Local 212, UAW

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 212, International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, [Chrysler Corporation] and Rholo Taylor. Case No. 7-CB- 462. August 25, 1960 DECISION AND ORDER On March 4, 1960, Trial Examiner George L. Powell issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report with a supporting brief.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Re- port, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : 1. We find, as did the Trial Examiner, that by the conduct more fully described in the Intermediate Report the Respondent coerced and restrained within the meaning of Section 8(b) (1) (A) employees of the Chrysler Corporation at its Vernon plant in the exercise of the rights guaranteed by Section 7 of the Act. In so finding we rely solely on the following incidents : (a) Early in March 1958, Respondent's Committeeman Waszkiewicz told General Foreman Token that Taylor, a leading organizer for the Society of Skilled Trades, a rival organization, went around the shop distributing the Society's literature and "agitating" for that union, and that he should be discharged because he would cause a lot of trouble and dissension. The record does not show who, if any of the employees, were present during this conversation. However, General Foreman Token in the course of his investigation of the incident com- municated Waszkiewicz' demand to Taylor. Although Taylor was not discharged by Chrysler as a result of this incident because he was found to have engaged in such activities on his own time, we find that Taylor was restrained and coreced thereby in the exercise of the rights guaranteed by Section 7 of the Act. 'The Respondent' s request for oral argument is hereby denied as the record, the exceptions, and brief adequately present the issues and position of the parties. 128 NLRB No. 112. LOCAL 212, UAW ' .1 r 953 (b) Later in March 1958, Respondent's Steward Holstein stated to Taylor, while the latter was distributing to employees Society's litera- ture, "You don't want to stick around here long, do you. . . . We are going to throw you out of here if you don't stop passing out that Society's literature." (c) On March 25, 1958, Committeeman Waszkiewicz and Chief Steward Tencza provoked a fight with Taylor over their demand for the return of a Society's authorization card, which Taylor had ob- tained from employee Hord some time before. The fight, as the Trial Examiner found, was deliberately provoked for the purpose of forcing Taylor to violate the Company's rule and fixed policy that the one who strikes the first blow is subject to discharge and thereafter used as a pretext for Taylor's discharge. As the real reason for this demand was the Respondent's desire to secure discrimination against Taylor and thus to get rid of an organizer for a rival union rather than their concern for compliance with the Company's rules, we find that by the demand of its agents for Taylor's discharge the Respondent co- erced and restrained adherents of the Society in the exercise of the rights guaranteed by Section 7 of the Act .2 2. As Taylor lost his employment with Chrysler Corporation as a result of the Respondent's conduct found to have been violative of Section 8(b) (1) (A) of the Act, we find also that it will effectuate the policies of the Act to direct the Respondent to make Taylor whole for the loss of earnings he may have suffered in the manner set forth in the Intermediate Report.' 9 Local 294, International Brotherhood of Teamsters, etc (Valetta Trucking Company), 116 NLRB 842, where the Board held that the union's attempt to cause a discriminatory discharge, even though unsucessful and unaccompanied by threats of physical violence, was violative of Section 8(b) (1) (A) of the Act; International Union, United Automobile, etc, Workers of America, Local 295, et al. (Wisconsin Axle Division, etc.) 92 NLRB 968, where the Board held that union conduct designed to secure discrimination against spe- cific individuals is within the limitations which the Board in the National Maritime Union case, 78 NLRB 971, placed upon the construction of Section 8(b) (1) (A). 9 As our remedy for a violation of Section 8 (b) (2) in the instant case , if found to have been committed by the above- described conduct, would be the same , it is not necessary for us to decide whether the Respondent by provoking the fight for the purpose of using it as a pretext for Taylor's discharge has also violated Section 8 (b) (2) of the Act. Pacific Coast Marine Firemen, etc. (Pacific Maritime Association ) 107 NLRB 593; NLRB v. George W. Reed , 206 F. 2d 184 (C.A. 9). Member Jenkins would find that the General Counsel's failure to allege in the complaint that by the conduct described therein the Respondent had also violated Section 8 ( b) (2) of the Act does not preclude the Board from passing , as did the Trial Examiner, on the issue He would follow the rule set forth in A:niericaii. Newspaper Publishers Association v NLRB , 193 F 2d 782, 799 (C.A. 7) that Where, as here, the complaint clearly describes an action which is alleged to consti- tute an unfair labor practice, but fails to allege which subsection of the Act has been violated or alleges the wrong subsection , such failure or mistake, if it does not mislead the parties charged , does not prevent the Board from considering and deciding the charge so presented - Member Jenkins would then find that by provoking a fight with Taylor with full knowledge of the company rule and fixed policy that the one who strikes the first blow is subject to discharge and by using it as a pretext for a demand for discharge; the Respondent "attempted to cause" Chrysler to discharge Taylor within the meaning of Section 8 (b) (2) of the Act 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent Local 212, International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Restraining or coercing employees of Chrysler Corporation, Detroit, Michigan, by threatening them with loss of employment or physical violence if they engaged in activities in behalf of Interna- tional Society of Skilled Trades, or International Association of Tool Craftsmen, or their affiliates. (b) Harassing adherents of the said labor organizations by inter- fering with their work and by provoking them into physical violence and violation of Company rules for the purpose of causing their dis- charge by the Company. (c) Causing or attempting to cause Chrysler Corporation, Detroit, Michigan, to discriminate against adherents of the said labor organiza- tions in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) In any other manner restraining or coercing adherents of the said labor organizations employed by Chrysler Corporation, Detroit, Michigan, in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify Chrysler Corporation and the Charging Party, Rholo Taylor, in writing that it has no objection to the Company's employ- ment of Rholo Taylor. (b) Make whole Rholo Taylor for any loss of pay he may have suffered as a result of discrimination, against him, in the manner set forth in section V of the Intermediate Report, entitled "The Remedy." - (c) Post in conspicuous places at its business office in Detroit, Michigan, and in all places where notices or communications to its members are customarily posted, copies of the notice attached hereto marked "Appendix." 4 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- 4In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words, "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." LOCAL 212, UAW 955 ent immediately upon the receipt thereof, and maintained by it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notice is not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Seventh Region signed copies of the notice attached hereto marked "Appendix" for posting, Chrysler Corporation willing, on the bulletin boards of said Company at its Vernon South Plant in Detroit, Michigan, where notices to em- ployees are customarily posted. Such notices are to be posted and maintained for a period of 60 consecutive days after receipt by the Company. (e) Notify the Regional Director for the Seventh Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE TO MEMBERS OF UAW-AFL-CIO AND ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in-order to effectuate the policies of the National Labor Relations Act, as amended, you are notified that : WE WILL NOT restrain or coerce employees of Chrysler Cor- poration, Detroit, Michigan, by threatening them with loss of employment or physical violence if they engage in activities in behalf of International Society of Skilled Trades, or Inter- national Association of Tool Craftsmen, or their affiliates. WE WILL NOT harass adherents of the said labor organizations by interfering with their work and by provoking them into physical violence and violation of the Company rules for the purpose of causing their discharge by the Company. WE WILL NOT in any other manner restrain or coerce adherents of the said labor organizations employed by Chrysler Corpo- ration, Detroit, Michigan, in the exercise of the rights guaran- teed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE,WILL make Rholo Taylor whole for any loss of pay he may have suffered by reason of our discrimination against him. WE WILL notify Chrysler Corporation and the Charging Party in writing that we have no objection to the Company's employ- ment of Rholo Taylor. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees of Chrysler Corporation are free' to become or re- frain from becoming members of International Society of Skilled Trades, or International Association of Tool Craftsmen, or their affiliates. LocAL 212, INTERNATIONAL UNION, UNITED ATITOMOBILE , AIRCRAFT AND AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA, UAW-AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding began with the filing of a charge on April 7, 1958, by Rholo Taylor, herein called Taylor, and with all parties represented, was heard before the duly designated Trial Examiner in Detroit, Michigan, on April 28, 29, and 30, 1959, on complaint of the General Counsel and answer of Local 212, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, herein called the Respondent. The original complaint issued on November 28, 1958. Respondent's several motions, to extend time to file answer and to make the complaint more definite, together with the necessary rulings thereon extended the time for the hearing to April 28, 1959. Prior to the hearing, the General Counsel by letter dated February 13, 1959, served notice to Respondent that he would move to amend the complaint at the hearing. Accordingly such motion was made and granted and a general denial thereto was entered by the Respondent. The major issue in the case is whether Respondent violated Section 8(b)(1) (A) of the National Labor Relations Act, as amended, herein called the Act, by harass- ing and addressing vile and obscene language to Taylor designed to provoke Taylor into resorting to physical violence which would cause his employer, Chrysler Corporation, herein called Chrysler, to discharge him for fighting on company time and property. This then comes down to two questions of fact: (1) Whether Respondent did engage in this alleged conduct; and (2) Whether such conduct did have the predictable result and did cause Taylor to engage in a fight which in turn did cause his discharge. Additional issues involve questions of whether "stewards" and "committeemen" are agents of a labor organization so as to cause it to be responsible for their actions, and whether or not certain other actions taken against other employees violated the same section of the Act. The type of the remedy becomes an issue should a violation be found, as the remedy requested is like the usual remedy for a violation of Section 8(b)(2). However, although alleged in the charge, the complaint does not specify an 8(b) (2) violation. Preliminary Motions and Contentions 1. Respondent contended that the Charging Party was "fronting" for labor or- ganizations not in compliance with Section 9(f), (g), and (h) of the Act. The Trial Examiner ruled at the hearing that a Charging Party alleging a violation of his rights under Section 7 could not be found, under the decisions of the National Labor Relations Board, herein called the Board, to be "fronting " He has reviewed this ruling and is of the same opinion. It is perfectly proper and reasonable for an individual to seek aid and assistance from his friends wherever situated and he accordingly cannot lose any of his rights under Section 7 of the Act if he so acts. 2. Respondent contended that the organizations for which the Charging Party was soliciting were not labor organizations within the meaning of the Act. As Re- spondent Counsel himself referred to them as "labor organizations" and as the General Counsel requested the Trial Examiner to take judicial notice of certain LOCAL 212, UAW 957 Board cases, e.g., Motor Wheel Corporation, 7-RC-3854, 3858 (unpublished) and Gibson Refrigerator Company, 117 NLRB 561, 564, this contention is hereby found to lack merit.' The complaint was amended at the hearing to specifically identify the International Association of Tool Craftsmen in paragraph IV(a) as an affiliate of International Society of Skilled Trades, herein respectively called IATC and ISST. 3. Respondent moved at the hearing to be supplied by General Counsel with a pretrial statement signed by Rholo Taylor, for which he was responsible, and which directly related to his testimony in the proceeding. The statement requested was not made before a Board agent but was made before Chrysler who had given the General Counsel a photostat. The Trial Examiner granted the motion and Respondent was supplied with the statement under the authority of Ra-Rich Manu- facturing Corporation, 121 NLRB 700; title 18, USCA, Sec. 3500; and U.S. v. Palermo, 258 F. 2d 397 (C.A. 2). 4. Motion was made at the trial to strike Mitchell Osmialowski from the plead- ings. General Counsel concurred and motion was granted. 5. Respondent's motion to dismiss, made at the close of the hearing, is dis- posed of in accordance with this decision.2 The parties filed briefs. Upon the entire record, including the briefs, and my observations of the wit- nesses as to their demeanor I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Employer Chrysler, a Delaware corporation, is engaged at its principal office and place of business at Detroit, Michigan, in the business of manufacturing auto- mobiles and automotive equipment. In the course and conduct of its business operations it annually causes to be purchased and transported directly to its place of business in Detroit, Michigan, supplies and materials valued in excess of $1,000,000 in interstate commerce from States of the United States other than the State of Michigan, and annually sells and ships finished products valued in excess of $1,000,000 from its plants in Detroit, Michigan, in interstate commerce to points outside the State of Michigan. The employer has been at all times herein mentioned and is now engaged within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act and at all times material hereto was the collective-bargaining representative of the production and maintenance employees of the Stamping Division of Chrysler, and at all times material hereto maintained and does now maintain business offices at 12101 Mack Avenue in the city of Detroit, Michigan. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The events Taylor was hired by Chrysler as a planer hand on June 28, 1957, and worked as such until Chrysler discharged him 9 months later on March 28, 1958.3 He 1 The Trial Examiner always takes judicial notice of Board decisions with or without request by the parties 'The pertinent provisions of the National Labor Relations Act (61 Stat. 136, as amended, 29 U.S C 151, et seq ), are as follows : SEc. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). * s s s s e s SEc. 8(b). It shall be an unfair labor practice for a labor organization or Its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: . . . . s Case No. 7-CA-1896 alleging violations of Section 8(a) (1), (2), and (3) was' filed against Chrysler but was dismissed by the Regional Director on grounds of insufficient 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked on the first floor in department 57 on the afternoon shift from 3:30 p.m. until 12 midnight. His lunch period was from 8 to 8:30 p.m. There were 300 employees in this department but only 30 in the particular portion where he worked. Andrew Tencza, sometimes called "Andy," was Respondent's chief steward having jurisdiction over these 30 employees. Clarence Grose, called "Gross," was Taylor's foreman and Gerhard Token, sometimes referred to as "Whitey" or "Token" was the general foreman over department 57. 1. The fight Token discharged Taylor at about 3:35 p.m. on March 28, 1958, on the advice of the Labor Relations Counsel of Chrysler. The discharge was for violation of the company rule against fighting on company time and property. This rule was well known by all parties and had consistently been followed. The fight took place on March 25, 1958, shortly after Taylor had resumed work following his lunch period which ended at 8:30 p.m. Respondent Committeeman Stanley Waszkiewicz sometimes called "Stanley" or "Waszkiewicz" had volunteered to come down from the fourth floor with employee Herman Hord, called "Hord," for the purpose of getting back an authorization card which Hord had signed some days earlier. They picked up Respondent's Chief Steward Tencza on the first floor and approached the planer operated by Taylor. (Hord did not know Taylor's name and could not recall anyone ever mentioning it). As they came around the end of this large planer, and confronted Taylor, according to the credited testimony of employee Hubbard corroborated by Hord, Stanley was slightly in front of Andy who was on his left hand and Hord who was on his right hand 4 Stanley asked Taylor if he had solicited Hord. Taylor replied that he had done so. Stanley then said "you give him back his authorization card." 5 Taylor told him he had no authority there and no business there as this was not his Union's [Respondent's] business and asked them to leave. Stanley told Taylor the Respond- ent did not represent him but did represent Hord and they were not leaving; that they were going to get the authorization card. Andy at that time called Taylor a "blank." 