Brewers and Maltsters Local Union No. 6, Etc.

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers of America (UAW), AFL-CIO, as the exclusive repre- sentative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such an understanding in a signed agreement. WE WILL NOT in any like or related manner interfere with the efforts of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, to bargain collectively. The bargaining unit is: All production and maintenance employees at our plant in Sturgis, Michigan, excluding office clerical employees, ex- ecutives, engineers, professional employees, guards, foremen, and all other supervisors as defined in the Act. GENERAL TUBE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone No. 963-9330, if they have any question con- cerning this notice or compliance with its provisions. Brewers and Maltsters Local Union No. 6 , affiliated with Inter- national Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, and Robert Lewis, its Secretary- Treasurer ( Falstaff Brewing Corporation ) and Gottfried Link Brewers and Maltsters Local Union No. 6, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Anheuser-Busch , Inc.) and Hugh W. Pond. Cases Nos. 14-C11-991 wizd 14-CB-995. March 13, 1963 DECISION AND ORDER On October 30, 1962, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in the unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- 141 NLRB No. 34. BREWERS AND MALTSTERS LOCAL UNION NO. 6, ETC. 449 after, the General Counsel filed exceptions to the Intermediate Report and 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board dismissed the complaint.] MEMBER RODGErs, concurring : I concur in the result. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon separate charges filed on April 20, 1962, by Gottfried Link, an individual, and on May 1, 1962, by Hugh W. Pond, an individual, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for the Fourteenth Region (St. Louis, Missouri), issued his consolidated complaint, dated June 5, 1962, against Brewers and Maltsters Local Union No. 6, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 6 or Respondent Union, and against Robert Lewis, its secretary-treasurer, herein jointly called the Respondents. With respect to the unfair labor practices, the complaint alleges, in substance, that: (1) Robert Lewis and John Jenkins are agents of Local 6; (2) at general and special membership meetings since October 20, 1961, Respondent Union and its agent, Robert Lewis, cursed, reviled, humiliated, and threatened with physical violence Gottfried Link and Hugh Pond, and has in- vited members to commit physical violence upon them; (3) on or about April 19, 1962, the said Robert Lewis assaulted, cursed, and reviled Gottfried Link; (4) on or about April 23, 1962, Shop Steward John Jenkins assaulted, cursed, and reviled Hugh Pond; (5) Lewis and Jenkins engaged in the aforementioned conduct as agents of Local 6 because Link and Pond had refrained from assisting Local 6 and had engaged in protected concerted activities; and (6) by the foregoing conduct Re- spondents, Local 6 and Robert Lewis, restrained and coerced employees in the exercise of their Section 7 rights in violation of Section 8(b) (1) (A) and Section 2(6) and (7) of the Act. In their duly filed answer, Respondents admit that only Lewis was an agent of Local 6, and deny all unfair labor practice allegations. Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at St. Louis, Missouri, on August 20 to 21, 1962. The Respondents and the General Counsel were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. On September 20, 1962, the General Counsel filed a brief which I have fully considered. Upon the entire record in the case,' and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Falstaff Brewing Corporation, a Delaware corporation, and Anheuser-Busch, Inc., a Missouri corporation, each own and operate breweries in St. Louis, Missouri, where they are engaged in the production of beer. Each Employer annually ships 1 I hereby note and correct the following obvious error in the typewritten transcript of testimony: On page 17, line 13, the word "prior" Is hereby corrected to read "trier of." 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD beer, valued in excess of $50,000, from St . Louis, Missouri , to customers located outside the State of Missouri. Upon the above-admitted facts, I find, as Respondents admit in their answer, that Falstaff Brewing Corporation and Anheuser-Busch, Inc., are each engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows , and I find that Brewers and Maltsters Local Union No. 6, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , herein called Local 6 or Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction, the issues Respondent Local 6 has been, and is, the exclusive collective-bargaining repre- sentative of certain employees of Falstaff Brewing Corporation and of Anheuser- Busch, Inc., hereafter referred to as Falstaff and Anheuser-Busch, respectively. Gottfried Link, an employee of Falstaff for about 11 years, and Hugh W . Pond, an employee of Anheuser-Buch for about 14 years, have long been members of Local 6 and included in the bargaining unit Local 6 has a membership of over 1,200. Robert Lewis has been the secretary -treasurer and "top man" of the local for the past 14 years. Although membership meetings are generally chaired by President Burger, Lewis sat on the rostrum , assisted in conducting the meetings , and frequently relieved Burger because of the latter's poor eyesight and diction. Such meetings