When Hollins went to lunch about 11:30 a. in., three other machinists (Hogan, Dietson, and Faunce) came to him and voiced the same complaint as Palisca had made. 'Hollins added their names to the paper, saying he had the same complaint from other machinists, and that he would give all their names to Richards. He noted opposite the seven names "4' hours Monday." During lunch period Hollins inquired for Richards, was told by other workers that he was absent that day, and that they had heard he was going to North Jersey to look for another job. Richards was in fact absent from work the entire day. After lunch, Hollins met Frank Grubiak, a member of the Union's executive board who did not work at the yard, and asked him to tell Business Agent Loughney that Hollins wanted to see him. The above findings are based on uncontradicted and credited testimony of Hollins, Bo- chanski, and Richards and General Counsel's Exhibit No. 2. About 1:30 p. m. Hollins went to the machine shop for tools and met Respondent Thomas Winters there. Hollins mentioned that Richards was not at work that day KEYSTONE SHIP ENGINEERING COMPANY 603 and Winters affirmed it. Hollins asked if Winters knew he had been elected shop steward for the riggers. Winters said he did not, and Hollins said he was elected Thursday. Then Hollins said he had a few things to show Winters and showed him the list of grievances. He stated the men were paid after 4:30 p. in. on Fridays and would like to get paid before that time; Hollins suggested that Respondents might pay them around 3 p. in. Winters looked at the paper and asked what "filthy toilets" meant. Hollins said he would come to that and reiterated the pay grievance, relating his own tardy payment on the previous Friday, and saying the men would like to get paid before 4:30 p. in. As to the "filthy toilets," Hollins said the men complained that they were so dirty they could not be used and even the sailors from the aircraft carrier refused to use them. Winters then asked what the names on the paper meant, and Hollins related Palisca's complaint about his pay and Kosove's statement that the machinists would be paid only for 4 hours. Winters took the paper from Hollins' hand, said to him that he "would take care of this" and would let him know, and walked away. Winters at once sought out a pipefitter in the yard, who had the duty of maintaining the toilet facilities, and asked him to check on their condition. These findings are based on credited testimony of Hollins which is corroborated by that of Winters in substantial part. I find from testimony of both Hollins and Winters that Hollins accosted Winters on the carrier about 3 or 3:30 p. in. that day and asked him what he was going to do about the grievances, particularly the request for earlier payments. Winters re- plied that Respondents would have to hire another girl and he would let Hollins know .5 Hollins then called Winters to one side beyond the hearing of nearby workers and said to him, "You better be a good boy or else." Winters asked, "What do you mean, or else?" and Hollins replied, "Or I'll tell your partners about you and that droop stealing the boiler scrap down on that Cater Street job"; on cross-examination, Winters stated Hollins' reply thus: "That your brother and the gang that worked on this boiler at 15th and Cater had stole the scrap iron." Winters asked Hollins who worked on that job, and Hollins named them, including Al Winters.6 About 3:45 p. m., Winters talked to his partners about Hollins' remarks and other activities. This conference will be considered in detail below. About 8 a. in. on the morning of March 23, Thomas Winters told Steward Richards that Hollins had brought him a list of grievances, and was quite angry about it, ask- ing Richards who was the proper person to give him the list. Richards told him Hollins had been elected shop committeeman for the riggers. Winters asked if grievances were not supposed to "go through" Richards as shop steward and Richards affirmed that they were. Winters then told Richards he was going to "leave it up to you" and suggested that he talk to Union Agent Loughney about it. Hollins came to work at the usual time Tuesday morning. After Richards finished talking with Winters he approached Hollins and mentioned his presentation of grievances to Winters. Hollins admitted he had done so. Richards asked Hollins why he had not waited and given them to him when he came in. Hollins replied he had waited for Richards until noon on Monday, but had learned he was out looking for another job, that he did not know what to do, had tried unsuccessfully to contact Loughney, and had then presented the grievances to Winters when he ran into him. Richards 6I do not credit Winters' testimony that he said nothing in reply to Hollins, for it is clear from credible testimony of Richards, which will be discussed in more detail below. that Richards had been discussing this grievance with Respondents for at least a week before Hollins' election, and Respondents have since hired another girl to take care of the whole payroll it is inferable that Winters was already conversant with the grievance when Hollins spoke to him, and probable that Respondents were even then contemplating hiring another girl to take care of it. 6 I do not credit Hollins' denial, on rebuttal, of the "or else" statement, or of any threat to Winters based on his brother's connection with the boiler job. The credited admissions of Winters and Kosove indicate that late in 1953 Kosove had sent some yard employees, including Al Winters, to replace a boiler in a building owned by him elsewhere in Phila- delphia, and that the crew had sold the old boiler for scrap and pocketed the money. The testimony of Hollins and Richards indicates that Hollins knew about this episode and mentioned it to Brener in a discussion with Brener the afternoon of March 23 just before his discharge, in which Hollins complained to Brener that Winters did not like him, thought he was "no good," and that he was "pretty burnt up" about Winters' attitude. It is clear from these facts, and from the nature of Winters' testimony about Hollins' con- duct generally, that there was no love lost between the two men, and that Hollins men- tioned the boiler episode to Brener as a sort of "defensive" or "counter" accusation aimed at the man he knew would discharge him shortly. In these circumstances, it is more likely than not that Hollins mentioned the scrap deal involving his brother to Thomas Winters the day before. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that Hollins should not have done that but should have waited to see him. Hollins replied that he did not know whether Richards was "ever going to come in." Richards said that Winters was "pretty hot about it." Hollins replied that it was already done and that he had not known what else to do. Just before lunch, Richards again told Hollins that Winters was "pretty hot" about the list of grievances Hollins had given him. Hollins suggested that he and Richards "straighten it out" by having a meeting with Loughney and Partners Brener and Winters. Richards agreed and said he would try to locate Loughney. Richards tried to contact Loughney by phone twice during the afternoon but without success. Hollins then suggested that Richards and he have a meeting with Brener and Winters, saying he did not want to talk with Winters in the absence of Brener. Richards said he would try to arrange a meeting. These facts are based on credited testimony of Hollins and Richards. Shortly before 4 p. m., Winters asked Richards to send Hollins to Respondents' office, saying Hollins was being discharged and his checks were being made out. Richards sought out Hollins in the yard and told him what Winters had said. Hollins told Richards he would not go to the office without Brener. As they went to the office, they met Brener. Hollins told Brener that Winters had called for him. Brener said he knew about it and that Winters was going to lay him off. Hollins asked why, and Brener asked Hollins if he had not given Winters a paper listing grievances on Monday. Hollins admitted that he had, saying he had given it to Winters as representative of a group of employees, and that he had been elected shop "steward" of the riggers. Brener said that Winters had said Hollins was an agitator. Brener asked about Hollins' seniority in the yard and Hollins told him he had the most seniority among the riggers.? Brener repeated that Winters was going to lay him off and asked Hollins to "take" the layoff. Hollins said he did not mind "taking" it if he