Victor Chemical Works

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD examination of the record leads to the conclusion that it played no part in La Dow's decision to discharge Kilgore It is clear that La Dow, as he testified, based his decision to discharge primarily on the July 22 incident I conclude therefore that Kilgore was discharged by the Respondent because he engaged in union activities for 10 minutes away from his work station on July 22 Nor do I conclude upon the state of the entire record, even mindful of the foregoing 8 (a)( 1 ) v olations of the Act, as found, that it can be held that the reason for his discharge was pretextual and that the asserted reason was not the true reason which would be necessary in order to establish a discriminatory motive When Kilgore requested reemployment in January 1959, he was informed that the Respondent would await the outcome of the hearing herein I find that he was not refused reemployment for reasons violative of the Act On the basis of the entire record, I find that the General Counsel has failed to prove by the required preponderance of the evidence that the discharge of Kilgore and later refusal to reemploy him were motivated by reasons violative of the Act I shall therefore recommend that the complaint be dismissed to the extent that it alleged a violation of Section 8 (a) (3) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent has engaged in interrogation, threats, and solicitation of employees to abandon the Union, and has interfered with, restrained, and coerced its employees in derogation of their rights secured by Section 7 of the Act, I shall recommend that it cease and desist therefrom Upon the foregoing findings of fact, and upon the entire record in the case, I make the following - CONCLUSIONS OF LAW 1 United Textile Workers of America, AFL-CIO, is a labor organization within the meaning of the Act 2 By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 3 The aforesaid unfair labor practices are unfair labor practices affecting com- mence within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication ] Victor Chemical Works and James E. O'Connell Victor Chemical Works and Thomas Dean. Cases Nos 19-CA- 1574 and 19-CA-1582 November 23, 1959 DECISION AND ORDER On June 29, 1959, Trial Examiner Maurice M Miller issued his Intermediate Report in these cases, finding that the Respondent had not violated Section 8 (a) (1) and 8 (a) (3) of the Act by discharging either James E. O'Connell or Thomas Dean, and recommending that the consolidated complaint be dismissed in its entirety, as, set forth in, the copy of the Intermediate Report attached hereto t Thereafter,, 125 NLRB No 35 VICTOR CHEMICAL WORKS 279 James E. O'Connell filed exceptions to the Intermediate Report with a supporting brief, and the Respondent filed a brief in support of the Intermediate Report and Recommended Order.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the cases, and hereby adopts the findings,2 conclusions,3 and recommenda- tions of the Trial Examiner. [The Board dismissed the consolidated complaint.] 1 As no exceptions were taken thereto, we adopt pro forma the Trial Examiner's recom- mendation that the complaint be dismissed insofar as it alleges unlawful discrimination with respect to Thomas Dean. 2 The Intermediate Report contains certain minor inaccuracies, such as the statement on page 284 that O'Connell was assigned to work on the shop oven whereas he was assigned to an induction fan. however, •these inaccuracies do not affect the Trial Examiner's findings and conclusions, nor our concurrence therein. 8 We find that complainant O'Connell was discharged for attempting to induce a work stoppage in violation of a contract between Respondent and the Union which banned work stoppages. As this conduct of O'Connell was not a protected activity under the Act, his discharge therefor was not a violation of the Act. For this reason, we adopt the Trial Examiner's recommendation that the complaint be dismissed. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed and served, the General Counsel of the National Labor Relations Board caused a consolidated complaint and notice of hearing to be issued and served upon Victor Chemical Works, designated as the Respondent in this report. In the consolidated complaint it was alleged that the Respondent had engaged in un- fair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136. In the Respond- ent's answer, duly filed, the jurisdictional allegations of the consolidated complaint were admitted; certain factual allegations were also admitted, but the commission of any unfair labor practice was denied. Pursuant to notice, a hearing with respect to the issues was held at Butte, Montana, from October 6 to 10, 1958, before the duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel; the complainants, James E. O'Connell and Thomas Dean, filed appearances in their own behalf. Each of the parties was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the outset of the case, counsel for the Respondent renewed a motion for a bill of particulars previously filed, which had already been granted in part and denied in other respects. The motion was further granted in part; certain additional particulars were then supplied, orally, by the General Counsel's representative. At the close of the -testimony, oral argument was heard. Briefs have been received from the Respondent and the General Counsel's representative; they have been duly considered. Upon the entire record in the case, my observation of the Respondent's plant, and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Victor Chemical Works, to be designated as the Respondent in this report, is a Delaware corporation engaged throughout the United States in the manufacture 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and sale of chemical products ; its plant at Silver Bow , Montana, is the only plant involved in this consolidated case. During its most recent fiscal year, prior to the issuance of the consolidated complaint in this matter, the Respondent purchased over $1,000,000 worth of materials , of which more than 50 percent was shipped to the firm from points outside the State in which shipment was received . During the same fiscal year, the firm sold products valued at more than $1,000,000, of which more than 50 percent was sold and shipped to purchasers located outside the State in which the sale and initial shipment occurred. The Respondent concedes its status as an employer engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act, as amended. In the light of this concession, and on the basis of the Board 's established jurisdictional policy- see Siemons Mailing Service, 122 NLRB 81 and related cases-I find the assertion of the Board's jurisdiction in this case warranted and necessary to effectuate the statu- tory objectives. II. THE LABOR ORGANIZATION INVOLVED International Hod Carriers, Building and Common Laborers Union of America, Local No. 163, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, which admits employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Background 1. The plant and its supervisors The plant of the Respondent at Silver Bow , Montana, scene of the controversy with which this case is concerned , is devoted to the manufacture of elemental phosphorus. It receives phosphoric ores by rail. The manufacturing process begins with the washing of these ores to remove slime; the concentrate which results is conveyed to kilns, within which heat is applied to effect a further concentration of the ore into a nodular product. Nodulized ore, together with coke and silicon, is then conveyed to one of several electric furnaces. A high temperature reaction is induced, and the phosphorus is volatilized as gas; the remainder of the material in the furnace is then removed as molten slag. In its gaseous form, the phosphorus is condensed and handled as a liquid, through a purification step and subsequent storage. Thereafter it is loaded into tank cars for shipment. Throughout the period with which this case is concerned, Superintendent L. O. Streitmatter was in charge of the firm's Silver Bow plant. One of his immediate subordinates, Master Mechanic W. P. Hunter, supervised the maintenance depart- ment, with the help of Richard J. Harry, the assistant master mechanic. Under Harry, I find, Martin Firko, Joseph Bosch and Charles Kramer served as maintenance department foremen. The complainants in this consolidated case, James E. O'Connell and Thomas Dean, were both employed in the department. 2. Safety considerations The available evidence establishes that phosphorus is a very dangerous material. Taken internally, it is poisonous; additionally, I find, it burns on exposure to air, and must, therefore, be kept under water at all times. (When loaded for shipment, for example, liquid phosphorus is pumped into a tank car filled with water, which is displaced as the material enters. A layer of water must be kept on the surface of the phosphorus at all times, however, and the material itself must be cooled and solidified before actual shipment. Strict regulations of the Interstate Commerce Commission govern the handling of tank cars loaded with phosphorus, while in transit.) Because of these hazards the officials of the Respondent, I find, routinely stress the need for safety measures by employees. There is a continuous employee training program, which deals with the characteristics of phosphorus; employees are instructed with respect to the action to be taken if they come in contact with it, and with respect to the personal precautions necessary while handling it. Shower. facili- ties to facilitate the removal of any phosphorus in contact with the skin are scattered throughout the Silver Bow plant. Detailed contractual provisions with respect to safety have been embodied in the trade agreements in effect at the Respondent's plant throughout the period with which this consolidated case is concerned. And the Respondent, I find, provides opportunities for frequent employee dental examinations and care, if needed, because of the particular damage phosphorus may cause in teeth . In this connection, also, warning signs have been posted throughout the plant; they read as follows: VICTOR CHEMICAL WORKS 281 WARNING NOTICE ALL EMPLOYEES OF THIS DEPARTMENT MUST WASH THEIR HANDS THOROUGHLY BEFORE EATING MEALS OR SMOKING, AS PHOSPHORUS IS VERY POISONOUS AND INJURIOUS IF GOTTEN INTO THE MOUTH, PARTICULARLY IF THE TEETH ARE DECAYED. THIS WARNING IS FOR YOUR BENEFIT, AND MUST BE HEEDED. VICTOR CHEMICAL WORKS Such a sign, I find, was posted in the Respondent's machine shop at the Silver Bow plant, and was readily visible to the maintenance men in the firm's employ. B. The discharge of O'Connell Facts 1. Work history James E. O'Connell, one of the Complainants in this consolidated case, began work for the Respondent on March 5, 1953, at the Silver Bow plant, in the main- tenance department. He was classified as a mechanic's helper, class A, in that department on the date of his termination, to be noted in this report. In the absence of contradiction, his testimony establishes that his work was criticized only once during his period of employment; in August 1957, Master Mechanic Hunter advised him that he was not working fast enough. O'Connell was not warned, however, that he might be discharged. 