are held once a month, except for July and August, and usually last about an hour. The issues litigated and to be resolved in this proceeding are: (1 ) Whether Robert Lewis made statements at membership meetings held since October 20, 1961, which amounted to restraint and coercion within the meaning of Section 8(b)(1)(A) of the Act; (2) whether Robert Lewis assaulted and cursed Gottfried Link on April 19, 1962, because Link engaged in protected concerted activities along with others in opposition to Lewis' stewardship and method of running Local 6 or whether the encounter was one of a personal nature and instigated by Link; and ( 3) whether the assault on Hugh Pond by Shop Steward John Jenkins on April 23, 1962, was induced and incited by Robert Lewis because Pond had engaged in the same pro- tected concerted activities as Link, or was Jenkins' action motivated solely for personal reasons. The issues are essentially factual in nature , and the evidence is in sharp conflict on all material issues. Credibility resolutions will therefore be dispositive of the case. B. Background Link and Pond were classified as utility workers under the contract which Respond- ent Local 6 had with Falstaff and Anheuser-Busch. Although utility workers per- formed substantially the same work as journeymen brewers , the contract accords to employees classified as journeymen brewers preferential seniority during seasonal layoffs. On May 18, 1959, Link, Pond, and Gerak, another utility worker, signed and sent a letter to the Teamsters monitors in Washington, D.C., in which they accused Lewis and Local 6 of discriminating against utility workers and preventing them from progressing to the classification of journeymen brewers, and requested the monitors to look into the matter and to force Local 6 to represent them fairly. Thereafter , Robert Lewis, acting in his capacity of an agent and officer of Local 6, caused the Falstaff Company to discharge Gerak on June 4 because of his participa- tion in connection with the letter to the monitors? 1. June 1959 meeting According to the composite testimony of Link, Pond , and Ledger,3 witnesses for the General Counsel, Lewis made the following statements at the general membership meeting in June 1959, held after the discharge of Gerak: Toward the end of the meeting, Lewis stated that he had a copy of the letter written to the monitors by 2 The Board so found in its Decision, dated July 27, 1960, which was enforced by the Court of Appeals for the Eighth Circuit on April 10, 1962 Falstaff Brewing Corporation. 128 NLRB 294 , enfd. sab none Brewers and Maltsters Local Union A'o 6, international Brotherhood of Teamsters, etc, 301 F 2d 216. 3A fellow member employee, classified under the union contiact as an "other roan," a classification which had 'the lowest seniority for layoff purposes BREWERS AND MALTSTERS LOCAL UNION NO. 6, ETC. 451 three union members, that he would announce their names and cool their "behinds" at the September meeting, and that they had better go to school and take up public speaking Lewis admitted making mention of the letter and stating that the signers would be given an opportunity to speak on the matter at some later date. He denied stating that he would cool their "behinds" at the September meeting. Whether or not Lewis made the latter statement is immaterial in my view of the total case. The testimony of the General Counsel's own witnesses, concerning what transpired at the September meeting, demonstrates that such a statement, even if made, was not intended or regarded as a literal threat of bodily harm. I therefore find it necessary to resolve this conflict. 2. September 1959 meeting At the membership meeting in September, Lewis talked about the letter to the monitors and revealed the names of the signatories thereto. He then asked Pond if he had any statement which he would like to make. Pond had prepared a state- ment, consisting of five to six pages in long-hand He walked up to the front of the meeting hall and said, "I do." President Burger then handed his microphone to Pond who started to read his prepared statement to the membership, explaining each paragraph of the letter to the monitors. Lewis took issue with him with respect to the accuracy of some of his statements In addition, there were repeated interrup- tions from the rank-and-file members who were shouting, booing, and making a "lot of noise." When the noise quieted down, Pond resumed his reading, whereupon the clamor from the rank and file would start up again. After reading a few pages, Pond gave up and resumed his seat. Lewis then asked Gerak if he had anything to say. Gerak had nothing to say and returned to his seat. Lewis then asked Link if he had anything to say Link got up in front of the rostrum and, raising his right hand with his finger pointing to Lewis, accused Lewis of getting Gerak fired. Lewis denied the accusation, and argued with Link about it. The foregoing reflects the testimony of Link, Pond, and Ledger, witnesses for the General Counsel. Lewis' testimony is not inconsistent with the foregoing but merely emphasizes his efforts to control the disturbance caused by the rank-and-file mem- bership in order to permit Pond to finish reading his statement. Lewis did deny a further statement attributed to him by the General Counsel's witnesses to the effect that he was going to refer the three men to the executive board. He testified that the statement was made by the rank and file from the floor to the effect that the chairman be ordered to bring these men before the executive board. In my view, a resolution of this conflict is not essential to the disposition of the case. 3. November 1959 meeting At the November membership meeting, Lewis again asked Link, Pond, and Gerak to stand up before the membership. Pond was absent at the meeting. Lewis told the members that they were the ones who signed the letter to the monitors, and referred to Link as the "Holy Joe from Tibet" and to Pond as "a mud hen from Alabama." The foregoing is based on the undenied testimony of Link and Ledger. 