Phillips Chemical Co.

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips Chemical Company and Oil, Chemical and Atomic Workers International Union . Case No. 16-CA-1514. May 16, 1962 DECISION AND ORDER On February 19, 1962, Trial Examiner Morton D. Friedman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report to- gether 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, Fanning, and Brown]. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Morton D. Fried- man, the duly designated Trial Examiner, in Dumas, Texas, on October 11 and 12, 1961, on a charge filed July 17, 1961, and the complaint of the General Counsel issued August 24, 1961, and answer by the Phillips Chemical Company. The sole issue liti- gated was whether Phillips Chemical Company, herein called the Company or the Respondent, discriminatorily discharged Weldon B. Tatom in violation of Section 8(a) (3) and (1) of the Act. All parties were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence, to present oral argument, and thereafter to file briefs. The parties waived oral argument. Briefs were received from the General Counsel and from counsel for the Respondent. Upon the entire record, and from my observation of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, maintains its principal office and place of business in the city of Bartlesville, Oklahoma; maintains a plant at Etter, Texas, and various other plants, warehouses, and places of business and other facilities in the States of Texas, Oklahoma, and Washington and at all times material herein is and has been engaged at said plants and locations in the manufacture and distribu- 'Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his or her demeanor as I observed it at the time the testimony was given. Cf. Bryan Brothera Packing Company, 129 NLRB 285. To the extent that I indicate hereafter that I reject in part or entirely the testimony of any given witness, it is my Intent thereby to indicate that such part or whole of a testimony, as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1. 137 NLRB No. 20. PHILLIPS CHEMICAL COMPANY 143, tion of ammonia, ammonium nitrate products , and other petro-chemical products. The Respondent's Cactus plant at Etter, Texas, is the only plant involved in this. proceeding. During the year immediately preceding the filing of the complaint herein, a repre- sentative period, the Respondent purchased, transferred, and delivered to its Cactus. plant materials and supplies directly from points outside the State of Texas of a value in excess of $50,000. During the same period, the Respondent sold and shipped from its Cactus plant directly to points outside the State of Texas products valued in excess of $50,000. Accordingly, I find that the Respondent is engaged in commerce within the mean- ing of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. It. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, the Charging Party in this proceeding, herein called the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act.2 III. THE UNFAIR LABOR PRACTICES A. Background and issues The Union represents the production and maintenance employees at the Respond- ent's Cactus plant. On January 7, 1961, the employees went out on a union-called strike over contract terms and the strike continued until April 19, 1961. The strike was marked by a number of incidents in which property belonging to nonstriking employees in the bargaining unit and belonging to the Company was damaged. Thus, automobiles belonging to nonstrikers were splashed with paint, windows and wind- shields of such automobiles were broken, and chains were thrown over powerline wires at the Respondent's plant resulting in short circuits. Other tactics engaged in by strikers and their wives were the harassment of nonstrikers by parading and honking of horns through the streets of Cactus Courts, a company-owned housing development, about 1 mile from the plant and the "convoying" of nonstrikers' auto- mobiles, whereby the nonstrikers were slowed down on their way to the plant to work. On February 28, 1961, the windshield of an automobile belonging to David John Anderson, a nonstriking employee, was shot at and broken while the car was parked in front of Anderson's apartment in Cactus Courts. Weldon B. Tatom, a striking union member, was accused of this destruction and after investigation by company investigators he was discharged on March 4, 1961, and was not reinstated at the end of the strike.3 The reason assigned by the Company for the discharge was the alleged shooting of Anderson's automobile windshield. The General Counsel concedes the Respondent's good faith in discharging Tatom. However, the General Counsel contends that the Respondent's good faith not being an issue, the sole issue is whether Tatom did or did not commit the offense for which he was discharged; if he did commit the offense then the discharge was justified, if he did not, then the discharge is discriminatory in that in such event Tatom's discharge was for union activity. The General Counsel, of course, further contends that Tatom did not shoot Anderson's windshield, as alleged, whereas the Respondent