had done something wrong, but did not think he had, done anything wrong and desired to stay at work. He also told Brener that he was "pretty burnt up" about Winters' attitude toward him, that Winters did not like him and said he was no good, and he then told Brener that Al Winters, Thomas' brother, had participated in the sale of the scrap boiler from the Cater Street job on which he had worked for Kosove. Brener said he would have to see Winters about that. Richards then told Hollins that "we" would bring Loughney to the yard in the morning and would talk the matter over then. Hollins then went into the office about 4:30 p. in., where Winters tendered him two paychecks, saying he -was discharged. Hollins asked why he was discharged and Winters said "we don't want you around here any more." Hollins refused to accept the checks, saying he would wait to see Loughney before doing so. The next day, March 24, Hollins tried to get his job back with the help of Loughney, but Respondents re- fused to reinstate him. These findings are based on credited testimony of Hollins, which is corroborated in substantial part by that of Richards, admissions of Brener and Winters, and payroll records of Respondents. Testimony of Brener, Kosove, and Winters in conflict therewith is not credited. B. Respondents' defenses Respondents' answer sets forth three basic reasons for discharge: (1) That Hollins was not a qualified rigger, though employed as such, and could not properly perform a rigger's work; (2) that he "persistently" loafed and slept on the job and was a safety hazard, in that on one occasion he almost caused a fatal accident; (3) and that he "persistently" caused disturbances, disrupted work schedules, and intimi- dated fellow employees. At the final argument, Respondents also claimed that the proximate and immediate cause of his discharge was his attempt on March 22 to blackmail Winters by the threat to expose his brother's defalcations, and that this threat was characteristic of his "weight-throwing tactics" and "part and parcel of his general demeanour, attitude, loafing and refusal to work." They argue that the discharge was in nowise based on Hollins' election as shop committeeman or presentation of grievances in that capacity. The question of motivation thus raised requires at the outset a consideration of Respondents' conference of March 22 at which the discharge decision was reached. Thomas Winters testified that: He was perturbed by Hollins' threat on the afternoon of the 22d to expose, to his partners, Al Winters' part in the scrap deal, so he at once sought out his partners and related Hollins' remarks to them; he also mentioned to them "actions that have been occurring for the past week or so," saying he could not work with Hol- lins any longer; Kosove asked what these "actions" were, and Winters said Hollins 9I find from Hollins' uncontradicted testimony that at this time he had the third highest seniority among the riggers, only Sigovich and Rigger Foreman Kirby having longer service. KEYSTONE SHIP ENGINEERING COMPANY 605 was "agitating all over the yard, especially in the rigging gang, where he had it in a turmoil " and that he would not tolerate "these conditions" any longer. Brener and Kosove agreed that Hollins should be discharged and told Winters to do so immediately. Kosove corroborates Winter's report about Hollins' remarks and threat, adding that Winters told them Hollins was trying to hold the scrap deal and his brother's part in it as a club over Winters' head, and that he (Kosove) told his partners that, whether or not Al Winters sold the scrap and failed to account for the money was beside the point, that they did not want any employee around who would talk to his Employer that way, that Hollins was "not good for them," that they must get rid of him, and that all three agreed. Kosove does not corrobo- rate Winters' recital of the alleged prior "actions" and "agitation" by Hollins. Brener did not testify about this conference except to say he ordered Winters that day to get rid of Hollins at once because he "doesn't produce, doesn't work," but Winters wanted to wait until Tuesday. This testimony, of course, is not contradicted by any of General Counsel's witnesses . Winters testified that Hollins' threat to him was one of the reasons for discharge. He also admitted he learned from Richards the morning of March 23 that Hollins had told both Richards and Brener about his brother's part in the scrap deal. Kosove testified that Respondent had not been "generally" pleased with Hollins, and that these remarks were the "last infraction" which led them to the decision to get rid of him. It is clear from the above testi- mony, and I find, that Hollins' threat to Winters was a motivating factor in his discharge. If Hollins' threat to Winters, its effect on Winters, and Respondents' decision to discharge him after discussion of that threat, were the sole facts in the case, there is no question that Respondents' discharge of Hollins for that threat, which was a form of insubordination, was justified, even if Hollins was at that time a legally constituted shop committeeman. See B. B. Crystal Company, 70 NLRB 985, 986; and compare The Bettcher Manufacturing Company, 76 NLRB 526, 527. However, the issues raised by the pleadings, Hollins' recent union activity, and Respondents' consideration of that activity at the same conference, raise the further question whether Hollins' threats, either alone or combined with other activities cited by Respondents, were the sole motivation for the discharge, or at least weighed more heavily in the decision to discharge him than did his union activities. Discrimi- nation may be inferred if it is shown that one reason for his discharge was his union or protected activity. It need not be the only reason, but it will be sufficient to base a finding of violation of the Act if it is a substantial or motivating reason, despite the fact that other reasons may exist. N. L. R. B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C: A. 1) enfg. 100 NLRB 279; Kingston Cake Company, Inc., 97 NLRB 1445, 1451, affd. on this point, but enforcement denied on other grounds, 206 F. 2d 604 (C. A. 3). I have found above that Respondent Winters became cognizant of Hollins' election and activity as shop committeeman in their first conversation on March 22, when Hollins presented the grievances outlined above. I further find from uncontra- dicted testimony of Winters and Kosove that : Immediately after the partners reached the decision to discharge Hollins, Winters, very agitated, pulled Hollins' list of grievances from his pocket and showed them to his partners, saying "That isn't all, look at this statement he gave me this , morning." 8 The partners read over the list and Kosove commented there was nothing wrong with the list and the grievances should be "looked into" and corrected , except one which he said "had no bearing." Winters and Kosove further testified, in substance, that Kosove asked what right Hollins- had to present grievances , and Winters said , "None," as Richards was the shop steward . Kbsove suggested Winters call -Loughney to ascertain Hollins' exact status, stating that if they discharged him and he was a union official, they might have a strike on their hands. Winters said he had already talked to Loughney that morning and the latter told him Hollins had no official status or authority. Both partners also testified that the decision to discharge Hollins was made before Winters men- tioned his presentation of grievances, and that neither the question of his status as shop committeeman nor his presentation of grievances entered into that decision. While the sequence of the discussion at the discharge conference affords some support for this contention, their testimony on this point is belied by other testimony and circumstances . First, it is clear that all Respondents knew of Hollins' purported ° On cross-examination, Winters said be told them "Not only that, look at this" ; Kosove testified on direct examination that Winters said, "And what do you think of this?"; on cross-examination he states it : "Look what else this guy gave me ," and then professes not to recall Winters' exact words, but states their substance as : "Look at the nerve of this guy giving me this, too " 606 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD election and presentation of grievances before his discharge of March 23, 1954. Winters knew of it at least from about 1:30 p. in. on March 22, and it was certainly in his mind when he talked to his partners about Hollins' threat, although