2. Union activity Throughout the period with which this case is concerned, I find, O'Connell main- tained union membership. From July 1956 to May 1957, he served as vice presi- dent of the organization. In both 1956 and 1957, he also held membership on the steering committee of the Union and its negotiating committee; he served as the secretary of each group. In March 1957, when the Silver Bow plant was closed by a labor dispute, O'Connell was designated secretary of the Union's strike com- mittee. As such, I find, he was a strong supporter of the Union's initial decision, later modified, to bar supervisors from the Respondent's plant during the course of the labor dispute. (The strike in question lasted approximately 16 days. Addi- tional material findings with respect to its conduct will be noted elsewhere in this report.) In May 1957, at the request of Chief Steward Ager, O'Connell served as a union representative in the third step of the contractual grievance procedure with respect to two grievances. And in December 1957, I find he filed four grievances on behalf of himself or others. In various trade agreements negotiated and executed by the Respondent and the Union, after the January 31, 1952, certification of the latter as the exclusive bar- gaining representative of the Silver Bow employees, there has been a provision, designated as Section 19.4 of the agreements, that: Work necessary to maintain full production of the plant shall continue to be performed by the employees . .. . In 1956 and 1957, I find, the retention of this contractual language without change was an issue in negotiations. The Respondent's principal negotiator demanded the elimination or substantial modification of the provision noted; Chief Steward Ager and O'Connell vigorously advocated its retention without change, on the ground that it tended to preserve work opportunities for maintenance department men. In the 1956 agreement section 19.4 was, in fact, retained without change; the Respondent reached a supplemental agreement with the Union, however, with respect to certain specified projects, not involving new construction undertaken to increase the plant's productive capacity, which the Respondent would nevertheless be permitted to com- plete with the assistance of independent contractors. In the 1957 negotiations, also, the Respondent sought elimination or modification of the quoted contractual pro- vision; Ager and the complainant, I find, again voiced strong opposition. Ultimately, again, the section was retained without change; the Respondent's right to complete unfinished maintenance projects on the 1956 list with independent contractors was, however, reaffirmed. Upon the settlement of this issue in the 1957 negotiations, an impasse was reached with respect to wage rates. This resulted, I find, in a 16-day strike. At the outset 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the work stoppage, the Union insisted that supervisory personnel would not be permitted to enter the plant, even to perform preventive maintenance work. Several supervisors attempted to cross the Union's picket line, without success. When the representatives of the company announced, however, that they would not negotiate the issues in dispute pending a reversal of the Union's position in this regard, a majority of the negotiating committee of the organization voted to permit the Respondent's supervisors to pass through picket lines. Chief Steward Ager and O'Connell, I find, made up the minority group which attempted, unsuccessfully, to press for the retention of the Union's exclusionary policy. In the light of the evidence summarized above, the General Counsel argues that O'Connell was a "prominent" leader of the Union herein, whose activities as a con- tract negotiator and strike leader were regarded by the Respondent as a "thorn" in its corporate flesh. And, upon the entire record, I am inclined to agree that O'Connell did pursue-with the cooperation of Chief Steward Ager, noted-a "strong" line in contract negotiations, with respect to the disputed "maintenance of work" clause, and a "strong" line in the conduct of the 1957 strike, with respect to the Respondent's right to insist that its supervisory personnel be permitted to enter the plant. I am satisfied, also, that the officials of the Respondent were fully aware of O'Connell's demonstrated intransigence in these respects. The available evidence, however, cannot be said to provide a clearcut, objective indication that the Respondent's supervisory officials regarded O'Connell as a "thorn" to be plucked. Such a conclusion would have to rest entirely upon an inference. Its validity will be discussed elsewhere in this report. 3. O'Connell's discharge a. The doughnut incident On December 31, 1957, Plant Superintendent Streitmatter, accompanied by Master Mechanic Hunter, made a routine inspection of the machine shop. While so en- gaged, they observed a paper bag, which contained doughnuts, in a small steam- heated oven used primarily to bake repaired and reconditioned electric motors. (For a substantial period prior to Streitmatter's discovery the maintenance men, I find, had been using the oven to heat cans of food for lunch, particularly during the winter season. Occasionally, the oven had been used to heat pastry. For several days prior to December 31, 1957, specifically, it had been used to heat doughnuts purchased in bulk by the maintenance men. The testimony of Master Mechanic Hunter and Richard Harry, taken at face value, would tend to support an inference that they were unaware of the fact that the men in the shop had used the oven to heat food, prior to Streitmatter's discovery. Since the oven, however, rests on the open machine shop floor within the sight of any shop visitor, the testimony of Hunter and Harry in this connection might well be open to doubt. Upon the entire record, its credibility need not be assessed now.) Streitmatter immediately expressed concern about the safety hazard involved, since he thought it likely that any food in the oven would be contaminated by phosphorus. He admonished Hunter, I find, to remind the main- tenance men of this hazard, and to instruct them not to put food in the oven. Despite his admonition, no such instruction was issued on the date of the plant superin- tendent's tour. On January 2, 1958, after being advised that the oven was still being used to heat doughnuts, Streitmatter again directed Hunter to remind the men under his supervision of the hazard involved, and to advise them that anyone who placed food in the oven, or ate anything heated in it, would be sent home. This information was relayed to the employees on January 2, 1958, by Assistant Master Mechanic Harry; specifically, I find, Streitmatter's admonition was repeated by Harry to Chief Steward Richard Ager of the Union, who was asked to repeat it to other maintenance men. This action on Harry's part appears to have been consistent with past practice. The men in the shop, however, appear to have been resentful of the restriction thus placed upon their use of the oven to heat food, particularly in view of the Respondent's antecedent failure to provide them with a lunchroom or luncheon area, with heating facilities. In any event, I find, most of them quickly reached agreement that a collection would be undertaken to finance the purchase of addi- tional doughnuts, to be heated in the oven on the following day. (The available evidence would warrant an inference that this course of action was primarily under- taken to demonstrate the resentment of the maintenance men, based upon the Re- spondent's restriction of their right to warm food in the shop oven in the absence of any effort to provide a facility which the men could use to heat their meals with VICTOR CHEMICAL WORKS 283 less risk. In the context of this case, however, the motives of the men may be dis- regarded as immaterial.) Early on the morning of January 3, 1958, Chief Steward Ager was assigned by Harry to repair a compressor located outside of the shop; O'Connell was assigned to assist him. In the course of a brief visit to the shop at 9 o'clock, approximately, while busy on this assignment, Ager took one of the doughnuts out of the bag which had been placed in the shop oven earlier that day. His action was observed by Assistant Master Mechanic Harry, who reminded him that he would be liable to suspension in the event of any further transgression. Ager's response was a comment to the effect that he would probably have another doughnut later in the morning. Upon the temporary completion of his compressor assignment Ager, accompanied by O'Connell, returned to the machine shop. He was assigned to a task in the shop, which O'Connell helped him set up. (Thereafter, I find, O'Connell had no definite assignment. Ager did not require his services as a helper after the initial setup of his own task was completed. O'Connell, therefore, was available for a new assignment.) Very shortly thereafter, a situation which led to Ager's suspension, and his ultimate discharge, developed. The chief steward's testimony with respect to the incident, which I credit in the absence of effective contradition, reads as follows: As I recall, at approximately 11:00 a.m. Mr. Harry told me that the Brown hoist was broken down, something about the air line, and told me to make the necessary repairs. I gathered up the tools I anticipated I would need, put on my jacket, as the weather was cold, walked across the shop approximately 25 feet, and picked up a doughnut, and was walking out of the shop, when Mr. Harry stopped me. He says, "Now this is the third time I've told you. You go home until I call you." I says, "Right now?" And he says, "Yes," and I says "O.K.", so I walked over to my work bench, put my tools away, took my coat off, and some fellows stopped me and asked me what I was doing, and I said I was being sent home. When questioned further by the men in the shop as to the reasons for the Respondent's disciplinary action, Ager reported that he was being sent home for eating a doughnut. He put his tools away, picked up his lunch bucket, and proceeded to the change house, near the plant gate-sometimes designated as the "dry" in the record-to shower and dress. Prior to his departure, however, the maintenance men in the shop had "crowded" around Ager's bench. There was considerable discussion. Someone observed, "Well, I ate doughnuts, I'm just as guilty as he is." And there appears to have been a suggestion that the rest of the men ought to go home. Almost immediately after Ager's departure, also, someone in the group observed that the maintenance men "outside" ought to be told of his suspension. Thereupon, I find, O'Connell-accompanied by Ray Miller, a fellow employee- left the shop, on his own initiative, to advise the maintenance men at work elsewhere in the Respondent's plant of the fact that Ager had been sent home. On his way out to convey this information, O'Connell observed maintenance employees Sherr and Mattson on their way to the shop. Nothing was said to them. The complainant did report Ager's suspension, however, to a number of his fellow maintenance men; the record establishes that he spoke to employees Bennett, Myers, Kuhn, Mahoney, and McVerney in the course of his plant tour. The testimony of O'Connell, which I credit in the absence of effective contra- diction, establishes that these employees were informed, at the very least, of Ager's suspension. When Myers received this information, I find, he asked, "What are we going to do?" O'Connell, according to his own testimony, replied, "Well, what do you think?" and proceeded on his way. In response to a similar inquiry by Kuhn, O'Connell observed, however, that some of the men in the shop were talking about going home. McVerney, although not a maintenance man, was the Union's shop steward for the yard department. When informed that Ager had been suspended, he reported that he had seen the chief steward in the change house. He, too, questioned O'Connell as to what the men were going to do. "Well, I don't know," was O'Connell's reply. McVerney then observed that the yard department was so small that it could do nothing; this remark ended the conversation. O'Connell and Miller returned to the shop. In the meantime, during his absence, employees Algra, Parkins, and Sorensen had left the shop to go home. After O'Connell's return, employee Davis also left. A group of maintenance men, I find, was still assembled in the shop. O'Connell's testimony with respect to their discussion, which I credit, reads as follows: they were discussing going home, and someone said, "Well, we should go home. We ate the doughnuts as well as everybody else." Dick Harry said, 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Now, are you going home or aren 't you? You are going to have to make up your minds," and he walked off. There was still more discussion, finally somebody said, "Well, are they going to fire Ager?", and I said, "I don't know, but I'll find out." I went to Mr. Harry and I asked Mr. Harry if Dick was fired, and he informed me that he hadn't made up his mind . I went back to the men and I told the men what Mr. Harry said , and then Mr. Harry walked over again and he said, "Now, fellows, you are going to have to make up your minds. Either you are going back to work or you are going home," and he walked away. I told the fellows then that "According to our union agreement if you go out of that door the union can't back you up one bit." . I said it to Mr. Duhame and whoever else was standing around . I told the men that they were just out if they went out of there, and that they hadn't made up their minds yet about firing Dick Ager, and that they should go back. to work, is what I told 'em . . . Mr. Miller had been to the dry and came back in, and Mr. Miller said, "I'm