4. December 1959 meeting Link admitted that at this meeting Lewis invited him to take the microphone and explain to the membership what his position was with respect to the contents of the letter to the monitors, and that Link declined the invitation and did not speak. 5. March 1960 meeting About a thousand employees attended the membership meeting of March 1960 The union hall was completely filled with standing room and an overflow in the vestibule and in an adjoining hall. Also present at the meeting were three newspaper reporters from the St. Louis papers, and counsel for Respondents. Shortly after the opening of the meeting, Pond requested permission to read a statement to the membership. Ordinarily the rank and file address the membership over a microphone at the foot of the platform facing the members. However, on this occasion, Lewis gave Pond permission to step up on the stage and to address the membership from the same microphone used by Lewis Link accompanied Pond 708-006-64-vol 141-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the rostrum. Pond then read a prepared statement, composed and signed by Pond and Link and consisting of five letter-size typewritten pages, single spaced. Pond's opening remarks, before reading the statement, were that he and Link "have been abused, coerced, intimidated, humiliated and ridiculed by Lewis at every meet- ing since June 1959," that they were "also working under pressure, caused by Lewis' action against us," that "on our jobs, fellow union members are afraid to associate or talk to us, as they know they will get Lewis' disfavor," and that "we are classed as G-D liars and troublemakers by Lewis." Pond then read the entire statement, consisting of 15 charges against Local 6 and Lewis' stewardship and method of running the local. Pond admitted that when he first started to speak, there were interruptions from the membership. Link admitted that when Pond started reading, he was booed down by the rank and file and had to start over. Lewis went to the microphone several times and asked the membership to keep order and to allow Pond to read his charges. While Pond and Link testified that they did not remember whether Lewis asked the membership to be quiet (Link further testified that Lewis may have said it), they both admitted that Pond read his statement in its entirety, without any interruption by Lewis, and that it was quiet enough for the membership to hear him. When Pond finished reading his statement, Lewis told the membership that the charges were false. Pond admitted that quite a number of the rank-and-file mem- bers asked for the floor, that they each spoke over the microphone, and that everyone spoke in opposition to the views and charges read by Pond. He and Link admitted that not one member spoke in support of Pond's views. One of the rank-and-filers then got up and proposed a vote of confidence to all the officers of the Union. There was an overwhelming vote of confidence for Lewis .4 6. Executive board hearing-August 2, 1961 Pursuant to written charges admittedly served upon Link, Pond, and Gerak, in- forming them of the nature of the charges and the time and place of the hearing to be conducted thereon, a hearing was held before the executive board of Local 6 on August 2, 1961, at which all three appeared and testified. The only evidence in the record as to the nature of the charges is the undenied testimony of Lewis that they were for conduct unbecoming a member and for certain violations of the constitution of the local and the International . The testimony is further undisputed that these charges were brought at the request of several rank-and-file members. The transcript of the testimony taken at this hearing was in the possession of Respondents' counsel and available at the hearing in the instant case. Because he was involved in the accusations by the three men, Lewis requested, and was granted permission, to be excused from sitting on the executive board which heard and was to pass upon the charges. The testimony is undisputed that at the executive board meetings Lewis argued against expelling the men from the Union on the ground that nothing would be gained thereby except to relieve them of the ob- ligation to pay dues. Up to the date of the instant hearing in August 1962, Link and Pond had never been advised of the disposition of the charges against them. Henry Tobias, a member of the executive board, testified at the instant hearing that the executive board had at first deferred decision and had in the meantime decided to drop the charges. In any event, Link and Pond admitted that no action has ever been taken against them which might in any way adversely affect their union stand- ing or obligations. C. Meetings alleged in the complaint The meetings, at which Lewis is alleged in the complaint to have made statements and engaged in conduct violative of the Act, were those held in November 1961 and in January and May 1962. 