he says he did not bring it out until after the decision to discharge was made. Second,'on cross-examination Winters admitted that he felt "definitely" that "when he [Hollins] presented or got these grievances, he was aggravating and pullmg his weight among the riggers," and that this was the "agitation" he was making among "the entire rigging gang and half the plant"; he also described the "agitation" by saying Hollins was not doing his work, was never with his rigging gang, and "would -be over here with a couple of men, over there with a couple of men, and what have you," in the week or so before his discharge. Brener testified that after the first discharge and reinstatement of March 18_1954, he saw Hollins "quite often" talking with groups of riggers, machinists, and other craftsmen, and that he was discharged for not doing his job and because he was busy "buzzing around, telling workmen complaints against us, instead of doing his job." As I have already found that Hollins discussed grievances with other employees on three occasions on March 22, 1954, it is clear from Winters' and Brener's testimony that this activity was part of the "agitation" and failure to do his job which Respondents had in mind when they decided on the discharge. From Winters' admission alone, it is inferable that the collection and presentation of grievances loomed at least as important, if not more so, than the threat of March 22 in the decision to discharge; this inference is strengthened by the admissions of Winters and Kosove as to Winters' remarks in bringing up the grievances, which clearly indicate that Winters at least considered their presentation to be additional, rather than incidental, reprehensible conduct of Hollins. That this conduct still loomed large in Winters' mind on the day of the discharge is also evident from Winters' discussion at 8 a. in. with Richards about Hollins' presentation of grievances and Richards' subsequent comments to Hollins that Winters was "pretty hot about it." As against the above testimony, the mere fact that Winters mentioned the grievances after the discussion of the threat in the same conference loses significance. I am convinced from all the above facts and circumstances, and find, that Hollins' collection and presentation of grievances as shop committeeman was a motivating factor in his discharge to at least the same degree as his "blackmail" threat to Winters. Respondents attack the legality of Hollins' election and propriety of his presenta- tion of grievances on several grounds. They say the election was illegal under the Union's constitution and likewise contrary to the terms of a purported collective- bargaining agreement with the Union, that the grievances Hollins presented were without substance and "fanciful," that under these circumstances Hollins was im- properly assuming the mantle of authority of shop committeeman, especially where the employees were already represented by a shop steward, and that this conduct was "part of the general picture of a man who wants to become some type of union official so that he won't have to do an honest day's work." The argument that the grievances presented were "fanciful" is deprived of all force by the: (1) Credited testimony of Kosove that, after the partners examined the list, Kosove commented that there was nothing wrong with the requests (except one) and that they should be looked into and corrected; (2) credited testimony of Brener and Steward Richards that in the past employees had at times been paid after their quitting time, due to the unavailability of Winters who had to sign all paychecks, that employees had complained in the week before the election about tardy payments, that Richards had been trying in that period to persuade management to advance the time of payment to 3 p. in. or lunchtime on Fridays, and that Respondents had since that time hired another girl to take care of the payroll, had arranged to have pay- checks signed earlier in the week, and at the time of the hearing were paying the men at lunchtime on Fridays; and (3) credited testimony of Richards that employees had complained before March 18, 1954, about dirty toilets, that Respondents had had them repaired and assigned men to keep them clean, but occasionally the cleaners "skipped a day." 9 The contention that Hollins' election and subsequent conduct is contrary to the union constitution and bylaws is based solely on the uncontradicted facts 10 that the union business agent has always appointed shop stewards and committeemen in the 9 Even if the grievances had been without substance in fact, the fact that the employees still presented them indicates that in their minds the complaints were justified, and their presentation through Hollins in that belief, though mistaken, was still a protected con- certed activity. See Firth Carpet Company v. N. L. It. B., 129 F. 2d 633, 636 (C. A. 2). 10 They appear in the testimony of Loughney and the union constitution and minutes of membership meetings. KEYSTONE SHIP ENGINEERING COMPANY 607 shipyards of Respondents and other employers under authority granted him by the membership of the Union in January 1952, which grant was consonant with authority given subordinate lodges (including Local 803) by the constitution of the parent International Brotherhood, adopted in July 1953, to either elect or appoint shop stewards and committeemen. It is also clear from the record that Respondents had always recognized and dealt with Shop Steward Richards, Loughney's appointee, as the sole legitimate union representative in their yard. While there is some question as a matter of union constitutional law whether the action of the membership in 1952 legally waived their constitutional right to elect their own committeemen granted by the 1953 constitution, in the absence of a new grant of the appointment power to the business agent following the adoption of that constitution, I deem it unnecessary to decide that point or to judge the legality of Hollins' activity by the constitution, bylaws, or internal practices of the Union." The Board has held that the right guaranteed to employees by the Act to engage in concerted activities for purposes of collective bargaining and other mutual aid or protection cannot be limited or proscribed by the internal regulations of the union whose members have engaged in the concerted activity. Cape Arago Lumber Company, 69-NLRB 572, 586, and cf. Republic Steel Corporation, 62 NLRB 1008, 1029, 1030. Furthermore, Section 9 (a) of the Act, which gives exclusive bargaining status for all employees in an appropriate unit to the representative chosen for that purpose by a majority of em- ployees in the unit, at the same time preserves the right of individual employees or groups of employees generally to present grievances to their employer and to have such grievances adjusted, without intervention of the bargaining representative.12 I am of the opinion that Hollins' presentation of grievances to Respondents on behalf of himself and a group of employees, whether of his own craft or otherwise, was concerted activity which falls' clearly within the protection of the first proviso of Section 9 (a). However, Section 9 (a) places two limitations upon the exercise of the right of in- dividual presentation and adjustment of grievances: First, that the adjustment of such grievances "is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect," and, two, that the "bargaining representative has been given opportunity to be present at such adjustment." The first limitation appears to be the basis for Respondents' main contention-that Hollins' collection and presen- tation of grievances was contrary to the terms of a collective-bargaining agreement existing between Respondents and the Union, and was thus unprotected activity.13 At the very outset, however, their argument runs afoul of the established facts that Hollins' activity as shop committeeman involved only a partial exercise of the right protected by Section 9 (a). He did no more than note grievances of employees, make them known to management, and state what correction of working conditions the employees desired. Winters listened to his recital of grievances, and said he would "take care of them." There is no proof that Hollins had any further discussion with management about the merits of the grievances, nor that he took part in an actual "adjustment" or settlement of the grievances, before his discharge.14 Although the record does not show the exact dates when Respondents corrected the grievances, the credited testimony of Brener and Richards indicates that any adjustments, at least in the pay, procedures, were put into effect following Hollins' discharge. There is no proof that Hollins was present after that event at any conferences between man- agement and the Union (if any were in fact held) about the grievances, nor at the actual "adjustment" thereof. Thus it cannot be argued that Hollins in fact partici- pated in any "adjustment" or settlement of grievances which might be inconsistent with the terms of a collective-bargaining agreement, assuming one existed. In other words, his handling of grievances never reached the stage of bargaining, "adjustment," or settlement which would make it subject to the limitations on which Respondents rely. Considering the wording and meaning of Section 9 (a) and its provisos, I am u For this reason, I make no findings on testimony of Loughney or Respondents relating to the legality or propriety of Hollins' election and subsequent conduct, from the stand- point of the Union's internal rules and practices in handling grievances with employers. 