going home too. I ate the doughnuts too, I'm as guilty as the next one," and I told him again , "Ray, if you go out of that gate it will mean your job. The union can't give you any protection at all, and it will mean your job. Stay here," and he did. In the meantime, pursuant to Assistant Master Mechanic Harry's request, the men- with the exception of employees Algra, Parkins, Sorensen , and Davis , as noted- had returned to work. O'Connell's request that he be permitted to visit the change house was denied by Harry, presumably after Master Mechanic Hunter had been consulted. The complainant was permitted to use the shop telephone, however, and dialed the number of the Union's attorney but did not complete his call. He was. subsequently assigned to work with two other men on the shop oven. Despite O'Connell's credible testimony, noted, it is the contention of the Re- spondent in this consolidated case that he actually attempted to induce various maintenance employees to leave their jobs and go home, or in the alternative, that he attempted, at the very least, to persuade them, expressly, to assemble at the shop. No reliable, probative, or substantial evidence has been adduced, in my opinion, to support either contention. Several of the Respondent's witnesses did testify that they had "heard" of such efforts by O'Connell, but their testimony clearly deserves characterization as hearsay; it cannot be accepted as probative of his conduct. (The testimony in question was received for a limited purpose only, to establish the moti- vation attributable to the Respondent for O'Connell's subsequent discharge, to be noted.) As a witness for the Respondent, employee Kuhn only testified that O'Con- nell had told him of Ager's suspension; he added that O'Connell had said he thought "some of the fellows" were going to the shop. This testimony with respect to O'Connell's remarks, despite its slight variance from the testimony which he prof- fere 1, clearly does not establish that the complainant solicited or suggested a work stoppage by his fellow employees, expressly. The testimony proffered in the Respondent's behalf will support a factual conclu- sion, at the outset, that Assistant Master Mechanic Harry had previously advised Superintendent Streitmatter by telephone of the fact that Ager had been sent home, and that he had voiced an expectation that he would need help to deal with the discontent of the men in the shop. Master Mechanic Hunter, who was then in Streitmatter's office, had returned to the shop office at once. There, he received information from Foreman Bosch, I find, that employees Kuhn and Gross, encountered in the yard, had reported the receipt of a message from O'Connell with respect to Ager's suspension, coupled with a request by the com- plainant that they go to the shop; Bosch informed Hunter, also, that the men had asked him what to do. The foreman, I find, was asked to verify his report by sub- jecting Gross and Kuhn to further inquiry. According to the testimony of Bosch, the employees had repeated their earlier statement; their consistent attribution of solicitation to O'Connell was again reported to the master mechanic. (Upon the entire record, I am satisfied that Bosch actually did report to Hunter a conversation he had had with Gross and Kuhn, in the course of which O'Connell had allegedly been charged with soliciting their participation in a work stoppage. The testimony of Bosch with respect to his actual conversation with Gross and Kuhn, however, has not been corroborated. In the light of the divergent testimony of these employees, as to their conversation with the foreman-and particularly in the light of their failure to confirm any actual solicitation or suggestion by O'Connell with respect to the abandonment of their work stations-I find the testimony of Bosch insufficient to establish that his report to Hunter was consistent with the facts.) When Bosch returned to Hunter and reported, Streitmatter was advised of the foreman's report. The master mechanic, I find, recommended O'Connell's discharge on the basis of that report-and the superintendent concurred. It was Hunter's decision, initially, that VICTOR CHEMICAL WORKS 285 he be discharged after lunch. O'Connell advised Harry shortly thereafter, however, that he had a headache and might have to go home at noon. His testimony with respect to subsequent developments reads as follows: He said, "Let me know before you do," which was customary. He came out a short time afterwards and said, "We want you in the office." I went into the office. Mr. Hunter was there,,and Mr. Harry, and Dick Harry said, "Jim, I'll have to send you home," and I said, "For what?" Mr. Hunter said, "Tell him he can take his tools and leave." I said, "Well, why am I being sent home?" He said, "Tell him he can take his tools or leave them." I said, "I want to know why I am being sent home." Mr. Hunter said, "For telling the men to come into the shop." I said, "I made no such statement." He said, "Well, the men told us this." I said, "I made no such statement. I went out and I told the men that Dick Ager had been sent home and I felt that since he was in this department that they should know about it." Mr. Hunter again said, "Tell him he can take his tools and leave," or "Tell him he can take his tools or leave them." I said, "I've got to know if I'm fired or not, so that the men can file a grievance," and again Mr. Hunter said, "Tell him he can take his tools and leave." At that time Mr. Harry and I left the office. O'Connell immediately advised Harry of his desire to protest his discharge as a contractual grievance. After a further attempt to convince Hunter that he had not actually solicited employees to leave their jobs, or to meet in the shop, O'Connell left the Respondent's plant. 0 b. The grievance procedure Subsequent to O'Connell's termination, his grievance, and the grievances of the other employees discharged as an aftermath of the doughnut incident, were processed, I find, pursuant to the provisions of the agreement between the Respondent and the Union then in full force and effect. These provisions set forth a five-step grievance procedure: 1. Discussion of the grievance by the aggrieved employee, accompanied by his Shop Steward if the employee so desires, and the foreman involved. 2. Discussion of the grievance by the Shop Steward of the employee, accom- panied by the employee if the employee desires to be present, and the Production Superintendent or Maintenance Superintendent of the company. 3. Discussion of the grievance by a committee of three Union-designated employees, one of them from the department of the aggrieved employee, and the company's plant superintendent or his representative; the employee com- mittee could be assisted by an authorized Union business representative. 4. In the absence of a satisfactory settlement, achieved through discussion, reference of the grievance to "arbitration" upon written notice by either party, such arbitration to be conducted by single representatives of the Respondent and the Union authorized to "hear" the matter, and to make every reasonable effort to "decide" the grievance; decisions reached by such representatives would be considered "final and binding" upon the Respondent, the Union and the employee. 5. In the absence of a satisfactory settlement within fourteen days, selection of a third party to act as the chairman of a board of arbitration, authorized to make such an award as it may deem proper under the circumstances, in con- formity with any relevant contractual provisions. O'Connell's participation in the first step of this contractual procedure, at the time of this discharge, has already been noted. Subsequent action pursuant to the grievance procedure, however, was undertaken without O'Connell's being present. During the procedure's third step, noted, the employee committee designated to handle the complainant's grievance was assisted by W. B. Freebourn, a Butte attorney, who functioned as the Union's authorized business representative. In the fourth step, however, the attorney served as the Union's sole representative. On February 25, 1958, after several informal conferences, Freebourn reached an agreement with W. W. McKittrick the Respondent's representative as to the dis- charge of O'Connell and the other discharges under consideration. The agreement I find was expressed as follows: The discharges of Ager, Davis and O'Connell will stand and the grievances are denied. The discharges of Sorensen, Algra and Parkins are modified to a disciplinary layoff with the employees to be reinstated on probation with a warning that any future misconduct will result in immediate discharge. The reinstatements will be without loss of seniority and without any back pay... . 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This grievance settlement, I find, was achieved through informal discussion, pre- sumably based upon the information made available to Freebourn and McKittrick as representatives; no witnesses were heard, and no record was made. O'Connell did not attend any conference incidental to the disposition of his grievance after the first procedural step, previously noted. He was never advised that his right to attend any of these conferences would be recognized by the parties involved, or that he would be afforded, upon request, the right to be represented by counsel, or to present testimony. And the record will show, clearly, that he never did request an opportunity to be present at any grievance step after the first, per- sonally or vicariously; it will also establish that he never requested an opportunity to have testimony adduced, at any stage, in support of the position taken by the Union in his behalf. Analysis 1. Contentions It is the General Counsel 's contention, primarily, that the "circulation" of O'Con- nell within the Silver Bow plant, in order to inform his fellow maintenance em- ployees of the fact that Chief Shop Steward Ager had been sent home, constituted a protected union or concerted activity , and that his discharge by the Respondent for such conduct, therefore, involved an unfair labor practice . Alternatively, however, it is argued that the Respondent did not discharge O'Connell because of a good-faith belief that he had attempted to induce his fellow employees to leave work; the General Counsel suggests that the Respondent relied upon the "circula- tion" of O'Connell throughout the plant as a mere pretext to justify his discharge, and that its actual motivation may be found in its resentment of his union activities, particularly as a negotiating committee member. The Respondent's counsel entered a vigorous denial, of course, that O'Connell's course of conduct, in the light of Ager's suspension, had merely provided the firm with a pretext for discharge basically motivated by its resentment of his antecedent union activity. Upon an assumption that O'Connell 's conduct after Harry's suspen- sion of the chief shop steward warrants consideration as the true and proximate cause of his discharge, the Respondent asserts, primarily, that the complainant's conduct did not involve concerted activity , and, secondly , that it was not, in any event, entitled to consideration as protected activity , under the statute. 