contends that Tatom did. It is in this context that this issue was tried. B. The evidence The facts with regard to the events of the evening of February 28, 1961, are that at approximately 10.20 p m. that evening the automobile windshield of David J. Anderson, a nonstriking employee of the Respondent, who resided at No. 707 Cactus Courts, a company-owned housing facility, was shot at and damaged. It is also uncontroverted that during the evening hours preceding the incident, Weldon Tatom's automobile, a maroon bottomed, white topped, 1955 Buick, was seen circling through and about the streets of Cactus Courts and upon a number of occasions dur- ing that evening passed the home of Anderson. It is further established that at approximately 10 p.m. Tatom alighted from his car in front of his apartment at 650 Cactus Courts, went into the house, stayed several minutes, came out, and reentered his car. Furthermore, later on during that evening from approximately 10 until' about 11 p.m. there was a meeting of the wives of strikers at strike headquarters, a barn at Etter, approximately 2 miles south of the Cactus Courts location. 2 From a stipulation made on the record by the parties 8 Tatom was also charged by the Grand Jury of Moore County, Texas, with unlawful destruction of personal property 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tatom testified that in the early part of the evening he had been home and had received as guests his brother-in-law and the latter's wife about 6 p in. These visitors remained until about 8:30 or 9 p.m., but about 8:15 p.m., a Mr. Keys drove by and they went to strike headquarters at Etter. Keys was a striking employee of the Respondent as was Tatom and his brother-in-law. Tatom further testified that they remained at strike headquarters approximately 15 or 20 minutes and then returned to Tatom's home about 8:40 or 8:45 p in. They talked in Tatom's apartment for a while and then Tatom's brother-in-law and sister-in-law left at approximately 9 o'clock. Soon thereafter, according to Tatom, he and his wife left their own apart- ment and went to the home of Jack Harlan, another striking employee, in apartment 674 Cactus Courts, a distance of approximately two blocks from Tatom's home. When they arrived at Harlan's home there were several women having coffee who were the wives of striking employees. Harlan was also home. Harlan, like Tatom, was a striking employee. They had coffee at Harlan's home and then Tatom and Harlan left to go to strike headquarters in Etter. They went in Tatom's car which Harlan drove because Tatom had complained to Harlan that he was having difficulty with the automatic transmission and Harlan, who had also had a car of the same model, wanted to drive to see what, if anything, he could advise Tatom concerning the transmission. Before proceeding to strike headquarters, they drove around the Cactus Courts a few times, and while driving around Tatom saw the car of Jim Shipmen which Tatom recognized as a green 1960 Chevrolet with a radio antenna on the back end. Shipmen is an investigator for the Respondent and the man in charge of the investigation of the instant incident. After they drove around the Courts they stopped at Tatom's apartment and Tatom went in to get some cigarettes. He was inside about 3 minutes and while he was there he saw a Mrs. Sherrod, the wife of another striker, near his house. She asked Tatom if the latter's wife would like to go to headquarters with her to a meeting they were having. This was at approximately 10 o'clock. Thereafter, from his home Tatom proceeded, with Harlan still at the wheel, to the strike headquarters at Etter, arriving there at approximately 10.05 p in. They sat around, drank coffee, and talked. There were approximately 25 or 30 women present. Tatom further testified that he and Harlan stayed at strike headquarters until about 11 o'clock when they went up to the Dalhart Highway .4 Tatom additionally testified that he first learned of the shooting incident when he was served with a summons on March 1 in a criminal proceeding which was started by Anderson's filing of a charge against him Shortly thereafter Tatom was inter- viewed by Shipmen who was investigating the incident on behalf of the Company. Tatom testified that, as he told Shipmen, he knew Anderson for about 11 years and had visited Anderson's house only once, around the year 1953 when he had borrowed a shotgun from him. Anderson and Tatom had not had any words and so far as Tatom knew they were not enemies in any respect. Tatom admitted that he had several guns including an air pellet pistol which had not been operable for the last 2 or 3 years as one of his children had ruined it. Tatom further testified that he knew little about what was going on which regard to the incidents other than the one with which we are here concerned that occurred in the housing development. He stated that while he was on strike he was gainfully employed at a nearby grain elevator and was working about 12 hours a day during that period of time. Harlan, who was on the union negotiating committee during the strike, testified that he was at home during the evening