1. The November 1961 meeting 5 About a week or two prior to the November 1961 meeting, Pond, Link, and Ledger admittedly composed a letter which criticized the Union's handling of funds in the 4 The findings as to what transpired at the March 1960 meeting are based on the mutually consistent testimony, on cross-examination, of Link and Pond, witnesses for the General Counsel, and of Lewis and Hoch, witnesses for Respondents 5 The findings in this section are based on the undisputed testimony of Link, Pond, and Ledger. BREWERS AND MALTSTERS LOCAL UNION NO. 6, ETC. 453 benevolent association. They had mailed copies of this letter to about 175 to 200 union members employed by Falstaff and Anheuser -Busch. During the course of the meeting , Lewis stated that he had received a letter from the "quiz kids" and characterized it as an "asinine" letter with not a word of truth in it. He added that it was put out by some "crackpots " who were trying to break up the Union . After discussing the contents of the letter for "quite a while ," Lewis asked Link and Pond to stand up and be identified. When Link and Pond did not respond immediately , President Burger said, "Stand up." While Link and Pond were standing, Lewis stated that he wanted the new members of the Union to know who they were. He then pointed his finger at Pond and identified him as "the bald- headed guy" over there, and then pointed his finger at Link and identified him as the "litle guy with the cigar in his mouth." When Link and Pond sat down, Lewis remarked that that is what Pond calls "harassment ." Lewis then expressed the view that Link and Pond were using this letter to "brainwash" the new members of the local. He also made the comment that when Pond was in the service during the war he rubbed a detergent into his hands to cause them to break out in a rash in order to avoid being shipped overseas . Lewis further remarked that people who would associate with Pond and Link would associate with anyone, even with Communists. 2. The January 1962 meeting There is a direct and sharp conflict in the testimony with respect to whether Lewis did in fact make the statements at this meeting, as alleged in the complaint. Three witnesses, Pond, Ledger, and Link's son, Norman, testified for the General Counsel on this aspect of the case. Pond and Norman Link are obviously biased witnesses Contrary to the assertion of the General Counsel, I cannot regard Ledger as a dis- interested and unbiased witness in view of his participation with Pond and Link in the drafting and mailing of the letter criticizing the Union's handling of the funds in the benevolent association. Pond and Ledger testified, in substance, that Lewis stated that Pond and Link had criticized him and were responsible for the mess the Union was in, that he had them in a position where he wanted them, that they would not have a dime when he got through with them, that they had better run if they wanted to keep their jobs, that he himself, as an officer, could not do anything physically to them but that it was all right for any of the members to do so, and that if they, Pond and Link, would go down to the bar after the meeting he would "kick the hell out of each one of them and both of them." Only Pond testified that Lewis also said that the Union would not be in the mess it was in in the Gerak case if it had not been for Pond and Link and that they had caused all the trouble in this Norman Link testified that all that he could remember that was said at that meet- ing was Lewis' statement that it was all right "if the organization kicked the hell out of them (Pond and Link) if they wanted to, and that he (Lewis) could beat them down at the bar, take one of them on or either one of them." Link himself did not testify with respect to this meeting and the record is silent as to the reason for his failure to do so. Nine witnesses, including Lewis, testified for the Respondent on this issue, each one denying that Lewis made any of the statements attributed to him by the General Counsel's witnesses. In addition, Respondents' counsel was prevented from calling over 300 additional witnesses who would testify that they attended the meeting in question and would deny that Lewis made the statements attributed to him. His offer of proof to that effect was rejected as cumulative Lewis himself, while obviously a biased witness, vigorously and forcefully denied the accusations. He testified in a direct and straight-forward manner, and admitted that he did not remember saying anything about them (Link and Pond) in that meet- ing Of the remaining witnesses who testified on this issue, three (Tobias, Hoch, and Jenkins) held some union office. While these three may be regarded as biased for that reason, I was nevertheless favorably impressed by the demeanor of Trustee Tobias. He testified in a calm, dispassionate tone of voice which had a ring of candor and sincerity and inspired reliance on his testimony as trustworthy. There is no record basis for regarding the five rank-and-file witnesses 6 as biased in favor of Lewis. Of these, I was particularly impressed by the demeanor and testimony of Clark and Webber. These two witnesses occupied the same classification as Ledger. This was the classification of "other man," which had the lowest seniority for layoff 6 Leible, Clark, Webber, Brandt, and `yeast, Junior. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes under the union contract . On cross-examination they were specific , positive, and candid They testified in a manner which indicated an honest effort to relate the facts as they truly knew them.? In addition to the demeanor of the witnesses , the probabilities as to whether such statements were made by Lewis would seem to favor the Respondents' version. Thus, nothing had occurred since the November 1961 meeting which might serve as a basis for provoking such an alleged outburst of threats and accusations Link and Pond had not engaged in any additional activity in opposition to Lewis and the Union. Nor is there any record evidence to indicate that the Union was in any particular "mess" at this time. Moreover, the statements attributed to Lewis are inherently inconsistent . Thus, he is accused of having said that as an officer of the Union he himself could not do anything physically to Link and Pond. Then, he is accused of completely reversing his position in the very next breath by saying that if they would go down to the bar after the meeting he would "kick the hell out of each one of them." Whatever may be said about Lewis , he impressed me as being too shrewd and clever to have made such contradictory and inconsistent statements Finally , Pond's testi- mony that Lewis accused Pond and Link of having caused all the trouble in the Gerak case, does not square with the facts . Only Link had testified in the Gerak case, and his testimony did not have any bearing on the material findings. In addition, the Board 's decision in the Gerak case had been issued about a year and a half prior to the meeting and the case was still pending in the circuit court on a petition for review by the Union There is nothing to indicate why, under the circumstances, Lewis would have even mentioned the case at all at that meeting. Upon consideration of all the foregoing , including the demeanor of the witnesses, I have not been convinced that at the January 1962 meeting Lewis made the state- ments attributed to him by Pond, Ledger, and Norman Link , and therefore do not credit the General Counsel 's witnesses. 3. The May 1962 meeting Ledger testified, in substance, that at this meeting Lewis referred to Link and Pond as "s birds," stated that they were responsible for the mess the Union was in with the Labor Board , and told about meeting Link in the alleyway of plant No. 5 where he slapped Link in the mouth and "booted him in the butt" when he stooped to pick up his cigar .8 Norman Link testified that Lewis called Link and Pond "s - birds," and stated that they were disturbing the Union , that anyone who associated with them was "scum of the earth," and that he had slapped and booted Link at the brewery. Link and Pond did not testify with respect to this meeting and the record is silent as to the reason for their failure to do so Lewis denied referring to Link and Pond as "s birds" or stating that mem- bers should not associate with them . He testified that he believed such statements were made at that meeting from the floor by the rank-and-file members . With respect to his alleged statement of hitting and kicking Link, Lewis testified that this matter was first mentioned by a member employed at the Falstaff plant No. 5, that Lewis had heard rumors to the effect that Link had hit him with a 2 by 4 and that Link had turned a hose on him , and that he stated that he wanted to clear the matter up so that there would be no misunderstanding Lewis further testified that he then told the membership that he slapped Link in the face because the latter had cursed him and that when Link stooped over to pick up his cigar he "booted him in the can." In view of the fact that Lewis' testimony with respect to what he said about slap- ping and booting Link is consistent with my findings as to what actually occurred on that occasion (see section D, infra ), and is not inconsistent with the testimony of Ledger and Norman Link in this regard , and considering the fact that I have pre- viously discredited Ledger and Norman Link , I credit Lewis ' version concerning the nature of the statements made by him at that meeting. 4. Concluding findings In accordance with my previous findings , the General Counsel has not sustained the allegations of the complaint that at various meetings after October 21, 1961, 7 The General Counsel 's comment in his brief that Respondents failed to produce as a witness ''a utility biewer or another man of long company ,oniority siniilar to the di" sidents" overlooks the possibility of the inclusion of such witness among the additional 300 or more whom the Respondents desired to call but weie prevented fiom doing so big the Trial Examiner 's ruling s This had reference to an incident which occurred on Api iI 19 and is treated in detail in section D, infra BREWERS AND MALTSTERS LOCAL UNION NO. 6, ETC. 455 Lewis threatened Link and Pond with physical violence by himself and with loss of employment , and also suggested or encouraged or invited other members to commit physical violence upon them . It is true that at the November 1961 meeting Lewis did make remarks and statements which , I find, ridiculed and were disparging and derogatory of Link and Pond. I find , however, that such remarks and state- ments did not rise to the stature of restraint and coercion within the meaning of Section 8 (b) (1) (A) of the Act. Moreover, the remarks and statements were made during the course of a union meeting where the standards to be applied are not necessarily the same as would be under other circumstances It is common knowledge that union meetings are not always conducted at a level of gentility and restraint Tempers are often aroused and frequently parties holding opposing views engage in acrimony , exchange insult- ing remarks and cast aspersions on one another 's motives . Nevertheless , the Board has long held that "it is essential" to the full exercise of the rights which the Act was designed to protect "that employees be permitted the widest possible latitude in their discussions at these meetings . . . free from employer [or Union] interference, censorship , or control," and that "limitations should not lightly be imposed upon employees' statements made in the course of such discussions ." 