2. Conclusions The available evidence, in my opinion, will not support the General Counsel's contention that the Respondent's officials merely relied upon O'Connell's alleged attempt to "foment" a work stoppage as a pretext to Justify a discharge actually motivated by their resentment of his antecedent union activities. The complainant's active participation in union affairs, as an official and committee member, virtually terminated in May 1957, some 7 months before his dismissal; after the expiration of his vice presidential term, I find, O'Connell was only involved in the prosecution of four grievances, of an unspecified nature. His activity within the Union has been characterized by the Respondent's counsel as "minor" and routine. Although such a denigration of his role in union affairs may be question- able, nothing specific in the record, as I view it, will support the inference, urged by the General Counsel's representative, that O'Connell was considered a "thorn" in the Respondent's corporate flesh. Certainly, no objective indication of managerial resentment with respect to his role in contract negotiations ever appears to have been vouchsafed. Nor can the transcript be said to provide any reliable, substan- tial, or probative evidence with respect to managerial resentment of his activity as a strike committeeman. (With a single exception, to be noted elsewhere in this report, the record reveals no evidence whatever which suggests employer animus with respect to the Union or union members at the Silver Bow plant.) The mere fact that the Respondent's negotiators may have suffered some frustration on two occasions, despite their vigorous effort to have certain language in the firm's trade agreement with the Union amended or deleted, will not support an inference that they held O'Connell, personally, responsible. Nor can their vigorous opposition to the Union's strict exclusionary policy during the 1957 strike, itself, sustain a conclusion that the representatives of the firm were "galled" by the unsuccessful effort of Ager and O'Connell to press for the continuation of that policy. It is the General Counsel's contention, however, that O'Connell was treated with disparate severity on the occasion of his discharge, and that the disparate treatment he received ought to be considered indicative of an animus bottomed upon his ante- cedent union activity. e VICTOR CHEMICAL WORKS 287 Reference is made to the fact that four men who left work in protest after Ager's suspension were simply told that their time stopped at 11:15, and that they were not discharged until the next day; the General Counsel would contrast their treatment with that accorded O'Connell, who was dismissed immediately after the rest of the employees had returned to work, on the basis of a supposedly " less serious" charge of contract violation, without an opportunity to present his own version of the situation. Reference is also made to the fact that no action was taken with respect to employee Miller, O'Connell's companion on his plant tour, despite the fact that his participation in the tour had also been reported to the firm's management. The General Counsel also cited the fact that three of the four employees who did leave work were subsequently permitted to resume work, despite the Respondent's flat refusal to reinstate O'Connell, who had not even suggested that anyone leave the plant. And, finally, reference is made to the "summary dispatch" with which O'Connell was fired, without any investigation of the basis for his adamant denial of the charge made against him. Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1366. The argument is made that such precipitate action may, itself, be taken as evidence of discriminatory motivation. Upon the entire record, however, I find these references inadequate to justify a conclusion that O'Connell was treated with disparate severity because of his prior "militant and effective" activities. The available evidence establishes, in this connection, that Algra, Sorensen, and Parkins, three of the four employees who did leave work, were told that their time would stop at 11: 15 by the assistant master mechanic, whose authority to effectuate suspension or discharge on his own initiative has not been established. O'Connell's termination, however, was effectuated by the master mechanic, with the plant superintendent's concurrence. And the record shows that when these officials, finally, undertook to consider the treatment merited by the four employees who had left the plant, they were likewise discharged. The fact that O'Connell's discharge was effectuated shortly after a work stoppage, within his department, had been fore- stalled cannot, alone, support a conclusion that his dismissal ought to be considered a penalty of undue severity. Despite the General Counsel's characterization of O'Connell's contract violation as "less serious" than that of the employees who left work-if, indeed, it merited consideration as a contract violation at all-there would certainly seem to be room for argument, at least, that an employer ought to be considered free to take dis- ciplinary action against the presumptive instigator of a work stoppage, even after the danger of such a development disappeared. The presence of such a motivation for the Respondent's decision to effectuate O'Connell's discharge may only be inferred. But the very fact that it can be inferred would, clearly, tend to weaken the per- suasive impact of the General Counsel's suggestion that the Respondent must have been improperly motivated, merely because it effectuated O'Connell's discharge after the tense situation in the shop had ended. O'Connell's discharge without an opportunity to present an explanation of his conduct would, of course, tend to support a conclusion that the Respondent's action actually reflected undue haste. Mere haste however-in the absence of other evi- dence sufficient to sustain a conclusion that the officials of the Respondent were dis- criminatorily motivated-cannot, itself, support an invidious inference as to the existence of an improper reason for the discharge. Upon the entire record, therefore, I am satisfied that the Respondent did not assert its belief-with respect to O'Connell's alleged role as the instigator of a possible work stoppage-merely as a pretext to justify his discharge. Rather, I am convinced that the Respondent's management genuinely believed the complainant to have been in- volved, at the very least, in an effort to cause maintenance employees on plant as- signments to abandon their tasks and proceed to the shop. And the Respondent's be- lief in this respect, was, I find, the effective cause of his termination. This being so, was his dismissal effectuated under circumstances which would justify administrative proscription under the statute, and affirmative relief? To a consideration of this question, our attention must now turn. The Respondent argues that O'Connell's conduct immediately prior to his dis- charge did not involve union activity, since his decision to circulate and inform the men of Ager's suspension was a personal one; reference is made to the conceded fact that he held no union office at the time, the fact that he had not been designated by the chief shop. steward to take any action, and the fact of his admission on the record that he did not consider his conduct equivalent to the investigation of a grievance. This contention, however, must be rejected as deficient in merit. The shop mainte- nance men had already shown their concern over Ager's suspension, presumably because of their fear that the disciplinary action taken against the Union's chief shop 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steward would impair its ability to function effectively as an employee representative. Thus O'Connell's attempt to spread information with respect to Ager's suspension clearly represented an attempt to foster union interests; the fact that his activity may have been undertaken without official sanction, express or implied, cannot vitiate the force of this conclusion. Counsel for the Respondent also argues that O'Connell's plant tour on his own initiative did not even involve concerted activity. This contention, however, must likewise be rejected. O'Connell's tour, I find, did not involve a "private, personal" expedition, as the Respondent claims. It was undertaken, clearly, to protect the interest of the maintenance employees, considered as a group, in effective representa- tion. Additionally, of course, it should be noted that employee Miller's participation in O'Connell's tour was beyond dispute; this fact alone, certainly, would seem to point up the fallacy of counsel's contention that the complainant's conduct did not involve "group" or "concerted" action. The Respondent, however, argues that the course of conduct which led to O'Con-' nell's discharge cannot be characterized, legitimately, as protected concerted activity. The issue thus presented must be considered close; no summary determination of the question would be warranted. Upon the entire record, however, I find the Respond- ent's position worthy of acceptance. For many years, this agency has recognized that concerted activity is not always protected. See Harnischfeger Corporation, 9 NLRB 676, 686. In the cited case, the Board observed that: We do not interpret [Section 7] to mean that it is unlawful for an employer to discharge an employee for any activity sanctioned by a union or otherwise in the nature of collective activity. Judicial pronouncements have echoed this view. N.L.R.B. v. Ford Radio & Mica Corporation, 258 F. 2d 457, 461 (C.A. 2). And Congress has noted the position of the Agency, in this respect, with approval. House Conference Report, No. 510, 80th Congress, pp. 38-39. Under the general principle noted, various types of conduct have been held unprotected. Among the relevant cases cited by the Respondent's counsel, certain decisions deserve particular note. The discharge of an employee who left a production line to present a grievance, contrary to a plant rule, has been held immune to statutory proscription. Doyle W. Terry, d/b/a Terry Poultry Com- pany, at al., 109 NLRB 1097. Strikes of any character, in violation of a contractual provision, drafted to preclude work stoppages pending resort to a grievance pro- cedure, have likewise been characterized as beyond statutory protection. Mid-West Metallic Products, Inc., 121 NLRB 1317. And similar rulings have been made with respect to economic strikes in violation of contractural no-strike clauses. American Gilsonite Company, 121 NLRB 1514, and previous cases. In the light of the avail- able evidence, these decisional pronouncements must be recognized as persuasive. In the General Counsel's brief, an analogy has been drawn between the Respond- ent's treatment of O'Connell and cases of discharge attributable to the departure of an employee from his work station without permission. If no antecedent rule against such a practice has been promulgated by an employer, this Agency has frequently held the cited ground for an employee's termination to be a mere pretext, advanced to conceal the employer's discriminatory motive. Birmingham Publishing Company, 118 NLRB 1380; United Fireworks Mfg. Co., Inc., 118 NLRB 883; Watson Sea Food and Poultry Company, Inc., 117 NLRB 1369. It is conceded by the General Counsel that a different conclusion might be warranted in cases where an employer has promulgated a rule, known to his employees, or issued direct instructions that they may not leave their work. Terry Poultry Company, supra. His representative argues, however, that the present record fails to establish the publication of any oral or written instruction of this sort. And reference is made to the alleged failure of the plant management to report its objection to unauthorized departures from work during various discussions with union representatives. As a witness for the Respondent, Plant Superintendent Streitmatter did concede, substantially, that no specific plant rule had ever been published or promulgated for- bidding unauthorized absence from a work station, generally. And the record will support the General Counsel's assertion that the superintendent's comments to union representatives, with respect to the impropriety of such employee conduct, were limited to expressions of disapproval regarding plant tours by employees for the pur- pose of inciting work stoppages; it will not support a factual finding that the plant superintendent ever felt it necessary to protest employee "circulation" within the plant for the purpose of conveying information only. In the light of the available evidence, Streitmatter's failure to object, specifically, to this particular type of employee activity cannot be construed as indicative of com- VICTOR CHEMICAL WORKS 289 pany acquiescence ; no reliable, probative, or substantial evidence has been adduced to support the General Counsel 's assertion that the management of the Silver Bow plant had reason to believe conduct directed to such a limited objective common. Although the plant superintendent's testimony will support an inference that he sus- pected employee "circulation" within the plant for the dissemination of information on certain occasions, it will not support any conclusion that he possessed definitive knowledge with respect to particular incidents , or that he had ever been able to attribute such conduct to specific employees. The Respondent , however, appears to rely, primarily , upon section seventeen of its Union contract as the "clear , well-publicized" rule by which O'Connell's course of conduct ought to be tested . This section-a contractual "No Strike-No Lockout" clause-embodies a union commitment on behalf of its members that:- There will be no strike, boycott, picketing, work stoppage , slowdown or other interference with the Company 's business by members of the Union during the term