of February 28 from about 6 until 9 p.m. at which time several people came in, among them Weldon Tatom and his wife. About 9, or a little thereafter, he left with Tatom in the latter's automobile and they drove around the Courts. Harlan drove for the reason that he was trying to see if he could find out what was wrong with the transmission in Tatom's car. After driving around the Courts several times they went to Tatom's house just before 10 o'clock to pick up cigarettes and from there went directly to the strike headquarters at Etter, arriving about 10 o'clock. They remained in strike headquarters until a little after 11 at which time they drove out to the Dalhart Highway. Harlan was with Tatom during the time they were at strike headquarters. Supporting Tatom's alibi that he was not in the Cactus Courts at any time between 10 and 11 p.m. on February 28 was Joyce Evelyn King who testified that on the evening in question she spent the early part thereof in the company of a number of men and women at Harlan's house along with Mr. and Mrs. Tatom. Ap- proximately between 9:30 and 9:45 she left in her automobile with Mrs. Sherrod, 4 There was some testimony as to what Tatom was doing up at the Dalhart Highway. However, I do not consider such testimony pertinent to this proceeding inasmuch as the time during which Tatom was at the Dalhart Highway was much later than the incident with which we are here involved PHILLIPS CHEMICAL COMPANY 145 Mrs Turner, and Mrs. Tatom, and proceeded with the women to strike headquarters at Etter. As they arrived at strike headquarters just a few minutes before 10, Harlan and Tatom pulled up behind them in Tatom's car. Harlan was still driving. At the meeting there were approximately 45 or 20 women whose purpose was to arrange to go out to the Dalhart Highway to "convoy" some people who were cross- ing the picket line. She observed Tatom at strike headquarters from time to time until just before 10:20 when she left to return to her home in her car to pick some- thing up which she had forgotten. She proceeded from her home to the Dalhart Highway Mrs. Tatom and Mrs. Sherrod were still with her. Testifying in a like fashion was Mrs. Ponchita Trosper. She testified that she, too, had been at Harlan's apartment earlier in the evening and that she had left between 9.30 and 9:45 in the car of a Mrs. Robins. They circled the Courts for a little while and then went to strike headquarters where she arrived at between 9:45 and 10 o'clock. Tatom was already there when she arrived. There were between 25 and 50 people at the meeting. The meeting lasted between 30 and 45 minutes and she left between 10:30 and 10:45 p.m. Both Tatom and Harlan were at strike head- quarters while she was there and she saw them off and on milling around in the crowd during that time. Jean Sherrod and Joy Turner both testified in a like manner that they had been at the strike headquarters between 10 and 10:45 and had seen Harlan and Tatom off and on at the strike headquarters during that period of time. However, only Harlan testified to having seen Tatom at strike headquarters every moment during the period from approximately 10 to 11 p.m. C. J. Waitman, chief deputy sheriff of Moore County, the county in which the incidents herein occurred, testified that on February 28 he was called by Jim Ship- men, the Respondent's investigator, to proceed to Cactus Courts to investigate a shooting. The call came in at 10:29 on that evening and he went first to the apart- ment of R. D. Srygley where he observed a hole in the windshield of Srygley's car. Srygley advised him that the hole had been shot in the windshield about 15 or 20 minutes before Waltman arrived which would place the shooting about 10:20 p.m. Waitman then proceeded to Anderson's apartment where he observed a similar hole in the windshield of Anderson's car. He observed that the hole was to the right of the driver's side about a quarter of the way up and there was a small chip about the size of a dime that had fallen to the inside as though something had hit it from the outside. The hole was saucer shaped. There were no cracks running from the chip. At that time, Anderson told Waitman that Tatom had shot his windshield and that he wanted to sign a complaint. Waitman did notice that the front yards of both the Srygley and Anderson homes and the areas in which the cars were parked were well lit by outside lights of high wattage. Waltman did not know and could not state whether the lights were on at the time that the shooting occurred. Another witness for the General Counsel was Lloyd Chandler who was assigned by his employer, an automobile glass dealer, to repair the damaged windshield of Anderson's car. He described the hole in the windshield of Anderson's car as being on the right-hand side and about the size of a silver dollar. There was a hole through the laminated material which separated the two layers of glass. On both sides of the lamination layer the glass was shattered and the hole was big enough to stick his little finger through, about the size of a nickel. There were runners going out from the hole and the cracks looked like a spiderweb