6 Andy then said to Taylor "after all we have done for you, you pull this [see Tr. 51 line 21] on us, . . . you are going to stop it now." 7 Taylor told Stanley that the man had never asked for his card whereupon Stanley said, "Well, he's asking for it now" and Taylor replied, "No, he's not asking for it. You are." Stanley turned to Hord and told him to ask for his card whereupon Hord asked for it and Taylor said "you fellows go out of here and you [Hord] come back, and I'll give you your card. If you don't want me to have it I don't want to keep it, but I am not going to pull out my cards in front of these fellows here to look over my shoulder and see who have signed cards or who didn't, or how many I have got, or how many I haven't got." Stanley replied "We're not going out of here until we get it" and he raised his cane or walking stick which he was carrying up in the air and said "you had better start getting it." At that time Taylor turned to walk away but finding the road blocked by people who had gathered around picked up a piece evidence of violations, which dismissal was affirmed by the General Counsel on appeal to him, on December 15, 1958 4 Taylor testified that he had been told earlier during the work shift that Respondent committeemen were going to come after him after lunch and tear his shirt off. (This was an ordinary white short-sleeve shirt with the emblem of the Society of Skilled Trades stamped on the back in black ink. The emblem was a circular design having a 12-inch diameter (General Counsel's Exhibit No. 4). Hubbard, a sweeper in the vicinity of Taylor's planer, spotted the three men first and told Taylor that the committee was after him Taylor told Hubbard to leave as they were coming in to tear his shirt off and he did not want Hubbard to get into trouble, but it was too late. i Chief Steward Andy Tencza disagreed with a few parts of testimony given by Taylor, Hurd, and Hubbard. For example he said he, rather than Stanley, spoke first and that Taylor swore at him before he swore at Taylor. Both Hurd and Hubbard were members in good standing in Respondent and impressed me as being disinterested witnesses and I credit them over the chief steward. The General Counsel's brief states that Heard's name was incorrectly spelled in the transcript as Hurd. As the witness spelled his name Hurd at the trial I will use this spelling 6 The term "blank" is being substituted for the obscene, objectionable and unprintable word called Taylor. For those having an interest in the exact wording it may be found in the transcript at page 51 line 20. 4 Andy, on cross-examination, admitted saying, "We treated you pretty good up here, why don't you go wherever you had the trouble and organize them and leave us alone." LOCAL 212, UAW 959 of wood measuring 2- by 2- by 16-inch and returned to his position. Andy stepped off the platform and blocked Taylor's way and Stanley asked Taylor what he was going to do with the club, Taylor said "the same thing you're going to do with that cane . . . I am going to comb your hair with it if you make an attempt at me with that cane. I am not about to get hit with that cane." Andy then said to Taylor "you `blank' why don't you go back where you came from. We don't want you here anyhow." Taylor laid down the 2- by 2- by 16-inch on the bench and turned to Andy and said "you are a `blank' yourself." Whereupon Andy called Taylor a "son-of-a-bitch" and Taylor hit him once in the face and once in the chest and with his left arm put a headlock on Andy and pulled him over toward the bench. Stanley put his cane across Taylor's throat and with a hand at either end of the cane jerked back on it using his knee in Taylor's back as leverage. At that time employee Hurd, who worked on the machine alongside of Taylor yelled, "Cut it out, Stan. No two men on one." Stanley told Hurd "You get out of here, we will take care of him." As Stanley was pulling back on the cane Taylor picked up the 2- by 2-inch and hit Andy on the head with it. Taylor turned to hit Stanley with the 2- by 2-inch but Hurd took it from him saying, "Don't do it, Taylor." Stanley grabbed Taylor by the arm and said, "Come on Andy, I've got him." Hurd told Andy to stay out of it and Stanley turned Taylor loose saying, "Andy, come on, we will take care of this right away." Whereupon Stanley and Andy went to get General Foreman Superintendent Token. Within a few minutes Token, who had been on another floor when called about the disturbance, came down the elevator and was met by Andy and Stanley who told him that Andy had been hit by Taylor. Token brought them to Taylor's location and asked him to give his story but everytime Taylor would try to say something Stanley would yell, "You're a God damn liar," and Taylor could not tell his side of the story. Token told the men who had gathered around the machine to get back to work and Stanley told Token, "I am requesting this man's payoff." And Token said, "You mean you are telling me to fire the man?" And Stanley replied "Yes." Token refused to fire Taylor and they all went back to work. The following day, March 26, Taylor was interviewed by Chrysler and signed a statement substantially as related above. On March 28, 2 days later, Taylor was advised to come to the employee's labor relations office where Token told him he was discharged. Taylor went to Respondent's vice president on March 3.1 and filed a grievance which on April 4 was taken up at a meeting with the Company's labor relations man and the representatives of Respondent and Taylor. Taylor was told by Chrysler's labor relations man that the Company could not do anything for him because he was low on seniority. The Respondent's vice president did nothing at the meeting. Taylor did all the talking. When the meeting was over, Respondent's Vice President Czerwinski told Taylor he had no case for further action. The collective-bargaining agreement provides for six steps in the grievance procedure culminating in taking the case to an umpire. This case never got beyond the fourth step. Token, corroborated the testimony of Taylor, above. In addition, he testified that Stanley had approached him about a month before March 25 after the lunch period telling him that Taylor should be dismissed as he would cause a lot of trouble and dissension. Token asked how that would be and Stanley said, "Well, he goes around the shop and distributes literature and agitates for this union." Token followed up this report by asking Taylor about his activities and Taylor told him that he distributed the literature only during his lunch time. Token told Taylor not to leave his machine during working time and that same day reported back to Stanley what he and Taylor had talked about. Nothing further happened until March 25. Neither Token nor any of the foremen saw Taylor distributing anything on company time nor were there any complaints from any foreman about the distribution littering the premises. Immediately after the incident on March 25 Token went to his front office and called the labor relations man on the telephone and then prepared the written report of the story as much as he knew it at the time. Token credibly testified that he knew of no incidents when Stanley asked him to enforce a company rule against any employee of the Company prior to the time when he asked for the discharge of Taylor. But after the Taylor incident Stanley asked Token to enforce a company rule some 4 or 5 weeks prior to the hearing in this case. This had to do with a disorderly lineup at checking time at the clock. No time prior to the.Taylor episode had Stanley ever requested the discharge of an employee. Foreman Grose, Taylor's immediate supervisor, credibly testified, that around the 1st of March, Stanley talked-with him with respect to Taylor's activities on behalf 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the SOS (Society of Skilled Trades). Stanley wanted Grose to stop Taylor's distributing handbills and pamphlets on the company property and wanted him to send Taylor back to his own department even though he had said that Taylor was distributing handbills during his lunch hour. Grose told Stanley that he thought it was permissible during lunch period to pass out literature and that if he sent Taylor back he would have to send everybody back to their machines. Grose substantially corroborated Token and Taylor to the extent of his participation in the events related.8 Employee Hurd operated the machine adjoining that of Taylor. The disturbance on March 25 was called to his attention by the loud talking. Among the first words that Hurd could distinctly hear was Taylor's asking Andy and Stanley to go on out and leave him alone that he did not want to have any trouble with them. He then heard Stanley say that he was not going and he heard Andy swear at Taylor. In this respect he corroborated Taylor completely. During the fight, Hurd pulled one of Stanley's hands from the stick which Stanley was pressing against Taylor's throat and told them, "You all had better get on out of here or you all are going to be in trouble"; Stanley replied, "You get on out of here. We will tend to him [Taylor]." Hurd said, "No, you are not both going to jump on him." And by this time Hurd was between Stanley and the others and Stanley said, "Somebody go get Whitey." Hurd gave a statement to the labor relations man of Chrysler the following day before he had ever had any conversation with Taylor with respect to the fight. His testimony at the hearing appeared to be consistent with that given in the earlier statement. Employee Hubbard, who was the sweeper in the area of Taylor's machine, was at Taylor's machine when Stanley and Andy and Hord arrived on March 25 and he corroborated in full the testimony of Taylor and Hurd. As stated earlier in a footnote, I credit Hurd and Hubbard when their testimony varies with that of Chief Steward Andy Tencza. 