12 See N. L. R. B. v American. Mfg Company of Texas, 203 F. 2d 212 (C. A. 5). 'a Although Respondents do not specifically mention Section 9 (a) or its limitations in their arguments, their vigorous efforts to prove the existence and terms of a specific col- lective-bargaining contract, and that Hollins acted contrary thereto, make it clear that they rely upon such contract to show the alleged illegality of his conduct 14 I do not consider Hollins' casual inquiry of Winters in their second talk on March 22, as to what Respondents intended to do about the grievances, or Winters' reply, or Hollins' threat to Winters, as substantial evidence that Hollins was engaged in "adjustment," as contrasted with presentation, of grievances. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impelled to the conclusion that the limited character of Hollins' concerted activity is fatal to Respondents' argument. Section 9 (a) of the original Wagner Act provided that any individual employee or group of employees should have the right at any time to present grievances to their employer. Section 9 (a) was changed by the amend- ments of 1947 to enlarge that right by permitting them also to settle grievances with their employers without the intervention of the bargaining representative, subject to the two limitations noted above. The evolution of the section points,.iip, two significant things: first, the statute has always recognized the right of individual'pres- entation of grievances, independently of the rights of the bargaining representative and, second, the section as it now stands clearly distinguishes between the "presen- tation" and the "adjustment" of grievances, in that it leaves the long-recognized right of individual presentation of grievances unfettered, while it places limitations only on the employees' right of actual adjustment of their own grievances, in order to pre- serve the basic bargaining rights and status of the statutory bargaining representative. The legislative history of the present Section 9 (a) makes it clear that Congress in- tended thereby to reassert and clarify the right of employees to present grievances independently of the rights of the bargaining representative, and at the same time grant them the right to settle such grievances by themselves, provided that in so doing they did not run counter to any existing collective-bargaining agreement or ex- clude the bargaining representative from attendance at such settlement, which might tend-to weaken the collective-bargaining process and the status of the statutory bar- gaining representative.15 Viewed in the light of the section and its legislative history, I am of the opinion and conclude that Hollins' presentation of grievances for him- self and other employees was merely an exercise of the basic right recognized and protected by the Act since its inception, and never reached the point which would require a determination whether his activity was inconsistent with a collective-bar- gaining contract, if any existed, or whether he acted in, anywise in derogation, of, the rights of the Union as collective-bargaining representative. However, in view of the extent to which the parties litigated the question of the existence of a bargaining contract, I shall consider this defense as though it had been specifically pleaded, and for that purpose shall assume that Hollins' presentation of grievances was in fact part of the negotiation and adjustment thereof and in law subject to the first limitation in Section 9 (a). Respondents rely on a document (Respondents' Exhibit No. R-3) which on its face purports to be a collective-bar- gaining agreement between Respondents and the Union, executed by Respondents and Loughney on December 21, 1953, and operative from January 1, 1954, to Jan- uary 1, 1955, and from year to year thereafter, unless sooner terminated by the parties. Article (9) thereof, entitled "Grievance Pay," provides: The Grievance Committee shall comprise of the Shop Steward and two em- ployees when necessary appointed by the Business Agent and the. time lost by the Grievance Committee during regular working hours in the settlement of grievances on or off Company property, shall be paid for by the Company at the regular hourly rate (base rate) of the employees involved this article shall not be abused. Article 14, "Grievance Procedure," provides in effect that all disputes and grievances shall be adjusted (1) between the aggrieved employee, his foreman, and the shop steward; if necessary, (2) between the shop steward, grievance committee, and man- agement; and if a satisfactory adjustment is not reached by these representatives within 7 days of presentation to management, (3) either party can refer the griev- ance to arbitration before a board comprised of a representative each from the Union and management and an impartial chairman chosen jointly by both. Re- spondents contend, and it is patent from the facts, that Hollins' election as shop committeeman and handling of grievances thereafter was not in accord with the above provisions. However, certain testimony of Respondents and their own wit- nesses afford substantial basis for the conclusion that at the time of Hollins' dis- charge, neither the above contract, nor any other definite collective-bargaining agreement, was in existence or operative between Respondents and the Union. On the first day of the hearing, Respondents produced an unsigned, undated mimeo- graphed form of contract in response to a subpena served on them by General Coun- sel, calling for production of the collective-bargaining agreement in existence .be- tween them and the Union on March 22, 1954; by stipulation that document was placed in evidence (General Counsel's Exhibit No. 3) as the contract in existence on that date. This document makes no provision for the manner of selection of ie See the analysis b the Court of Appeals by for the Second Circuit of the legislative his- tory of Section 9 (a) in Douds v. Local 1250, etc., 173 F. 2d 764, 768, 769. KEYSTONE SHIP ENGINEERING COMPANY ' 609 members of the local grievance committee , although article VIII thereof contains substantially the same grievance provisions as the signed document on which Re- spondents now rely. When Business Agent Loughney of the Union testified for Respondents, he produced the signed document , claiming it is the original contract signed by both parties on December 21, 1953, and disclaiming knowledge of the un- signed document . When General Counsel pointed out differences between the two documents, Respondents still represented on the record that the unsigned contract was the only one in their files; and Kosove, the partner who handles the adminis- trative end of the business and has custody of all contracts, testified that, when the subpena was served, he searched for the contract and found only copies of the un- signed General Counsel's Exhibit No. 3 in the office file marked "union contracts," and thus assumed that it was the existing contract. From the stipulation and Kosove's testimony, General Counsel and the Trial Examiner had a right to assume that the document produced by Respondents in response to subpena, although un- dated and unsigned, was the authentic contract. However, after Loughney produced and testified about the signed document, Kosove changed his story, testifying that he received a copy of that document in 1953, but that he does not now have the copy or know where it is; and although he identified his signature on Loughney's copy, and saw the date, December 21, 