9 As the right to be informed of the views, arguments, and positions of their duly elected officers is one of the rights guaranteed to employees by Section 7 of the Act, it would seem to be equally essential that, short of threats of bodily harm or of economic reprisals, union officers also to be permitted the widest possible latitude in setting forth their positions at union meetings , vehemently or otherwise , in favor of or in opposition to the expressed views of particular members. It was in this setting and situation that the remarks and statements were uttered by Lewis. They were made in con- nection with the letter which Link and Pond had previously mailed to 175 to 200 members , criticizing the Union's handling of funds in the benevolent association. And they were made because of Lewis' opinion that there was "not a word of truth" in the letter and his belief that Link and Pond had an ulterior motive in mailing it. I will accordingly recommend the dismissal of all allegations concerning alleged statements , threats, or conduct at union meetings. D. Incident involving Lewis and Link at Falstaff plant No. 5 In the course of his business as an officer of the Union, Lewis had occasion to visit the Falstaff brewery in connection with grievances to be presented by the shop steward or delegate. One such occasion occurred on the morning of April 19, 1962, when Lewis went to the Falstaff plant No. 5, at the request of Shop Steward Hoch, to discuss the merits of obtaining acid resistant clothing for certain employees. After finishing his business Lewis stood in the alley conversing with Hoch for a short while, and then began to leave toward his car Because the wind was blowing the dust in the alley and affecting his sinuses , Lewis put on his sunglasses as he started to leave. At that point, Link, who was employed at that plant, entered the alley, walking toward Lewis. An encounter ensued during which Lewis is alleged to have cursed, slapped, and kicked Link. On Link's complaint, Lewis was arrested and pleaded not guilty. He and Link appeared and testified at the trial. Lewis admittedly was found not guilty and the case was dismissed. The General Counsel contends that Lewis assaulted and cursed Link on this occasion in reprisal for Link's activities in opposition to Lewis' stewardship and method of running Local 6, and that the assault was prompted at this time by the fact that on April 10 the Court of Appeals for the Eighth Circuit had issued its opinion enforcing the Board's Order in the Gerak case. Respondents admit that Lewis slapped and kicked Link on this occasion but contend that the assault was provoked and solely motivated by Link's conduct in first cursing Lewis and that the encounter was entirely of a personal nature. Link testified, in substance, that when he stepped out of the engineroom and walked into the alley, he saw Lewis, about 5 feet away, walking toward him, that they were walking toward each other, that he passed Lewis, that Lewis then turned around and started cursing Link and struck and kicked him, and that Lewis was the one who spoke first and started cursing Link before Link had said anything. On the other hand, Lewis testified, in substance, that he had put on his sunglasses and started walking in the direction of his car, that he saw someone, whom he did not at that moment recognize, go by him in the opposite direction, that he heard this person make an obscene remark to him as they passed each other, that he then e Atlantic Towing Company, 75 NLRB 1169, 1171, 1173; to the same effect is the Board's position with respect to collective- bargaining negotiations The Bettcher Manu- facturing Corporation, 76 NLRB 526. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turned back and told this person in strong words not to curse him, that he at that point recognized Link, that Link in return called him a vulgar name, and that this provoked him to slap and kick Link. In support of Link's version, the General Counsel called as a witness Arthur Morgan, who is engaged in the transportation business and who happened to be at the Falstaff plant at that time to check the load- ing of some machinery out of the engineroom. Morgan testified that while he was standing there he observed two men about 40 or 50 feet away "in some sort of an argument," that he heard the taller man, whom he identified at the hearing as Lewis, called the worker an "s-o-b" and an obscene name and saw him strike and kick him, and that he never heard the worker say anything at any time. In support of Lewis' version, Respondents called as a witness Arthur Hoch, who was the shop steward with whom Lewis had conversed that morning. Hoch testified that he was about 12 feet away, that he saw and heard what took place, and corroborated Lewis' version in its entirety. It is true, as the General Counsel points out in his brief, that Morgan is a dis- interested witness and that Hoch is not. I have no doubt that Morgan testified truthfully to what he believed he saw and heard, and to the extent that Lewis spe- cifically denied saying some of the things attributed to him