design. Some of the cracks had extended to the entire length of the windshield It was Chandler's opinion from observation of the foregoing that the damage to Anderson's windshield could not have been caused by an air rifle or a pellet gun but that it must have been struck by a rock or something heavy that could hit the window with a heavy blow. However, on cross-examination Chandler admitted that a small hole will become larger as the car is driven and as vibrations cause the runners to go out extending through the windshield. The foregoing constituted the General Counsel's case except for some rebuttal witnesses whom I shall discuss below. In contrast to testimony of most of the Gen- eral Counsel's witnesses was the testimony of the Respondent's witnesses to the effect that Tatom was seen shooting Anderson's windshield. David J. Anderson testified that he also was employed by Phillips Chemical Com- pany and that when the strike began he joined it. However, after some time, and before the incidents involved herein, he had returned to work. His return to work was the result of an incident involving his son-in-law who had had a job at a nearby grain elevator at which he was making $1.75 an hour. Some of the strikers offered to work at the grain elevator at $1.20 an hour. As a result, his son-in-law was laid off and one of the strikers given the job. Anderson went to strike headquarters and told the union representatives that the strikers were worse than scabs and he felt 649856-63-vol. 137-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that if they were going to do this, then he could go back to work. He denied, how- ever, that he knew that Tatom was one of the strikers who had thus obtained work at the grain elevator. However, he did know the names of others who were work- ing up at the grain elevator and named three of them. He stated that he was not angry at the Union, that he was merely unhappy about his son-in-law. He admitted that he had since given up his membership in the Union. According to Anderson, for some time prior to the evening of February 28, he had had difficulties with the strikers. Thus, on a prior occasion, all of the windows had been shot out of his automobile. Accordingly, on the evening of February 28, Anderson was alert and on the lookout for trouble. That evening he had parked his car in front of his house. He had come home early and between 3 and 3:30 in the afternoon he began to see Tatom circling the block on which Anderson's home was located. Tatom was in his car which Anderson identified as having a maroon body with a white top. Anderson at the time was sitting in his front room and he began to wonder why Tatom was continuously circling his place so that his attention was fixed even more keenly upon Tatom's activities. After an hour or so Tatom stopped circling around and for about an hour and a half Anderson did not see him. Then at about 5:30 or 6 o'clock he saw Tatom start to circle again. This time he had someone else in the car and they began to circle the house and they continued to do so a few times. Later Tatom had his wife with him and they circled the house but Anderson could not remember exactly what time that was Then again, still later in the evening, Anderson observed Tatom again circling the house. Tatom and another person were in the car this time and around 10:20 Anderson observed Tatom lean out the window as the car came slowly by Anderson's parked car, shoot, and then the car in which Tatom was riding quickly sped away and dis- appeared from the area. Anderson further testified that the reasons he was able to identify Tatom so readily were several. In the first place, the night was a bright, moonlit night. Sec- ondly, because they had become suspicious of what Tatom might be up to, he and his wife had darkened all of the rooms in his apartment so that they could more easily observe what was going on in the lighter area outside. Thirdly, Anderson was standing at his front door, in between the door and the screen, so that he had a direct and close view out onto the street. Fourthly, Anderson had arranged with his wife who stood nearby to throw on the flood light switch which was located on the roof of the porch underneath which Anderson stood. About the time Tatom made his last pass at the car and at the time the shot was made Mrs. Anderson was given the signal by her husband and threw the switch on so brightly that the street was lit up as though it was daylight. The floodlight which was turned on had a 500-watt bulb which was aimed and focused out to the street. Anderson was positive that it was Tatom whom he saw lean out of the car and take the shot at his windshield. He was also fairly certain that the car was being driven by Nathan King because earlier in the evening he had seen Tatom pick up someone at King's house and had seen King in Tatom's car with Tatom. However, Anderson admitted that his identification of King was not as positive as his identi- fication of Tatom inasmuch as at the time the car was passing Anderson's house and the windshield was shot at there was a shadow over the driver's side of the car so that the driver was in the