1953, written in ink on the first page, he refused to testify that it was executed on that date, at first professing a lack of recollection of the exact date, and later admitting only that it was signed during December 1953; he then repudiated the unsigned document produced by Respondents. Kosove's change of story in palpable support of the signed document, his haziness as to the date of execution, and his admission that Respondents do not have a signed copy of an all-important document governing labor relations with their employees, all raise a strong doubt as to the authenticity of Loughney's document. Furthermore, only Loughney and Winters testified that that document was signed on the date writ- ten into it; Brener did not testify on that point. Winters' testimony is obviously col- ored by Respondents' interest in proving the illegality of Hollins' grievance activity to support the discharge; his testimony regarding that activity, particularly his re- peated disparagement of it by expressions of opinion and volunteered statements, clearly indicates his personal animus toward Hollins and further weakens his credi- bility on this subject. Loughney's testimony is similarly suspect: his constant at- tempts to belittle Hollins' actions as committeeman and to shrug off his election as an event beneath notice and illegal under union regulations and Loughney's own practices; his single-handed effort to highlight this by testimony that he gave im- mediate notice to the riggers and Respondents of the illegality of the election on the day after the event, which story is categorically denied by Winters, Kosove, and Bochanski, weakened by his own equivocation and self-contradictory testimony as to his movements on March 19 and 22, and not supported by testimony of any of his-own union members whom he placed at his alleged meeting with riggers on the 19th; his incredible failure to seek out and advise Hollins himself at any time of the claimed illegality of his election ; and finally his own testimony as to his argu- ments with Hollins after the discharge and his biased presentation of Hollins' case to the Union's executive board, all clearly demonstrate his personal animus toward Hollins and his resentment of the challenge to his power and status as union business manager represented by Hollins' election and activity pursuant thereto . It is fairly inferable from Loughney's entire testimony that he was motivated by personal in- terest in trying to secure an adjudication in this case of the illegality of Hollins' election which might serve to remove possible future threats to his authority within the Union as its business manager. The doubts raised by the above testimony are magnified by the credible testimony of Steward Richards that he knew from discussions with Loughney and Respondents that they were negotiating a contract from December 1953 to a time after Hollins' discharge, that during this period he worked steadily for Respondents without a collective-bargaining contract, and that in the same period there was a general strike in the industry along the riverfront . He also testified that he had never seen the signed contract produced by Loughney, nor had been told of its existence by the latter. This testimony is persuasive because it was clearly contrary to the interests of his Employers and his Union. It also derives support from the admission of Loughney that he did not know how much Richards knew about the purported contract, and from his failure to testify that he had ever brought or shown it to Richards. If a contract had in fact been executed before Hollins ' discharge, it is incredible that the only union-shop steward in the shipyard would not have been apprised of its existence or its terms, for a knowledge of its pay provisions and grievances procedure, at the very least , would have been a necessity for his proper 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day-to-day handling of grievances with management. Under the circumstances, Richards' ignorance of the contract is forceful evidence of its nonexistence. Another indication of the lack of a contract lies in Richards' credible testimony that, when he explained the duties of shop committeeman to Hollins on March `18, he was speaking from his knowledge of the Union's constitution ; and his explanation of the grievance procedure prevailing in Respondents' yard indicates clearly that he derived his understanding of that procedure from the constitution, not the terms of Respondents' Exhibit No. 3; the procedure he outlined contemplated the existence of one or more standing shop committeemen who would collect grievances in the first instance, which is more consistent with article XII, section 1 , of the Subordinate Lodge Constitution (Respondents' Exhibit No. 1, page 96), than with the grievance procedure in articles 9 and 14 of the purported contract, and Loughney's testimony on that subject, which contemplate the creation and intervention of a "local grievance committee" only in the second phase of the procedure, after an impasse is reached between the shop steward and management. Furthermore, Richards' testimony is supported by admissions of Loughney, Winters, and Kosove, from which I find that: In November 1953, the Union began negotiations for a new collective-bar- gaining contract with the Association of Master Contractors (an organization com- prising most of the ship repair concerns along the waterfront). When a contract was not signed by mid-January 1954, employees of Association members went on strike in February and stayed out until March 29, 1954, when the new contract was signed following ratification of its terms by the union membership the day before. The new contract gave Association members' employees a basic wage increase from a $2 an hour minimum rate to $2.14. Respondents are not a member of the Associa- tion and are classed as an "independent" ship repair concern. Respondents' prior contract with the Union expired on December 21, 1953, the same as the Association contract. At that time, Respondents were paying a $2 minimum rate to all crafts and occupations in their yard, except janitors. When they began negotiations with the Union for a new contract, the Union demanded the same basic minimum rate of $2.25 that it was seeking from the Association members. During the negotiations, Re- spondents reached an understanding with the Union that when the general strike was over and contract terms had been settled with the Association, Respondents would agree to the same general terms and pay the same rates as their competitors in the Association, and on that basis Respondents' employees continued to work during the strike, receiving the existing minimum $2 rate until the week of March 21, 1954, when, after discussions with Loughney, Respondents gave a general 25-cent wage raise to all employees, thus raising their minimum rate for all crafts to $2.25 an hour. Loughney also admitted that collective-bargaining contracts with the "inde- pendent" concerns follow closely the terms of the main Association contract, and that he deems it important that all the contracts be uniform. I do not credit testimony of Winters, Kosove, and Loughney to the effect that the new contract (Respondents' Exhibit No. 3) was fully negotiated and signed in December 1953, and that the parties verbally agreed at the time merely to withhold actual payment of an agreed $2.25 an hour minimum rate until such time as the Association members signed their contract: for their testimony on this subject (particularly that of Winters) contains so many self-contradictions and contradictions of each other, and their reasons for withholding for nearly 3 months an allegedly agreed wage increase (which was in fact more than the Association employers finally agreed on) are so varied and implausible that I am compelled to reject their stories except to the extent that they are consistent with the straightforward and credible testimony of Richards noted above. Another circumstance militating against the existence in March of a contract in the form of Respondents' Exhibit No. 3, is the fact that the wage rates listed in it do not conform to rates actually paid to various crafts at the time. Thus, the testimony of Kosove and Loughney indicates that during 1954 Respondents employed only first-class craftsmen in the 13 classifications (blacksmiths to riggers, inclusive) listed in the wage classifications in Respondents' Exhibit No. 3, and that Respondents had no second-class craftsmen in those occupations in its employ; yet, the wage provisions list a $2.25 minimum