of this agreement . . . . [Emphasis supplied] The Respondent's position with respect to the applicability of this language has merit. While O'Connell's plant tour, certainly, could not be characterized , appropriately, as a strike, boycott , work stoppage , slowdown, or picket activity, the available evidence will, in my opinion, support a determination that the Respondent could legitimately construe it as "interference " with the company 's business. The General Counsel argues that O'Connell did not abandon a work assignment when he effectuated his unauthorized departure ; it is also argued that his various em- ployee contacts were brief , and that they could not be said to have interrupted work. As a matter of fact, there may be some factual merit in these contentions. Their acceptance , however, would merely lead to a conclusion that O'Connell's interference with company business was minimal ; they would not support a conclusion that such interference did not occur. The argument has also been advanced that the dissemination of information to employees at work was an established and "long-tolerated" practice at the Silver Bow plant. This characterization of the available evidence, however, must be rejected. While the record will, in my opinion , support a conclusion that the plant management may have had some reason to suspect that employees occasionally dis- seminated information of mutual concern on company time, it certainly will not sus- tain a finding that such conduct was knowingly tolerated . At most, as the firm's counsel argue in its brief, the representative of the General Counsel was able to adduce testimony with respect to a limited number of prior incidents when plant officials may have been able to identify men presumably engaged in the type of "circulation" which led to O'Connell's discharge. And such evidence, even if ac- cepted, would not warrant a determination that the Respondent ought to be pre- cluded from disciplinary action when apprised of O'Connell's plant tour . N.L.R.B. V. Marion G. Denton, et al., d/b/a Marden Mfg. Co., 217 F. 2d 567, 571 (C.A. 5). An employer's waiver or condonation of past employee derelictions cannot effectuate a forfeiture of his right, under the statute, to effectuate discharges for justifiable cause. In the light of the contractual , language noted, therefore , I am satisfied that Plant Superintendent Streitmatter 's decision to authorize O'Connell's discharge did not in- volve a statutory violation. Elsewhere in this analysis of the record, it has been found that the plant superin- tendent's decision was based on a foreman's hearsay report with respect to the course of conduct attributable to the mechanic 's helper. Fairness compels a re- ference to the fact that the accuracy of that report has not been effectively substan- tiated; in the light of a fair preponderance of the evidence, indeed, I have been con- strained to find that the report in question was actually erroneous . The General Counsel, however, cannot legitimately argue that this agency ought to find O'Connell's conduct protected merely because the available evidence , considered as a whole, will not sustain a conclusion that Foreman Bosch made a correct report to management officials who relied upon it to justify discharge action . If the challenged activity of the complainant may legitimately be characterized-on the basis of his own credited testimony-as sufficient to constitute "interference" with the company 's business, the plant superintendent's decision to authorize his discharge must be held beyond ad- ministrative proscription. It has been found , elsewhere in this report, that O 'Connell's own testimony will support a factual conclusion that he was guilty of interference outlawed by the no strike-no lockout clause of the trade agreement then effective at the Silver Bow plant. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Legitimate inferences, derivable from the available evidence, provide additional support, however, for the conclusion noted. On the basis of his prior service as a union protagonist and employee spokesman, O'Connell's ability to anticipate the probable reaction of his fellow maintenance men to the news he brought may legitimately be presumed. The resentment generated within the group apprised of the action taken by the assistant master mechanic had, of course, been made apparent before he undertook his plant tour. In the light of this circumstance, I find, he could have anticipated, reasonably, that the general reaction of the main- tenance men at work in the plant-when informed of the chief shop steward's sus- pension-would parallel that of the men assigned to work in the shop. And the resultant possibility of some work stoppage-partial or complete, of limited or in- definite duration-would also have been patent. (When asked if any of the main- tenance men had been requested to repair to the shop, Ray Miller, O'Connell's com- pansion on the plant tour, testified that: "We don't have to ask them. You just tell them what's going on and all the men are interested enough to go to the shop on their own." The complainant, I find, could reasonably have made the same assumption.) To counter any possible inference that his "circulation" within the plant was intended to bring about some sort of work stoppage, the General Counsel asked O'Connell to state the motivation for his action. The complainant testified, simply, that he had felt the men ought to know about Ager's suspension so that they could form an opinion with respect to its import; he stated that he had thought the men would then be able to meet at noon, if necessary, for the purpose of reaching a decision as to the nature of any action they might wish to take. As the Respond- ent's counsel has observed, however, O'Connell's effort to spread the necessary in- formation immediately after Ager was sent home, approximately 1r/2 hours prior to the firm's regular loch hour, belies his present attempt to invest challenged conduct with a retrospective gloss. His own testimony, indeed, establishes that-when queried by his fellow employees with respect to the action which the maintenance men would take-he did not cite the need for a noon meeting to decide upon a course of action, but referred, instead, to the fact that some of the employees had spoken of a work stoppage. Despite his disclaimer of any intent to bring about a work stoppage, therefore, O'Connell's conduct, in my opinion, would logically warrant an inference that he knew, or had reason to believe, that his information would bring the men with plant assignments to the shop, and that his plant tour was in- tended to achieve that result. In the light of this inference with respect to O'Connell's "true" motive, his course of conduct clearly deserves characterization as an attempt to induce an unauthorized work stoppage, or, at the very least, as an attempt on his part to interfere with the company's business by causing the men to assemble at the shop. And the fact that the plant superintendent was apparently persuaded to authorize his discharge by a report which erroneously attributed to him the expression of such an objective may be disregarded as immaterial. Without regard to the accuracy or inaccuracy of Foreman Bosch's report, O'Connell's course of action-viewed exclusively in the light of his own testimony, or in the light of the inferences, with respect to his motivation, reasonably to be drawn from the whole record-involved a violation of the contractual "No Strike-No Lockout" clause previously noted. Such activity is not entitled to statutory protection. C. The discharge of Dean Facts 1. Work history Thomas. Dean was employed by the Respondent from April 1953 until February 26, 1958. For a period slightly in excess of 2 years prior to his discharge, he was employed in the maintenance department; during his last 9 or 10 months of service he was a shift mechanic. The available evidence establishes that Master Mechanic Hunter and Assistant Master Mechanic Harry praised his work; the Respondent's brief, indeed, includes a concession that he was considered to be a good employee. His last assignment as a shift mechanic, before his termination, was on the "after- noon" shift, from 4 p.m. until midnight. 2. Union activity During the March 1957 strike previously noted, Dean served as the chairman of the Union's picket committee. This involved: VICTOR CHEMICAL WORKS 291 lining of the pickets up on the picket line, and making sure that they got their picket cards and [seeing ] that they come out on their scheduled times to picket . . . The complainant also spent considerable time on the picket line; while he appears to have escorted one laboratory employee into the plant to complete an errand, he participated fully, I find, in the enforcement of the Union's original determination to exclude supervisory personnel. The General Counsel has characterized Dean's role in the 1957 strike as a "promi- nent" one; the assertion is made that he was "largely responsible" for the administra- tion of the Union's exclusionary policy. And as noted, it is the General Counsel's contention that the Respondent bitterly resented this policy; its resentment, allegedly, had been given expression by Personnel Director Trenary, of the Silver Bow plant, on at least one occasion. The testimony of employee Myers, as the General Counsel's witness, was that Trenary had visited him during the strike, while he was hospitalized as the result of an accident, and that the personnel director had then indicated he was quite "put out" by his inability to get into the plant. Questioned further with respect to Trenary's comments, Myers testified as follows: A. Well, he told me that this Hayden had stopped him from going into the plant, and he acted, I guess, Hayden acted quite smart to him, you know.. . . Well, he didn't like the way that the men were carrying out the strike, about destroying property, and all this other stuff. Q. Do you recall any names that he mentioned in connection with people whose conduct he didn't like? A. Yes . . . oh, Davis and Hayden and Miller and Ritter and Dean . . . I believe he mentioned Ager, too. Q. Did he say anything about the company's attitude toward these men? A. No, not the company. He only expressed his opinion of it . He didn't like it .. . well, he said the company would do something about them. This testimony was categorically denied by Trenary. In the light of the available evidence and my observation of the witnesses, however, I am satisfied that Myers would have been more likely to remember a conversation of the tenor quoted, and that his testimony with respect to Trenary's remarks deserves credit. It should also be noted, however, that the remarks attributed to the Respondent's personnel director were made in March 1957 while a work stoppage was in progress, that no immediate action was taken against any of the employees Trenary named, and that none of them were thereafter discharged, with the exception-7 or 8 months later- of Davis and Dean. Under the circumstances, the significance of Trenary's remarks as possibly in- dicative of resentment attributable to the Respondent with respect to Dean, on the basis of his picket line activity, must necessarily be evaluated in the light of other evidence relevant to his discharge. 