2. Taylor's activities for the SOS Taylor passed out handbills and authorization cards for the SOS during the lunch period. He so testified, and although some of Respondent's witnesses testified that he passed out literature on company time it is interesting to note that no foreman saw him (even though Committeeman Waszkiewicz reported it to Token and to Grose); the operator at the next machine did not see him; the sweeper never saw him; the man who signed the card that triggered the March 25 episode testified that he received his card at lunch; Big Mike Osmialowski, Respondent's steward, saw him at lunch time; and Steward Paul Thorne, who first called Committeeman Waszkiewicz's attention to the distribution and who went down to the first floor with him (March 10, according to Taylor) and Committeeman George Nicholson to point out Taylor to him and Chief Steward Andy Tencza, testified that Taylor offered him an application at lunch and he could not remember ever having seen him other than at lunch time. Tencza's best recollection of activity other than at lunch was vaguely that he saw him at 11:45 (15 minutes before quitting time) one time somewhere between March 3 and March 25. This testimony thunders against that of Waszkiewicz and Chester Kayne. The latter testified that Taylor passed out literature, "On numerous times. I mean he was over there practically anytime of the day passing them out." He said 10 to 15 times were the occasions, but I of the 2 specific times he could finally identify was the day following the fight and this time was 5 minutes before Taylor's shift started work .9 Waszkiewicz himself com- 8 The General Counsel, in attempting to prove the fact that many employees knew In advance of the Taylor episode that the committeemen were going to "take the shirt off" Taylor's back, established through the testimony of Taylor, Token, and Grose the fact that there were employees in the aisle around the Taylor machine. Grose for example recalled seeing these employees and did not believe they were under his supervision and he saw five or six that were not operating machines. Grose was the first to encounter Stanley and Andy as they were on their way from the Taylor incident and was told by Stanley that Taylor had hit Andy and they wanted Taylor fired Grose told them it was out of his jurisdiction and that he would have to get Token and that Is when he went back to his office and called Token down from the floor where he was located . Taylor identified some of the men who were blocking the aisle before the fight and one was Chester Kayne who worked elsewhere in the plant under another foreman. 8 Kayne further testified that 2 or 3 days before March 25, he saw Taylor passing out literature during working hours but could not answer when asked as to the time of day it was when be actually saw it. I cannot credit Kayne unless his testimony is LOCAL 212, UAW 961 plained to Foreman Grose that Taylor was distributing handbills during his lunch period. Accordingly I find that Taylor passed out literature and solicited authoriza- tion cards only on his own time. 3. Background events (a) The events that took place on March 25 and thereafter need certain back- ground information to bring them into sharp focus. Summarizing the testimony of the witnesses, the credited story is that immediately after Taylor had been hired in June 1957, Respondent's steward on the day shift, Art Kaus, asked Taylor for a journeyman's card. Taylor had no journeyman's card but said that he had letters proving more than 10 years of experience. Kaus told Taylor that he was a number in the shop and not to expect any favors and that Taylor was not going to work there. Taylor had never met Kaus before. Also at about 10 minutes after Taylor had commenced work on June 28, 1957, Chief Steward Andy Tencza came to talk to him. Andy told him that he did not know what was wrong around there, but he said, "we have had men around here 6 weeks, and we haven't asked for a transfer card or a journeyman's card or anything but apparently they are right after you and they are not going to let you get away with it, and I want to know if you have got a journeyman's card." Taylor had never seen Andy before and on the next working day Taylor brought in and gave his letters attesting to his 10 years of experience.io Shortly after Taylor had been hired, Kaus complained that Taylor's jobs were improperly set up. General Foreman Token had Foreman Grose check the job before Taylor commenced work and when he quit at the end of the shift, and there was no more trouble after this machine had started being checked. Approximately in November 1957, the day shift Foreman Brown called the day shift Superintendent Middleburn and Token together at Taylor's machine. The machine in the words of Token ". . . was in a mess. There were planer chips, paper, vegetable matter, everything was strewn around, on and around the machine." On redirect examination of Token with respect to the Kaus incident he testified credibly that he asked Foreman Grose whether he made an independent check on the Kaus complaint and Grose told him that he had made such an independent check and that he found that all the jobs were improperly set up, but that Kaus was the one who had improperly set them up. And that Taylor was not at fault at all. Taylor distributed literature on the fourth floor himself on the ground that the employees there were mostly leaders and committeemen and that they were "difficult" to organize and to talk to and that he didn't want to give this difficult job to one of the other organizers, so he decided to do it himself. Taylor testified without contradiction that the same day or a day or so after Thorne had pointed him out to Tencza, Waszkiewicz, and Nicholson (March 10, 1958) he was distributing handbills in the north wing of the die room in department 57 where Holstein was Respondent's steward. Holstein came over and said, "You don't want to stick around here long, do you?" As Taylor was leaving the premises Holstein said, "We're going to throw you out of here if you don't stop passing that Society literature out." Taylor also testified without contradiction that on March 13, 1958. Steward Tencza came over to his machine and told him he was not "in on" the things that were going on but that when committeemen tell him to do things he has to do as they say. He told Taylor he knew Waszkiewicz was watching to catch Taylor off the job because when he caught him off the job he was going to be fired. This fits in with Token's testimony that about a month before March 25 Waszkiewicz approached Token after lunch and asked Token to discharge Taylor because he would cause a lot of trouble and dissension by distributing literature and agitating for the Society. Taylor also testified without contradiction that on March 24, the day before the fight, Chief Steward Tencza approached him and offered to transfer him to a uncontradicted . Finally, as Waszkiewicz admitted that he and Bayne went to see Token on March 26 about Trial Examiner's Exhibit No. 1, it could have had nothing to do with the earlier request for the discharge or with the fight that caused the discharge. 10 George Nicholson, chairman of the Skilled Shop Committee, came to Taylor's machine with Andy shortly after Taylor had been hired and Nicholson asked for Taylor's with- drawal card Taylor replied he had none, whereupon Nicholson said, "You have been here 2 weeks and you have to deposit it immediately or you can't work here." Taylor and he then looked at the constitution of Respondent and Nicholson said they did not go by the constitution, they made their own laws. The following month Taylor presented his withdrawal card to Respondent and became a member of Respondent but never obtained a UAW journeyman card. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine in the corner saying the operator there had approved it. Taylor refused. He had not asked for a transfer nor did he wish to leave his machine which was out in the open. (b) Committeeman George Nicholson's testimony corroborates Taylor and other credited witnesses. Nicholson remembered the incident of Kaus and whether or not Taylor was a journeyman. He remembered questioning Andy Tencza and Andy had told him that as far as Taylor's papers were concerned that they satisfied him. Nevertheless, he then asked Taylor to see his papers and Andy, who had them, showed them to him. He testified that then he was satisfied that Taylor was a journeyman. Nicholson's testimony with respect to the warning as testified to by Taylor is as follows: ". . . now, on this here, well, you might say Society, I might have warned the man to be careful to how he does it, or don't let Management see him doing it if he continues to do it, and I would appreciate it very much if he didn't do it, or something like that; of course it could be possible that I would correct anybody in the department if I saw them passing out literature of some other union other than the UAW. Especially that was a rule, that no literature could be passed out through the plant, and I cautioned him to be careful. If I couldn't talk him out of doing it at all." He was then asked, "Did you talk to Mr. Taylor along those lines" And answered, "it could have been possible. Q. You don't remember such a conversation?-A. I don't remember, but it could be possible that I would do that." From the vagueness of this testimony it would appear that Taylor's story of the event should be credited. Nicholson further testified that on March 28 he remained after his shift had ended its work in order to meet Taylor in the aisle on his way to the company office. Taylor was on his way to be discharged but he did not know this at the time. However, Nicholson did know that Taylor was going to be fired and he was waiting in the aisle as he said to "volunteer" his services in aiding Taylor before the Company. Nicholson's testimony appears evasive and he kept repeating that the only thing that he knew that was important was that he wanted to represent Taylor and that he had to beg him to represent him. (c) Taylor made certain admissions . He admitted distributing handbills at the rate of almost one each day commencing in February-the last week in February. He specifically identified 13 handbills handed him by Respondent but denied dis- tributing the ones identified as Respondent's Exhibit No 2 and Trial Examiner's Exhibit No. 1. I credit his testimony. Taylor testified that these handbills were distributed on his own time except that it would have been possible for him to distribute material at his machine on company time to anyone who came by but he could not remember having done that nor did any other witness testify that he had done so. He admitted to a few conferences with employee LeVasseur at his machine. There were three or four of those conferences Taylor testified that on March 25 when he attempted to walk around his machine and get away from Stanley, Andy, and Hord he saw Bates, Chester Kayne, a man referred to as Pollack, and another man identified with a small mustache whom he believed to be an alternate committeeman He said these men were standine in various aisles a little more than 20 feet away from his machine standine there looking at him and it was then that he turned around and picked up the 2- by 2-inch. Taylor testified that because of his being blocked by these four men he could not go to talk to the superintendent. He had had previous trouble with some of these men. For example, Chester Kayne and he started a debate in the washroom, and according to Taylor, after it had started Kavne started calling him names . At another time he heard Bates run out in the aisle and yell, "Men, here comes Taylor come on, let's get up in the toilet, because Taylor is going up in the toilet and he will get something started." Taylor testified that from that day on he didn't bother to co to the toilet any more to wash his hands. As Taylor had been warned by General Foreman Token not to leave his job when he saw these men he decided not to leave his machine . The Trial Examiner permitted Taylor to testify, over the objections of the General Counsel, to the jobs he previously had held on the ground that this testimony would later on be connected up to become pertinent in the inquiry. An examination of this testimony does not disclose the relevance to this proceeding and accordingly is not being used in this decision. (d) Hord, a member of Respondent, worked the same shift as Taylor but on the fourth floor where his department steward was Paul Thome. He knew Stanley Waszkiewicz as a committeeman . He credibly testified that after lunch on March 25. 1958, Stanley approached him and started a conversation by asking if anybody had signed any authorization cards and Hord told him that be-had done so Stanley asked Hord if he would like to get it back and Hord said, `.Well, the way I understood LOCAL 212, UAW 963 it, I thought the rest of them had signed cards." Hord was a new employee. He testified that nobody had ever told him any different and he had just taken it for granted that by passing out the literature up there that it was all right. He was asked what did Stanley say to him at that point and he replied, "He asked me if I would like to get the card back and he said that there hadn't been anybody on the fourth floor that he knew of that had signed a card." 11 After Stanley had said this, Hord said that he would like to get the card back and testified that Stanley volun- teered to go down with him. He did not talk to his foreman first to get permission before he went down from the fourth floor and when he and Stanley reached Andy Tencza, Stanley told Andy that Hord wanted to get his card back and Andy said "Let's go over and get it back." Hord testified that when they arrived at Taylor's machine Stanley started the conversation saying that Hord wanted his card back. From then on Hord substantiates the testimony of Taylor and the testimony of Hubbard with respect to the relative position of the parties just prior to the fight. He changed his testimony to conform with what he apparently had said in a state- ment which he had made right after the fight, and corroborated Taylor's testimony in that Taylor told him to come back after the others had left and that he would give him his card back. He could not remember seeing Taylor on company time and he did not think that he asked Stanley to accompany him to get his card back and Stanley did not indicate that he knew who gave him the card or where Taylor worked but he did indicate to Hord that the two should go down and get Andy, but Stanley did not tell him that Andy was the chief steward for department 57. (e) Employee LeVasseur also distributed cards for the Society of Skilled Trades. He worked on the same shift as Taylor and in the same department. His foreman was Fred Hambilton and his steward is Holstein. Holstein's machine is alongside of his and in the latter part of February or the first part of March, Holstein came over to LeVasseur and told him that he had heard he was distributing cards and literature. LeVasseur told him he did not see anything wrong with that as he just laid the cards down and the fellows knew what it was all about anyway. Where- upon Holstein told him that he should not have done it, that there was no need of changing a horse in the middle of the stream or something to that effect. LeVasseur told him that they at least should have a voice in the Union that they were in the minority and that was one way of getting recognition, by having a voice, by the skilled tradesmen having a voice in the Union. Holstein told him that that was all taken care of at the meeting that he had just returned from in New Jersey. LeVasseur testified that he did not believe that. George Nicholson, committeeman for Re- spondent told LeVasseur about the meeting in New Jersey and told him that he should not have distributed the cards and literature and not to do it again. This conversa- tion with Nicholson took place before the start of the shift. Nicholson told LeVasseur that he had better stop putting out his literature and that if the thing ever came to a vote that the Respondent had better win. After the conversation with Holstein and Nicholson, LeVasseur passed out literature only once more, about a week later. LeVasseur testified that jobbing shops were paying more in wages than the skilled trades were getting at Chrysler by about 60 cents an hour and that there was agitation among the men for higher wages. (f) Marvin Hurd, who operated the machine next to Taylor, credibly testified that during the week before March 25, Chief Steward Andy Tencza solicited him during working hours for a contribution as two employees were retiring. Hurd gave him whatever Andy said he should and Andy said, "I don't know whether to ask Taylor for a donation or not, because we're going to try to get him put out of here legally tomorrow." He asked Hurd what he would do and Hurd replied, "I wouldn't ask the man for no donation if I was trying to get him fired." Andy responded by saying, "Well, I'll not." Taylor was not solicited by Andy. Andy testified in effect that the reason he never solicited Taylor was because of the earlier trouble over Taylor's journeyman status and Taylor's union activities, yet Andy had testified that he and Taylor had shaken hands after their "understanding" that Taylor could talk for his union and Andy would follow up by talking for Respondent. If they had shaken hands and Andy did want to be on friendly terms with Taylor, it would seem that a mutually agreeable common ground would be that of fellowship in bidding a fellow worker goodby upon retirement. Accordingly I do not credit Andy's version of why he did not solicit Taylor, but credit Hurd's version. 