rate for first-class craftsmen, and a $2 rate for second-class workmen. Kosove admitted the $2 rate was the minimum which the 13 basic crafts received from December 1953, up to the week of March 21, 1954, but as none of its employees were second-class craftsmen, there is no explanation for the listing of the $2 rate for that grade, except Loughney's statement that it was inserted to recognize Respondents' right to use workmen of that grade or to start new men at that rate. However, his explanaion is not supported by Respondents, and it is at variance with the admitted fact that Respondents have only first- class craftsmen in their employ and do not use men of the lower grade, and with Winters' repeated assertion that all KEYSTONE SHIP ENGINEERING COMPANY 611 Respondents' employees were doing a fine job and deserved the $2 .25 minimum rate. Again, truckdrivers received the same general 25-cent wage increase to $2.25 an hour given to all other crafts in March 1954, but their basic rate is still listed as $2 in the purported contract; Respondents give no explanation for the discrepancy. Sandblasters are listed at a $2.50 minimum rate in the purported contract, but Kosove testified they are now receiving, and have received for years past, a minimum rate of $3 an hour; there is no explanation as to why the Union, which must have known the going rate in the yard for this occupation, did not insist upon inserting it in the contract to protect its members, but permitted a lower minimum rate to be inserted. Finally, the purported contract lists a $1.75 minimum rate for helpers, which appears incredible in the light of Winters' testimony that Respondents had been paying $1.88 an hour minimum for that craft under prior contracts, that they raised helpers to $2 an hour in 1953, that Loughney knew that they did not pay less than $2 an hour to any employees, except janitors, and that during the negotiations over rates, Loughney demanded a raise in rates for all crafts listed in the document. I do not credit Winters' various flimsy explanations for the lower rate, such as that that rate "means nothing," that he did not know Respondents were thereby agreeing to pay less to helpers than under prior contracts, that he did not go over this portion of the contract, "it slipped by me." On the other hand, the admissions of Kosove and Loughney as to the single pay rate and single top grade of the basic craftsmen in the yard in March is more consistent with the wage provisions of General Counsel's Exhibit No. 3, the repudiated document, than Respondents' Exhibit No. 3. This circumstance further destroys the authenticity of the latter document. Finally, perusal of Respondents' Exhibit No. 3 discloses that numerous provisions are inartisti- cally worded: article 6, relating to discharge of employees, appears to be so garbled as to be unintelligible, and the crucial sentence in article 9, providing for appointment of grievance committee members by the "Business Agent," appears in a clause pro- viding for payment of committee members for time lost in settlement of grievances, rather than in the article relating to grievance procedure, which would seem to be its proper place. Article 9 is also crudely worded. All of this makes Loughney's document appear to be more of a rough draft of contract which would ordinarily be submitted for discussion in the course of collective bargaining, rather than the finished document completely and clearly setting forth the final understanding of the parties. In this respect, the repudiated General Counsel's Exhibit No. 3 has many more of the indicia of a finished, carefully drafted and intelligible contract in a form which the parties would be likely to sign, than Respondents' Exhibit No. 3. After careful consideration of all pertinent testimony relating to the alleged contract, I am satisfied that Respondents have not sustained the burden of going forward with evi- dence sufficient to establish the existence of a collective-bargaining contract in March 1954, which by its terms would invalidate Hollins' election as shop committeeman and his handling of grievances in that capacity. The contention that Hollins' election and grievance activity was an attempt to avoid doing his work by an illegal •usurpation of the authority vested in the regular shop steward, is untenable for several reasons. I have found his presentation of individual grievances for himself and others was protected concerted activity within the purview of Section 9 (a). It is immaterial whether he acted as an elected shop committeeman or as a spokesman chosen otherwise; his activity would still have been protected if he had presented grievances as a mere employee for himself, or as part of a group, or as their informal spokesman. In the second place, whether or not the election was legal, it is clear that he acted in good faith as a shop com- mitteeman : his election occurred under the supervision of the regular shop steward, who thought at the time that he was acting legally under the Union 's constitution in holding the election, and clearly Hollins and the employees who thereafter dealt with him as committeeman assumed that his election under the auspices ;of: the shop steward was legal; and his own handling of grievances thereafter as found above indicates that he was trying to follow the instructions as to his duties which Richards had outlined to him, for he did not attempt to present the complaints to management until he learned that the steward was absent and was unable to locate the union business manager. Such conduct can hardly be characterized as an attempt to bypass the union steward or usurp his authority. Nor can it be said that Hollins avoided his regular work by handling grievances, for the record shows that his election , and all but one of his short discussions with employees about grievances on March 22, occurred outside of working hours; and there is no substantial proof that he lost any appreciable time from work in his brief dis- cussion with several machinists on the carrier that morning, or in his talks with Winters later that day. Furthermore, the bona fides of Hollins' election and ac- tivity thereafter is indicated by credible testimony of Bochanski and Richards, and 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admissions of Respondents and Loughney, from which I find that: Shortly after Hollins and Bochanski were discharged and then reinstated on March 18, Loughney told Bochanski that there seemed to be trouble among the riggers, that operations were "getting a little big," and he was going to make Bochanski shop committee- man for the riggers, sandblasters, and painters. However, Loughney did not carry out the appointment by notifying those craftsmen or Respondents, and Bochanski never acted as committeeman; and when Bochanski indicated to other riggers the same morning that he might be their committeeman, one disagreed, saying there would have to be an election for that job. Richards gave up his job as shop steward for the whole yard in April 1954, because complaints from the workers had become so numerous that he could not handle them and decided to resign rather than "ruin his reputation as shop steward." He complained to Loughney about it, and sometime after Hollins' election, Loughney told him he intended to put a shop steward in every department in the yard. Thereafter, Loughney ap- pointed separate shop stewards for at least five separate departments or crafts (riggers, machinists, painters, truckdrivers, and ironworkers, welders and shipfitters). Each of these stewards now has equal status in the yard. This testimony clearly indicates that Hollins' election and handling of grievances in this period was not a "bizarre" or suspicious chain of events, engineered by Hollins for his personal aggrandizement, as Respondents claim, but was rather the outgrowth of discontent among the riggers and their desire for separate representation for presentation of grievances and protection of their interests. The claim that Hollins was discharged because he lacked the qualifications of a rigger and could not properly perform that work, is based mainly on the testi- mony of Winters that Hollins was hired initially as a laborer to do odd jobs, that he was rehired in September 1953, as a matter of "compassion" at the request of the Union because he needed the work, and was put on painting work and other odd jobs because of, an injury to his hand. This testimony is overweighed by the preponderant, credible, and mutually corroborative testimony of Hollins, Samuel Sykes, and Kosove, supported by