3.. Dean's discharge a. The circumstances of the discharge Friday, February 21, 1958, was the last day Dean worked at the Respondent's plant. He worked the 4 p.m. to midnight shift on that date, I find, and was scheduled to begin a 5-day layoff thereafter. Shortly before midnight, on February 26, the complainant reported to work on the 12-8 a.m. shift about to begin; his timecard, however, was not in the rack. When the shift mechanic asked the watchman where his card was, he was informed that his foreman would see him in a few minutes. Shortly thereafter, the complainant was invited into Trenary's office; there the furnace foreman, Jay LaBresche, informed him that the Respondent would have to let him go. In response to Dean's inquiry, LaBresche gave "unsatisfactory work and misconduct" as the reason for his termination. The complainant's protest was countered with a gesture by LaBresehe which implied, I find, that the decision to effect Dean's termi- nation for the reason cited had not been made by him. Trenary then advised Dean that he was free to take his check and his tools. The shift mechanic replied, however, that he wished to pick them up later that day, in the presence of a shop steward. When asked to provide an explanation for Dean's discharge, ' Trenary replied that it would have to be secured from Master Mechanic Hunter or his assistant. Upon Dean's subsequent return to the plant, he found Assistant Master Mechanic Harry in Trenary's office. When requested to state the reasons for the discharge, 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, Harry merely repeated the comment that the shift mechanic had been discharged for unsatisfactory work and misconduct. Dean immediately initiated a grievance with respect to his discharge, and assembled his possessions , in preparation for departure. Before he left, however, Dean addressed certain remarks to Personnel Director Trenary which should be noted. The record establishes that he was then aware of the fact that the Respondent had previously employed an investigator to check his possessions, and to keep his home under surveillance , for reasons to be noted elsewhere in this report . His resentment of the Respondent's action, I find , motivated his final remarks to the personnel director. Dean's credible testimony with respect to these remarks-which matched Trenary's version generally-reads as follows: I said to Mr. Trenary, "Trenary, I've got something to say to you." I said, "I had a talk with your man on the hill last night," and I said to him, "Also you went in my house the other day and you looked through my base- ment pretty thoroughly," and I said, "He didn't find anything there that belonged to Victor Chemical." He said, "I don't know what you're talking about." . and then I said-I was mad-I said, "Do you remember in some of those talks at safety meetings that we used to have around this plant, you used to say, "If a man would shoot across the highway once a month with a gun, that somebody would eventually get hit," and he said "Yes," and I said, "One day you are going to get hit if you keep going in front of my house slow the way you do, and I've had a lot of target practicing with my 06, and my boys have had a lot of target practicing with their 22s." .. . The record establishes that Dean's last observation stemmed from his belief that Trenary had slowly cruised past his home in an automobile on the public highway approximately 2 days previously, in connection with the investigation to be noted hereinafter. After the comments noted, Dean left the plant. b. The grievance procedure Dean's grievance with respect to his discharge was processed, I find, pursuant to the contractual grievance procedure previously noted. Like O'Connell, he did not attend any conferences incidental to the disposition of his grievance after the first procedural step. He was never advised, either, that he was entitled to attend any of these conferences, or that his right to be represented by independent counsel and to present testimony through witnesses, would be recognized by the parties privy to the trade agreement then effective. No attempt on his part to assert any of these rights, prior to the ultimate disposition of his grievance, has been cited. In the fourth step of the grievance procedure, the Respondent was represented by F. B. McCoy and the Union by Carl Rydberg, an International representative. On April 1, 1958, these individuals agreed that the Respondent's discharge of Dean would stand, and that his grievance would be denied. The complainant's testimony establishes, absent any indication to the contrary, that Rydberg had not attempted to confer with him, personally, prior to the achievement of this agreement, in the fourth step of the contractual grievance procedure. Analysis 1. Contentions Elsewhere in this report, it has been noted that Dean was advised, at the time of his discharge, that his services were being terminated for unsatisfactory work and misconduct, unspecified. The answer filed by the Respondent in this consolidated case, however , includes a flat assertion that: Thomas Dean was discharged because he was involved in the disappearance of Company property and sabotage or attempted sabotage of Company equipment. It is the General Counsel's contention that the plant management actually resented his activity as the Union's picket committee chairman during the 1957 strike and availed itself of certain incidents of theft and sabotage to justify his discharge. The Respondent insists, however, that it did not rely upon these incidents as a mere pretext, but discharged the complainant because of a "good faith belief" with respect to his involvement in the theft and sabotaged noted . (Additionally,. it is asserted in the firm's behalf that Dean forfeited any right to reinstatement when he threatened Personnel Director Trenary with personal injury, after his discharge .) The General VICTOR CHEMICAL WORKS 293 Counsel, however, argues that the Respondent's management possessed no reliable, probative, or substantial evidence with respect to Dean's involvement in theft or sabotage. The various incidents cited by the plant superintendent to explain the origin of his alleged belief as to Dean's guilt are characterized, generally, as insuffi- ciently related to the shift mechanic; in the light of the available evidence with respect to each of these incidents the General Counsel would contend, apparently,, that no reasonable man could derive a "good faith" belief with respect to another man's culpability, and that any assertion of reliance upon such a belief should,. therefore, be considered pretextual. 2. Conclusions Preliminarily, our attention must be directed to the various incidents of theft and sabotage which allegedly led the plant superintendent to formulate a belief with respect to Dean's involvement. The available evidence establishes-absent any attempt on the part of the General Counsel to enter a denial-that incidents of sabotage, or attempted sabotage had been noted for some time prior to February 21, 1958, at the Silver Bow plant. Addi- tionally, a substantial amount of portable company property had disappeared, I find, under circumstances suggestive of theft. In the Respondent's behalf, evidence has been adduced with respect to several incidents which, allegedly, generated suspicion of the shift mechanic's possible involvement in the presumptive thefts noted. Among others, an occasion was cited. when Streitmatter discovered Dean attempting the removal of an electric motor from the plant brick shed. Additionally, the plant superintendent referred to an occasion when the pin used to fasten the hasp of the padlock on a storeroom door was discovered filed away in such a fashion as to permit unauthorized entry; a plant watchman had discovered the filed pin on Dean's shift, and the shift mechanic, pursuant to his foreman's instruction, had replaced it with another welded with stainless steel to prevent any future filing attempt. And, finally, reference was made. to the fact that Dean had been observed, shortly before his discharge, under circum- stances suggestive of his possible involvement in the disappearance of some scaffold braces. (The testimony adduced in this connection indicated that Dean had been observed one night headed past the machine shop, toward a dark and unfrequented plant area; later that night four sets of scaffold braces were found outside of the plant fence, relatively close to the area within which Dean had disappeared. The. braces appear to have been found by a night foreman, under circumstances which led him to conclude that they had been thrown over the fence. When his observation was reported to the plant management, a responsible official decided that the braces. would be left untouched, so that anyone who came to remove them could be observed.. During the "afternoon" shift, however, some time after darkness fell, the braces. appear to have been removed by someone unknown to the watchman on duty.) With respect to each of these incidents of theft or attempted theft, the Respondent argues that the "finger of suspicion" pointed to the shift mechanic, and that Streit- matter's ultimate decision to have him dismissed rested, partially at least, on his. belief with respect to Dean's possible guilt. The motor incident, I find, may well have furnished some justification for sus-, picion. Dean's version of the incident, which I credit-without attempting to set. it forth in detail-would seem to warrant a conclusion that he did not act with felonious intent; nothing in the shift mechanic's testimony, however, can be charac- terized as sufficient to impair the validity of Streitmatter's ultimate determination that no shop supervisor had actually "assigned" him to remove the brick shed motor. Under the circumstances-even if I could find that Dean had not been engaged in an effort to steal the motor-the plant superintendent could reasonably have formed a suspicion, certainly, with respect to his intent. Streitmatter's belief with respect to Dean's possible responsibility for the damage done the storeroom padlock, however, cannot be characterized as reasonably justi- fied. In the Respondent's behalf, it is argued that the shift mechanic was a logical suspect because the damaged lock had been discovered on his shift. This fact alone, however, cannot be considered sufficient to support even a suspicion that the padlock pin had been filed on his shift, or that he was the one responsible. Additionally, I find, the plant superintendent's imputation of theft to the shift mechanic, in connection with the disappearance of the scaffold braces, cannot be considered reasonable. While his apparently unauthorized presence in a certain plant area, near the place where the braces were later discovered, would certainly have justified an investigation, subsequent developments ought to have been con- 535828-60-vol. 125-20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidered sufficient to lift the "finger of suspicion" from him. When Dean was ob- served by Foreman LaBresche headed past the shop, he was not seen to be carrying any braces; nor does the record establish that he was headed in the general direction of the storeroom where the braces were kept. The plant management, of course, was free to infer that the shift mechanic could have removed the braces from their place of storage, previously, and that he could have thrown them over the fence, for later recovery, after passing from the furnace foreman's view. The persuasive impact of any such inference with respect to Dean's culpability, however, would have been substantially impaired by the subsequent removal of the braces while he was on duty within the plant. As the General Counsel's representative has observed in his brief, Dean could not have taken the braces from their resting place outside the plant fence except by.going out a gate, observed by a watchman, or by ascending an 8-foot fence topped with three strands of barbed wire. In the absence of evidence that the shift mechanic left the plant during the shift in question, and in the absence of evidence sufficient to suggest a motive for his theft of scaffold braces only, I find merit in the General Counsel's contention that suspicion of his possible involvement in the disappearance of the braces cannot, reasonably, be justified. With respect to Dean's supposed participation in sabotage or attempted sabotage, reference was made to four incidents. The first of these in point of time, involved the insertion of sugar in the gas tank of a company dump truck. Thereafter, early in January 1958, an expensive conveyor belt, used to carry ore to storage, was slashed and torn severely enough to require replacement, at a cost of $10,000, approximately. And thereafter, a kiln cooler fan, part of a cooler which Dean had just repaired, ceased operation under circumstances sufficient to support an inference that someone had turned it off. In the light of the available evidence, I find merit in the General 'Counsel's con- tention that Dean's connection with these three incidents has not been established. Since the Respondent's official family never did learn the circumstances under which sugar was inserted in the dump truck's gas tank, no real attempt has been made, in this case, to connect Dean with the incident directly. There is no contention by the General Counsel that the incident did not occur; Dean's testimony, however, would warrant an inference that he was not on duty when the sugar was discovered. The available evidence establishes also-in the absence of contradiction-that the conveyor belt was slashed at a time which did not coincide with Dean's scheduled duty hours. (There is testimony that the conveyor belt was slashed during the second week of January; the record establishes, also, that it was damaged during the afternoon shift. Dean's testimony in rebuttal, which