by Morgan, I credit Morgan.10 However, Morgan's testimony does not necessarily refute, or compel the rejection of, Lewis' version that Link spoke first and provoked the assault Morgan admitted on cross-examination that he would not say he heard everything that was said 40 or 50 feet away and that, while he did not hear Link say anything, he does not know whether Link did say anything. The undisputed testimony how- ever shows that not only did Morgan fail to hear everything that was said but that, in addition, he did not accurately hear certain statements made by Lewis. Thus, Link himself admitted that during the encounter he denied calling Lewis an "s-o-b," that he called Lewis a "crooked liar," that he stated that when Lewis died "they wouldn't bury him" but would "screw him in the ground," and that he told Lewis he was going to call the police for protection 11 Yet, Morgan heard none of these state- ments. Link also testified that Lewis said the Union had too much money for Link to break it up. However, Morgan testified that Lewis "never said anything about the Union " Instead, he testified that be heard Lewis say that "he (Lewis) was vice president" and that he thought Lewis was vice president of the brewery. It is undisputed that Lewis at no time mentioned the word "vice-president" and that Morgan was mistaken in this respect. In view of the fact that Link's tone of voice was not as loud as Lewis', the fact that there was a strong wind blowing against Link's voice, and the fact that Morgan admittedly "wasn't particularly watching anybody" and was "paying no attention," it is understandable that at 40 or 50 feet away he did not hear anything that Link said and did not accurately hear everything that Lewis said. Among the factors which convince me that Lewis' version concerning the part played by Link in the controversy is the more probable one, are the following: First of all, nothing had occurred since the November 1961 meeting to provoke such an attack and assault upon Link by Lewis. Link had not engaged in any additional activity in opposition to the policies of Lewis and the local since that time. I am not persuaded by the General Counsel's theory that it was the affirmance of the Board's Order in the Gerak case by the Court of Appeals for the Eighth Circuit on April 10, 1962, which triggered the attack. Link's testimony in that case was minor and had no bearing on the material findings. The Board's decision in the case had been issued as long ago as July 1960. It is true that Lewis admittedly was aware of the court's opinion at that time.12 However, it might be argued with equal validity that this would have deterred him from taking, rather than have provoked him to take, reprisals against another dissident member. Link also admittedly became aware of the court's opinion about 2 days before the incident in question. It may also be argued with equal weight that this could well have led Link to gloat over Lewis' defeat by making the alleged obsence remarks when he passed him. to Thus I find, contrary to Lewis' denial, that Lewis did curse and call Link an obscene name 11 Link testified that he made these statements when Lewis returned to him after leaving momentarily to speak to Hoch and Vonhoogstraat who were standing nearby Morgan admitted on cross-examination that Lewis turned away from Link several times and started to walk to the other side of the alley and then would return and start yelling and cursing at Link again. '-'Lewis denied that that affected his activities with respect to Link. BREWERS AND MALTSTERS LOCAL UNION NO. 6, ETC. 457 What does seem more significance to me is the corroboration of Lewis' testimony by both Morgan and Link that Lewis first passed Link and turned around and came back to him. Thus, Morgan testified that he saw Lewis walk past Link and "all at once" Lewis "swung around and the dispute started." Morgan further testified that he did not know what caused Lewis to turn around, after passing Link. Lewis' testimony that he did not recognize Link as he passed him is plausible and credited in view of the fact that he had put on sunglasses. After passing Link without recognizing him, what then prompted Lewis "ail at once" to "swing around" and go back to Link! Such admitted conduct on Lewis' part is more consistent with his version of how the encounter started. I am convinced and find that Lewis turned around and came back to Link because of something which Link said as he passed by. Upon consideration of all the foregoing and the demeanor of Link, Lewis, and Hoch, I credit Lewis' version of the origin and cause of the encounter and find that Link provoked and incited the assault by his obsence and vulgar remarks to Lewis and that the entire controversy was one solely of a personal nature. I will accordingly recommend the dismissal of the allegation concerning this incident. B. Incident involving Shop Steward Jenkins and Pond at Anheuser-Busch John Jenkins has been shop steward over the lager cellars at Anheuser-Busch where Pond is also employed. About 9:30 a.m. on April 23, 1962, Jenkins encoun- tered Pond at the plant. An argument ensued during which Jenkins called Pond names and with his open hand either pushed or slapped Pond. The General Counsel contends that Jenkins' attack on Pond was encouraged and incited by the conduct and statements of Lewis, particularly at the January 1962 meeting, because of Pond's activities with Link in opposition to Local 6. Respondents contend that Jenkins' conduct was prompted and motivated solely by a report that Pond had