admissions of Winters, from which I find that: Hollins was first hired by Respondents in May 1953 (prior to formation of the present partnership) as a rigger at $2 an hour, the basic pay of riggers at the time, and worked until June 1953, when he was laid off with other employees for lack of work. In this period, he at first performed various jobs, such as paint- ing, truckdriving, etc., and was then assigned to the rigging gang as a helper. He also performed other jobs as required by Respondents, in accordance with their policy of transferring men to other work as business required. The fact that Hollins received from the outset the basic pay of a rigger, plus the admission of Winters that he was qualified at least as a rigger's helper, is some indication that Hollins was hired and paid as a rigger and was considered qualified for that work. Kosove's testimony that he observed Hollins and concluded he was "not the kind of em- ployee they wanted," is not substantial, for he could not point out any specific acts or omissions of Hollins which would indicate lack of qualification; he could only say that he saw Hollins "standing in one particular place doing no particular job" on "numerous occasions"; however, there is no proof that Respondents warned or disciplined Hollins, although Kosove states he reported Hollins' alleged inaction 'to`Winters the first time he noticed it. Further, Kosove's observations are not cor- roborated by Winters, the partner in direct charge of personnel and operations in the yard and presumably in the best position to observe the conduct of employees. That Hollins' work during his first employment was acceptable is also inferrable from the facts, established by credited testimony of Hollins and Sykes, and admissions of Winters and Kosove, that he was reemployed in September 1953 on his own application and placed in the rigging gang, where he worked steadily thereafter (except for absence for sickness and 1 or 2 normal layoffs) at the same rigger's pay as formerly.ls There is no proof of Hollins' lack of qualifications during his second employment and up to his discharge; the only substantial proof is to the contrary. Respondents' records show that he continued to receive the rigger's base pay of $2 an hour until he was raised to $2.25 an hour in March, as part of the general 25-cent wage raise. Winters admitted that Respondents felt, as early as December 1953, that their craftsmen, including riggers, were doing good work and deserved more money; and Kosove and Loughney admitted that during 1954 Re- spondents had only first-class craftsmen.in the yard.'? Further, Rigger Bochanski, who worked as an assistant rigger foreman, or "pusher," over the riggers from Ie I do not credit testimony of Winters and Kosove at variance with these findings. 14 Kosove described a first-class rigger as one with sufficient experience in handling heavy materials to do it safely and "properly." , KEYSTONE SHIP ENGINEERING COMPANY 613 November 1953 to about June 1954, testified credibly that he observed Hollins' work up to his discharge and that Hollins did a good job and was "the best that I had in the gang." 19 It is also noteworthy that Respondents did not mention his alleged lack of qualifications when they finally discharged Hollins on March 23. I conclude that Respondents have failed to establish by substantial evidence that Hollins lacked the qualifications of a rigger and was unable to do that work, and I am convinced that his deficiency, if any, in this respect was not a motivating factor in his discharge, and that this claim has been advanced by Respondents as an after- thought to conceal the true motive for the discharge. The, contentions that Hollins persistently loafed and slept on the job, and thereby became a safety hazard on one occasion, and continually caused disturbances, dis- rupted work schedules, and intimidated fellow employees, can be considered together, as they all involved alleged misconduct. The charge that he once was a safety hazard obviously refers to his alleged sleeping on the Cefalu job.19 It is untenable in view of my finding above that Al Winters, not Hollins, was the culprit on this occasion, and that Respondents reinstated Hollins immediately after his discharge on March 18, upon learning from other employees that he was not the malefactor. Respondent Winters and Yard Superintendent Kirchoff also testified that the installation of the "piston" on the Cefalu job should not have taken more than 3 hours of work, and Respondents' testimony intimates, in effect, that one reason for the discharge of Hollins and Bochanski was that they slept and loafed on that job, thus stretching out their hours of work at double-time pay longer than necessary, and that the owner of the Cefalu threatened to refuse payment for time during which the riggers slept and loafed, because the job did not require them to stay on the boat all night. This corollary claim is untenable, however, in the face of (1) credible testimony of Larsen and Bochanski which indicated the work involved and time required to do the job, as found above, and that the assistance of the riggers was necessary at all times in order to complete the job expeditiously, (2) the additional credible testimony of Larsen that when he told Thomas Winters on the 18th that his brother had been the sleeper, Winters made no complaint that the riggers had loafed on the job or that he'kept them on the job too long, and that Larsen was never reprimanded or criticized by Respondents for his handling of the job, (3) the credible testimony of Bochanski that Kirchoff questioned him on the 17th or 18th about the progress of that job, asking why the riggers stayed on the job all night, and when Bochanski replied that he had taken orders on the job from Larsen, on instructions of Winters, Kirchoff never criticized him about the job, (4) Kirchoff's admission that he saw Hollins in the yard the day after the job, but never spoke to him about it, and (5) the fact that Respondents never charged Hollins and Bochanski at the time of the discharge on the 18th with wasting money or stretching out their worktime unnecessarily, or gave that reason to Hollins on his final discharge on March 23. With respect to other misconduct, the three Respondents testified that: They had been displeased with Hollins for some time because he was not doing his work and was "agitating the entire rigging gang and half the plant "; they often saw him talking with groups of riggers and other craftsmen, and they received reports that he was "buzzing around, telling workmen complaints against us," finding fault with manage- ment, and,aggravating and intimidating the men. This testimony is not impressive, however, because the partners gave no details of times, places, or specific instances of misconduct, nor did they name or produce the persons who reported the alleged misconduct, except Kirchoff, whose testimony will be considered below. Respondent Brener, alone placed his observation of Hollins' "agitation" in the period of 3 working days between his first discharge (also the date of his election as shop committeeman) and his final discharge, but his testimony of receipt of reports that Hollins was "finding fault with management" in this period indicates he was referring to Hollins' three discussions as shop committeeman with other employees about their grievances, as found above; there is no proof that Hollins had other specific talks with employees before his discharge. To the contrary, Bochanski, Hollins' immediate superior in this period, testified credibly that between his election and final discharge, Hollins per- formed his work satisfactorily, leaving it only for normal reasons, and did not stand around talking with other employees. The only support for Respondents comes from Superintendent Kirchoff who testified that from the first week in February 1954 to March 18, 1954, he saw Hollins a "half-dozen times" standing with groups of men, not doing any work, that he complained to Winters several times that he did not know Is It is also significant that Robert Kirchof2, yard superintendent who testified regard- ing alleged misconduct of Hollins , did not give testimony indicative of his lack of quali- fications or inability to do the work of a rigger. 'a There is no proof that he slept on the job at any other time. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what was the matter with Hollins and could not do anything with him, and,that he recommended to Winters several times that Hollins be discharged. This testimony is deprived of substantive force by (1) Kirchoff's admission that the alleged shirking had been going on for nearly 2 months, (2) the lack of proof that Winters ever ad- monished Hollins about it, or acted on Kirchoff's recommendations of discharge, (3) the fact that such shirking was not mentioned to Hollins at his first discharge, other than his alleged sleeping on the Cefalu, which I have found without basis in fact, (4) Hollins' immediate reinstatement on the 18th, which is indicative of condonation of any past loafing, if it in fact existed,20 and (5) Brener's admission that the work- men often gather in groups to talk while drinking coffee.or using the washroom, that they at times leave their work on a ship with others to smoke, and that riggers often stand around while waiting for machinery to be put in place on a job, which in- dicates that occasional periods of idleness for a coffee break, smoking, or-,other reasons was not uncommon nor prevented by Respondents. Kirchoff also testified that once in 1954, before Hollins' first discharge, he came upon a group of machinists engaging in a "fracas" aboard a Navy ship. Hollins and Steward Richards were also in the argument. Kirchoff told all the men to leave the ship to iron out any dispute. Hollins told him "what you need is a punch in the nose." Kirchoff reported the fracas to Winters, who boarded the ship and straightened it out in some manner. On several other occasions in this period, Kirchoff talked to Hollins in a group of men, to "calm him down and break up the group," telling him to go back to work, and Hollins swore at him each time, telling him to "scram." On a few occasions, Hollins told Kirchoff he would throw him off the drydock. I do not consider this substantial evidence of misconduct for several reasons. Neither Winters nor Richards supported Kirchoff's account of the "fracas." Kirchoff does not state what caused the disturbance or that Hollins instigated it; and Hollins' mere presence and even participation in the argument, which did not appear to be violent or serious, is-weak evidence of "agitation," particularly in the absence of proof that Winters reprimanded or even spoke to Hollins about it. Nor can Hollins' offers to punch Kirchoff in the nose, or throw him off the dock, or use of profanity toward him, be considered any- thing more than instances of the rough banter common among shipward workers, for Kirchoff testified that such remarks did not frighten or even bother him, that he had often heard them during his 40 years of work along the riverfront, and was used to them, and paid no attention to them, that such remarks were common shipyard talk, and he did not think employees meant anything in making them. There is no credible proof that Hollins' activities, as recounted by Kirchoff, or even his recent handling of grievances, intimidated fellow-workers, disrupted work schedules, or kept the "riggers gang and half the plant in a turmoil," as Winters put it. I conclude that Respondents have failed to adduce substantial evidence that Hollins was guilty of serious or unusual agitation or other misconduct which might, or in fact did, serve as a motive for his final discharge, other than his activities on March.22, 1954; ,,found above. It is clear from the testimony of Winters and Brener noted above'that'the only "agitation" which they discussed and had in mind when they decided to discharge him, was his presentation of grievances as shop committeeman on that date, which they considered illegal. From a consideration of all of the above facts and circumstances, particularly the timing of the discharge the day after Hollins had engaged in protected con- certed activity, and the lack of factual and legal support for Respondents' various defenses, I am impelled to the conclusion, and therefore find, that Respondents dis- charged Edward J. Hollins on March 23, 1954, and refused thereafter to,-,reinstate him, because of his presentation of grievances to management the day..before as spokesman and representative of a group of employees, which they considered improper and illegal conduct by a union member in the light of the Union's practice in designation of employee representatives in their yard. I conclude that by such discharge Respondents discriminated against Hollins in violation of Section 8 (a) (3) 21 Respondents' testimony indicates that they disagreed strongly among themselves about reinstatement of Hollins on the 18th; Winters and Kosove were against it on the ground that he was a troublemaker and agitator, but they finally gave in to Brener's insistence on reinstatement, because of his contention that Hollins would profit by his reinstatement and be a better worker ; however, they consented with the reservation that they would watch his future behavior. Hollins admits that on the 19th, Brener told him Winters had called hint an agitator, but Brener had disagreed and felt Hollins was a good worker, and told Hollins to go back to work and "mind your own business." While this testimony might support an inference that Hollins was reinstated on probation, the record does not show that he violated the "probation" by engaging in subsequent " agitation," except for his handling of grievances on the 22d, which was a protected activity. KEYSTONE SHIP ENGINEERING COMPANY 615 of the Act, for his discharge under the circumstances found above tended to en- courage membership in, the Union by indicating to union members the advisability of compliance with the Union's rules and policies.21 At the same time, his discharge tended to discourage union members from exercising their guaranteed right of presentation of individual grievances to their employer, and of refraining from assisting the Union by compliance with its rules and, policies, and thus interfered with, restrained, and coerced them in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act 22 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section II, above, occurring in connection with their activities described in section I, above, have a close, intimate, and sub- stantial 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 of commerce. IV. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom, and take certain affirmative action designated to effectuate the policies of the Act. Having found that Respondents unlawfully discriminated against Edward J. Hollins in violation of Section 8 (a) (3) and (1) of the Act, I shall recommend that Respond- ents offer to Hollins immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other. rights and privileges, and make him whole for any loss of pay he may have suffered by reason of Respondents' discrimination against him, by payment.to him of a sum equal to the amount that he would normally have earned as wages from the date of the discrimination against him to the date of a proper offer of reinstatement, less his net earnings in that period. His back pay shall be computed in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. I shall also recommend that Respondents make available to the Board payroll and other records to facilitate computation of the amount of back pay due. Aside from the discriminatory discharge of Hollins, the record discloses no other conduct of Respondents violative of the Act or indicative of antiunion animus or a disposition to deny the lawful rights of employees. However, the Board is primarily concerned with protection of the rights of individual employees guaranteed to them by the statute, News Printing Co., Inc., 110 NLRB 1265; and the Board has held that a single discriminatory discharge "goes to the very heart of the Act" and is sufficient to warrant a broad cease and desist order. Virtue Bros. Mfg. Co., 87 NLRB 1518, 1519. I shall therefore recommend that Respondents be ordered to cease and desist from in any manner infringing on rights of employees guaranteed by the Act. Upon the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Edward J. Hollins, thereby encouraging membership in a labor organization, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the above discrimination, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. 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.] 21 See The Columbus Show Case Company, 111 NLRB 206, and Radio Officers,, Union etc. v N. L R. B., 196 F 2d 960 (C. A. 2), affd. 347 'U. S. 1,7, enfg. 93 NLRB 1523, 1527. re In view of the above findings and conclusions, I consider Immaterial to the issues, and make no findings on, testimony relating to the Union's negotiations with Respondents over the discharge after the event or Its internal actions on that subject. 379288-56-vol. 113-40