shadow and his face was somewhat obscured An- derson said he ran out and saw the hole in his windshield after the car which bore Tatom sped away. The hole was about the size of a matchstick but was not all the way through and the damage had small cracks running from it. This description of the hole would seem to tally with the description of the hole given by Waitman, the deputy sheriff. Anderson said that he had nothing against Tatom prior to this time and that although they were not close friends they were acquaintances. However, he did admit that one of Tatom's little girls had called the Anderson boy a "scab" in school and this was about 5 days before the windshield was broken. Amy Anderson, the wife of D. J. Anderson , testified much in the same fashion as did her husband. She reiterated that the shooting occurred on a moonlit night; that the light was on and that the floodlight and the moon combined had caused it to be as light as day; and that therefore she was able to see Tatom very clearly as did her husband. Mrs Anderson further testified that at the time of the shooting her husband was standing between the door and the screen door with the screen door partly pushed open, and that there was no obstruction between either her and Tatom's car or between her husband and Tatom's car. Mrs. Anderson also stated that she observed the licence number and took it down and later on gave it to the investigator 5 who 5 1 assume that by "investigator " Mrs Anderson referred to Jim Shipmen PHILLIPS CHEMICAL COMPANY 147 came to investigate the shooting. Mrs. Anderson, like her husband, thought that it was Nathan-King who was driving the car but she was not sure. She had earlier observed King driving with Tatom in Tatom's car. Like her husband, Mrs. Anderson was positive that it was Tatom whom she saw shoot the windshield. Immediately after' the windshield was shot she called the plant and spoke to either Mr. Hinton or Mr. Lacy and shortly thereafter Mr. Shipmen came to the house. The deputy sheriff came out after Shipmen who arrived 5 to 7 minutes after the event occurred. Mrs. Anderson testified also that she saw Tatom pick up King about 7:30 that evening. With regard to the damage to the windshield, Mrs. Anderson stated that by the time she took the automobile to be fixed the hole looked about the size of a quarter or 50-cent piece and had marks showing that it was shattered. There was no hole all the way through but the glass sides of the lamination was shattered and the shat- tering was the size of a 50-cent piece. She stated that right after the window was hit it had small cracks in it perhaps only about an inch long but that as the car was driven the cracks and the size of the hole grew bigger. Both Anderson and Mrs. Anderson testified that another car had followed or had been around about the same time as Tatom's car. Five minutes after her windshield had been shot out Mrs. Anderson received a telephone call from Mrs. Srygley, who told her that her windshield had been shot out by someone in an automobile which had a dark bottom and a light top. Mrs. Anderson thought it was probably the same automobile used in the shooting of Anderson's car. Jim Shipmen, the special investigator for the Respondent, testified that although he did not know Tatom personally he knew where Tatom lived as well as most of the other people in Cactus Courts lived, and that he also was familiar with the make and model of Tatom's car and Tatom's tag number. He first noticed Tatom's car in one of the processions that was going around the Cactus housing area on or around February 20 or 21 and had observed it many times circulating around the Cactus housing development during strike activity. Shipmen averred he was also thoroughly familiar with King's car, a 1955, four-door maroon and cream Buick. He described Tatom's car as being a 1955, two-door Buick, which had a cream colored top and a dark maroon bottom. Shipmen also testified that he was familiar with, and knew where the Srygleys, Andersons, Harlans, Kings, and Tatoms all lived. Shipmen testified that on the night of February 28, accompanied by his assistant, a Mr. Greenwood, he patrolled the Cactus housing area until about 9 o'clock and then, because everything seemed to be quiet and there was not much stirring, they parked north of the housing area along the road that led to the staff housing facility. They often parked at this spot at night because they had a good view of the entire housing facility from this area. Tatom's house, which was unit No. 648, was on this road about 533 feet south of where the investigator's car was parked. This gave him a clear view of Tatom's house. Also, the patrol car was parked approximately 1,350 to 1,500 feet away from Anderson's house across a cornfield in a direct line with Anderson's house and there were no obstructions in the way. He was equipped with night-adapted binoculars. They were parked in this position for a little over an hour and during that time Tatom's car was the only car circulating around the hous- ing development. About 10: 10 he noticed Tatom's car drive up in front of Tatom's house, saw Tatom get out and go into