11 The Trial Examiner has no way of knowing whether Stanley actually knew if anybody on the fourth floor signed a card but the facts are that several employees on the fourth floor had signed cards.' 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Credibility Resolutions It is the great responsibility of Trial Examiners to make findings of fact in cases such as this. And as can be imagined in the dynamic field of labor-management relations, feelings can run high and tempers short and the ability of an eye witness to see events with the clarity of a trained observer having no interest in the matter whatsoever is, to say the least, considerably weakened. Accordingly the demeanor of witnesses was studied at the trial and the record with the conflicting versions was weighed. Certain imponderables have been noted in the record and have been considered.12 There is no question but that Taylor was aggressive. Two instances bring this out: (1) when he took upon himself the job of distributing the literature on the fourth floor where the committeemen of Respondent worked; and (2) when he distributed the handbill to one of Respondent's stewards, Paul Thorne, and tried to get him to take it and read it. Likewise there is sufficient testimony that Respond- ent's committeemen and stewards knew of Taylor's activity and the very act of Thome's taking Respondent Committeeman Waszkiewicz from the fourth floor to the first floor to point out Taylor to him shows the concern that Respondent's agents had over Taylor's activities. Also Respondent's vice president testified respecting this concern. Respondent even had a meeting of agents at which time they decided how they wound counteract this SOS activity. Committeeman Waszkiewicz himself admits that his policy when he sees an employee doing something not approved by the rules, is to go to him and straighten him out, call his attention to the rules. However even though he said that Taylor was distributing this literature in violation of the rules he did not go to Taylor at any time. Rather he went only to General Foreman Token. In the light of this and other testimony, such as Taylor's testimony that Holstein told him, "We're going to throw you out of here if you don't stop passing that Society literature out"; the "concern" that Respondent Vice President Czerwinski had with respect to Taylor's discharge; the earnest request by George Nicholson, another of Respondent's committeemen, begging Taylor to represent him in a grievance; the fact that he knew of the discharge ahead of Taylor; the fact that none of supervision of Chrysler, whose duty it was to maintain order and see that work was being properly performed, testified that Taylor distributed literature on company time, which was the testimony of some of Respondent's witnesses, leads me to credit generally the testimony of witnesses for the General Counsel par- ticularly that of Taylor, Hurd, Hubbard, and Employer's supervisors. Except for Taylor, these other witnesses have no ground for bias yet they corroborate Taylor. This, plus the demeanor of all witnesses, leads to my credibility determinations. B. Defenses and concluding findings One of Respondent's defenses, in effect, is based on the ground that it could not restrain or coerce employees within the meaning of the Act by virtue of the fact that its stewards and committeemen executed the duty to see that the contract between Respondent and Chrysler was obeyed as to its working conditions and when violations were noted to bring them to the attention of Chrysler's supervisors. Specifically, they called attention to sections 4 and 5 of the September 1, 1955, con- tract which prohibits distribution of literature on the Employer's property 13 and solicitation of the funds on Employer's property, respectively. The defense goes that as they saw Taylor violate these sections they called the attention of the Em- ployer to them like they called the attention of General Foreman Token to the fight by Taylor. This defense lacks merit for three reasons: (1) They themselves violated the contract as witnessed by the solicitation of funds by Chief Steward ii "To say that the Board must disregard what preceded and what followed the . . . [activity in question] would be to require it to shut its eyes to potent imponderables permeating this entire record. The detection and appraisal of such imponderables are indeed one of the essential functions of an expert administrative agency," [Mr Justice Douglas, International Associatoon of Mach4i9sts etc., Lodge No. S5 (Serrtick Corp) v. N L R.B , 311 U S 72, 79 ] See also the section entitled "Credibility," particularly cases cited therein in the Intermediate Report of Trial Examiner Henry S. Salim in Common- wealth Extension Corporation, Case No 24-CA-1042, issued on October 28, 1959. As no exceptions were filed, the decision automatically becomes the decision of the Board, but it is not printed. Accordingly I'am reproducing excerpts thereof in an addendum attached hereto. is The question of law as to whether section 4 is valid or illegal as being too broad and restrictive, need not be reached in this case. I assume, without deciding, that the rule is valid. LOCAL 212, UAW 965 Tencza, and leaving their work stations without permission; (2) they never invoked the contract against solicitors other than Taylor; and (3) the request for a discharge on the ground of a fight was only a pretext. They had requested Taylor's discharge before the Employer could have determined the facts of the case and their motive remained the same as it was a month earlier when they requested the discharge of Taylor because he was agitating for the SOS.14 It is abundantly clear from testimony of Czerwinski that the employer had a fixed policy that the one who strikes a blow is paid off. With full knowledge of this policy one who insists on invoking the policy causes a discharge.15 Further, the request for discharge made early in March was dropped when Token told Waszkiewicz that Taylor was only distributing litera- ture during his lunch period. The General Counsel also established by a preponderance of the evidence that no requests to discharge employees for violation of a working rule had been made prior to Taylor but that once afterward a request was made. This fact linked with the fact that Respondent's Committee Chairman Nicholson begged to represent Taylor yet neither he nor Respondent's vice president did anything with respect to Taylor's grievance except attend the meetings and tell Taylor he had no case, lead me to infer that not only was the request to discharge a pretext but also that Re- spondent never intended to represent Taylor in the prosecution of his grievance and by such action of deliberate inaction seal Taylor's discharge without further recourse. Another defense is that the issue is limited solely to Taylor (Taylor's discharge) as activities of others for the Society of Skilled Trades, such as that of Leo LeVasseur, were carried on without restraint or coercion. This blandly assumes that once a union becomes the bargaining agent for employees, any restraints or coercion it applies to its members can no longer be illegal. Of course this proposition is false Section 7 of the Act gives employees certain rights against both employers and labor organizations , namely, the right to joint or not to join and to engage in concerted activity free of restraint or corecion (within an exception not pertinent here). The law is clear that unions may apply their own sanctions with respect to membership so long as these do not coerce or restrain yet we know any sanction would tend to interfere. Employers cannot interfere with, restrain, or coerce em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On the other hand, a labor organization or its agents may interfere with but not restrain or coerce. Interference with these rights such as providing reasonable uniform rules of conduct of members including loss of membership for engaging in dual union activities would not violate the law, but acts that restrain or coerce are illegal. For example, to threaten an employee with physical violence should he disobey a union rule, in itself reasonable, would be coercive, thus to threaten an employee with physical harm for crossing the union's picket line is coercive. Likewise it was coercive for Committeeman Waszkiewicz and Chief Steward Tencza to descend upon Taylor with an upraised cane and demand an authorization card from Taylor saying, we're not going out of here until you get it you had better start getting it." Obviously, and I so find: (1) this is an actual threat of physical harm unless Taylor should refrain from exercising his rights under Section 7 to secure authori- zation cards. Likewise the following incidents violate Section 8(b) (1) (A) of the Act as they also restrain or coerce employees in the exercise of their guaranteed rights; (2) Steward Kaus' statement to