counsel for the firm made no effort to contradict, establishes that he worked on the graveyard shift for 3 days during the week in question, that he was then off 2 days, and that he worked on the day shift for 2 days.) The record testimony with respect to the shutdown of the cooler fan, in my opinion, suggests some basis for official speculation, at least, with respect to Dean's possible responsibility, since his presence in the vicinity of the fan just prior to the shutdown has not been disputed. It should be observed, however, that Streitrnatter's speculation in this connnection did not crystallize into suspicion that Dean had been responsible until his possible connection with a later instance of attempted sabotage, to be noted, was discovered. Only then, retrospectively, does the plant superintendent appear to have reasoned that Dean could have turned off the cooler since he had just completed a repair assignment on the fan. When the validity of this retrospective judgment was challenged in cross-examination, however, Streit- matter admitted that he had never been apprised of Dean's whereabouts at the time when the cooler fan was shut down. He also conceded that his ultimate suspicion with respect to Dean's responsibility for the failure of the fan to operate rested upon his belief that the shift mechanic had been the only person near the button utilized to cut off the fan when the incident occured; upon the entire record, however, I am satisfied that a kiln operator and his helper were also nearby. Streitmatter initially took the position that their presence lacked significance; he insisted that the cooler fan could not have been turned off from their regular work station at the control panel near the kiln; later, however, he conceded that he might be mistaken in this belief. The record does establish that there was another button, which could be used to turn off the fan, at the kiln operator's work station. It also establishes that several other employees worked in the vicinity of each button, and, indeed, that fans had been turned off, previously, while the "cooler" was in operation. Under the circumstances, any firm conclusion that Dean had turned off the fan would clearly have been unwarranted. Since the Respondent's brief, however, concedes that the "most immediate" cause of Dean's discharge was another extremely serious act of attempted sabotage, dis- covered on the last day he worked, the specific incident-and Dean's involvement, VICTOR CHEMICAL WORKS 295 .if any-would seem to be a matter of-prime concern ; it is contended in the Respond- ent's behalf that the incident-which occurred on February 21, 1958, Dean's last day of work prior to his 5-day layoff-crystallized Streitmatter's previously vague suspicion that Dean had been involved in sabotage attempts . According to the plant superintendent, also, it motivated a decision on his part to authorize a private investigation with respect to Dean 's possible involvement in the disappearance of company property. This catalytic incident, therefore, must now be noted. Shortly before midnight , as the night of February 21, 1958, drew to a close, employee Boehling, the powerhouse operator , discovered loose plugs on the crank- case filler spouts of two auxiliary diesel-powered engines . The engines in question were installed in the powerhouse of the Silver Bow plant to provide emergency .electric power in the event of a transmission line failure. It is clear, absent dispute, that temporary power failures could cause serious plant damage, since the Respondent maintains its furnace operations and kiln operations with electricity , and since it must also maintain a cooler system at the kiln heads, and sufficient electrical power to pump essential water in case of any power emergency . When the loose plugs were checked, Boehling, in Dean's presence, recovered a wad of paper towels from the crankcase of the northernmost diesel. The powerhouse operator immediately at- tempted to reach Foreman LaBresche . Within a few minutes, the latter arrived, accompanied by Foreman Clarke, his scheduled relief on the graveyard shift. Shortly thereafter, I find, Dean left. (There is a record conflict with respect to the circum- stances of his departure . The testimony of Dean was that he left the plant after the arrival of Shift Mechanic Sullivan , his graveyard shift replacement . There is other testimony, however, suggestive of his departure prior to Sullivan 's arrival. Shift mechancis at the Silver Bow plant are not supposed to leave prior to the arrival of their replacement for the following shift. Since the discovery of a paper towel wad in the filler spout of the northernmost diesel engine, conceivably, could have engaged the attention of the witnesses proffered by the firm, Dean's testimony that his departure followed Sullivan's arrival, has not, in my opinion , been effectively contradicted . The assumptions of the plant management with respect to Dean's departure time on this occasion, however, do not appear to have been considered significant when the decision was made to dismiss him, under circumstances previously noted. The testimonial conflict in that regard , therefore , has not been resolved.) After Dean's departure, I find, a complete examination of the crankcase of the northernmost diesel revealed the presence of a variety of foreign materials; these included paper towels, wax paper, a rag , a steel pin, several flashlight bulbs, and hacksaw blades . Testimony adduced in the Respondent 's behalf, which the General Counsel has made no real effort to contradict, establishes that any attempt to operate the diesel unit in question with this material in the crankcase might well have resulted in serious damage. When the crankcase of the other diesel engine, nearby, was similarly examined , it was found to contain paper towel wads, apparently inserted, also, through the en fine's filler spout. Information with respect to the attempted sabotage of the diesel engines was immediately communicated to Plant Superintendent Streitmatter, who reached the plant sometime after midnight . After some discussion and speculation with respect to the identity of the possible saboteur, this management official decided that Dean was the most likely culprit. His testimony in this connection, which I credit, reads as follows: First of all , I talked it over with Mr. Hendrickson and the other supervisor there . . . Ray Clark . We discussed the situation very thoroughly . We attempted to determine who could have done this . . . We talked with the, well, the men had already talked to the previous powerhouse operator, they talked with the powerhouse operator who relieved that man, and we tried to determine as nearly as we could the facts as to what had happened , and also tried to speculate as to who would want to do it, why it would be done, and just to put everything we possibly could together to determine how this thing had occurred ... It.was my conclusion that Tom Dean must have done this. When pressed for an explanation as to the basis for this conclusion, the plant super- intendent characterized it as bottomed upon -a "series of events" prior to the at- tempted sabotage of the diesels . Among other things, his testimony indicates that some weight was given to Dean's possible involvement in the plant thefts, pre- viously noted. In the light of the available evidence-without reference to any other incidents of theft or attempted sabotage-I find Streitmatter's conclusion with respect to Dean's "possible involvement" in the effort to damage the auxiliary diesels, "reason- ably" justifiable. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The attempt to sabotage the engines was discovered at the end of Dean 's shift; the diesel units in question were close to the shift mechanic's powerhouse headquar- ters. While the record will not sustain any factual conclusion as to the time at which the sabotage was attempted , there would seem to be sufficient evidence to sustain a finding that the foregoing materials discovered in each diesel 's crankcase had been inserted some time after 2:30 that morning-approximately 22 hours before their discovery-when the diesels had last been tested. The available evidence does establish, of course, that Dean had a number of work assignments outside the power- house during his shift, but it also reveals that he did spend some time within the powerhouse, close to the diesel units, where his work bench was located. The powerhouse, it is true, was not closed to employees , and as the General Counsel's representative has pointed out, a number of Dean 's fellow workers could have been near the diesels . However, the testimony of Powerhouse Operator Boehling, which has not been contradicted in this respect, would clearly warrant an inference that comparatively few employees ' came to the powerhouse ordinarily-and that those who did came primarily to use the water fountain . In the General Counsel's brief, Boehling's testimony that he only saw the shift mechanic and various fore- men enter, on the night now under consideration , has been characterized as insub- stantial; an attempt is made to explain it away on the basis of the operator 's confes- sion that his duties occasionally required him to visit areas from which he could not observe the powerhouse entrances, and his further testimony that his normal work station did not command a clear view of the diesel units . Boehling, however, did not testify that the diesels were outside his view for the entire shift. While his testimony, obviously, cannot be said to foreclose the possibility that other employees may have entered the powerhouse , it does tend to vitiate the persuasive impact of any argument-based, at best, upon inference-that they did. In this connection, also, reference might appropriately be made to one observa- tion which I was able to make during my visit to the Silver Bow plant . The filler spout of the northernmost diesel unit is located on its west side, immediately adjacent to Dean's regular work area; the bulk of the diesel unit , itself, would seem to be sufficient to screen anyone within that area from the powerhouse operator's, view, most of the time . The filler spout of the southernmost diesel unit, however, is located on its east side; the movements of anyone tampering with the spout plug on that engine would have been within view of any fellow worker in the regular powerhouse work area. Since most of the material utilized to effectuate the sabotage attempt was discovered in the crankcase of the northernmost diesel, an inference would certainly seem to be warranted that the saboteur 's effort to effect damage to that diesel unit was less hurried than his attempt to damage the southernmost engine. And if his efforts were less hurried, logic suggests , at least, that the pro- spective saboteur may have had more time because he was able to rely upon the bulk of the diesel unit involved to screen his activity . Dean, of course, had a work area set aside for his use behind the northernmost diesel unit , and his presence there would not have been remarked as unusual. These aspects of the situation , I find, could reasonably have suggested the "possible involvement" of the shift mechanic to the plant superintendent. The record establishes , however, that Streitmatter did not take immediate action based upon his suspicion. Instead, he requested local counsel for the Respondent to obtain the services of a private investigator for the purpose of seeking further evidence with respect to the activity of the shift mechanic . Before the end of Dean's 5-day layoff period, the investigator presented an oral report , submitted later in written form, which did not deal with Dean's responsibility for any sabotage, but did include an expression of opinion that he had stolen company property. It was after .the plant superintendent's receipt of this report, I find , that his decision to effectuate Dean's discharge was made. In the course of the investigation which the Regional Office of this Agency made after the charges in this consolidated matter were filed , Streitmatter provided a state- ment which set forth the rationale behind his decision as follows: Over a period of the last year or so, a substantial amount of company property, including tools and equipment and other items of a substantial value, disap- peared from the company plant. In addition , there were several instances of' sabotage and attempted sabotage to operating equipment in the plant. At the time the company was unable to fix responsibility for these things on any par- ticular