the house were he remained a few minutes, and then, upon reemerging, he got into the car which proceeded in the direction of the investigator's car but before reaching it turned on the north road of the housing development and went east to the highway. They traced the lights of Tatom's car as it reentered the housing area several blocks south and then observed the lights as they circled through the housing area until the car emerged in full view near the area in which Anderson had his house and on the road in which Anderson's house was located. As the car came down the road it slowed down and when it reached a point about even with Anderson's house it was moving at such a slow rate of speed as to come almost to a stop and then it suddenly put on a burst of speed and proceeded out into the highway and turned back toward the town of Etter. The car when it sped up after leaving Anderson's home passed very close to the car in which Shipmen and Greenwood were seated. The time was somewhere between 10:15 and 10:20 o'clock. After Tatom's car left the housing area, Shipmen and Greenwood drove toward the plant, and when they arrived there learned by telephone from Mrs. Anderson that her husband's automobile windshield had been shot out. At a result he re- turned to Cactus Courts. When Shipmen arrived at Cactus Courts he found out that not only was Mr and Mrs. Anderson's car shot at but also the car of R. D. Srygley, another nonstriker. was damaged in the same way that Anderson's car was damaged. Shipmen described 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the damage to the windshield of Anderson's car as being on the right front or right- hand part about a quarter or a third of the way up, at the point where a person's eye would be if that person were driving the car. The next day Shipmen spoke to Tatom at Tatom's home and Tatom stated at first that he had been over to Sunray, a nearby town, the night before until about 10 o'clock and then he had gone over to the union hall at 10 and stayed there until mid- night when he went home to his apartment and went to bed . Tatom also denied to him that he had loaned his car to anyone else and he said that he had been driving it all night to which Shipmen said to Tatom that he had seen Tatom and his car in Cactus Courts between 10 and 10:15 that evening. Thereupon, Tatom admitted that he had forgotten that he had gone to his home to get a package of cigarettes. Tatom denied shooting out the windshield to Shipmen. Tatom refused to tell Shipmen whom he had been with the night before . Tatom also told Shipmen that although he had not had any personal trouble with either Anderson or Mrs. Srygley, he did not like either of them. Although Shipmen seemed a little bit doubtful upon some part of his examination, when finally asked the question he said that he was positive it was Tatom's car he saw and not King's. 0. M. Greenwood, Shipmen's assistant, testified to the same effect as Shipmen, but his recollection as to details of the events was very poor. In connection with Shipmen's investigation of the incident, L. C. Lyle, a shift superintendent for the Respondent, testified that his wife was visiting a Mrs. Neill at the latter's apartment in Cactus Courts. Neill lived at 701 Cactus Courts and Srygley lived at 703 Cactus Courts. Lyle told Shipmen that his wife and Mrs. Neill had seen the incident when Srygley's car windshield was damaged. However, there is no evidence that Shipmen ever spoke or investigated the case by interviewing either Mrs. Lyle or Mrs. Neill. Mrs. Lyle, however, testified that at approximately 10:15 p.m. she saw a car come by and heard the shot when Srygley's automobile was damaged. At the time she was on Mrs. Neill's porch, in the apartment house next to the Srygleys, and she noticed a dark looking car which she did not recognize. She testified that it was a solid color dark black or dark green. She could not say how many were in it but she was of the opinion that there were two men in the car. The car was going north on the north-south street in the direction of Anderson's apartment which was located north of Srygley's apartment on the same block, Anderson's apartment being numbered 707. She stated that she knows Tatom's automobile was a maroon with a cream or white top and therefore the car she saw was not Tatom's Verlie B. Neill, the wife of another foreman at the Respondent's plant, was able to identify Tatom's car and she recalled the occasion on which Srygley's automobile was damaged. She testified that the incident occurred between 10 and 10.30 while she was talking to Mrs. Lyle on the porch of her home. She heard a noise that sounded like a "spat" and she saw a car passing at that moment. The car she ob- served was a dark, small automobile, rather old, probably a Ford or a Chevrolet. She saw two people in it but could not recognize either of them even though the porch lights were on. With regard to the alleged presence of King in the car with Tatom at the time of the shooting incident, Nathan King himself testified that on noon of the day in question he left with his parents for Abilene, Texas, and remained at Abilene for 5 