Taylor after his hire that Taylor was not going to work there because he had no journeyman's card; (3) Committee Chair- man George Nicholson's statement that Taylor had to deposit his withdrawal card 2 weeks after commencing work or he could not work there; (4) Steward Holstein's threat to Taylor, "We're going to throw you out of here if you don't stop passing that Society literature out"; (5) Chief Steward Tencza's attempt on March 24, to transfer Taylor to another machine in the corner out of the way was an implied threat that if he did not stop his activities for SOS he would be discriminated against by being shifted from one job to another; and (6) Respondent's request to discharge 14 Although Vice President Czerwinski testified that after handling some 3,000 discharge cases he had become immune to them, he said he was "upset " over Taylor's discharge as Taylor might start a case like this one. His knowledge of Taylor's character was based on, "Well, it all revolved on the SOS , the organizational drive in the plant" 11 Respondent's committeeman, Waszkiewicz , testified as to his general policy of correct- ing members ' behavior, "Well , if you observe any person doing wrong or on the verge of what might be getting into trouble, you try to keep the individual straight." Yet as to his policy with respect to Taylor, he testified, "All I wanted was the information whether the man was doing the thing or not [ soliciting by distributing literature]." And he never talked to Taylor nor asked Chief Steward Tencza to do so. 577684-61-vol 128-62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor on the ostensible ground of the fight. It appears that the real reason for the discharge was that Taylor was engaging in activities on behalf of the Society of Skilled Trades. Accordingly the ground of fighting is merely a pretext. It is clear from the testimony above that the invocation of the working rules were obviously done when it served Respondent's own purposes. Also, the evidence shows a deliberate plan on the part of Respondent starting with the meeting as testified to by the vice president, of stewards, committeemen, and officers of Respondent to map out its strategy to combat the Society activity. Thus the raised cane, the refusal to leave Taylor's area without Hord's card; the deliberate unnecessary obscene language hurled at a person known to be aggressive and independent; the careful restraint of Tencza and Waszkiewicz not to strike back at Taylor-an act totally out of character with their swearing and actions in the plant; Tencza's statement to Hurd, made when he asked Hurd for a contribution, that they were going to get Taylor fired legally; and the presence of witnesses to the fight, such as Kayne who, except for the knowledge that there was going to be a fight, had no business in the area as his work station was not within the area of the fight. From these facts, a rumor that the committeemen were going to tear off Taylor's shirt which had on it the large emblem of his union could well originate, and I find that there was this rumor in the shop, and this rumor was based upon the activities of Respondent's agents. In view of these findings and because the remedy would be the same in any event, it is unnecessary to rule on whether or not Nicholson's or Holstein's comments to LeVasseur violated the Act. The charge as filed alleged a violation of Section 8(b)(2) of the Act as well as a violation of Section 8(b)(1)(A). However the complaint does not mention a vio- lation of 8(b)(2). As the remedy requested by the General Counsel is the usual remedy for a violation of Section 8(b) (2) I will find a violation of Section 8(b) (2) of the Act. Obviously there was an attempt to cause the Employer to discharge Taylor in derogation of his right to engage in protected concerted activities when Committeeman Waszkiewicz asked Token to fire Taylor early in March. Likewise as I have found the fight was deliberately provoked, the request to fire Taylor for fighting was likewise an attempt to cause Taylor's discharge in violation of Section 8(b)(2). As the parties litigated this aspect of the case, the law of the Board is clear that I should rule on the issue. As the acts of chief steward, committeemen, and vice president of Respondent acting in apparent authority are attributable to Respondent, I find it, as well as its agents, violated the Act as above.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the employees 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 obstructing commerce and the free flow of commerce. V. THE REMEDY I will recommend the usual remedy requiring Respondent to cease and desist from engaging in the conduct found above under section III, B, (1), (2), (3), (4), (5), and (6). Additionally, as urged by the General Counsel in his brief, I shall order Respondent to make whole Taylor for any loss of pay he may have suffered by reason of Re- spondent's causing his discharge by Chrysler, and I shall direct Respondent to exer- cise good-faith action in pursuing contractual rights, including arbitration, in securing Taylor's reinstatement to his former position or its substantial equivalent. Additionally, I shall order Respondent to notify Chrysler that it engaged in a deliberate plan to cause Taylor's discharge and to ask Chrysler to give consideration of this action and to make any exceptions to its policy necessary in order to reinstate Taylor. Because the evidence indicates that Taylor was interrogated and questioned closely by Respondent's agents and coerced with respect to his journeyman status when hired, and as this may occur in the future, I shall order Respondent to write him a letter over the signature of its president that he is entitled to job assignments on a nondiscriminatory basis as a journeyman based upon letters showing over 10 years' experience. It is clear that the Board has these powers to fashion any remedy reasonably related to the violation of the Act. N.L.R.B. v. Express Publishing Company, 312 79 See Gimbel Brothers, Ino., 100 NLRB 870, 877, footnote 17. LOCAL 212, UAW 967 U.S. 426, Phelps Dodge Corp. v. N.L.R.B. 313 U.S. 177. It is reasonable to require the Respondent to remedy its unfair labor practices by reimbursing Taylor for wages lost, inasmuch as it succeeded in getting him fired in carrying out a scheme which under the Act is illegal. Even if I were to find no violation of Section 8(b) (2) here I would order the same remedy as it is the way to effectuate the policies of the Act. The following are authorities for the above reasoning. Pacific Coast Marine Firemen, Oilers, Watertenders and Wipers Association, Ind. (Pacific Maritime As- sociation), 107 NLRB 593, 594, 595; Hudson Motor Car Company, 34 NLRB 815, 826; Star Publishing Company, 4 NLRB 498, 505; J. I. Case Company, 198 F. 2d 919 (C.A. 8); Modern Motors, Incorporated, 198 F. 2d 925, (C.A. 8); United States Cold Storage Corporation, 96 NLRB 1108, 1112; Talladega Cotton Factory, 106 NLRB 295, enfd. 213 F. 2d 208 (C.A. 5) where the Board reinstated a supervisor under 8(a)(1); George W. Reed, 206 F. 2d 184 (C.A. 9); Bausch & Lomb Optical Company, 107 NLRB 790; and D'Arcy Company, Inc., 115 NLRB 1320. In order to insure expeditious compliance with the recommended backpay order, I shall recommend that Chrysler, upon reasonable request, make any pertinent records available to the Board and its agents.17 As the violation found is against basic rights of employees and seemingly would be practiced against employees of any employer, I will cause Respondent to cease and desist doing these acts with respect to employees of any employer. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Chrysler is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing Chrysler to discharge Rholo Taylor in order to keep him from distributing literature and authorization cards on his own time for a union other that Respondent, Respondent engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. By the above conduct, and by otherwise restraining and coercing employees of Chrysler in the exercise of rights guaranted them by Section 7 of the Act, as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. [Recommendations omitted from publication.] 11 P. W. Woolworth Company, 90 NLRB 289. ADDENDUM CREDIBILITY Respondent in its brief has gone into great detail with respect to the question of credibility as this is a case where the General Counsel's witnesses are contradicted on all the salient issues by the witnesses for the Respondent. It might be well, therefore, to consider this matter of credibility in some detail. After observing the witnesses, analyzing the record and inferences to be drawn therefrom, and reconciling where possible, the conflicting evidence, the Trial Examiner concludes that the substantive testimony of the General Counsel's wit- nesses, in the main, is reliable because it is consistent with certain undisputed and demonstrable facts in this case, the details of which are discussed in later sections of this report. This conclusion is based also on my observation of the witnesses with respect to the accuracy of their memories, their comprehension and their general demeanor on the stand in answering the questions put to them. However, it is not meant to imply that the trier of these facts accepts as credible everything that was said by all the General Counsel's witnesses. It suffices to say, in the words of Judge Learned Hand, that: "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." 