employee, but an increasing amount of circumstantial evidence pointed towards the involvement of Thomas Dean in both the disappearance of property and in the attempted sabotage . As a result of an extensive and professionally conducted investigation we were convinced that Dean was connected with those- VICTOR CHEMICAL WORKS 297 occurrences. When the reports of this investigation were finally made it became evident that Dean's continued presence in the plant could no longer be tolerated. Consequently he was discharged . [Emphasis supplied.] When questioned with respect to this statement , however, the plant superintendent qualified it with the observation that his decision to dismiss Dean was made on the basis of "all of the evidence" accumulated at the time. The private investigator's report, according to Streitmatter, was thus merely one of the factors which con- tributed to his decision. Considered as a factor in the plant superintendent's decision, the investigator's report does appear to have been influential ; Streitmatter's testimony reveals that his actual decision to dismiss the shift mechanic was not made until February 26, 1958, immediately after his receipt of the report. As the General Counsel has noted in his brief, however , the report shed no light, whatever, on the question of Dean's responsibility for sabotage or attempted sabotage. Nor did it cite evidence of probative worth indicative of Dean's involvement in theft. The substance of the report need not be detailed, but I find the General Counsel's characterization of it worthy of note: The only inference a reasonable man could draw from the report as a whole is that the investigator had, up to that time [February 25, 1958] discovered nothing but apparently had suspicions. I find this evaluation of the report's significance sound. Standing alone, it would not-in my opinion-commend itself to any "reasonable" man as a basis for dis- charge action, especially in view of the indication it contained that the investigation requested was not yet complete. If the Respondent's defense with respect to Dean's termination could be construed to rest, exclusively , upon the contention-advanced in the course of its presentation- that the results of the private investigation ordered by Streitmatter were sufficient to justify the shift mechanic's discharge, it would deserve rejection. Upon the entire record , however, I am satisfied that the Respondent has really sought to justify Dean's dismissal on the basis of its "good faith" belief with respect to his culpability, based upon the entire complex of circumstances noted in this report. Under cross-examination, Streitmatter conceded that he had not been apprised of any direct evidence sufficient to establish Dean's responsibility for the disappearance of any company property , or his responsibility for attempted sabotage, at the Silver Bow plant. In the Respondent's behalf it is argued, however, that the shift mechanic's connection with various incidents of theft and sabotage was strongly indicated, and that the indications in question were sufficiently strong to warrant the formulation of a good-faith belief with respect to his cupability. The General Counsel, as previously noted, contends that the complex of informa- tion relied upon by the plant superintendent to sustain his inferences with respect to Dean deserves characterization as too flimsy to support any "good faith " belief in that regard ; on the basis of this contention, it is asserted that the stated reason for his discharge must be rejected as a mere pretext. Reference is made, inter alia, to the fact that Dean had never actually been by a responsible official under suspicious circumstances , and to the fact that the plant management has never been able to determine his motive for the sabotage of company equipment . (Testimony by the plant superintendent that the local sheriff's office and the Federal Bureau of Investiga- tion have both been unable to fix responsibility for the damage to the plant's conveyor belt, and the attempted sabotage of the diesel units, is also cited as significant.) It is argued that no responsible management would formulate a belief that an employee with a good work record-like that of the shift mechanic-had been guilty of theft or sabotage, on the basis of circumstantial evidence subject to the infirmities noted in this report, especially in the absence of any effort to afford the suspected individual pan opportunity to explain suspicious circumstances. In the light of the available evidence , I find myself constrained to reject this line of argument as deficient in merit. Despite my agreement with the General Counsel's representative that much of the information available to Plant Superintendent Streitmatter , objectively con- sidered, deserves characterization as insufficient to justify suspicion with respect to Dean's culpability, some of it, previously noted, must be considered reasonably sufficient to suggest the possibility of his involvement in questionable conduct. I have, therefore, concluded that Plant Superintendent Streitmatter did formulate a belief, rightly or wrongly, with respect to Dean's involvement in theft and sabotage, and that his decision to effectuate the shift mechanic's discharge was motivated by that belief. The argument of the General Counsel to the contrary has not been persuasive. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Evidence sufficient to sustain a conclusion that some assigned reason for dis- charge was merely a pretext cannot, of course, support a conclusion, itself, that the discharge was discriminatorily motivated. Independent evidence sufficient to sustain a factual inference with respect to the existence of an illegal motive must be avail- able. With respect to Dean, however, the General Counsel has conceded that the existence of such an illegal motive on the Respondent's part would "necessarily" have to be inferred. It is argued, as noted, that the reason assigned for the shift mechanic's discharge was never supported by evidence sufficient to persuade a "reasonable" management to effectuate a discharge; on this theory it is asserted that "the only possible inference" to be drawn from the record is a conclusion that the Respondent actually intended to effectuate Trenary's threat to do something about the men whose strike conduct it resented. As the Respondent's brief asserts, however, Dean's only significant union activity at the Silver Bow plant was his service as the picket committee chairman during the organization's 1957 strike. Nothing in the record will support an inference that the shift mechanic was responsible for the Union's decision to exclude supervisors from the plant during the strike; or that he was particularly zealous in the execution of that union policy; or that the plant officials considered his service as a picket captain any more detrimental to company interests than the service of any other striker. Trenary's indication of personal resentment with respect to Dean's activity as a strike leader cannot, realistically, be said to establish animus attributable to the Respondent with respect to the shift mechanic; there is nothing in the evidence to indicate that his resentment was ever communicated to other management officials, nor will the record sustain a conclusion that he contributed anything to Streitmatter's decision with respect to Dean's discharge. (The testimony of employee Myers does not even establish that Dean, himself, was particularly resented by the firm's per- sonnel director; according to Myers, Trenary cited several employees whose activity he disliked, without undue emphasis upon Dean's strike participation. And despite the fact that three of the six men named by the personnel director were no longer in the firm's employ by February 26, 1958, nothing in the record will sustain a conclusion that they were subjected to discrimination statutorily proscribed.) An inference that the Respondent discharged Dean because it resented his antecedent strike activity may be possible theoretically, but the record will not support a con- clusion that it must be considered the only inference possible. When requested to draw a similar inference, the United States Court of Appeals for the Fifth Circuit refused. N.L.R.B. v. T. A. McGahey, Sr., d/b/a Columbus Marble Works, 233 F. 2d 406, 412-413 (C.A. 5). In the cited case, the court observed that: If the discharge was excessively harsh, if lesser forms of discipline would have been adequate, if the discharged employee was more, or just as capable as the one left to do the job, or the like then, the argument runs, the employer must not actually have been motivated by managerial considerations, and (here a full 180 degree swing is made) the stated reason thus dissipated as pretense, nought remains but antiunion purpose as the explanation. But as we have so often said: management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Management can discharge for good cause, for bad cause, or no cause at all. It has, as the master of its business affairs, complete freedom, with but one specific definite qualification; it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids. . . . Rotation in per- sonnel is a common thing. The Employer does not enter the fray with the burden of explanation. With discharge of employees a normal, lawful, legiti- mate exercise of the prerogative of free management in a free society, the fact of discharge creates no presumption, nor does it furnish the inference that an illegal-not a proper-motive was its cause. An unlawful purpose is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one. These considerations would seem to be particularly apposite here. Upon the record, taken as a whole, I conclude that Dean was not discharged because the Respondent resented his union activity. Plant Superintendent Streitmatter, I find, acted, instead, on the basis of an honest belief-sound or unsound, right or wrong-that the shift mechanic had been involved in one or more incidents of theft and sabotage. His dismissal, therefore, cannot be said to have involved the commission of an unfair labor practice. Under the circumstances, of course, I find it unnecessary to consider the Respondent's further contention that Dean's "threat" to shoot the firm's per- sonnel director, after his discharge, deserves characterization as misconduct sufficient to bar his reinstatement. SEVILLE-SEA ISLE HOTEL CORPORATION 299 D. The significance of the grievance procedure In the Respondent's answer reference is made to the fact , previously noted, that each of the complainants in this consolidated case filed a grievance with respect to his termination ; it is asserted that each of these grievances was duly processed to the fourth step of the contractual grievance procedure , and that an agreement was reached at the step indicated , with respect to each grievance , that the discharge in question would stand. The Respondent argues that each of the agreements reached in the fourth step of the grievance procedure ought to be recognized by this agency as sufficient justification for the agency's refusal to assert its remedial powers. Spielberg Manufacturing Company, 112 NLRB 1080 . In view of my determination, however, that neither of the discharges challenged involved the commission of any unfair labor practice, the legal issue presented by the Respondent's contention does not appear to require consideration. In the light of the factual findings noted in this report, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent , Victor Chemical Works, is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act , as amended. 2. International Hod Carriers, Building and Common Laborers Union of America, Local No. 163, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 3. The General Counsel has failed to establish by a fair preponderance of the evidence that the Respondent discriminated against James E. O'Connell and Thomas Dean, within the meaning of Section 8(a)(1) and (3) of the Act, as amended. [Recommendations omitted from publication.] Seville-Sea Isle Hotel Corporation Operating the Seville Hotel 1 and International Union of Operating Engineers, Local 491, 491A, 491B, AFL-CIO, Petitioner. Case No. 12-RC-482. No- vember 23, 1959 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Claude B. Calkin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the following reasons: 2 'The name of the Employer appears as amended at the hearing. a For the reasons discussed below, it is unnecessary to resolve the contract- bar question raised herein. 125 NLRB No. 42.