days. King's testimony was supported by the testimony of Mrs. Helen Johnson, King's sister, who lives in Abilene. She recalled that her mother and father returned to Abilene on the 28th and that her brother, Nathan King, was with them; that they arrived in Abilene sometime between 6:30 and 7 o'clock and that she remembered the time because they were getting ready to go bowling and she was waiting to be called with regard to the game. She further testified that she had planned to go to the bowling alley with a Mrs. Hermes and her children. When King spoke to his sister that evening she invited him to go along and they all went bowling and they bowled from about 8:30 p.m. until midnight of that night. To support the testimony of the brother and sister, the General Counsel called on Mrs. Loriane Hermes who stated that she is a housewife from Abilene, Texas, and is no way related to the Kings. She testified that she was present on the night of February 28 and supported King's testimony and Mrs. Johnson's testimony to the effect that they were bowling at the bowling alley in Abilene with Mr. King on that evening from about 8:30 until midnight. To rebut this testimony that King was not in Etter or Cactus Courts on the night in question, the Respondent placed R. D. Srygley on the stand. Srygley testified PHILLIPS CHEMICAL COMPANY 149 that it was he whose automobile was shot at on February 28, 1961 , and it was parked in front of his apartment , No. 703 , in Cactus Courts. Just before dark on that day he saw Tatom and King driving around the area in Tatom 's car. He has known them both for several years and he is positive that it was Tatom and King who were driving around early in the evening. The last time that he saw them together was at approxi- mately 9 p.m. Mrs. Srygley testified that around 6 p.m. or a little thereafter she was out in the yard and saw Tatom come by with Nathan King . She was positive that it was King with Tatom. She said she knows King because he lives up the street from her at No. 663 Cactus Courts. When she saw King and Tatom they were in Tatom's car. Concluding Findings The Board has consistently held 6 that the honest belief of an employer that a striking employee has engaged in misconduct provides an adequate defense to a charge of discrimination, unless it affirmatively appears that such misconduct did not, in fact, occur. Once the honest belief is established (in the instant case it is conceded) the General Counsel must go forward to prove that the employee did not, in fact, engage in such misconduct . The employer then, of course, may rebut the General Counsel's case with evidence that the unlawful conduct actually did occur. But at all times the burden of proving of the discrimination is on the General Counsel. Otherwise put, once the employer's honest belief of employee misconduct is estab- lished or conceded , the burden of proving by a preponderance of the credible evidence that the striking employee involved did not engage in such misconduct is on the General Counsel .? In terms of the instant proceeding , having conceded the Re- spondent's honest belief, the General Counsel has the burden of proving by a pre- ponderance of the evidence that Tatom did not shoot and damage the windshield of Anderson's automobile on February 28, 1961. Whether the General Counsel has met this burden can be determined only from an analysis of the evidence set forth above. As set forth above, Tatom testified that the time the windshield of Anderson's automobile was shot at , he was at strike headquarters at Etter some 2 or 3 miles away. If this testimony is believed in full , the alibi is established . In support of Tatom's testimony was the testimony of Harlan, to the effect that he drove Tatom's car to Etter and was also at strike headquarters during the critical period. Also supporting Tatom's testimony is the testimony of Mrs. King, Mrs. Trosper, Mrs. Turner, and Mrs. Sherrod, all of whom had stated that they saw Tatom at strike headquarters from time to time during the period from approximately 10 p.m. until 10:20 in the case of Mrs. King and 10:30 to 10 : 45 in the case of the other three. None of these witnesses saw Tatom and Harlan all of the time during that period. The only one who testified that he saw Tatom at strike headquarters continuously during that time was Harlan who , by admitting he was driving around with Tatom, would be directly involved in the shooting if Tatom did the shooting . Hence, to protect himself he would need to so testify. The record establishes that it takes but a few minutes to drive from the Cactus Courts housing development to strike headquarters , the two places being only 2 or 3 miles apart with open highway between them . Therefore, even though I credit all of the ladies, there remains a distinct possibility that Tatom had time and oppor- tunity to leave strike headquarters, return to Cactus Courts , fire the gun, and return to strike headquarters all within the space of a few minutes . He could, therefore, have been at the scene of the incident at 10 : 20 p.m . on the evening in question. In contrast to this, the positive testimony of Mr. and Mrs . Anderson