4 s * * s s s ► In crediting some witnesses and discrediting others, given weight to certain evi- dence as against other evidence, drawn inferences from circumstantial and con- 4 N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds, 340 U.S. 474. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flitting evidence, and come to certain conclusions , the Trial Examiner has neces- sarily had to detect and appraise various "potent imponderables permeating the entire record." 5 One of these "potent imponderables" is the demeanor of witnesses in testifying, particularly where the trier of the facts' findings rests on the evaluation of the credibility of oral testimony. The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving issues of credibility." 6 Cred- ibility findings rest to varying degrees upon the evaluation placed by the trier of the facts upon the demeanor of witnesses. This type of evidence which does not appear in the record and is comprised of elusive intangibles and "potent im- ponderables" which are difficult to capture and to describe by written words, often make it difficult for the trier of the facts to convey or describe the impression which a particular witness makes upon him. This difficulty is inherent in making cred- ibility findings where the trier of the facts must choose between discordant versions of witnesses whom he has seen because the record does not reveal that part of the evidence which may have determined his choice.? Judge Learned Hand describes it as "[findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any rational choice. . . . nothing is more difficult than to disentangle the motives of another's conduct-motives fre- quently unknown even to the actor himself. But for that reason those parts of the evidence which are lost in print become especially pregnant " 8 As the Board stated in Roadway Express, Inc., 108 NLRB 874, 875: "Credibility findings may rest entirely upon evidence through observation which words do not, and could not, either preserve or describe." Of course, in the type of issues disputed in this proceeding, where the witnesses of the General Counsel and Respondent are in sharp conflict and diametrically opposed in their respective versions as to what actually occurred, the process of hearing can produce only a belief concerning what the facts are, rather than a disclosure of the facts themselves. The trier of the facts must, therefore, be content to have a belief concerning the facts, rather than knowledge of them. In crediting or discrediting a witness' testimony, there are gaps to be filled, ambiguities to be resolved, inconsistencies to be considered which cannot, in many instances, be determined exclusively upon the basis of the cold record. The trier of the facts is often acutely aware that a witness he is crediting may, in testifying, have been vague, hazy, inconsistent and lacking in the attributes of the classic fictional witness whose demeanor is impeccable and testimony perfect in all regards. Unfortunately, the realities of litigation are otherwise. Witnesses are on occasion fouled by the air of bias, partisanship, overzealousness, and other emotions to which the human flesh is subject. Witnesses do not emerge from antiseptic surroundings nor do they testify in a vacuum which protects them from the failings to which the human mind and spirit are subject. Moreover, unconscious and unintentional inconsistencies understandably creep into a record when it is considered that witnesses testify from memory as to events and conversations that may have taken place long before the hearing was held and the testimony given. If in order for the trier of the facts to credit a witness his testimony must be found to be lucid, unambiguous, and consistent in all details, there would be few, if any, instances, where witnesses could meet such exacting and unrealistic requisites. This would result in an inability to "make specific credibility findings as to testimonial evidence necessary to support material findings of fact"; one of the most vital func- tions of a Trial Examiner.9 Therefore, to point out inconsistencies in the testimony of a witness credited by the trier of the facts adds nothing and may amount to petty carping when it is not kept in mind that: "It is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial 5 The International Association of Machinists etc. (Serrick Corp ) v N.L R B , 311 TJ S 72, 79 8 Hadley Manufacturing Corporation , 108 NLRB 1641, 1643; Roxboro Cotton Mills, 97 NLRB 1359, at 1368 where the Board said : " . . the Trial Examiner made no reference to the demeanor of either witness-as to which it is our policy to attach great weight." 4 N L.R.B. v James Thompson t Co , Inc., 208 F. 2d 743, 746 (C.A. 2) ; N.L.R B. v. Chautauqua Hardware Corp., 108 F. 2d 750, 751 (C.A. 2) ; Casa Grande Cotton Oil Mill, 110 NLRB 1834, at 1836. 8 N L R.B. v. Universal Camera Corporation, supra, 190 F. 2d 429, 430, 431 (C.A. 2). 9 Cf Casa Grande Cotton Oil Mill, supra. PETERSEN CONSTRUCTION CORP., ETC. 969 decisions than to believe some and not all." 10 Accordingly, the one who hears and sees the witnesses testify must, where the conflicting versions are diametrically op- posed, often necessarily depend on subtle interpretations, delicate nuances and inde- finable impressions derived from observing the witnesses testifying which the cold record does not convey. Of course, the record often reveals, exclusive of so-called de- meanor testimony, where the truth lies. It is only where, at the end of the trier of the facts' deliberations, that his resolutions of credibility still remain balanced in doubt that recourse must often be had to the witnesses' demeanor. It is often quite difficult, if not impossible, in some instances to describe by the written word, the impressions derived from observing a witness testify. Not only would it not serve any useful purpose but it would unduly prolong and add nothing to an Intermediate Report to describe a witness as having a furtive look, a nervous twitch, becoming flushed in the face or perspiring freely. Those indicia are better left unsaid in the hope that judgment as to such matters should be left to the sense and experience of the one who observed the witnesses, guided, of course, by stand- ards laid down by the Board and the courts. Then too, in evaluating a witness' testimony as credible or incredible, which is based exclusively on demeanor evidence, the trier of the facts must necessarily adopt an empirical approach as he is not dealing with absolutes or generic matters. There- fore, human factors, emotions, and the "intangible imponderables" present at every hearing militate against the substitution of another's judgment as to where the truth lies as, here again, different concepts, indicia, and standards, not only legal but also ethical may be applied, depending on what the individual trier of the facts conceives and defines these factors to be and how he relates them to the peculiar circumstances present in any given case in which a credibility finding is made based upon demeanor testimony. By this discussion of the evaluation placed upon the demeanor of the witnesses in testifying, it is not intended to convey the impression that consideration was given exclusively to this type of evidence in this proceeding in determining credibility. This was only one factor. Concomitant consideration was given equally to the surrounding circumstances, and the consistency or inconsistency of individual wit- nesses' testimony with uncontroverted evidence and demonstrable facts in determin- ing which version should be credited. Moreover, in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witnesses' testimony on direct examination with what he testified to on his cross- examination. As was succinctly stated in an Intermediate Report: "A would-be deceiver weaves a tangled web, and cross-examination is usually an effective device to enmesh the perpetrator of the embellished lie." 11 [Excerpts from Intermediate Report of Trial Examiner Henry S. Salim in Com- monwealth Extension Corporation, Case No. 24-CA-1042 issued October 28, 1959.] 10 Footnote 4, supra u Santa Clara Lemon A ssociation, 112 NLRB 93, 104. Petersen Construction Corp .; Southern California Chapter of the Associated General Contractors of America; Building Contractors Association of California, Inc.; Engineering and Grading Contractors Association , Inc.; and Home Builders Association and William Van Buskirk Hod Carriers and Common Laborers Union Bakersfield Local 220, Santa Barbara Local 195, Los Angeles Local 300, Bishop Local 302, Los Angeles Local 345, Pasadena Local 439, Long Beach Local 507, Ventura Local 585, Santa Barbara Local 591, Santa Ana Local 652, Pico Local 696, Hollywood Local 724, San Bernardino Local 783, Wilmington Local 802, Pomona Local 806, Los Angeles Local 923, El Centro Local 1119, Los 128 NLRB No. 123.