accused him of stealing some of his clothes from the dressing room and that the controversy was entirely of a personal nature. The employees do not have lockers. They hang their street and work clothes on open racks in the dressing room. All witnesses admitted that the stealing of clothes out of the dressing room was a common occurrence. Pond testified, in substance, that when Jenkins encountered him on the morning of April 23, Jenkins first accused Pond of talking about him, cursed and called Pond vile names, slapped Pond's face with his open hand, accused Pond of being a troublemaker and no good to the Union, stated that someone had been to Jenkins' home about Pond's claim of loss of clothing while Jenkins' wife was ill, and threatened to kill Pond if anyone came to his house again Jenkins testified that he had worked the midnight shift that day and had stayed over in the morning to wait for the brewmaster to arrive, that while he was waiting he met employees Landreth and Kastner who stated that they had just over- heard Pond remark in the dressing room that Jenkins had probably stolen his (Pond's) clothes, that as he was leaving about 9:30 he ran into Pond, that he asked Pond what the idea was of making remarks that Jenkins had something to do with stealing Pond's clothes, that during the encounter he shouted at Pond, using some uncompli- mentary words, and pushed Pond on the shoulder with his open hand. Jenkins specifically denied having made the other statements attributed to him by Pond. Employees Landreth and Kastner testified for the Respondents in support of Jenkins' version. They both worked on the midnight shifts and were in the dressing room between 7:30 and 8 am that morning changing into their street clothes. Pond worked on the morning shift and would be in the same dressing room for the purpose of changing into his work clothes. Landreth and Kastner testified that during the change of shifts that morning they heard and saw Pond in the dressing room complaining about some of his clothes being stolen and remarking that Jenkins probably stole them, that on their way out of the plant they ran into Jenkins, and that they told him about Pond's accusation. Pond admitted that he had had clothes stolen from the dressing room on four prior occasions. He also admitted that on the morning in question he noticed that his clothes were gone from his rack. He testified that he said, "Damn it, some son of a bitch took my clothes again," and that he reported the theft to Shop Steward Valentine and to the foreman. He denied accusing Jenkins or even mentioning his name. Here, as in the case of Link, there is no convincing basis for concluding that Jenkins' conduct on the morning of April 23 was in reprisal for Pond's activities in opposition to the Union or was inspired or encouraged or incited by Lewis' statements or conduct at previous union meetings. Like Link, Pond had engaged in no activities in opposition to the local since the mailing of the letter to union members in 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 1961 , criticizing the handling of funds in the benevolent association. I have previously found that at the January 1962 meeting, Lewis did not make state- ments to the membership , encouraging or inviting them to visit physical harm on Pond and Link. Pond's admission that the first thing Jenkins said to him was that Pond had been talking about him, is consistent with Jenkins ' version and is one of the factors tipping the scale in his direction . Also significant is Pond's ad- mission that Jenkins did mention something about Pond 's claim of loss of clothing, although according to Pond it was in a different context . The General Counsel argues in his brief that he is sure that "many things are said in this dressing room on the 30 or 40 occasions annually when clothes are missing" without provoking "an incident similar to what occurred to Pond ." But, as Jenkins himself testified, while there was nothing unusual about an employee complaining about his clothes being stolen, it was unusual for anyone to accuse Jenkins of stealing. Upon consideration of all the foregoing, the fact that I have already previously discredited Pond , and the demeanor of the witnesses who testified on this issue, I am convinced and find that Pond did remark that Jenkins probably stole his clothes, or words to that effect, that Landreth and Kastner overhead him and reported the accusation to Jenkins , that whatever Jenkins may have said or done to Pond was prompted and solely motivated by the report of this accusation , and that the con- troversy was one entirely of a personal nature. I will accordingly recommend the dismissal of the allegation concerning this incident. CONCLUSIONS OF LAW 1. Brewers and Maltsters Local Union No. 6, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. Robert Lewis is an agent of the aforesaid labor organization within the meaning of Sections 2(13) and 8 (b) of the Act. 3. Respondents , Local Union No. 6 and Robert Lewis, have not engaged in conduct violative of Section 8(b) (1) (A) of the Act, as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. Osceola Farms Co. and United Packinghouse, Food and Allied Workers, AFL-CIO. Cases Nos. 12-CA-2404 and 12-CA-2439. March 13, 1963 DECISION AND ORDER On January 2, 1963, Trial Examiner A. Norman Somers 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 in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its power in connection with these cases to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 141 NLRB No. 41.