that the night of February 28 was a clear, moonlit night, that a large, 500-watt light was focused on their car and on the car from which the shot was fired, and that each clearly saw Tatom shoot at their car windshield as they stood in the darkness of the house. They further testified that Tatom shot from the right front seat of his 1955, two-door, maroon and white Buick which each recognized . Each also testified that although earlier in the evening they were able to distinguish the driver of Tatom's car as it circled their home as being Nathan King , at the time of the shooting the driver was on the far side and in shadow and they were unable to positively identify him. g Rubin Bros Footwear, Inc., et al ., 99 NLRB 610 , Hill & Hill Truck Line, Inc, 120 NLRB 101 , 102; HARD-TV, 122 NLRB 222 , 226-227 1 BARD-TV, supra 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The weakness of the Andersons' testimony is that although they could recognize King earlier in the evening they could not positively identify King at the critical time. Moreover, King's claim that he was in Abilene, some 300 miles away, from about 6 p.m. of that day until some 5 days later, throws some doubt on Anderson's recognition of him between 6 and 9 p.m. Since King's testimony was wholly sup- ported by disinterested witness Loriane Hermes, I credit King The General Counsel argues that if the Andersons and Srygleys mistakenly identified King they could as readily have been in error in their identification of Tatom at the critical time of 9:20 p.m. However, I do not conclude that it follows that, assuming the Andersons and the Srygleys mistakenly identified King as being Tatom's companion earlier in the evening, that the Andersons were necessarily mistaken in their identification of Tatom at 10:20 p in. and that therefore the person who shot their automobile windshield could not have been Tatom. The General Counsel contends also with regard to the Andersons that their testi- mony cannot be credited in any event. He points to the fact that the Andersons' son-in-law lost his position at the grain elevator because striking employees, Tatom among them, were willing to work at a lesser hourly rate than Anderson's son-in-law and that as a result of this Anderson left the Union and abandoned the strike. He also points to the fact that one of the Andersons' children had been called a "scab" by one of Tatom's children a short time before the shooting incident. However, I do not believe from my observation of the Andersons, nor am I persuaded by the fore- going or by other minor irrelevant discrepancies in the Andersons' testimony, that they would have testified that they saw Tatom engage in the alleged misconduct and then accuse him of a crime in order to seek vengeance. While the Andersons could have been mistaken, they did not, in my opinion, misrepresent their observations of the events of the night of February 28. Moreover, the Andersons' testimony is corroborated to an extent by the testimony of Jim Shipmen, the company investigator. Shipmen testified in a forthright manner that he had seen Tatom's car, shortly after he had seen Tatom get into it about 10:20 p.m., draw up alongside the Andersons' car, come almost to a stop, and then suddenly with a burst of speed leave the area. Shipmen was most forthright. While I find he, too, could possibly have been mistaken in the identification of Tatom's car inasmuch as, according to the testimony of Mrs. King, her car which was very similar to Tatom's was also moving in the housing area at the critical time, I do not find that Shipmen deliberately fabricated his testimony concerning the identification. And while I do not rely on Greenwood's testimony in whole, because he demon- strated a lack of recall on the witness stand, to the extent that he corroborated Ship- men I credit him. In view of the foregoing, I do not believe that the testimony of Tatom and his supporting witnesses completely established his proffered alibi. Harlan, whose own testimony inextricably involved him with Tatom at the time that the shooting occurred, cannot be said to be free of the strong interest of avoiding criminal prose- cution along with Tatom Moreover, none of the other corroborating witnesses placed Tatom and Harlan continuously at the strike headquarters during the critical period. While testimony of the Respondent' s witnesses may not be sufficient to prove that Tatom did do the shooting, I am not obliged to make a resolution of this issue nor is this the Respondent's burden. On the other hand, also in the light of the fore- going, I do not find that the General Counsel has met his burden of proving by a preponderance of the credible evidence that Tatom did not commit the act for which the Respondent in good faith discharged him. Accordingly, on the record as a whole, I shall recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not engage in unfair labor practices in violation of Section 8(a) (3) and (1) of the Act, as alleged in the complaint RECOMMENDATION Upon the basis of the foregoing findings and conclusions, and upon the entire record, it is recommended that the complaint be dismissed.